Rejection of “Prosecution of Choi Kang-wook” 3 times… Lee Seong-yoon’s protest in the judgment

January 23, 2020 at 9:30am. It is the time when a complaint of the Open Democratic Party’s representative Choi Kang-wook (the then secretary of the Cheong Wa Dae’s public service discipline) was filed with the court. Even in the short period of 30 minutes just before the prosecution on the same day, the’instructions’ and’objections’ of Prosecutor General Yoon Seok-yeol and Seoul Central District Prosecutors’ Office Lee Seong-yoon clashed over the prosecution of CEO Choi.

Prosecutor Lee Seong-yoon complained, saying, “A suspect investigation is necessary,” despite repeated orders from the prosecutor’s chief. At that time, was the prosecutor’s protest legal and justified?

Choi’s sentence, which was convicted of two years probation in August of imprisonment for obstructing work on the 28th, contained in detail the last minute behind the prosecution on January 23rd last year.

Representative Choi has argued that the prosecution proceeding against him in the trial is a prosecution against the principle of due process for violating the Prosecutors’ Office Act, and that it is a’prosecution coup’. The court raised the hand of President Yoon, stating that “there was no violation of due process in the prosecution of CEO Choi,” containing the circumstances ahead of the prosecution on the 23rd in chronological order.

The factual relationship recognized by the court is largely based on two things. First, it is the’Prosecutor’s Office Report’ that the Ministry of Justice responded to the request for fact inquiry from the court. This report was submitted by the Seoul Central District Prosecutor’s Office to the Ministry of Justice, describing the progress of the prosecution for CEO Choi.

The other is the content submitted to the court by the investigative team prosecutors who directly participated in the trial. Prosecutors of the investigation team argued that the reply from the Ministry of Justice’s report to the prosecution’s office was “a one-sided excerpt of the reporting process.” The court decided that “the prosecution was legitimate” by putting the two contents side-by-side in the body of the judgment and in the footnote.

January 22, 2020, the day before the prosecution. According to the contents submitted by the Ministry of Justice to the court, President Yoon instructed the District Prosecutor to “prosecute the accused (CEO Choi)’on the day’.” However, Chief Prosecutor Lee made an opinion that it should be supplemented and processed in consideration of the possibility of a summons investigation of Choi and the existence of compatible facts. When the investigation team said, “We have already sent three attendance requests,” Yoon instructed the district prosecutor again, “(Additional summons) has no benefit, so prosecute immediately.”

Prosecutor Lee again refused to order the president and instructed the investigation team to “submit investigation.” The next day, January 23, was the day when the first interim officer at the prosecution at the time of the Justice Minister Choo Mi-ae was scheduled, and the change of the investigation team was in effect. The investigation team said that Choi was in charge on January 9 and prepared for prosecution. However, at the prosecutor’s greeting issued by former Minister Chu on January 13, Prosecutor Sung-yoon Lee was appointed as the new Seoul Central District Prosecutor’s Office. The investigation team decided that it would be appropriate to prosecute after reporting to the new District Prosecutor, and reported the plan to prosecute Lee the next day.

The investigation team claimed, “The district prosecutor who received the report did not express his or her opinion on the subpoena investigation or supplementary investigation. On the 23rd, when it was expected to change the investigation team to an intermediary executive, he suddenly raised the need for a subpoena and delayed the approval.

The investigation team refuted, “Even though he reported that he had to be prosecuted several times afterwards, the prosecutor Lee insisted on the summons investigation, saying,’I will try to arrange the attendance schedule directly through the Ministry of Justice’.” The investigation team is said to have stayed in the office until midnight on the 22nd and waited for the approval of the District Prosecutor’s Office. On the night of the 22nd, Chief Prosecutor Lee delayed the payment, such as talking with someone for a long time or leaving the office and entering again.

In the end, the prosecution against Choi on the morning of the 23rd was made without the approval of the District Prosecutor’s Office, with the command of General Yoon and the decision of the then-third prosecutor. Around 8:55 am on the 23rd, General Yoon instructed the investigation team to “prosecute immediately after the start of business”. Then, at around 9:13, 18 minutes later, Chief Prosecutor Lee sent an internal messenger note with the intent of “reconsidering the reason or justification of the order for prosecution on the day.” Then, 17 minutes later, around 9:30, the investigation team followed the instructions of the president and filed a complaint against Choi.

The court stated that “the prosecutor is a sole agency, and each has the power to conduct prosecution affairs under his own responsibility and to file a prosecution alone.” In the process of filing a prosecution, it is judged that the effect of filing a prosecution cannot be affected unless there are special circumstances solely because of the failure to follow the instructions of the superior or the internal approval procedure.

Article 21 (2) of the Prosecutors’ Office Act stipulates that the prosecutor of the local prosecutor’s office takes over the affairs of the prosecutors’ office and directs and supervises the public officials belonging to it. This means that the District Prosecutor General has the authority and responsibility to direct and supervise the Central District Prosecutors’ Office.

However, Article 12 (2) of the same law also established the authority of the prosecutor general. The prosecutor general is in charge of the affairs of the Supreme Prosecutors’ Office, oversees the affairs of the prosecution, and directs and supervises the public officials of the prosecutor’s office.

The court interpreted the rule, saying, “This regulation does not limit the affairs of the prosecution, which is the subject of general prosecution, to’the affairs of the Supreme Prosecutors’ Office,’ and the subject of command and supervision is not limited to public officials of the Supreme Prosecutors’ Office.” In principle, public officials belonging to the central district prosecutor’s office are also included in the subject of command and supervision by the president. The court made it clear that “even if the prosecutor general directs the prosecutor of the Seoul Central District Prosecutors’ Office or the Central District Prosecutors’ Investigation Team in this case, it cannot be considered a violation of the Prosecutors’ Office Act.”

When Choi claimed that “the right to defend was not guaranteed” for the prosecution’s prosecution without a summons investigation, the court judged that “there was no disadvantage.”

The decisive reason was that CEO Choi himself failed to comply with the prosecution’s request for attendance three times: December 9, 2019, December 16, and January 3, 2020. CEO Choi refused to summon the summons, saying, “Because there is no word’suspect’ and’accident’ in the attendance request form, it is a reference status, so there is no obligation to attend.” He later revealed the reason for refusing to comply with the investigation, saying, “There is only a’handmade’ number on the 3rd attendance request form, but there is no’brother’ number given to the accused suspect, so it does not fit the form of the suspect’s attendance request.”

Accordingly, the court said, “When requesting attendance to a suspect in an investigation case, it cannot be considered that it must go through the preliminary procedure.” They are all the same, and assuming the status of the suspect, such as the right to assist attorneys and the right to refuse statements, the request for attendance was legitimate, and it cannot be considered that the accused was disadvantaged.”

“The Seoul Central District Prosecutor’s Office’s order to withhold the prosecution is due to the necessity of a subpoena. It’s hard to say that I was penalized.”

Reporter Lee Sujeong [email protected]