헌법 제84조의 비교헌법사적 해석 : ‘재직 중’과 ‘형사상의 소추’의 의미를 중심으로

초록

Article 84 of the current Constitution of Korea, the Presidential Immunity Clause, provides that the President shall not be charged with a criminal offense during his tenure of office except for insurrection or treason. In the paper, I tried to explain by comparative-historical analyses how long and to what extent the President should be immune from judicial process under this article 84. First, I examined several U.S. Supreme Court decisions such as U.S. v. Nixon (1974), Nixon v. Fitzgerald (1982), Clinton v. Jones (1994), Trump v. Vance (2020), and Trump v. U.S. (2024). Second, I traced the constitution-making history of article 43 section 3 of the Weimar Constitution (1919) and that of article 60 section 4 of the Bonn Basic Law (1949). Third, I made chronological surveys of some related provisions in Chinese constitutional documents from article 76 of the Tiantan Draft Constitution (1913) to article 54 of the Five-five Draft Constitution (1936). Here, I also introduced two significant judicial interpretations about article 52 of the ROC Constitution (1947). Finally, I concentrated on the constitution-making history of the ROK Constitution (1948) and found some clues to interpretate both article 67 of the ROK Constitution (1948) and article 84 of the current Constitution. In conclusion, I maintained that the presidential immunity under article 84 of the current Constitution should not protect the President’s unofficial acts, but it should protect the President not only against criminal prosecutions but against criminal inspections as well.

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