The two decisions that were saved, the result is the same, but the perspective is different…TKO and the superiority

On the 1st and 24th, Prosecutor General Yoon Seok-yeol, 60, received two decisions from the Seoul Administrative Court within a month. These are the decision to suspend the execution of disposition for exclusion from duty and the decision to suspend the execution of disciplinary disposition. Both decisions have in common that they raised the hand of President Yun. However, if you look at the contents, there are some differences in the views of the judges who look at the subject of the hearing or the role of the prosecutor general. A judge in the metropolitan area said, “If the previous decision was President Yun’s victory over TKO, this decision seems to have tried not to give the feeling of a complete victory for one side.”

First of all, the decision of the two judges is bound to differ in content because the subject of the hearing was different. The first decision made by the 4th administrative division of the Seoul Administrative Court (Presiding Officer Mi-yeon Cho) was made on the 24th of last month, before the prosecutor’s disciplinary committee was held, with Justice Minister Choo Mi-ae’s dismissal from Yoon. In the decision, Judge Cho focused on the concern that it would have a significant impact on the unrecoverable damages, urgent necessity, and public welfare. Several times in the decision, he mentioned that “this case is not a disciplinary action, but excludes the execution of the duties of the president until the time of disciplinary action, so it is not appropriate to examine the existence of grounds for disciplinary action.” There was no reason to cover the specific reasons for disciplinary action or disciplinary procedures that came out at the time of the disciplinary claim.

On the other hand, the decision of the 12th administrative department (presiding judge Hong Soon-wook) is a decision to suspend execution of the disciplinary action already made. It is a story that there was more to weigh. The court, questioning whether it was necessary to stop the effect of the discipline, also heard irreparable damage or the need for an emergency. In addition, the judge said, “When considering the remaining term of office of the president, the suspension of execution may make the judgment of the original case meaningless.” This is the reason for examining the reasons for disciplinary action and the legality of the procedure by holding the interrogation date twice. The court admitted that there was a flaw in the disciplinary procedure by addressing the issue of the quorum of decision in the disciplinary committee evasion procedure. However, President Yoon’s allegations regarding violations of other procedures were not acknowledged, and individual disciplinary grounds were left open for contention, saying, “A hearing in the main bill is necessary.” The incumbent vice-president said, “Since the arguments of both sides were presented more concretely than the previous hearing, it would have been difficult for most of the arguments to be admitted in each argument.”

The two decisions also contain the judge’s thoughts on the role of the prosecutor general. Deputy Judge Cho included an explanation of the relationship between the Attorney General and the Minister of Justice in the earlier decision. The court feared that “if the prosecutor general obeys the power of command and supervision of the Minister of Justice, the independence and political neutrality of prosecutors cannot be maintained.” For this reason, a verification system called the National Assembly Personnel Hearing was established for the appointment of the prosecutor-general, and the two-year term was guaranteed so that if he was appointed through this, he would be able to work with confidence.

The Justice Department wrote, “If the prosecutor general is the subject of suspension of his duties, it must be carried out under more exceptional and strict requirements, and the necessity must be carefully considered so as not to be transferred to the personnel rights of the Minister of Justice to the prosecutor general.” In addition, he said, “There is also a concern that there is a concern that there will be disruptions and confusion in the operation of the entire prosecutor’s office and the performance of the prosecution’s official duties if the execution of the duties for the president is suspended, which is an important public welfare.” In the prosecution’s organization, the president plays a role in preventing the prosecutor from being swayed by political drafts, and explains the damages in case the president’s duties are suspended through public welfare.

On the other hand, Deputy Judge Hong decided that irreparable damage would occur when considering the legal status and term of office of the prosecutor general, but this could not be regarded as a damage to the entire prosecution organization or society.

The judge pointed out that “prosecutors under the Prosecutors’ Office Act are representatives of the public interest and are the sole authorities,” and pointed out that the prosecutors do not have the risk of security without impeachment or eligibility procedures. In addition, when the prosecutors disagree with the legitimacy or legitimacy of the supervisor’s command and supervisor, he mentioned the law that allowed them to raise an objection, and expressed the conviction of President Yoon. In the past, it is a quote from Yoon’s comments that he said, “I am not loyal to people,” referring to the fact that the NIS comment investigation team conducted the investigation with confidence. The court said, “The public expects and trusts that the deputy prosecutor or front-line prosecutors acting on behalf of the general prosecutor’s office will perform their duties on the part of the people, not on the side of the prosecutor general or political circles. There is no basis for clarifying that you will wear it,” he wrote. In addition, he rejected the assertion on the part of President Yoon that the disciplinary action undermined the rule of law under the constitution and the independence and neutrality of the prosecution.

A vice-president judge of the Seoul High Court said, “If the second decision (24th) saw that the prosecution would not be shaken by external pressure without the prosecutor general, what would the prosecutor’s office take on the role of the president and the specific damages the president would suffer from suspension? It would have been better if I wrote it.”

Reporter Lee Sujeong [email protected]