![[Column] Kim Hak-ui's 'Illegal (Bulbeop) Detention' and Kim Du-kwan's 'Yoon Seok-yeol Impeachment Theory'](https://cphoto.asiae.co.kr/listimglink/1/2020080518502899702_1596621029.png)
Choi Seok-jin, Head of the Legal Affairs Team
[Asia Economy Reporter Choi Seok-jin] Various illegal circumstances committed during the process of imposing an exit ban on former Vice Minister of Justice Kim Hak-ui have been revealed.
After the President issued a message ordering a strict investigation, immigration officials at the Ministry of Justice indiscriminately searched former Vice Minister Kim’s exit records without authorization, and a prosecutor dispatched from the Past Affairs Investigation Team to assist in reviewing records for deciding whether to reopen the investigation into former Vice Minister Lee manipulated documents.
Although a recommendation for reinvestigation was not made and former Vice Minister Kim was not even booked at the time, the prosecutor requested an emergency exit ban by citing a case number that had already been dismissed years ago, and later fabricated a fake internal investigation number to request retroactive approval.
Ministry of Justice Should Have Admitted ‘Procedural Flaws’ and Expressed Will for Strict Investigation
When these facts were exposed through a public interest report to the Anti-Corruption and Civil Rights Commission, the Ministry of Justice explained that the prosecutor in question was also an investigative agency, but frontline prosecutors unanimously agree that the prosecutor dispatched to the Past Affairs Investigation Team was merely an assistant helping external members review records and had no investigative authority.
Furthermore, even if considered an investigative agency, since no reinvestigation into former Vice Minister Kim had been initiated and there was no chief prosecutor in charge, the prosecutor’s arbitrary request for an emergency exit ban without the seal of the head of the investigative agency is clearly illegal, and there is no dispute on this point.
Seemingly aware of this, the Ministry of Justice stated, “There is a need to consider the urgent and unavoidable circumstances of imminent overseas escape late at night,” but it is difficult to understand whether this means that even those who are not subjects of internal investigations or investigations, or those who might possibly be investigated, can be illegally detained if urgent.
It appears to appeal to public sentiment by labeling “Kim Hak-ui as a bad person” to quell criticism of the ‘illegal exit ban,’ but this was not an explanation that the Ministry of Justice, which must uphold the law above all, should have offered.
No matter how much a suspect is accused of a crime, they must be arrested after being informed of their Miranda rights according to the law, and a search warrant issued by a court is required to search their home. Such logic is no different from the sophistry used under past military regimes to justify violence and torture inflicted on university students who were clearly violating the National Security Law to extract confessions and obtain investigative information on higher-ups as an unavoidable choice to protect the state.
Since the work of investigative agencies such as the police or prosecution inevitably involves serious infringements on fundamental rights such as personal liberty, our Constitution and the Criminal Procedure Act stipulate procedures that must be strictly followed during investigations.
It is important to comply with the lawful procedures established in criminal law based on the presumption of innocence, beyond the purpose of securing the suspect’s custody and ensuring strict punishment. However, it is difficult to accept that the Ministry of Justice, the department in charge of law, violated the law itself and defended the prosecutor who broke the law by offering excuses such as “it was urgent to achieve the objective.”
If the clear illegality revealed through the public interest report and media coverage could not be denied as “untrue,” the Ministry should have at least issued a public apology to the people, stating, “We deeply regret some procedural issues during the emergency exit ban process against former Vice Minister Kim,” and pledged, “We will conduct a thorough investigation and strictly prosecute those involved if illegality is found.”
This is not a matter to be glossed over by riding on public criticism against former Vice Minister Kim.
We Must Abandon the Idea That ‘Procedures Can Be Illegal to Achieve Objectives’
This is not the first time under the current government that the idea of “procedures can be ignored for the sake of objectives” has surfaced.
To enforce the President’s ‘nuclear phase-out’ policy, officials at the Ministry of Trade, Industry and Energy manipulated the economic evaluation of ‘Wolseong Nuclear Power Plant Unit 1’ and committed crimes by deleting related data ahead of the Board of Audit and Inspection’s audit.
However, the government’s people harshly criticized the Prosecutor General, who initiated an investigation based on the Board of Audit and Inspection’s request to monitor and uncover such illegality.
They framed the investigation into the clear criminal act of destroying evidence of evaluation manipulation as a “political investigation because the prosecution is investigating matters related to the President’s policy.”
Although it ended in a complete defeat, Minister of Justice Choo Mi-ae’s disciplinary action and inspection request against Prosecutor General Yoon Seok-youl was nothing short of a comprehensive gift set of illegality.
She tried to neutralize the Inspection Committee by changing regulations, refused to provide inspection records to Yoon’s side citing past practices, and only provided the records after a court injunction warning.
She filled all disciplinary committee members with her own people, ignored Yoon’s side’s recusal requests, and pushed through the resolution, but ultimately only decided on a ‘two-month suspension’ instead of dismissal or removal.
Compared to the emergency briefing Minister Choo held at 6 p.m. after work hours on the day the plan to request arrest warrants for those involved in the Wolseong nuclear power plant case was reported to the Supreme Prosecutors’ Office, where she announced eight major disciplinary reasons against Yoon, the result was disappointing.
Although it seemed intended to bypass judicial control, the court once again pointed out the illegality of the disciplinary committee’s procedures and reinstated Yoon to his duties.
If the reasons for disciplinary action such as illegal surveillance of judges or interference in investigations related to family or close associates, which Minister Choo cited as grounds for requesting Yoon’s discipline, are true, Yoon should be immediately arrested and investigated rather than suspended. However, Minister Choo, while suspending the current Prosecutor General and requesting discipline, listed several reasons but failed to present clear evidence collected through inspection or investigation to prove the charges.
Professor Jung Han-joong of Hankuk University of Foreign Studies, who acted as the disciplinary committee chairman in place of Minister Choo, expressed regret over the court’s injunction decision, stating, “The court lacked understanding of legal ethics,” but this also sounds like a weak excuse for the court’s intervention that blocked the discipline.
The legal ethics standard means not to engage in suspicious behavior, so Yoon’s remarks at the National Assembly audit could be grounds for discipline, but the court judged that merely saying “I will look for ways to serve the people after retirement” in response to a lawmaker’s question is unlikely to be considered a violation of political neutrality. Moreover, even among legal circles, there is widespread skepticism about whether that remark constitutes a serious breach of neutrality warranting suspension.
Assemblyman Kim Du-gwan: “(Even if impeachment is dismissed) Let’s first pass the impeachment motion to suspend duties”… A Truly Dangerous Idea
The more serious problem was the ruling party’s reaction after the court’s injunction decision.
When the plan to tie Prosecutor General Yoon’s hands and feet failed, the arrow turned to the judiciary. A pro-government broadcaster said, “Just a single judge…” Ruling party politicians poured out remarks defying the court’s decision, prompting supporters to petition for the judge’s impeachment through the Blue House bulletin board.
The ultimate display of ignorance toward the rule of law was Assemblyman Kim Du-gwan of the Democratic Party of Korea.
Immediately after the court’s decision to suspend the disciplinary action against Prosecutor General Yoon, he sent a letter to fellow party members urging them to unite in impeaching Yoon.
The Constitutional Court’s impeachment ruling clearly limits impeachment to cases where ‘serious legal violations’ warranting removal from office are recognized, as established in the case of former President Roh Moo-hyun.
Therefore, even within the ruling party at the time, there were strong voices advising restraint regarding impeachment talk against Yoon.
What was truly surprising was that Assemblyman Kim, fully aware of this, still urged fellow lawmakers to pass the impeachment motion against Yoon.
On the 24th of last month, the day after the court’s decision suspending the disciplinary action’s effect, he wrote on Facebook, “The court made an absurd decision,” and continued to advocate impeachment daily.
On the 27th, a day before sending the letter to lawmakers, he posted on Facebook titled
He added, “The National Assembly’s impeachment motion itself is meaningful. Once passed, Yoon’s duties are suspended immediately,” and “If Yoon is not impeached, it will lead to interference in by-elections, investigations of government policies, targeted investigations of the Blue House, and obstruction of institutional reforms.”
According to Article 65, Paragraph 2 of the Constitution, which stipulates the National Assembly’s impeachment procedure for the President and others, impeachment motions against officials other than the President require at least one-third of the total members of the National Assembly to propose, and a majority vote of the total members to pass.
Article 65, Paragraph 3 of the Constitution states, “A person against whom an impeachment motion has been passed shall be suspended from exercising their powers until the impeachment trial is concluded.” Article 50 of the Constitutional Court Act also states, “A person against whom an impeachment motion has been passed shall be suspended from exercising their powers until the Constitutional Court’s judgment.”
In summary, Assemblyman Kim’s argument is: ▲With 180 seats, the ruling party alone can realistically pass the impeachment motion against Yoon ▲Once the National Assembly passes the impeachment motion, Yoon’s powers as Prosecutor General are automatically suspended until the Constitutional Court’s decision ▲Along with impeachment, appoint a special prosecutor or have the Corruption Investigation Office investigate Yoon and his family ▲This will prevent ongoing government policy investigations (such as the Wolseong nuclear power plant economic evaluation manipulation case), Blue House targeted investigations (such as the Yoo Jae-soo inspection cover-up case, Lime and Optimus lobbying allegations), and will not obstruct by-elections or prosecution reforms.
The problem is that behind all this persuasion and urging of fellow lawmakers by Assemblyman Kim lies the premise of “even if the Constitutional Court dismisses the impeachment trial.” More accurately, it is “the Constitutional Court will dismiss the impeachment anyway.”
This is because Assemblyman Kim cannot be unaware of the ‘serious legal violation’ requirement the Constitutional Court clarified when dismissing former President Roh Moo-hyun’s impeachment, and the disciplinary reasons applied to Yoon only resulted in a ‘two-month suspension,’ which the court is unlikely to uphold. The court’s review of the injunction case included judgments on both the disciplinary procedures and substantive reasons. Even Professor Jung Han-joong, who led the disciplinary committee under Minister Choo’s tenure, expressed that impeachment claims against Yoon were “inappropriate.”
The conclusion is that it is clear Yoon’s case does not warrant impeachment, but Assemblyman Kim’s intention is to use the legal procedures to effectively remove Yoon, who has seven months left in his term, immediately.
However, the Constitution and the Constitutional Court Act stipulate that suspension of powers upon the National Assembly’s impeachment motion is intended to prevent officials who have committed serious legal violations warranting impeachment from continuing to perform their duties, not to use it as a tool to exclude someone from office for a long time when it is clear the impeachment will be dismissed, as Assemblyman Kim suggests.
To put it harshly, it is no different from the police or prosecution detaining someone without certainty they are the culprit or knowing they are not the real perpetrator, just to get help in the investigation or for other purposes.
This kind of populism, raising voices to achieve objectives by any means including procedural abuse, can only be seen as an expression aimed at gaining supporters’ approval. In fact, he claimed, “Betraying partisan support of the party will be subject to judgment later.”
However, Assemblyman Kim’s proposal to abuse the impeachment procedure, which has the serious effect of dismissing a public official by leveraging the ruling party’s majority in the National Assembly, to achieve the goal of ‘ousting Yoon Seok-youl’ is a dangerously destabilizing idea that shakes the foundation of a democracy based on the rule of law.
If Assemblyman Kim still firmly believes that pushing impeachment this way is right, it can be confidently said that he should no longer hold public office or engage in politics.
New Minister of Justice Park Beom-gye, Show That ‘Rule of Law’ Is Alive Through Prosecutorial Personnel Changes
It is expected that once Park Beom-gye, the nominee for Minister of Justice, is confirmed through the confirmation hearing and takes office, he will soon carry out personnel changes in the prosecution.
Appropriate reassignment is required for prosecutors who are capable but have been sidelined to minor posts because they are classified as part of Yoon Seok-youl’s faction, as well as those considered part of the Choo Mi-ae or Lee Seong-yoon factions who occupy key positions disproportionate to their abilities.
No prosecutor should suffer disadvantages for opposing Minister Choo’s or Seoul Central District Prosecutor Lee’s excessive investigations and inspections or for siding with Prosecutor General Yoon during Minister Choo’s excessive disciplinary requests.
Furthermore, prosecutors who illegally interfered in excessive investigations or inspections during Minister Choo’s tenure, such as investigations into Chief Prosecutor Han Dong-hoon or inspections of Prosecutor General Yoon, must be held accountable.
Article 7, Paragraph 1 of the Constitution states, “Public officials are servants of the entire people and are responsible to the people.” Public officials, before being subordinates to superiors, have the duty to refuse and not follow illegal orders and instructions from superiors.
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