[Law & Story] Investigation into 'Prosecution Solicitation' and 'Daejang-dong' Allegations Becomes a Key Presidential Election Variable

From the left, Lee Jae-myung, Governor of Gyeonggi Province, and Yoon Seok-youl, former Prosecutor General. Photo by Kim Hyun-min kimhyun81@

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 constrained by subject or format. Today marks the ninth story, discussing the recently surfaced allegations of ‘prosecution solicitation’ and the ‘Daejang-dong’ scandal involving prominent presidential candidates from both ruling and opposition parties.

[Asia Economy, Choi Seok-jin, Legal Affairs Specialist Reporter] As the ruling and opposition parties are actively conducting primary races to select their final presidential candidates, investigations into allegations involving leading candidates such as former Prosecutor General Yoon Seok-youl and Gyeonggi Province Governor Lee Jae-myung have emerged as key variables that could influence the presidential race.

First, former Prosecutor General Yoon is under investigation for the ‘prosecution solicitation’ allegation, which claims that during his tenure as Prosecutor General, he instructed former Deputy Director of the Supreme Prosecutors’ Office for Investigation and Policy, Son Jun-sung, to solicit the opposition party to file complaints against ruling party politicians.

Governor Lee, on the other hand, has been embroiled in controversy over the ‘Daejang-dong’ scandal, involving astronomical returns recorded by the owner of Hwacheon Daeyu and his acquaintances, who are former legal reporters, raising suspicions of preferential treatment.

The Core of the ‘Prosecution Solicitation’ Allegation is ‘Abuse of Authority’

Compared to the ‘Daejang-dong’ scandal, the structure of the ‘prosecution solicitation’ allegation is much simpler.

In other words, the key questions are whether former Deputy Director Son directly wrote the complaint or had another prosecutor write it and then delivered it to Representative Kim to solicit the complaint, and whether former Prosecutor General Yoon was behind this.

If such facts are confirmed as evidence, charges such as abuse of authority, violation of the Public Official Election Act, breach of official secrets, violation of the National Public Officials Act, and violation of the Personal Information Protection Act (related to the attached real-name judgment document) could be established. However, as Public Official Corruption Investigation Unit (PCCIU) Chief Kim Jin-wook stated, the core of this case is the ‘abuse of authority’ charge.

The ‘Son Jun-sung’ mentioned in the Telegram chat screenshots submitted by whistleblower Jo Seong-eun has been confirmed to be former Deputy Director Son, and even if it is confirmed that he delivered the complaint, for the abuse of authority charge to be established, it must be proven that former Deputy Director Son did not write the complaint himself but instructed another prosecutor or investigator under his command to write it.

Legal experts explain that for the abuse of authority charge, which courts strictly scrutinize, it must be recognized that ▲ authority was abused to ▲ compel someone to perform an act they were not obliged to do. Even if former Deputy Director Son solicited the complaint through Representative Kim, it is difficult to view the act of having the complaint accepted as within a prosecutor’s authority, making it hard to establish abuse of authority.

Although it may be hard to understand at first glance, the Supreme Court holds the position that “abuse of authority is established when a public official commits an illegal or unjust act in relation to matters within their general official duties in a substantial and concrete manner.”

Furthermore, “For a duty to be considered within a public official’s general official authority, there must be a legal basis. This legal basis does not necessarily require explicit provisions; even if there are no explicit provisions, it can be interpreted as within the official’s authority if, upon comprehensive and substantial examination of laws and systems, it is deemed so. If such authority is abused to compel the other party to perform an act they are not obliged to do or to interfere with their rights, it is included in the general official authority referred to in the abuse of authority charge.”

In fact, among Supreme Court precedents, there is a case where the Chief of the Security Headquarters requested the Head of the Forensic Medicine Department at the National Forensic Service to prepare notes for a press conference regarding a torture death case. The court denied the establishment of abuse of authority, reasoning that “the act of having the notes prepared” did not fall within the Chief’s general official authority.

For the abuse of authority charge to be established against former Prosecutor General Yoon in this case, it must be proven that he instructed former Deputy Director Son to write the complaint and hand it over to the opposition party.

Focus on the PCCIU’s Choice as the Lead Investigator

Regarding the ‘prosecution solicitation’ allegation, the High-ranking Officials’ Crime Investigation Unit (PCCIU) has already registered former Prosecutor General Yoon and former Deputy Director Son as suspects and conducted searches and seizures.

Additionally, the Seoul Central District Prosecutors’ Office, which received the complaint filed by Choi Kang-wook, leader of the Open Democratic Party, who appears in the problematic complaint, assigned the case to the Public Investigation Division 1 and started an investigation just one day after receiving the complaint on the 15th.

Prior to this, the Supreme Prosecutors’ Office’s Inspection Department, which initiated an internal investigation into this allegation, is still conducting its inspection.

Strictly speaking, the PCCIU holds investigative authority over abuse of authority and breach of official secrets charges, while the prosecution holds authority over violations of the Public Official Election Act.

Perhaps to avoid criticism over overlapping investigations by multiple agencies into a leading opposition presidential candidate, the prosecution has expressed its intention to cooperate with the PCCIU within non-overlapping scopes. Justice Minister Park Beom-gye has also repeatedly stated that there is no problem with the PCCIU and prosecution investigating the same case simultaneously.

Ultimately, the key lies with the PCCIU.

The PCCIU’s swift initiation and acceleration of the investigation into this allegation appear to be an unavoidable choice. As the agency with investigative authority over abuse of authority charges involving current and former prosecutors, the PCCIU carries the mission to clarify the substance of this allegation involving a leading opposition presidential candidate as quickly as possible so that voters can make informed choices based on accurate information.

The prosecution’s acceptance of the complaint and commencement of investigation following standard procedures can also be seen as inevitable. Therefore, for the time being, both the PCCIU and prosecution will conduct separate investigations into the same matter, but when it comes to summoning key suspects or witnesses for questioning, there is a possibility that the case may be transferred to the PCCIU depending on its decision.

Having two investigative agencies summon the same suspect for investigation on the same matter?PCCIU for abuse of authority and prosecution for violation of the Public Official Election Act?does not seem to align with the intent of the investigative authority adjustment or the establishment of the PCCIU as part of prosecution reform. Both the PCCIU and prosecution have room to investigate related criminal charges within their jurisdiction.

Article 24, Paragraph 1 of the PCCIU Act, which governs the relationship between the PCCIU and other investigative agencies, states: “If the head of the investigative agency deems it appropriate for the PCCIU to conduct an investigation in light of the progress and fairness of overlapping investigations by other agencies, the relevant investigative agency shall comply with the request for transfer.”

It remains to be seen how long the PCCIU and Seoul Central District Prosecutors’ Office will continue their separate investigations into the ‘prosecution solicitation’ allegation and whether the PCCIU will fully take over the lead in the investigation through a transfer request.

Prosecutors Begin Investigation into Lee Jae-myung over ‘Daejang-dong’ Allegation

Unlike the ‘prosecution solicitation’ allegation, the investigation into the ‘Daejang-dong’ scandal is just beginning.

The police received information from the Financial Intelligence Unit (FIU) in April regarding suspicious fund flows involving Kim Man-bae, the major shareholder of Hwacheon Daeyu Asset Management (Hwacheon Daeyu), and CEO Lee Seong-moon, and have been conducting a preliminary investigation. However, this investigation has been limited to confirming the scale and nature of funds related to embezzlement and breach of trust charges against Kim and Lee, which are unrelated to Governor Lee’s alleged preferential treatment in the Daejang-dong development project.

According to internal police regulations, preliminary investigations can last up to six months, so there is a possibility that the investigation will transition from preliminary to formal next month.

Meanwhile, the prosecution complaint was proactively filed by Governor Lee’s camp, who is the subject of the allegation. This is analyzed as a strategic move to respond actively rather than merely enduring the opposition party’s relentless attacks linking him to the scandal.

The campaign of Lee Jae-myung, the Democratic Party’s presidential candidate, filed a complaint with the Seoul Central District Prosecutors’ Office against People Power Party floor leader Kim Ki-hyun, Representative Yoon Chang-hyun, and candidate Jang Ki-pyo for violations of the Public Official Election Act and defamation under the Information and Communications Network Act, related to their raising of the Daejang-dong development preferential treatment allegations.

This complaint is expected to be assigned and investigated shortly after the Chuseok holiday. Since the prosecution will need to verify whether the claims made by Kim and others are true or false, there is a possibility that the prosecution will scrutinize the substance of the Daejang-dong development project.

Meanwhile, Kim Ki-hyun has officially demanded a special prosecutor and a parliamentary audit from the Democratic Party regarding this allegation and has expressed his intention to file a complaint against Governor Lee for breach of trust under the Act on the Aggravated Punishment of Specific Economic Crimes.

Hwacheon Daeyu denies any illegal activity and completely denies any connection with Governor Lee. However, given the extraordinary investment returns, it is difficult to avoid investigation into whether there was preferential treatment or illegal acts during the process.

So far, the suspicion remains at the level of questioning whether such an extraordinary high-profit project could have been possible without preferential treatment from local governments holding various permits related to real estate development.

In Governor Lee’s case, it appears difficult to hold him legally responsible unless it is confirmed that he directly gave instructions or otherwise provided preferential treatment or received compensation during the Daejang-dong development project.

Investigation Progress and Results Likely to Greatly Affect Support Rates for Yoon Seok-youl and Lee Jae-myung

Both the ‘prosecution solicitation’ allegation against former Prosecutor General Yoon, accused of soliciting complaints against ruling party politicians, and the ‘Daejang-dong’ allegation against Governor Lee, accused of granting enormous preferential treatment to private developers in a local real estate project, are serious matters that, if proven true, could lead to withdrawal from the presidential race and legal prosecution.

However, both cases remain allegations at this point and require investigation to clarify the facts.

It is difficult to predict when the investigation results will be released, but with the presidential election approaching, the mere fact that investigations are underway involving the two candidates is bound to negatively impact their support rates.

In fact, following the emergence of the ‘prosecution solicitation’ allegation, former Prosecutor General Yoon’s support rate dropped while candidate Hong Joon-pyo’s support rate rebounded.

The ruling party claims that the opposition is covering up the ‘prosecution solicitation’ allegation with the ‘whistleblower solicitation’ or ‘Daejang-dong’ allegations, but the fact that whistleblower Jo Seong-eun met National Intelligence Service Director Park Ji-won before related reports were published and downloaded related evidence intensively just before meeting him has puzzled the public.

Jo, who claimed to be a public interest whistleblower, appeared in media interviews daily, which was somewhat puzzling. Moreover, her statement that she had not met Director Park after August 11 was proven false, and her interview with SBS where she said, “Actually, the date of September 2 was neither desired by our director nor by me, nor was it a date we agreed upon,” raised reasonable suspicions about political motives behind the whistleblowing.

In the past, various allegations have surfaced ahead of presidential elections. Representative cases include the ‘Byungpung Incident’ related to the military service of Lee Hoi-chang’s son in 2002 and the ‘BBK Stock Manipulation’ case involving Lee Myung-bak in 2007. Some of these were eventually proven false but played decisive roles in the elections, while in some cases, prosecution or special investigation results were overturned years later.

With less than six months remaining until the presidential election, the fact that the top candidates from both ruling and opposition parties are under investigation by the PCCIU, prosecution, and police means that the political sphere and the entire nation’s attention will focus on the investigations into these two allegations.