Special prosecutor on manipulation indictment, concerned about infinite expansion of investigation due to ambiguous expressions... There is even a spark to cancel the indictment

(Seoul = Yonhap News) Reporter Hwang Jae-ha and Lee Seung-yeon = Conflict is expected to continue as the Special Prosecution Act on Manipulated Prosecutions, which was passed in the plenary session of the National Assembly on the 6th under the leadership of the Democratic Party of Korea, sets the scope of investigation too broadly and does not completely rule out the possibility of cancellation of the indictment, which was the biggest controversy.

In the legal world, there are concerns that the subject of the investigation could be interpreted too broadly due to the ambiguous wording of the 'Act on the Appointment of Special Prosecutors to Find the Truth in Fraudulent Investigations and Prosecution of State Agencies, such as the Prosecutor's Office of the Yoon Seok-yeol regime, the National Intelligence Service, and the Board of Audit and Inspection.'

In relation to a total of 12 incidents, including Ssangbangwool's remittances to North Korea and corruption in the development of Daejang-dong and Baekhyeon-dong, the bill sets the target of investigation as 'criminal cases in which large-scale prosecutorial personnel were intensively mobilized over a long period of time to achieve the purpose of eliminating the opposition party leader, or otherwise abused the prosecutor's power, unlike in normal cases.'

Ki Woo-jong, Deputy Director of the National Court Administration, expressed concern about the contents of the bill at the first subcommittee meeting of the Legislation and Judiciary Committee of the National Assembly held on the 4th.

Deputy Director Ki expressed the opinion, “The somewhat abstract parts, such as ‘removal, etc.’, ‘long-term,’ ‘large-scale,’ and ‘concentration’ that may be subject to dispute during the actual trial are somewhat abstract and need to be clearly organized.”

Choi Gi-do, an expert member of the Legislative and Judiciary Committee, also pointed out in this regard, “There is a need to discuss the appropriateness of expressions such as ‘long-term, unlike normal cases’ and ‘on a large scale.’”

It is pointed out that the bill does not clearly specify how many people should be deployed and for how long an investigation should be conducted for it to be considered an abuse of prosecutorial power, and that it ultimately opens the door to expanding the scope of the investigation based on the special prosecutor's arbitrary interpretation.

Despite these comments, the bill was passed as is without modifying the text.

Legal experts also point out that there is a possibility that the contents of the bill may flow inappropriately as it is tantamount to starting an investigation after already concluding that it is a fabricated indictment.

A deputy chief prosecutor at the Public Prosecution Office in the metropolitan area said, "In the past, the prosecution was criticized as a 'dust-up investigation' in which it continued to investigate a separate case if no charges were found. However, since the Special Prosecution Act has already concluded that it was a fabricated indictment, the special prosecution will investigate until charges are found, just like the prosecution in the past."

Han Sang-hee, a professor at Konkuk University Law School, also said, “The text of the investigation target is very comprehensive,” and added, “Even if the special prosecutor team determines that there has been abuse of prosecution rights, there is a need to establish standards for judging the severity.”

Aside from the vagueness of the provisions, it is also controversial that the number of cases subject to investigation has expanded significantly compared to the original proposal.

At first glance, there appears to be no difference between the motion submitted last April and the amendment submitted to the plenary session, dividing the items subject to investigation into a total of 12 cases, but in reality, the number of subjects of investigation has increased significantly.

Instead of subdividing each item and grouping the Daejang-dong, Wirye New Town, and Baekhyeon-dong development corruption cases, which were three items in total, into one item, three items were added: bribery related to the employment of former President Moon Jae-in's son-in-law, manipulation of the economic feasibility of Wolseong Nuclear Power Plant Unit 1, and THAAD (Terminal High Altitude Area Defense) confidential information leak case.

In addition, it has become possible to investigate cases such as the East Sea sailor repatriation incident to North Korea by adding phrases to existing items or changing them to comprehensive expressions.

The ‘misuse of the right to public prosecution’ that needs to be investigated has become concrete.

It was specified to investigate cases such as selection and omission of evidence, submission of false opinions, split prosecution, and forced prosecution in situations where there is no or insufficient evidence.

It is pointed out that the scope of the special prosecution team's media briefings has also expanded compared to other special prosecutions.

The briefing target phrase, which was 'investigative process other than the facts of the suspect' in the three special prosecutors (insurrection, Kim Kun-hee, Marine), comprehensive special prosecutor, and National Election Commission special prosecutor, was expanded to 'investigative process' in the special prosecution bill on fabricated indictments.

Unlike the existing Special Prosecution Act, which prohibits the publication of the suspect's charges, the relevant phrase has been deleted in the special prosecution case for fabricated indictments, raising concerns that it has virtually become possible to 'publicize the suspect's facts.'

The cancellation of the indictment in President Lee Jae-myung's criminal trial, which was initially the biggest concern in the legal community, was not explicitly included in this bill due to the backlash of public opinion, but it is pointed out that depending on the interpretation, the possibility of the indictment cannot be ruled out.

The revised Criminal Prosecution Act, which went into effect on the 2nd of last month, added indictments based on serious illegal investigations and indictments that significantly deviated from prosecutorial discretion to the grounds for dismissal of indictments.

Professor Han said, "Under the new Criminal Procedure Act, if a person is indicted due to a serious illegal investigation, the indictment must be dismissed. In other words, it is in line with the saying that the prosecutor must cancel the indictment before the judge dismisses the indictment."

Expert Choi Gi-do pointed out, "If it is judged that it is inconsistent with judicial fairness for a special prosecutor appointed by the President to have the authority to cancel indictments in a case in which the President is a defendant, there is a need to discuss ways to explicitly exclude the prosecutor's right to cancel indictments from the scope of application of the Criminal Justice Act."

Even if it does not result in the indictment being dropped, the special prosecutor's investigation may have a direct or indirect impact on the ongoing trial of President Lee's criminal case.

Since there is a clause (plea bargain) that reduces the punishment of those who cooperate with the investigation, there is a possibility that those involved in President Lee's case will overturn their existing statements.

It is also pointed out that the criminal procedure law before the amendment was revived to allow dispatched prosecutors to carry out investigative activities.

The Special Prosecutor's Office Act, through its supplementary provisions, stipulates that 'when applying the Criminal Procedure Act to the duties of dispatched prosecutors, the parts related to investigative authority and command authority shall follow the regulations before the enforcement of the amendment to the Criminal Procedure Act.'

Although the investigative right of prosecutors was eliminated through the revision of the Criminal Procedure Act, the purpose is to recognize the investigative right as an exception only for prosecutors dispatched to the special prosecution for fabricated indictments.

Changhyun Lee, a professor at Hankuk University of Foreign Studies Law School, said, “This is like admitting that the principle of separation of investigation and prosecution has failed.”

Aside from these concerns, it has also been pointed out that since the special prosecution law on fabrication of indictments has not been carefully crafted, those who have been investigated by prosecutors in the past, including President Lee Jae-myung, are also targets of this special prosecution's investigation.

This is a special investigation led by the ruling party, but an odd situation could be created in which President Lee Jae-myung becomes the target of the investigation.

At the bill review meeting, Representative Joo Jin-woo said, "If we investigate the data related to the case, all the people who were investigated will also become targets of investigation," and asked, "Isn't President Lee Jae-myung, who received the most investigation, also a target of the special prosecutor's investigation?"

In response to this, Acting Minister of Justice Lee Jin-soo responded, "If you look at the current form of the Special Prosecution Act's regulations, it is difficult to say that it is excluded."

When a ruling party member asked why he answered like that, Acting Director Lee said, "The purpose was that there is no stipulated rule on whether the incumbent president can be considered completely excluded because there is no stipulated rule excluding a specific person or a certain status."