'Rebellion Special Prosecutor Act Unconstitutional' Claim by Yoon's Side: Constitutional Appeal Heads to Constitutional Court for Judgment

Constitutional Court to Refer to Formal Trial After Review... Yoon's Side Claims "Legislature Interfering with Investigative Authority, Undermining Separation of Powers"

Applied for "Referral for Constitutional Adjudication" to Courts Hearing Cases: Attempting to Neutralize Special Prosecutor Act and Trials Through All Legal Means

Yoon Suk-yeol [Photographed by Ahn Jeong-won] May 15, 2019 [Photographed by Im Hwa-young] January 21, 2025

The constitutional appeal filed by former President Yoon Suk-yeol's side, claiming the 'Rebellion Special Prosecutor Act' is unconstitutional, will receive a formal judgment from the Constitutional Court.

According to legal circles on the 24th, the Constitutional Court referred the constitutional appeal filed by former President Yoon's side, "Declaration of Unconstitutionality of Article 2, Paragraph 1, etc., of the Rebellion Special Prosecutor Act," to a formal trial on the previous day.

Under the Constitutional Court Act, the Constitutional Court determines whether a constitutional appeal meets the legal requirements through a designated panel composed of three justices. If the designated panel deems there are no legal defects, it is referred to the full court, deliberated by nine justices.

On the 8th, former President Yoon's side applied to the court for a referral for constitutional adjudication of the Rebellion Special Prosecutor Act and, separately, filed a constitutional appeal with the Constitutional Court.

Former President Yoon's side argued, "The current Special Prosecutor Act fundamentally undermines the principle of separation of powers by allowing the legislature to directly interfere with the investigative authority, an inherent power of the executive branch, by appointing a special prosecutor while excluding a specific political party and designating the scope and target of the investigation."

They further stated, "It stipulates that warrants from a judge regarding searches and seizures can be excluded with the consent of three-fifths or more of the National Assembly members, which invalidates the fundamental rights guaranteed by Article 12 of the Constitution solely through legislative resolution and directly violates the fundamental constitutional principle for guaranteeing personal liberty."

Furthermore, regarding the provision of the Special Prosecutor Act that allows for the transfer of ongoing trials for the purpose of maintaining prosecution, they argued it constitutes "improper interference with judicial proceedings."

The application for referral for constitutional adjudication separately filed by former President Yoon's side with the rebellion case trial division of the Seoul Central District Court has not yet had a decision made on whether it will be accepted.

It is interpreted that former President Yoon's side, who is on trial for rebellion charges, is attempting to halt prosecution by the special prosecutor in their own trial, where the maximum penalty can be imposed, by requesting a constitutional adjudication from the court, while simultaneously trying to neutralize the law itself by filing a constitutional appeal directly with the Constitutional Court.

A referral for constitutional adjudication is a system where, if the constitutionality of a law becomes a prerequisite for a trial, the court, ex officio or upon the application of a party, refers the matter for constitutional adjudication to the Constitutional Court.

If the court decides to refer for constitutional adjudication, the Constitutional Court will accept it and proceed with the adjudication process, and the trial will be suspended until the Constitutional Court makes a decision on the constitutionality.

A constitutional appeal is a means to raise an issue directly, regardless of the trial proceedings, and to more fundamentally assess the defects of the law itself. Yonhap News