The issues for and against the unconstitutionality of the special prosecution for fabrication... The president appoints a special prosecutor in his case.

He also recommended a candidate and Lee was selected as the final candidate... “No one can be judged on their own behalf.”

There are concerns about issues with the principle of equality and violation of judicial independence by applying the old law to the investigative power of dispatched prosecutors.

(Seoul = Yonhap News) Reporter Lee Mi-ryeong = Controversy over the unconstitutionality of the so-called ‘Special Prosecution Act on Manipulated Prosecutions’, which is aimed at investigating allegations of fabricated investigations and prosecutions by the Yoon Seok-yeol government prosecution, is intensifying.

The biggest issues are whether it is constitutionally appropriate for President Lee Jae-myung to select a special prosecutor to investigate whether a case related to him was fabricated, and whether granting investigative authority to a special prosecutor dispatched despite the implementation of the revised Criminal Procedure Act, which abolished the investigative authority of prosecutors, is consistent with the principles of due process and equality.

According to the legal community on the 8th, the Special Prosecutor's Office on Manipulation Prosecution Act, which was passed by the National Assembly under the leadership of the Democratic Party of Korea on the 6th, requires the special prosecutor to determine whether cases investigated and indicted by the Yoon Seok-yeol government were fabricated.

If the Democratic Party, the People Power Party, and the Fatherland Innovation Party each recommend one candidate for special prosecutor, President Lee Jae-myung will ultimately appoint one of them.

Of the 12 items subject to investigation listed in the bill, 6 items include incidents related to President Lee.

These include cases of violation of the Public Official Election Act related to the development of Daejang-dong, Wirye New Town, and Baekhyeon-dong, Ssangbangwool remittances to North Korea, and bribes related to Seongnam FC sponsorship.

In this way, it is pointed out that the structure in which the president selects a special prosecutor to verify the investigation and prosecution process of cases related to him on the recommendation of political parties, including the ruling party, violates the constitutional principle of separation of powers.

Kim Dae-hwan, a professor at the Law School of the University of Seoul, criticized, "The principle that 'no one can be the judge of his own trial' is natural justice, which is above the Constitution," and added, "It is extremely contradictory and unconstitutional to appoint a person to investigate one's own case."

Cha Jin-ah, a professor at Korea University Law School, also emphasized, "It is difficult to secure the objectivity and fairness of the special prosecutor's investigation simply by appointing a prosecutor to investigate your case." He also emphasized, "'No one can be a judge of his own case' is a basic principle of justice that is universal around the world."

Regarding the right to recommend and appoint special prosecutors, Choi Seo-won (formerly known as Choi Soon-sil) filed a constitutional petition against the 2016 Special Prosecutor Act on State Affairs, claiming that it was unconstitutional that the ruling Saenuri Party and others were excluded from recommending special prosecutors.

At the time, the Constitutional Court recognized the legislative discretion of the National Assembly in the method of recommending and appointing special prosecutor candidates.

However, as President Park Geun-hye could be the subject of an investigation, he explained that the Special Prosecutor Act did not lose its legitimacy and rationality, saying that the Special Prosecutor Act excluded the ruling party from the recommendation authority based on the judgment that if the ruling party recommended a special prosecutor candidate, there was a risk that the purpose of the special prosecutor system would be undermined due to a conflict of interest.

On the contrary, this special prosecution examines suspicions of abuse of authority by the prosecution who investigated and prosecuted cases related to President Lee.

In addition, there is a view that it is difficult to recognize the legislative discretion of the National Assembly so broadly as the ruling party also has the right to recommend candidates, and President Lee ultimately selects one of the candidates.

As the subject of investigation by the special prosecutor is suspicion of abuse of the prosecution's investigative and public prosecution rights, there is also a counterargument that it is difficult to view the appointment structure as unfair simply because President Lee's case was included in the investigation target.

Lee Heon-hwan, a professor at Ajou University Law School, said, "It may be a political criticism that the president's case is included among the cases suspected of being fabricated, but it is not a legally valid criticism."

Jeong Tae-ho, a professor at Kyung Hee University Law School, also explained that it is difficult to view this as a constitutional issue in that the special prosecutor's investigation is an administrative action, and previous special prosecutors who investigated suspicions surrounding the president were also appointed by the president.

In addition, the Special Prosecutors' Act allows dispatched prosecutors to exercise both investigative and commanding authority.

The revised Criminal Procedure Act that went into effect last month completely abolished the investigative rights of prosecutors in the Public Prosecution Office, but the supplementary provisions of the Special Prosecutor's Act stipulated that "parts related to the investigative and commanding rights regarding the duties of dispatched prosecutors shall follow the regulations prior to the enforcement of the revised Criminal Procedure Act," and only prosecutors dispatched to special prosecutors for fabricated indictments were granted investigative rights as an exception.

Regarding this, it is pointed out that there may be differences in investigative procedures between suspects who are the subject of a special prosecutor's investigation and suspects in general cases, which may violate the principles of equality and due process under the Constitution.

Professor Cha Jin-ah pointed out the possibility of violating the principle of equality, saying, "Suspects in other cases may say, 'I also want to be investigated by a prosecutor with legal expertise,' while on the contrary, a suspect in a special prosecution case may argue, 'The problem is with prosecutors who have both investigative and indictment rights, so why do we have to be investigated by a prosecutor who holds all of them?'" He pointed out the possibility of violating the principle of equality.

On the other hand, Professor Lee Heon-hwan said, "The special law itself is not a problem because it is a legislative discretion (granting investigative authority to dispatched prosecutors)," but pointed out, "There is a possibility that the special law violates the principle of clarity and due process by applying ineffective legal provisions without specifying the relevant provisions."

There are also criticisms that the independence of trials is being violated by allowing special prosecutors to investigate cases that are on trial or have been confirmed.

Professor Kim Dae-hwan said, "It is up to the court to decide whether the indictment was wrong, but creating a separate special prosecutor by bypassing the judiciary without a special opportunity can itself be seen as a challenge to the separation of powers and involvement in the trial."

Professor Cha Jin-ah also said, "Even though the provision for cancellation of the indictment was excluded, if the special prosecutor concludes that it was a fabricated investigation and prosecution, it will put pressure on the court to dismiss the indictment, and if this is not followed, won't it be immediately accused of distorting the law?" He added, "It is difficult to avoid unconstitutionality because it is a direct violation of the independence of the trial."

On the other hand, Professor Jeong Tae-ho said, "We are only considering the appropriateness of exercising the right to investigate and prosecute, and we are not ordering the court to necessarily reflect this." He added, "The argument that it infringes on judicial independence is not correct."