As the Constitutional Court is expected to issue a ruling on the impeachment trial of President Yoon Suk-yeol as early as early next month, speculation arises that President Yoon may choose to resign voluntarily before the ruling is announced, a move referred to as "resignation." Additionally, there is growing debate over whether this would be legally feasible.
◇ Is there a scenario for "amnesty after regaining power"?... "Measures must be taken"
The debate over resignation became prominent after conservative commentator Jo Gap-je, who heads "Jo Gap-je TV," noted on YTN Radio on the 14th that "there is a possibility that President Yoon will suddenly announce a resignation statement."
Representative Jo pointed out that the prevailing opinion among legal experts is that the Constitutional Court will decide to impeach with an 8-0 vote, and that the current situation is more favorable than when they considered resignation immediately after the December 3 martial law.
He stated, "Since President Yoon's approval rating is quite high, if he decides to resign, he can create favorable public opinion and shake up the electoral landscape. If it's certain that he will be impeached anyway, he should declare it when he is popular and has some regret to have a dramatic effect."
He also mentioned, "The sympathy that arises from the resignation could work against Lee Jae-myung, the leader of the Democratic Party of Korea, among others."
In fact, various scenarios regarding President Yoon's potential resignation are being discussed through multiple channels within and outside the political arena. The day before (the 13th), President Yoon's side stated during the 8th hearing of the impeachment trial at the Constitutional Court that "if this type of sentiment continues, we will inevitably have to make a significant decision," leading to various speculations about what this "significant decision" entails.
A political source noted, "The rising approval ratings inevitably influence the prospect of an early presidential election, and rumors are circulating that it will be fine to receive amnesty after regaining power."
The possibility of resignation has also surfaced outside of the National Assembly.
Park Jong-hee, a professor at Korea University, wrote on his Facebook on the 12th, "It seems almost impossible that the Constitutional Court will reject the impeachment, and whether it be approval of the impeachment or resignation, considering that a presidential election will take place within 60 days, resignation is a better card for (President Yoon)."
He added, "In the case of resignation, he can maintain the status of a former president, there will be no legal restrictions on future political activities, and it is possible to create a favorable environment for rallying support."
Professor Park further mentioned, "Even if the honor of the presidency is lost due to a future investigation and judgment related to insurrection, it will take a considerable amount of time for the Supreme Court ruling to finalize (approximately 3-4 years), allowing for time, and one can expect amnesty upon regaining power."
In particular, he noted that if President Yoon announces his resignation before the Constitutional Court's ruling, there could be a possibility of the subject of impeachment vanishing due to presidential vacancy and that the court may not be able to announce the ruling due to legal practicality concerns afterward.
Professor Park argued, "There are no detailed provisions regarding the relationship between resignation and impeachment in the current legal framework, and the Constitutional Court and the National Assembly should discuss and come up with measures on how to respond if a resignation is declared just before the ruling."
For now, the Yongsan presidential office has drawn the line on the possibility of resignation, stating that "the very act of exiting midway is not President Yoon's style."
Separately from the resignation possibility, there are recent calls within the People Power Party to prepare for an early presidential election. Although the party has implicitly remained silent about an early presidential election, it cannot only demand that the Constitutional Court "provide ample opportunity for President Yoon to argue" and "conduct a fair trial" without taking any further actions.
A source from the People Power Party said, "While we hope it doesn't come to that, in preparation for the potentiality of approval, we should prepare in whatever way we can even under the radar, and since the ruling from the Constitutional Court is expected in March, even if we can't officially say it out loud, it's time to prepare."
◇ The key is the interpretation of the National Assembly Act... "Not applicable to the president" vs. "No reason to view it differently"
Even if President Yoon chooses to resign, controversies are expected to escalate. Within the legal community, there are suggestions that interpretations of the law regarding whether the president can resign during the impeachment trial could differ.
Currently, there is no clear provision in the constitution regarding this. However, Article 134(2) of the National Assembly Act (Delivery of Indictment and Effects) stipulates that "when the indictment is delivered, the accused person's exercise of authority is suspended, and the appointer cannot accept the resignation of the accused person or dismiss the accused person."
Accordingly, public officials who are the subjects of impeachment cannot voluntarily resign once an indictment is resolved.
The key issue is whether the provisions of the National Assembly Act can also be applied to the president.
Professor Cha Jin-a of Korea University Law School stated, "It is appropriate to view that there are no concretely established regulations for the president, but since there are no explicit provisions, if we only adopt a material interpretation regarding the National Assembly Act, it can be seen that resignation is possible. In simpler terms, isn't it true that the president, being an elected official, does not have an appointing authority?"
However, he added that "on the other hand, there may be arguments that we must not disregard the essence of the National Assembly Act."
He explained, "Public officials who are dismissed face a prohibition on employment in public office within five years and suffer disadvantages such as a reduction in pension benefits, so the intent of the law is to ensure that such disadvantages are not evaded, and if we consider this intent thoroughly, there should be no reason for a different interpretation regarding the president, which seems to be the majority view in the constitutional academic community."
On the other hand, some interpretations suggest that if President Yoon resigns, there would be no grounds to prevent it.
Former Minister Lee Seok-yeon stated, "I personally have confidence in the possibility of impeachment being approved, but from a legal standpoint, I anticipate that interpretations will differ under the current law."
He continued, "If he declares his resignation during the impeachment process, there are no provisions to prevent it. If President Yoon resigns, the impeachment procedures would end; it should be viewed as concluded because the subject of impeachment has disappeared."
However, former Minister Lee expressed concern, stating, "If one uses resignation as a means to evade the disadvantages arising from impeachment, there would be political controversy involved."
Professor Lee In-ho of the Chung-Ang University Law School stated, "This is not a matter that can be applied under the National Assembly Act, and it has to be viewed as a constitutional issue in the case of the president, but there are no related provisions to that effect."
He added, "It is not an easy question to determine whether a president, who is elected and appointed with the trust of the sovereign, can relinquish that position at will."