단상斷想

Oh Se-hoon's Acquittal in Second Trial and Militant Democracy
In the case of Seoul Mayor Oh Se-hoon, who was indicted on charges of violating the Political Funds Act for allegedly having Myung Tae-kyun pay for his opinion poll expenses, the appellate court overturned the first trial's fine of 10 million won and acquitted him. The court ruled that the only direct evidence for the key issues was Myung Tae-kyun's testimony, and that his testimony was difficult to believe. With the same recording and the same testimony, the first trial found him guilty, while the second trial acquitted him. The same court also overturned the first trial's prison sentence and acquitted former President Yoon Seok-yeol in the case of Myung Tae-kyun's free provision of opinion polls on the 7th of this month. It is natural for citizens to be puzzled. This is because the circumstances that Mayor Oh's side met with Myung several times, that the opinion poll results were shared with the camp, and that a sponsor paid the costs were not denied even in court.

Of course, 'proof beyond a reasonable doubt' is a fundamental principle of criminal trials, and since the special prosecutor has appealed, the final decision rests with the Supreme Court. However, public trust in a ruling is not solely based on legal principles. We must also consider the context in which the judiciary currently stands.

Another Stalled Case
The 7th Criminal Division of the Seoul High Court is also the court handling President Lee Jae-myung's remanded appeal in the case of violating the Public Official Election Act. In May 2025, the Supreme Court en banc returned the case with a guilty verdict just nine days after it was referred. This was one month before the presidential election. This case is currently stalled with the date 'to be designated later' due to the President's immunity from prosecution under Article 84 of the Constitution. The problem is that this suspension is not legally fixed but depends on the court's judgment. If the court interprets 'prosecution' in Article 84 of the Constitution as limited only to the initiation of a public prosecution and resumes the trial, the possibility of a sitting president being sentenced to a disqualifying penalty cannot be theoretically ruled out. That would not be a simple criminal trial but a constitutional crisis where the court overturns a decision made by the people through an election.

I do not presume to determine the political leanings of Chief Judge Koo Hoe-geun. However, when rulings that are difficult to accept based on common sense occur consecutively in politically sensitive cases, it cannot be dismissed as mere apprehension that citizens interpret this as a prelude to a larger upcoming event. The judiciary has a responsibility to alleviate that anxiety.

Why was the separation of powers established?
The separation of powers is not a principle that fell from the sky. Its roots lie in the mixed constitution of the Roman Republic, where consuls, the Senate, and popular assemblies checked each other. In modern times, Locke and Montesquieu formalized this into a functional separation of legislative, executive, and judicial powers, and the U.S. Constitution first institutionalized it in 1787. The French Revolution enshrined the principle that 'a society in which the separation of powers is not guaranteed has no constitution' in the Declaration of the Rights of Man, making it common sense in European democracy. However, Tocqueville, who wrote about American democracy, left an important message for posterity regarding the separation of powers. The power elected by the people is paramount. Tocqueville ranked powers as 1) legislature, 2) executive, and 3) judiciary, stating that the judiciary should not get entangled in political issues and should avoid or take a passive stance on politically sensitive matters. He basically pointed out that the judiciary is a bureaucratic group. What the history of democratic separation of powers clearly tells us is this: the purpose of the separation of powers is to prevent any one institution from dominating and to protect the freedom of the people, who are the sovereign. Judicial independence is also a means to that end. If the judiciary uses independence as a shield to isolate itself from the will of the people and makes political decisions, it becomes another form of unchecked power that goes against the spirit of the separation of powers.

Democracy also collapses through procedures.
It is well known that the Nazis seized power through legitimate elections and parliamentary procedures. The German constitutional scholar Karl Loewenstein was the first to systematically articulate this as a structural vulnerability of democracy. A Jewish constitutional scholar who studied in Max Weber's seminar, he went into exile in the United States in 1933 and introduced the concept of 'militant democracy' in 1937. This concept argues that democracy should not be defenseless against enemies who exploit its tolerance and procedures. The time has come for us to reflect on whether we have been too lenient with the far-right judiciary, including Jo Hee-dae.

Loewenstein viewed the constitution as a product of the political process. In his book, 'Constitutional Theory,' he divided constitutions into normative constitutions, which actually regulate power; nominal constitutions, which exist only on paper; and ornamental constitutions, which merely adorn the rule of those in power. He warned that even if constitutional provisions are the same, if the institutions operating them harbor a will to power, the constitution can easily degenerate into mere ornamentation. His insight became the spirit of the German Basic Law, which includes provisions for the dissolution of political parties and the loss of fundamental rights. Loewenstein also analyzed Nazism as a kind of 'political religion.' When anti-liberalism and anti-parliamentarianism combine with a mystical narrative of salvation, politics becomes a realm of faith rather than rational debate. Excluding romantic nationalism, the certainty and habit of legal-technical abuse of institutions shown by the far-right in Korea today bear a resemblance to this.

The lesson of defensive democracy is that the enemies of democracy are not necessarily only on the streets. Attempts to nullify the decisions of the people, disguised in the guise of procedure, can also appear within institutions that are supposed to uphold the constitutional order.

Judicial independence and judicial accountability must go hand in hand.
Judicial independence is a request for judges to make decisions according to law and conscience without being swayed by anyone, not a privilege where no judgment can be criticized. Independence must be accompanied by responsibility, and the Constitution has established the National Assembly's power to impeach as a mechanism to hold that responsibility. After the unusually rapid pace of appointments in May 2025, the judiciary under Chief Justice Cho Hee-dae has failed to resolve questions about its political neutrality. The renewed calls for the impeachment of the Chief Justice from the Democratic Party and the Rebuilding Korea Party, following this ruling, are an expression of that accumulated distrust. Restoring judicial justice has now become a task that the National Assembly cannot ignore.

However, that path must be walked with broad public support. If impeachment is pursued solely out of anger over individual rulings, the opposing camp will define it as 'the legislature taming the judiciary,' and the logic of defensive democracy will be turned right back against us. To discuss impeachment, we must prove procedural issues such as case assignment, trial speed, and the operation of the full bench with specific facts, rather than just the conclusion of the ruling, and simultaneously propose institutional reforms such as diversifying the composition of the Supreme Court and expanding the disclosure of rulings. Therefore, we must tactically pay close attention to the details when deciding on impeachment. Even if it's a short time, we must expose the corruption of the Cho Hee-dae judiciary to the public before proceeding with impeachment.

A beacon is a signal to be vigilant.
It is still too early to conclude whether the Oh Se-hoon appellate ruling is the prelude to a constitutional crisis originating from the judiciary, or merely the application of strict principles of proof. However, the fact that the judiciary, which holds the trials of the incumbent president, is repeatedly issuing conclusions far from common sense in politically sensitive cases, is itself a signal that a democratic republic must be wary of.

As Loewenstein warned, democracy collapses more quietly through procedures than through guns and swords. To prevent decisions made by the people through elections from being overturned in court, the National Assembly and civil society must be vigilant from now on. The judiciary, too, must ask itself for whom its independence is granted.