Special prosecutor on fabricated indictment unable to shake suspicion over ‘procedure for indictment cancellation’… Looking at the controversial provisions (comprehensive)

The so-called 'Special Prosecution Act on Manipulated Prosecutions' will soon be implemented to investigate suspicions of fabricated investigations and prosecutions by prosecutors under the Yoon Seok-yeol government, including the case of President Lee Jae-myung.

The special prosecution team is expected to be launched next month and begin an investigation to determine whether a total of 12 cases investigated and indicted by the Yoon Seok-yeol government were fabricated.

The investigation period is up to 200 days, including 20 days of preparation.

The Democratic Party of Korea's position is that there is no problem by deleting the 'prosecution cancellation clause' from the existing bill proposed in April of this year, but there is great concern in the legal community that it still has the potential to be unconstitutional and illegal.

◇ A special prosecutor appointed by the president inherits the prosecutor’s ‘right to cancel indictment’

Of the 12 cases subject to investigation by the Special Prosecutor's Office, six cases, or half, are cases in which President Lee was indicted and the trial was suspended, including corruption in the development of Daejang-dong, Wirye New Town, and Baekhyeon-dong and suspicion of Ssangbangwool remittances to North Korea.

However, the right to appoint a special prosecutor to investigate this was ultimately given to President Lee Jae-myung.

The Special Prosecutor Act stipulates that the President will select one person from among the candidates recommended by the Democratic Party, the People Power Party, and the Fatherland Innovation Party for final appointment.

Regarding this, some point out that President Lee Jae-myung's appointment of a special prosecutor to verify his investigation and prosecution process is itself a conflict of interest.

This goes against the great principle of the rule of law, which is that ‘no one can be a judge in his own case.’

Moreover, the special prosecutor appointed by President Lee is also given the power to cancel indictments, which is granted to prosecutors under the Criminal Procedure Act.

According to Article 6, Paragraph 7 of the Special Prosecutor Act, the provisions of the Criminal Procedure Act regarding the authority of prosecutors shall be applied mutatis mutandis (applied as a standard) to special prosecutors.

Under the Criminal Procedure Act, the prosecutor may cancel the indictment before the first trial verdict is pronounced.

Regarding this, Choi Gi-do, an expert member of the Legislation and Judiciary Committee of the National Assembly, said, "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 prosecution in a case in which the President is a defendant, there is a need to discuss ways to explicitly exclude the prosecutor's authority to cancel prosecution from the scope of application of the Criminal Procedure Act."

The possibility that the Minister of Justice may exercise investigative command authority over the Prosecutor General based on the results of the special prosecutor's investigation cannot be ruled out.

Candidate Lee Yong-cheol, Minister of Justice, who was appointed on the day the Special Prosecutor Act passed the plenary session of the National Assembly on the 6th, is classified as a member of the 'Seongnam Line' with whom President Lee has had a relationship since his time as mayor of Seongnam.

As he has shared his thoughts with President Lee for a long time, there are concerns raised mainly by the opposition party that if candidate Lee takes office as minister, he will pave the way for the cancellation of the indictment.

◇ If you cooperate with the investigation, your sentence will be reduced… Media briefing target expanded for the first time since Choi Soon-sil's special investigation

There is also a provision that requires that a person who cooperates with the investigation, such as by providing key statements or materials to identify another person's crime, be reduced or exempted from punishment if he or she is punished for his or her own crime.

If defendants indicted in cases related to President Lee reverse their existing statements in the hope of receiving a reduced sentence or exemption, this could also affect the trial.

It is also controversial that, unlike the existing four special prosecutors, including civil war, Kim Kun-hee, fallen marines, and general special prosecutors, the scope of media briefings allowed was expanded to include the 'investigative process' rather than the 'investigative process other than the facts of the suspect'.

Commissioner Choi Gi-do pointed out that this is the first time that the scope of media briefings has been expanded since the Special Prosecution Act on Choi Soon-sil's corruption in state affairs.

Commissioner Choi pointed out, “It is necessary to take into account that eight individual special prosecution laws enacted after the so-called Choi Soon-sil Special Prosecutor Act stipulate that press briefings can only be conducted for ‘investigative processes other than the facts of the suspect.’”

In order to guarantee the public's right to know, a media briefing provision was first created in the Special Prosecutor's Office Act on State Affairs, and the subsequently enacted special prosecutor's office, Druking's special prosecutor's office, special prosecutor's office for the death of Sergeant Lee Ye-ram, civil war, Kim Geon-hee and Chae Sang-byeong's special prosecutor's office, comprehensive special prosecutor's office, and National Election Commission's special prosecutor's office were only allowed to brief on 'investigative processes other than the facts of the suspect'.

Regarding this, criticism is being raised in the legal community that this may in fact have permitted the public announcement of the suspect's facts.

◇ Three months ago, the prosecution’s right to investigate was taken away… ‘Investigative prosecutor’ revived by special prosecutor’s office

As the revised Criminal Procedure Act was passed through the National Assembly under the leadership of the Democratic Party of Korea in July of this year, the investigative authority of prosecutors in the Public Prosecution Service was completely abolished from the 2nd of last month.

However, the Special Prosecution Act applied the previous Criminal Prosecution Act and allowed dispatched prosecutors to exercise investigative and commanding authority.

The special prosecution team can dispatch up to 20 prosecutors.

Whether the records and documents written by them can be used as evidence in the trial is subject to the previous criminal prosecution law, but it is highly likely that disputes will arise over the admissibility of evidence during future trials.

On the 4th, Acting Minister of Justice Lee Jin-soo expressed his position at the Bill Review Subcommittee of the Legislation and Judiciary Committee of the National Assembly, saying, "Given the nature of the special investigation, it is most desirable for prosecutors not to be dispatched. Even if dispatch is unavoidable, it needs to be reduced to less than half of the current size."

Cho Kuk, director of the Cho Kuk Innovation Policy Research Institute of the Cho Kuk Innovation Party, criticized, “Applying an old law that has already lost its effectiveness for a special prosecutor’s investigation raises issues of unconstitutionality and illegality.”

It was also pointed out that special investigators were allowed to designate prosecution lawyers.

The provision that special investigators performing the duties of judicial police officers can ‘maintain prosecution’ does not comply with the criminal procedure law system.

Commissioner Choi Gi-do said, “There is a need for discussion on whether the legal experience, number, and duties of prosecution lawyers, who have the same powers and duties as special prosecutors within the scope of their delegation, should be regulated by law.”

◇ The court is also concerned… “The target of the investigation is unclear and the judge’s authority is violated.”

The court has also voiced concerns about the Special Prosecutor Act, citing the unclear scope of the investigation target.

The Special Prosecutor's Office Act included 'suspicions of abusing prosecutorial power by intensively mobilizing large-scale prosecutorial personnel over a long period of time, unlike normal cases, to achieve objectives such as eliminating opposition party representatives' as the subject of investigation.

Regarding this, Ki Woo-jong, Deputy Director of the National Court Administration, said at the Bill Review Subcommittee, “The terms ‘removal, etc.,’ ‘long-term,’ ‘large-scale,’ and ‘concentration,’ which may be subject to dispute during actual trials, are somewhat abstract and need to be clearly organized.”

Abuse of the power of prosecution, which the judge must judge at the trial, was also specified as a target of investigation, such as 'selection or omission of evidence', 'use of illegally collected evidence', 'submission of opinion with false contents', and 'split prosecution'.

The special prosecutor may request the court to view or copy the trial records, and the presiding judge must permit this unless there are special reasons.

The authority to view presidential records was also relaxed from the approval of more than two-thirds of the registered members or the issuance of a warrant by the Chief Justice of the High Court to the approval of more than three-fifths of the registered members or the issuance of a warrant by the Chief of the District Court.

Public officials who interfere with the special investigation team's investigation of the truth may be requested to take disciplinary action or reprimand from the head of their agency.