With prosecutors and police intensifying their investigations, concerns are mounting over how state affairs would be managed if President Yoon Suk-yeol were arrested and detained as a suspect. While the Constitution permits criminal prosecution of a sitting president only for charges of rebellion or treason, no incumbent president has ever been formally investigated or indicted, leaving the country without precedent for such a scenario.
The Constitution stipulates that “in the event of a vacancy in the presidency, a successor shall be elected within 60 days.” Legal experts generally interpret “vacancy” to apply exclusively to instances where a president is removed from office, dies, or resigns. Detention alone, they argue, does not meet the criteria for a vacancy, meaning that even if President Yoon were arrested, a presidential election within 60 days would not be required.
Cha Jin-ah, a professor at Korea University School of Law, explained, “Under the Constitution, a vacancy arises when the presidency is permanently unoccupied, or there is no possibility of return. Temporary situations, such as detention or arrest, do not qualify.” Similarly, Kim Seon-taek, another law professor at the same university, stated, “A vacancy refers to the president’s physical absence due to events such as death. Detention would only create a vacancy if a guilty verdict were confirmed, resulting in the loss of the presidency and public office.”
If a president were detained, most constitutional scholars contend this would amount to an inability to perform presidential duties—a state defined in the Constitution as “incapacity.” In such cases, the president’s powers would be suspended, and the prime minister or another designated official would assume the role of acting president. The Constitution specifies that “when the president is unable to perform duties due to incapacity, the prime minister or another designated official shall act in their place.” This provision covers situations such as illness, recuperation, overseas travel, or suspension during impeachment proceedings.
Roh Hee-beom, a lawyer and former Rapporteur Judge, commented, “A president must exercise constitutional authority on critical national matters, which cannot be done from a detention facility. If arrested, the situation should be treated as incapacity, necessitating the delegation of authority to an acting official.” A former Constitutional Court judge concurred, asking, “How could a president charged with crimes like treason manage state affairs from a detention center? This would clearly render them incapable of performing their duties.” In 2011, the Constitutional Court upheld provisions in the Local Government Act allowing deputy officials to act as heads of local governments when governors or mayors are detained or indicted.
There are also considerations about scenarios where President Yoon might be released on bail after detention. Cha noted, “If the president is arrested or detained, authority should be delegated to an acting official. However, if the president is released on bail, the state of incapacity would end, and he could resume his presidential duties.”
However, dissenting views exist. Some argue that detention alone should not incapacitate a president, allowing them to continue their duties. Lee Ho-sun, a professor of law at Kookmin University and former vice president of the Korean Constitutional Law Association, stated, “Suspending presidential authority solely due to detention contradicts the presumption of innocence. Until a final verdict confirms guilt, arrest or detention alone should not lead to suspension of duties or the appointment of an acting president.”
Even if authority were delegated to the prime minister or another official, constitutional experts agree their role would likely be limited to routine administrative tasks. Key presidential powers, such as vetoing legislation, signing treaties, meeting foreign leaders, and issuing emergency decrees, would remain outside the scope of an acting president’s authority.
