![[Law & Story] Former Minister Baek Woon-gyu's Prosecutorial Investigation Deliberation Committee... All Eyes on the Outcome on the 18th](https://cphoto.asiae.co.kr/listimglink/1/2018080714443514988_1533620675.jpg)
In Choi Seok-jin's Legal Story, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being bound by specific themes or formats. Today is the fifth story, discussing the Prosecutorial Investigation Deliberation Committee meeting on Wednesday the 18th concerning former Minister of Trade, Industry and Energy Baek Woon-gyu.
[Asia Economy Legal Correspondent Choi Seok-jin] The Prosecutorial Investigation Deliberation Committee (PIDC), which seeks public opinion on whether to additionally indict former Minister of Trade, Industry and Energy Baek Woon-gyu regarding the suspicion of 'manipulation of the economic feasibility evaluation of Wolseong Nuclear Power Plant Unit 1,' will convene on the 18th.
This will be the 14th PIDC meeting since the system was introduced in January 2018.
The Core Issue is the Charge of Aiding Breach of Trust... Prosecutor General Kim Oh-soo Decides to Convene PIDC by His Authority Despite the Investigation Team’s Indictment Opinion
Former Minister Baek is already on trial, having been indicted without detention on charges of abuse of authority and obstruction of business for allegedly compelling Korea Hydro & Nuclear Power (KHNP) to submit a report indicating the intention to prematurely shut down Wolseong Unit 1 during his tenure in 2017.
The PIDC will deliberate whether it is appropriate to additionally indict Baek on charges of aiding breach of trust and aiding obstruction of business under the Act on the Aggravated Punishment of Specific Economic Crimes. The charge of aiding breach of trust is particularly noteworthy.
Earlier, at the end of June, prosecutors indicted Baek, former Blue House industrial policy secretary Chae Hee-bong (currently CEO of Korea Gas Corporation), and KHNP President Jung Jae-hoon together.
Prosecutors judged that under Baek’s direction, President Jung manipulated the economic feasibility evaluation results of Wolseong Unit 1 and submitted the manipulated results to KHNP’s board, which resolved to prematurely shut down and suspend operations of Wolseong Unit 1, whose design life was until November 2022, causing KHNP damages worth approximately 148.1 billion KRW. While applying breach of trust charges to President Jung under the Specific Economic Crimes Act, prosecutors did not apply aiding charges to Baek.
If it was judged that President Jung committed the crime under Baek’s direction, it would have been natural to apply aiding charges to Baek as well, but there was disagreement between the Daejeon District Prosecutors’ Office and the Supreme Prosecutors’ Office leadership at the time.
Prosecutor General Kim Oh-soo approved the indictment of Baek and others on July 2, just before the investigation team leader was replaced in a mid-level personnel reshuffle, but decided to convene the PIDC by his authority regarding Baek’s aiding breach of trust charge.
An Issue Burdensome to the Moon Jae-in Administration... Disputes Over 'Intent to Breach Trust' and 'Subject of Property Benefit'
The PIDC established within the Supreme Prosecutors’ Office is a body where experts from various social sectors deliberate on issues such as ▲whether to continue investigations ▲whether to prosecute or dismiss charges ▲whether to request or re-request arrest warrants ▲the appropriateness and legality of investigations in prosecuted or dismissed cases, especially when national suspicion arises or social attention is focused.
The committee consists of 150 to 250 members appointed as experts with knowledge and experience in the judicial system from fields including law, academia, media, civic groups, and culture and arts.
According to the Supreme Prosecutors’ Office’s 'PIDC Operation Guidelines,' complainants, institutional accusers, victims, suspects, their representatives or lawyers may request the convening of the PIDC (Article 6, Paragraph 1), and district prosecutors’ offices may request the Prosecutor General to convene it (Article 8, Paragraph 1).
If a party related to the case requests convening, a subcommittee composed of citizen prosecutors under the high prosecutors’ office must approve the referral before the PIDC convenes.
However, the Prosecutor General may convene the PIDC by his authority, as in this case.
The 'Wolseong Nuclear Power Plant' case is a significant burden for President Moon Jae-in and his administration.
Before the prosecution’s investigation began, the Board of Audit and Inspection had already confirmed to some extent that the economic feasibility evaluation of Wolseong Unit 1 was manipulated and that Ministry of Trade, Industry and Energy officials destroyed evidence.
The audit revealed that the starting point of all this was President Moon’s single remark asking, "When will Wolseong Unit 1 be shut down?"
This alone is a heavy burden, but if former Minister Baek is indicted and convicted on aiding breach of trust charges, the government could be held liable in a damages lawsuit related to the premature shutdown of Wolseong Unit 1.
From a criminal law perspective, for aiding breach of trust charges to be established, the principal offender, KHNP President Jung Jae-hoon’s breach of trust must be recognized by the court, and Baek’s direction, intent to breach trust, and causality must be acknowledged.
In particular, aiding offenders require 'double intent': the 'intent to instigate' the principal offender to commit the crime and the 'intent of the principal offender' to execute the crime must both be recognized.
Prosecutors argue that when Baek directed President Jung to manipulate the economic feasibility evaluation and submit it to the KHNP board, Baek had at least conditional intent regarding the damages KHNP would suffer from the shutdown.
On the other hand, Baek’s side maintains that the premature shutdown was a policy decision.
Another requirement is the 'acquisition of property benefits.'
Article 355, Paragraph 2 of the Criminal Act (breach of trust) states that if a person managing another’s affairs causes property benefits to themselves or a third party by violating their duties and causes damage to the principal, the same punishment applies as in the previous paragraph.
In other words, for breach of trust to be established, the act must cause property damage to the principal while the offender or a third party acquires property benefits.
Prosecutors hold that due to Baek’s direction, the government must bear damages of approximately 148.1 billion KRW caused by the shutdown of Wolseong Unit 1, but Baek and others manipulated the situation to make it appear that KHNP independently decided to suspend operations, thus gaining the benefit of exempting the government from responsibility. Baek’s side is expected to deny the aiding breach of trust charge by arguing that no party benefited from the incident.
While criminal and civil trials can proceed simultaneously, usually civil trials are delayed until criminal trial results are out when dealing with the same matter. Although the requirements for aiding breach of trust under criminal law and liability for damages under civil law differ, if aiding breach of trust is recognized criminally, the likelihood of civil liability increases. Article 760, Paragraph 3 of the Civil Act states that instigators or accomplices are considered joint tortfeasors.
Ultimately, additional indictment or conviction of Baek on aiding breach of trust and obstruction charges could imply deep government involvement in illegal acts, posing a significant burden on President Moon and his administration. Moreover, it could lead to a civil lawsuit seeking damages in the 140 billion KRW range against the government, making it an issue the current administration would especially want to avoid.
If 'Prosecution' Recommendation Emerges, Dismissing the Case Will Be Difficult... Time to Reconsider the Effectiveness of the PIDC System
As mentioned earlier, this PIDC meeting concerning former Minister Baek was convened by Prosecutor General Kim Oh-soo’s authority, not at Baek’s request to appeal against the prosecution’s investigation.
Moreover, the Daejeon District Prosecutors’ investigation team had concluded that Baek should be indicted including aiding breach of trust and obstruction charges, but the Prosecutor General decided to hear public opinion through the PIDC, differing from the investigation team’s stance.
It is hard to deny that Kim’s decision was influenced by a desire to minimize the burden on President Moon and the current administration, who appointed him.
Unlike the usual 1-2 week interval between PIDC convening and the current affairs committee meeting, this time the meeting is held 49 days after the July 30 convening decision, which seems excessively delayed even considering the COVID-19 situation.
At the current affairs committee meeting on the 18th, if at least 10 of the 15 randomly selected members, excluding the chairperson, attend, deliberations will proceed. Members are selected evenly from various fields to avoid bias, prioritizing those who did not participate in previous meetings.
On the day, members receive and review written opinions of up to 30 pages from the lead prosecutor and applicants, listen to oral statements from both sides, and may ask questions. Then, in a closed session, if members agree, a consensus opinion report is drafted.
If opinions differ, a majority vote among attending members decides. The opinion report is then sent to the lead prosecutor, who is expected to respect the committee’s opinion according to guidelines.
If the committee recommends 'non-prosecution' for Baek’s aiding breach of trust charges, the Daejeon District Prosecutors’ Office will face significant difficulty in proceeding with additional indictment as initially planned. Although the PIDC’s recommendations are not binding and prosecution is still possible despite a 'non-prosecution' recommendation, the recent personnel changes and opposition from Kim and the Supreme Prosecutors’ Office leadership make it difficult to push forward with a prosecution that burdens the president and government.
Conversely, if the PIDC recommends prosecution, Kim, who had opposed indicting Baek on aiding breach of trust charges, will likely have no grounds to block prosecution. Having already opposed once and convened the PIDC by his authority, Kim will appear to have 'done all he could.'
Personally, I believe it is time to reconsider the effectiveness of the current PIDC system. Kim Oh-soo also expressed during his candidacy that he would review reforms of the PIDC system upon assuming office.
There are two main doubts about whether the PIDC effectively controls prosecutorial power.
First, there is a limit to non-legal experts among ordinary citizens making guilt or innocence judgments based on prosecution. Second, since the PIDC’s decisions are not binding on prosecutors, the prosecution often ignores them in major cases.
The PIDC system was introduced during former Prosecutor General Moon Moo-il’s tenure as a self-reform measure amid strong government and ruling party drives for prosecutorial reform.
It was introduced with grand goals such as restoring public trust and democratic control over prosecution, but it was somewhat hastily implemented without thorough review or public consultation, mainly to counter external reform pressures.
For example, despite an overwhelming majority of PIDC members recommending 'investigation suspension' and 'non-prosecution' regarding Samsung Electronics Vice Chairman Lee Jae-yong’s alleged violations of the Capital Markets Act related to the merger of Cheil Industries and Samsung C&T, prosecutors indicted him in September last year.
Also, in the 'Channel A Coercion Attempt' case, the PIDC overwhelmingly recommended 'investigation suspension' and 'non-prosecution' for Prosecutor Han Dong-hoon on July 24 last year, but over a year later, the prosecution has neither indicted nor dismissed charges and continues the investigation.
While the PIDC’s results do exert some pressure on prosecutors, they have shown a tendency not to overturn their initial decisions.
Meanwhile, in the same case, the PIDC recommended continuing investigation and prosecution for former Channel A reporter Lee Dong-jae, who was indicted for coercion attempt but was acquitted by the court on June 16 last month, as the court found insufficient evidence of specific threats required for coercion under criminal law.
Given this, concerns arise that the PIDC may become a form of public trial.
For instance, if PIDC members in Lee Jae-yong’s case were generally favorable to conglomerates, they might have leaned toward 'non-prosecution,' whereas members sympathetic to conglomerate reform might have favored 'prosecution.'
Similarly, in the 'Channel A Coercion Attempt' case, PIDC members who viewed the case through the lens of 'prosecution-media collusion' or supported former Minister of Justice Choo Mi-ae during the Chu-Yoon conflict might have favored prosecution, while those critical of the current government or supportive of former Prosecutor General Yoon Seok-youl might have favored non-prosecution.
The aiding breach of trust charge to be reviewed in Baek’s PIDC is legally complex and challenging even for legal experts, raising doubts about whether non-experts can properly judge whether prosecution or non-prosecution is appropriate after brief explanations from both prosecution and defense.
Prosecution investigations are premised on prosecution, and the PIDC deliberates not on moral or character judgments but on whether the crime is legally established and likely to be proven in court.
It is also questionable whether it is appropriate to overturn the investigation team’s long-term conclusion to dismiss charges if the PIDC recommends non-prosecution, or conversely, for the Prosecutor General to approve prosecution only after the PIDC recommends it, despite previously rejecting repeated requests.
Moreover, two leading opposition presidential candidates, former Prosecutor General Yoon and former Board of Audit and Inspection Chairman Choi Jae-hyung, are directly related to this case as the chief responsible persons for the investigation and audit, respectively. There is concern that the PIDC’s decision may be influenced more by political leanings?whether members support the ruling or opposition parties or specific candidates?than by legal considerations of 'aiding breach of trust.'
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