Minister of Justice Choo Mi-ae is announcing the disciplinary request and suspension order against Prosecutor General Yoon Seok-yeol on the afternoon of the 24th at the press room of the Seoul High Prosecutors' Office in Seocho-gu, Seoul.
[Asia Economy Reporter Choi Seok-jin] Attention is focused on what judgment the court will make regarding Prosecutor General Yoon Seok-yeol's application for suspension of execution, which requests the suspension of the effect of Minister of Justice Chu Mi-ae's order to suspend his duties.
Unlike the cancellation lawsuit that carefully examines the illegality of the measures taken by Minister Chu, the nature of the suspension of execution application case, which assesses whether there is an urgent need to prevent irreparable damage caused by the disposition, leaves much discretion to the presiding judge, so various variables are expected to influence the court's decision.
According to the court on the 28th, the Seoul Administrative Court Administrative Division 4 (Chief Judge Cho Mi-yeon), which was assigned the cancellation lawsuit and suspension of execution application filed by Prosecutor General Yoon, will hold a hearing on the suspension of execution application at 11 a.m. on the 30th.
After confirming the positions of both Minister Chu and Prosecutor General Yoon at the hearing, the court will decide whether to suspend the effect of Minister Chu's order to suspend Yoon's duties. It has not yet been decided whether Yoon will appear in court in person to state his position or if only his legal representatives, lawyers Lee Seok-woong and Lee Wan-gyu, will appear.
A conclusion likely on the 30th or by the 1st of next month at the latest
In suspension of execution application cases, since the decision is to determine whether to suspend the effect of the disposition to prevent irreparable damage before the main cancellation lawsuit is concluded, a final decision is usually made within a week.
However, in this case, since Minister Chu has scheduled the disciplinary committee for Prosecutor General Yoon on the 2nd of next month, there is no room to delay for a week.
If dismissal or removal is decided at the disciplinary committee on the 2nd and the president executes it, Yoon's duties to be suspended will no longer exist, making it meaningless for the court to either accept or reject the suspension of execution application, forcing the court to dismiss the case.
Therefore, inside and outside the court, the prevailing view is that the court will make a decision before the disciplinary action against Prosecutor General Yoon is finalized, given that the hearing date was set promptly. The court's decision is expected as early as the hearing day on the 30th or by the 1st of next month before the disciplinary committee convenes.
The key issue is not whether the suspension of duties is appropriate, but whether irreparable damage will occur
Article 23, Paragraph 2 of the Administrative Litigation Act (Suspension of Execution) states, "When a cancellation lawsuit is filed, if it is recognized that there is an urgent need to prevent irreparable damage caused by the disposition or its execution or continuation of procedure, the court where the main case is pending may decide, upon application by a party or ex officio, to suspend all or part of the effect of the disposition or its execution or continuation of procedure (hereinafter referred to as 'suspension of execution')."
Thus, the suspension of execution application under the Administrative Litigation Act requests the suspension of the effect of the disposition until a final conclusion is reached in the cancellation lawsuit seeking to annul the unlawful disposition by the administrative agency.
Therefore, the legality of the disposition contested in the main case does not significantly affect the judgment on whether to accept the suspension of execution application.
The core issue is whether such a disposition causes "irreparable damage" and whether there is an "urgent need to prevent such damage."
In this case, the issue is not whether Minister Chu's disciplinary request and suspension of duties against Prosecutor General Yoon were lawful, but whether Yoon, excluded from his duties until the conclusion of the cancellation lawsuit on the suspension of duties, will suffer irreparable damage, and whether it is necessary to suspend the effect of Minister Chu's order until the lawsuit is concluded to prevent such damage.
Variable affecting the court's decision ① Remaining term of Prosecutor General Yoon
The first consideration is Prosecutor General Yoon's remaining term. His term expires in July next year.
Considering that ordinary trials take more than six months even until the first trial verdict, it is certain that the final judgment on the cancellation lawsuit filed by Yoon will come after his term expires.
If the court dismisses Yoon's suspension of execution application, even if Yoon wins the main cancellation lawsuit later, it is highly likely that his term will have expired, making it impossible for him to perform the duties of Prosecutor General.
It is clear that for Prosecutor General Yoon, being unable to perform his duties for eight months, which is one-third of his two-year term, due to an erroneous suspension order by the minister (assuming Yoon wins the cancellation lawsuit), is a significant loss.
Ironically, Yoon's remaining term can also be an argument for Minister Chu that the suspension of execution application should be dismissed.
In other words, if the court accepts Yoon's application and temporarily suspends the effect of Minister Chu's suspension order, but Yoon loses the main cancellation lawsuit, Yoon will have already completed his term and retired, rendering Minister Chu's suspension order effectively powerless.
Variable affecting the court's decision ② Upcoming disciplinary committee
The upcoming Ministry of Justice disciplinary committee for Prosecutor General Yoon is also an unavoidable consideration for the court handling the suspension of execution application.
It is known that Minister Chu excluded Ministry of Justice officials who opposed the disciplinary request and suspension order from approval, and postponed the Ministry of Justice Inspection Committee, which reportedly includes many external members with negative opinions about her measures, until after the disciplinary committee, showing a somewhat hasty and forceful approach to disciplining and suspending Yoon.
Recently, from ordinary prosecutors to high prosecutors, statements have been issued urging Minister Chu to reconsider, and even progressive civic groups and the Korean Bar Association have expressed that Minister Chu's measures are illegal, unjust, and undermine prosecutorial neutrality, due to procedural issues such as ending inspections without giving the subject a chance to explain and starting disciplinary procedures.
In light of Minister Chu's actions, it is highly likely that the disciplinary committee on the 2nd will decide on severe disciplinary actions such as dismissal or removal.
Under the Prosecutor Disciplinary Act, disciplinary types include dismissal, removal, suspension, salary reduction, and reprimand. If a disciplinary action of salary reduction or higher is decided, the president executes it upon the recommendation of the Minister of Justice.
The disciplinary committee consists of seven members including the chairperson, the minister, and three reserve members.
The expectation of severe disciplinary decisions against Yoon is due to the composition of the disciplinary committee.
Decisions require a majority of the members present, including the chairperson, and the members are composed of the minister, vice minister, two prosecutors appointed by the minister, a lawyer appointed by the minister, a law professor appointed by the minister, and a person with abundant knowledge and experience appointed by the minister. The three reserve members are also prosecutors appointed by the minister, so except for the ex officio minister and vice minister, all members are appointed or commissioned by the minister. In effect, all seven members are on the minister's side.
Even if the Seoul Administrative Court suspends the effect of the suspension order before Yoon's disciplinary decision, if the disciplinary committee decides on dismissal or removal, the court's decision will effectively become meaningless.
In that case, Yoon will have no choice but to file another main lawsuit challenging the disciplinary effect and apply again for suspension of execution to suspend the effect of dismissal or removal.
Therefore, the court must decide whether to suspend the effect of the suspension order while anticipating such developments.
Variable affecting the court's decision ③ Political considerations or political acumen
As mentioned earlier, the court's decision on this suspension of execution application is only the beginning of the legal dispute surrounding Minister Chu's disciplinary request and suspension order against Prosecutor General Yoon.
It can also be seen as a preliminary battle before the cancellation lawsuit and suspension of execution application against the disciplinary action.
However, despite not being the court's final judgment on Minister Chu's measures, the significance of this decision is not small.
If the court decides to suspend the effect of Minister Chu's suspension order before the disciplinary committee, Yoon will immediately return to his duties, and the effect of the disciplinary committee's decision will inevitably be weakened.
Yoon is expected to take legal action if the discipline is executed, and when applying for suspension of execution against the disciplinary action, it is highly likely to be accepted for reasons similar to this case.
Furthermore, this court decision is significant as the first direct judicial judgment on the ongoing conflict between Minister Chu and Prosecutor General Yoon since his appointment.
Above all, from Minister Chu's perspective, who has repeatedly attacked Yoon through investigation directives and inspection orders, the damage if the suspension of execution application is accepted is expected to be considerable.
Therefore, the court faces a burdensome case.
Especially if the court blocks this suspension of duties, which was effectively approved implicitly by President Moon Jae-in, the repercussions could spread beyond Minister Chu to the entire current administration.
On the other hand, since the majority of active prosecutors and even outside the prosecution overwhelmingly view Minister Chu's measures as illegal and unjust, and public opinion polls also show mostly negative views, maintaining the effect of Minister Chu's order is also a burdensome decision.
Minister Chu defines the "judge surveillance document" as such, while Yoon's side and the prosecution call it a "work reference material." The internal opinion within the court and the perspective of the presiding judge on this "court analysis" document are also expected to indirectly influence the judgment on whether to maintain the effect of Yoon's suspension.
Additionally, since Chief Justice Kim Myung-soo's inauguration, the judiciary has been filled with pro-government judges in key positions such as Supreme Court justices, and judges have been waiting for a chance to retaliate against prosecutors including Yoon while observing the "judicial scandal" investigation, which is unfavorable for Yoon.
Conversely, the fact that most judges make decisions based on law and conscience rather than political considerations, and the recent uncomfortable atmosphere among frontline judges toward the current administration after Democratic Party lawmaker Park Beom-gye repeatedly made outrageous remarks to Supreme Court Justice Cho Jae-yeon, the head of the Court Administration Office, saying "Please save me, sir. Try it once," is unfavorable for Minister Chu.
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