대통령 권한의 대행제도에 관한 연구

Abstract

Ever since its birth, Korea has maintained the Presidential Executive

System except for a short period(1960-61). Current Constitution of 1987

provides that the President shall be elected through the popular vote of

the people.

Article 68 provides that a successor shall be elected within sixty days

in case a vacancy occurs in the office of the President. Article 71 provides

that in case the office of the President becomes vacant or the President

becomes unable to discharge his duties, the office shall be acted on his

behalf by the Prime Minister, the Members of the State Council in the

order as provided by the statute. The peculiar feature of the Korean

acting president system is that it does not contemplate a Vice President

elected by the people. The Prime Minister is not elected, but appointed by

the President with the consent of the National Assembly. In this regard,

the system shows critical defects as viewed against the principles of the

democratic legitimacy and the popular sovereignty.

Further difficulty arises by the Constitution's silence as to what to do

and who could raise the issue when the President himself declares his

own disability to discharge the powers and duties of the office but refuses

resignation, or despite his apparent incapacity he refuses resignation.

In this article, the author argues that the current statue on acting

president system is both imperfect and unconstitutional. He concludes

with the suggestion of a constitutional amendment to provide an elected

Vice President. Before reaching this conclusion, the author, for reference,

has carefully studied the American system and experience, including the

ongoing debates on the constitutionality.