[Fact Check] Is It Possible to Dismiss the Prosecutor General by Presidential Decision?

Article 78 of the Constitution, Presidential 'Appointment and Removal Authority' over Public Officials... Prosecutors Have 'Job Security' under the Prosecutors' Office Act, Dismissal or Discharge Requires Disciplinary Procedures

[Asia Economy Reporter Ryu Jeong-min] Is Prosecutor General Yoon Seok-yeol's position dependent on President Moon Jae-in's decision? Voices are emerging in the political sphere calling for President Moon to make a decision to resolve the 'discord' between Justice Minister Choo Mi-ae and Prosecutor General Yoon.

Former lawmaker and 'political elder' Yoo In-tae advised on the 13th during an interview on CBS Radio's 'Kim Hyun-jung's News Show,' saying, "The appointing authority should either mediate so that the two can reconcile and work together again or take personnel measures." The perspective in Yeouido's political circles is similar. It implies that President Moon should make a choice to resolve the issue he initiated.

Considering the reality of Korean politics where presidential power is so strong that it is described as 'imperial,' such views are not unreasonable. In fact, the president's 'appointment and dismissal authority' over public officials is guaranteed by the Constitution.

Tension is mounting at the Supreme Prosecutors' Office in Seocho-gu, Seoul, on the 8th, as Prosecutor General Yoon Seok-yeol's announcement on whether to accept the investigation command regarding the 'alleged collusion between prosecutors and media' case is imminent. On the 7th, Justice Minister Chu Mi-ae once again emphasized that it is inappropriate for Prosecutor General Yoon to lead the investigation into the alleged collusion case and urged him to accept the investigation command. Photo by Kim Hyun-min kimhyun81@

Article 78 of the Constitution stipulates, "The President shall appoint and dismiss public officials in accordance with the Constitution and laws." While the Constitution grants the president the authority to appoint and dismiss public officials, it includes the prerequisite "in accordance with the Constitution and laws."

The status of prosecutors can be confirmed through the Prosecutors' Office Act. According to Articles 6 and 12 of the Prosecutors' Office Act, the ranks of prosecutors are divided into Prosecutor General and prosecutors, and the term of the Prosecutor General is two years. The guarantee of prosecutor status is stipulated in Article 37 of the Prosecutors' Office Act as follows:

"A prosecutor shall not be dismissed except in cases of impeachment or sentencing to imprisonment without prison labor or a heavier punishment, and shall not be subject to dismissal, discharge, suspension, reduction in pay, reprimand, or retirement without disciplinary action or suitability review." This means that the Prosecutor General, whose term is set by law to two years, cannot be removed from office without procedures such as impeachment, sentencing to imprisonment, disciplinary action, or suitability review.

[Image source=Yonhap News]

One might question, "Wasn't there a case when former Prosecutor General Chae Dong-wook stepped down?" but the story changes when looking back at the circumstances. On September 13, 2013, Chae himself announced, "I am deeply sorry to the people for not being able to complete the given term," and voluntarily stepped down.

At that time, when Justice Minister Hwang Kyo-ahn ordered an investigation related to the Prosecutor General's personal life controversy, Chae perceived it as a 'resignation pressure' and resigned on his own accord. Chae's position was not decided by the president suddenly ordering him to step down but was concluded during the disciplinary process.

Constitutional scholars explain that the appointment and dismissal of public officials whose status is guaranteed, such as judges and prosecutors, must strictly follow legal procedures. Professor Han Sang-hee of Konkuk University Law School explained, "Because prosecutors have guaranteed status, dismissal is impossible without disciplinary action," adding, "They can be dismissed upon a resolution by the disciplinary committee under the Prosecutors' Office Act."

Of course, political reality may differ. If stepping down from the Prosecutor General position is the president's will, it is generally concluded reflecting the president's intention. It is difficult to assert that President Moon's decision does not influence Prosecutor General Yoon's position. However, legal procedures must be observed under any circumstances. Therefore, the claim that the Prosecutor General can be dismissed based on the president's decision is judged to be 'generally untrue.'