The appeals court said, “It is legal to have different prosecutors for investigation and prosecution”… 강용석 '공소기각' 파기환송

(Suwon = Yonhap News) Reporter Kwon Jun-woo = Attorney Kang Yong-seok, who was indicted on charges of using political donations for personal purposes ahead of the June 1, 2022 local elections, and had the indictment dismissed in the first trial, had the original trial ruling overturned in the appeals court, and will be tried again in the first trial.

On the 21st, the Suwon District Court's Criminal Appeal Division 7 (Chief Judge Lee Mi-joo) overturned the original trial's decision to dismiss the indictment against Attorney Kang, who was indicted on charges of violating the Political Fund Act, and remanded the case to the Suwon District Court's sole court.

Attorney Kang was put on trial on charges of transferring 550 million won in donations to a company run by his brother-in-law and using it for personal purposes in May 2022, when he was running in the Gyeonggi Province gubernatorial election.

Previously, the first trial court cited the Prosecutor's Office Act provision that "the prosecutor who initiated the investigation cannot file an indictment," and sentenced the indictment to be dismissed, saying, "This case, where the same prosecutor handled the investigation and indictment, is invalid because the indictment itself is illegal."

However, the judgment of the appellate court was different.

The appellate court premised, “According to the Supreme Court precedent, in law, ‘the prosecutor who initiated the investigation’ means the primary investigative prosecutor who first initiated the investigation.” He continued, "In this case, the investigation was initiated under the direction of the investigator from the prosecutor in charge, and later, another prosecutor who was reassigned the case filed the indictment, so it does not constitute a violation of the Prosecutor's Office Act," and ruled that there was a misunderstanding of the law in the original trial.

Attorney Kang's side argued for 'double indictment' as another basis for the indictment itself to be invalid during the appeal process, but this was also rejected.

Separately from this case, Attorney Kang was first indicted on charges of illegally paying some of the money transferred to the company at the time to election campaign officials (violation of the Public Official Election Act), and was sentenced to 1 year and 6 months in prison and 3 years probation.

In response to this, Attorney Kang argued that the facts of the two cases were the same and thus constituted a double indictment.

Regarding this, the court dismissed this, saying, "Because the conviction for the related violation of the Public Official Election Act has already been confirmed, even if the future effect of the final judgment is determined and whether the case is subject to exemption (exemption from judicial judgment) is judged separately, it does not constitute a double indictment in legal terms."

Accordingly, the case of Attorney Kang's violation of the Political Fund Act, which had not been heard on the merits of guilt or innocence due to procedural defects, returned to the first trial court and began trial proceedings again.