[Column] Concerns Over the Ruling Rejection by the Ruling Party on Yoon Seok-yeol and Jeong Gyeong-sim

Seokjin Choi, Head of the Legal Team.

[Asia Economy Reporter Choi Seok-jin] Criticism from the ruling party over the court's decision to suspend the disciplinary action against Prosecutor General Yoon Seok-yeol has crossed the line.

Despite the court, considering the importance of the matter, conducting a focused hearing akin to a main trial to examine the specific reasons for the disciplinary action and ruling that the procedure was illegal and therefore null and void, ruling party figures have openly expressed dissatisfaction with the court's decision using harsh expressions such as "judicial overreach" (Lee Nak-yeon, leader of the Democratic Party), "strange sense of chosenness and familiar smell of vested interests" (Im Jong-seok, former presidential chief of staff), and "judicial coup" (Kim Doo-kwan, Democratic Party lawmaker).

Furthermore, remarks like Im's statement, "The court was given the tool and sent on an errand..." or Kim Yong-min, Democratic Party lawmaker's comment, "We will make the court loyal to the people through legislation," and pro-government broadcaster Kim Eo-jun's remark, "A single judge of the administrative court..." reveal a distorted view of the constitutional principle of separation of powers and the role of the judiciary.

In our country, which has chosen the presidential system, it is undeniable that the president, elected directly by the people, holds the greatest democratic legitimacy. However, this does not mean that courts must always follow the president's intentions in their rulings.

As Article 1 of the Constitution declares, the sovereignty of the Republic of Korea, a democratic republic, resides in the people, and all power emanates from the people. While granting the president significant authority, the people have also established three branches of government?the legislature composed of lawmakers elected directly by the people, and the judiciary entrusted with authority by the people?to mutually check and balance each other to prevent the harms of power concentration.

The democratic legitimacy of the judiciary's authority, granted by the people, can be found in Article 104 of the Constitution, which requires the president to obtain the consent of the National Assembly when appointing the Chief Justice and Justices of the Supreme Court. Furthermore, Article 103 guarantees the independence of judges in their rulings according to their conscience under the Constitution and laws, and Article 106 protects judges' status by stipulating that they cannot be dismissed except by impeachment or sentencing to imprisonment or higher penalties.

The explicit constitutional provision of judicial independence underscores the importance of the judiciary's role as the nation's highest law.

Judges can be likened to referees in sports. Referees judge fouls or scores according to the rules and help the game proceed. For example, in soccer or volleyball, the recent introduction of the Video Assistant Referee (VAR) system has significantly reduced the possibility of wrong calls, but since the number of video reviews is limited, errors can still occur. However, without an agreement to accept the referee's decisions despite possible errors, no sport can proceed normally.

Meanwhile, in a democratic republic, the fundamental framework governing national order is the Constitution and laws, not the president's will. It is the mission entrusted by the sovereign people to the Constitutional Court and judiciary to check unlawful exercise of public authority through interpretation of the Constitution and laws.

However, the current behavior of the ruling party appears to forget this fundamental national system. It is difficult to understand the ultra vires remarks such as "How can the court overturn a disciplinary action approved by the president?" in a government born from the impeachment of former President Park Geun-hye following constitutional and legal procedures. What is needed now is serious reflection on "What kind of disciplinary action led the court to intervene twice?"

Returning to the case of Prosecutor General Yoon:

Yoon was a figure who, during conservative governments, resisted external pressure to downplay the "National Intelligence Service's comment manipulation incident," which was burdensome to the regime, and after being sidelined by the then government, eventually left the prosecution.

Later, he was selected for the special prosecutor team led by Park Young-soo investigating the Choi Seo-won (formerly Choi Soon-sil) political scandal, playing a pivotal role in the current government's launch.

President Moon Jae-in, who highly evaluated him, entrusted him with the important post of Seoul Central District Prosecutor General, and Yoon continued the "cleansing of deep-rooted evils" through investigations into judicial corruption.

At that time, no one in the ruling party, including President Moon, criticized Yoon's investigations as excessive or politically motivated.

When he appeared before the confirmation hearing ahead of his appointment as Prosecutor General, Democratic Party lawmakers strongly asserted that the various family and close associate-related allegations recently cited by Justice Minister Choo Mi-ae as major disciplinary reasons had already been "completely cleared" and were "unrelated to the candidate."

As everyone remembers, the turning point for the ruling party's 180-degree change in attitude toward Yoon was the investigation into former Justice Minister Cho Kuk's family. Despite numerous criminal indications emerging almost daily before the confirmation hearing, the ruling party hastily defended Cho, labeling the investigation as a "fishing expedition."

However, recently, the court found Cho's wife, Professor Jung Kyung-shim of Dongyang University, guilty of 11 charges including forgery of a certificate, sentencing her to four years in prison and a fine of 500 million won, and ordered her detention. Among the charges for which Jung was found guilty, the court also recognized her conspiracy with Cho.

Within the ruling party, even regarding the verdict on Professor Jung, there is still defense of Cho and his wife, citing that some charges related to the private equity fund, which triggered the investigation, resulted in acquittals. Of the 15 charges, 11 were guilty, and among the acquitted charges, evidence tampering was acknowledged as involving Kim Kyung-rok PB's replacement and concealment of a hard disk, but it was ruled that it could not be punished as evidence related to Jung herself.

What hurt the public most was the allegation that the former minister and his wife, both university professors, forged a certificate to help their daughter enter a medical graduate school. The court judged that most of the daughter's credentials submitted for admission to Pusan National University's medical school were false and even mentioned the possibility that without these false documents, she might not have been admitted. Using undisclosed information for gain is also a serious crime.

In retrospect, after about a year, it is somewhat proven by the court's ruling that Cho's explanations at the time were false and that Yoon's investigation was an inevitable choice.

Cho, who vehemently denied the charges and vowed to "reveal everything in court," refused to testify both in his own trial and as a witness in his wife's trial once the proceedings began. If he had genuine grievances or evidence to clear his name, he would have actively refuted the prosecution's arguments in court, but his contradictory behavior suggests otherwise.

The court's decision also confirms that Justice Minister Choo Mi-ae's disciplinary request against Yoon was an overreach.

A month ago, Choo voluntarily held an emergency briefing broadcast nationwide, where she nervously stated, "Yoon is responsible for illegal surveillance of judges in major cases."

This was the second disciplinary reason cited against Yoon, previously undisclosed, and the term "illegal surveillance" shocked the public due to its negative connotation.

However, after Yoon's side disclosed the documents, most of the content was found to be publicly accessible via internet searches, raising doubts about whether the documents could be definitively labeled as "illegal surveillance."

Ultimately, even the disciplinary committee led by Minister Choo did not include the term "illegal surveillance" in the disciplinary resolution, instead referring to it as "documents analyzing major case trial panels," and the court did not view it as illegal surveillance. The court acknowledged the documents were "inappropriate" due to potential misuse but found insufficient evidence that they were created for the purpose claimed by Minister Choo. The "hidden card" ambitiously prepared by Sim Jae-chul, head of the Ministry of Justice's prosecution bureau, and Han Dong-soo, head of the Supreme Prosecutors' Office inspection department, who supported Minister Choo and led Yoon's disciplinary process, thus failed.

Previously, the disciplinary committee recognized four of the eight reasons cited by Minister Choo for Yoon's discipline and decided on a two-month suspension. Among them was the "trial panel analysis document," and the others were obstruction of inspection in the Channel A case, obstruction of investigation in the Channel A case, and damage to dignity due to inappropriate remarks at the National Assembly audit.

The court ruled that damage to dignity could not be grounds for discipline and that obstruction of investigation in the Channel A case was not proven. It stated that obstruction of inspection in the Channel A case requires further examination in the main trial.

Contrary to Minister Choo and Seoul Central District Prosecutor Lee Sung-yoon's assurances, the Channel A case has yet to prove the conspiracy charges against Prosecutor Han Dong-hoon, and no indictment has been made. If the statement by Deputy Chief Prosecutor Jeong Jin-woong of Gwangju District Prosecutor's Office, who claimed that sufficient evidence of collusion had been secured, was true, an explanation is needed as to why no indictment has been made so far.

An investigation is underway into allegations that Yoon interfered in investigations of his mother-in-law, wife, and close associates under Minister Choo's orders, but nothing has been revealed yet. It would have been appropriate for Minister Choo to wait until at least one or two of these allegations were substantiated before requesting disciplinary action against Yoon.

Claims such as "illegal surveillance of judges," "obstruction of investigation and inspection in the Channel A case," and "making politically biased remarks at the National Assembly audit" have not been clearly proven. Requesting discipline based on suspicions or unproven reasons fails to persuade prosecutors, the public, inspection committee members, and judges alike.

Of course, the court's decision suspends the effect of Yoon's two-month suspension disciplinary action until 30 days from the first trial ruling date of the cancellation lawsuit, but it does not cancel the disciplinary action itself. However, the court unusually conducted a meticulous review of each disciplinary reason cited by Minister Choo and procedural defects in the disciplinary committee process before reaching its conclusion.

Although it is unlikely, whether the decision to suspend execution will be overturned through an appeal process or whether the main cancellation lawsuit will conclude that the disciplinary action need not be canceled is a matter for future legal proceedings. However, publicly attacking judges personally and labeling the judiciary as a deep-rooted evil simply because the judiciary's judgment differs from one's expectations denies that Korea is a democratic republic and denies the Constitution.