[Law & Story] Where Should the 'Report Solicitation' and 'Daejang-dong' Investigations Be Conducted: HOICA, Prosecution, or Police?

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 tenth story, discussing the distribution of investigative authority among the High-ranking Officials' Crime Investigation Agency (HOICA), prosecution, and police, reignited by investigations into the 'Report Solicitation' and 'Daejang-dong' allegations.

[Asia Economy, Choi Seok-jin, Legal Affairs Specialist] Following the 'Report Solicitation' allegations against former Prosecutor General Yoon Seok-yeol, and the 'Daejang-dong Development Project Favoritism' allegations against Gyeonggi Province Governor Lee Jae-myung, multiple investigative agencies including HOICA, prosecution, and police have received complaints, resulting in a situation where multiple agencies are simultaneously investigating the same case.

With the presidential election just over five months away, these allegations involve the most prominent presidential candidates from both ruling and opposition parties, making swift investigations to uncover the truth more urgent than ever. However, simultaneous investigations by HOICA, prosecution, and police (in the 'Report Solicitation' case), or simultaneous receipt of complaints by these agencies (in the 'Daejang-dong' case), seem to be causing confusion and hindering investigative progress.

Fundamentally, after the adjustment of investigative authority between prosecution and police, the police can investigate without restrictions on targets. Conversely, prosecution's investigative authority is limited by the Prosecutors' Office Act to six major crimes and crimes committed by police officers. HOICA holds investigative authority over crimes committed by high-ranking officials under the HOICA Act. However, both HOICA and prosecution can investigate crimes directly related to cases they have been assigned by law, making it difficult to clearly delineate investigative scope solely by target or crime type.

Simultaneous Investigation of 'Report Solicitation' Allegations by HOICA, Prosecution, and Police... Should Be Unified Under HOICA

Regarding the 'Report Solicitation' allegations, while the Supreme Prosecutors' Office Inspection Department was conducting an inspection, HOICA swiftly registered former Prosecutor General Yoon and former Deputy Director of the Supreme Prosecutors' Office Investigation Information Policy Division Son Jun-sung as suspects on charges including abuse of authority immediately after receiving a complaint from a civic group, and began investigation.

Given the expanding fallout since the first media report, HOICA's prompt investigation into the abuse of authority allegations involving current and former prosecutors, who have investigative authority, was an unavoidable choice to minimize the possibility of evidence destruction and to early clarify the substance of the allegations.

Subsequently, the complaint delivered by former Deputy Director Son named Choi Kang-wook, leader of the Open Democratic Party, and Hwang Hee-seok, Supreme Council member, as accused, along with Yoon, Son, Yoon's wife Kim Geon-hee, Prosecutor General Han Dong-hoon, People Power Party lawmakers Kim Woong and Jeong Jeom-sik, and an unidentified complaint writer, totaling seven persons, who filed a lawsuit with the prosecution. The Seoul Central District Prosecutors' Office Public Investigation Division 1 was assigned the case and is investigating. Additionally, the prosecution received a complaint last week from whistleblower Jo Seong-eun accusing Yoon and lawmaker Kim of defamation, insult, and violation of the Public Interest Whistleblower Protection Act.

Meanwhile, the police also received complaints related to the 'Report Solicitation' allegations. One case involves the civic group Judicial Examination Preparation Association (Sajunmo) filing a complaint against News Bus publisher Lee Jin-dong and others for false statement offenses under the Public Official Election Act, currently under investigation by the Seoul Metropolitan Police Agency's Anti-Corruption and Public Crime Investigation Unit. Another case involves Ji Mo, the whistleblower in the 'Channel A Coercion Attempt' case, who filed a complaint with the Seoul Metropolitan Police Agency against Yoon, Son, and lawmaker Kim for violations of the Personal Information Protection Act and the Information and Communications Network Act.

If the cases received by the police are related to the 'Report Solicitation' allegations, the cases under investigation by HOICA and prosecution can be considered essentially the same factual matters.

The potential criminal charges in the 'Report Solicitation' allegations, where former Prosecutor General Yoon allegedly solicited reports against ruling party politicians through former Deputy Director Son, include abuse of authority, violation of the Public Official Election Act, official secret leakage, violation of the National Public Officials Act, election interference under the Criminal Act, and violation of the Personal Information Protection Act.

Among these charges, HOICA holds investigative authority over abuse of authority and official secret leakage. The Public Official Election Act violations and election interference under the Criminal Act fall under prosecution's investigative authority, while violations of the Personal Information Protection Act are not high-ranking official crimes or major crimes prosecutable by prosecution, thus falling under police jurisdiction.

According to the HOICA Act and the Prosecutors' Office Act, each investigative agency can investigate crimes within their jurisdiction. However, from the perspectives of investigative efficiency and protection of suspects' rights, it is preferable for one agency to oversee the entire investigation.

In this case, as HOICA Chief Kim Jin-wook pointed out, the core issue is the 'abuse of authority' charge. Therefore, HOICA, which has priority jurisdiction over investigations involving current and former prosecutors, is likely to request case transfer from prosecution and take charge of the investigation.

Article 3, Paragraph 1, Subparagraph 1 of the HOICA Act lists 'investigation of high-ranking officials' crimes' as HOICA's duties, and Subparagraph 2 states that prosecution of high-ranking officials' crimes committed by the Prosecutor General or prosecutors during their tenure or by their family members is HOICA's responsibility.

Under HOICA Act and Prosecutors' Office Act, 'Crimes Directly Related and Recognized During Investigation'... Can Be Investigated as Related Crimes

Article 2, Paragraph 4, Subparagraph (d) of the HOICA Act defines 'related crimes' as crimes directly related to the high-ranking official crimes recognized during the investigation process, committed by the relevant high-ranking official.

Thus, the abuse of authority charges against former Prosecutor General Yoon and former Deputy Director Son in the 'Report Solicitation' allegations fall under HOICA's investigative authority as high-ranking officials' crimes. Violations of the Public Official Election Act and other charges can be investigated by HOICA as related crimes recognized during the investigation, and HOICA can decide on prosecution.

Similar provisions exist in the Prosecutors' Office Act defining prosecution's investigative authority.

Article 4, Paragraph 1, Subparagraph 1 of the Prosecutors' Office Act defines crimes prosecutable by prosecutors: Subparagraph (a) lists six major crimes including corruption and economic crimes; Subparagraph (b) lists crimes committed by police officers; and Subparagraph (d) includes crimes directly related to those in (a) and (b) and crimes recognized during investigation related to those crimes. Therefore, even crimes not included in the six major crimes can be investigated if directly related crimes are recognized during investigation.

For example, while HOICA has investigative authority over abuse of authority charges against current and former prosecutors and prosecution does not, prosecution investigating Public Official Election Act violations by these prosecutors may recognize directly related abuse of authority charges and investigate them.

Since the amended Prosecutors' Office Act and the establishment of HOICA have both been in effect for less than a year, clear interpretative standards for 'directly related' crimes, which define related crimes, are lacking. Consequently, both HOICA and prosecution can claim investigative authority over this case, necessitating coordination between the two agencies before summoning key suspects.

'Daejang-dong' Allegations Not Subject to HOICA Investigation Under HOICA Act... Appearance of Former High-ranking Legal Officials Could Be a Variable

In the 'Daejang-dong Development Project Favoritism' allegations, the camp of Gyeonggi Province Governor Lee Jae-myung, the subject of the allegations, first filed a complaint against the People Power Party, which raised suspicions of Lee's involvement.

Lee's camp filed complaints with the prosecution against People Power Party floor leader Kim Ki-hyun, lawmaker 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. The Seoul Central District Prosecutors' Office assigned the case to the Public Investigation Division 2, specializing in election crimes, and began investigation.

The direct investigative target of this complaint is whether false information was spread to defeat Lee or whether Lee's reputation was defamed by false statements. However, to determine whether these crimes are established, the truthfulness of the People Power Party's claims must be assessed first, necessitating examination of the entire Daejang-dong allegations.

The People Power Party has announced plans to soon file a complaint against Lee for breach of trust under the Act on the Aggravated Punishment of Specific Economic Crimes. They claim that Lee's associates intervened in the selection of contractors and profit distribution, causing significant losses to Seongnam City by enabling a specific private business to gain enormous profits.

The Lawyers for Human Rights and Unification of Korea (Hanbyun), the National Revolutionary Party, and the Clean Election Citizens' Action on the 23rd filed a complaint with the Supreme Prosecutors' Office against former Supreme Court Justice Kwon Soon-il, who served as an advisor to Hwacheon Daeyu, on charges including bribery after the fact. They argue that receiving a large advisory fee after issuing a dissenting opinion of not guilty in Lee's Public Official Election Act appeal constitutes bribery after the fact.

Meanwhile, the police have been conducting a preliminary investigation for several months after receiving a request from the Financial Intelligence Unit (FIU) to check Hwacheon Daeyu's fund flows and account transactions.

The Seoul Yongsan Police Station, conducting the preliminary investigation, recently summoned Hwacheon Daeyu CEO Lee Seong-moon for questioning and has notified major shareholder Kim Man-bae to appear. Additionally, after the Chuseok holiday, the Seoul Metropolitan Police Agency's Financial Crime Investigation Division deployed an additional five-member Crime Proceeds Tracing Investigation Team.

Amid this, on the 24th, the National Association of Demolished Residents (Jeoncheolhyup) filed a complaint with HOICA against Lee for breach of trust under the Act on the Aggravated Punishment of Specific Economic Crimes. The police, having prepared to transition from preliminary investigation to full investigation, and the prosecution, having assigned and started investigating the complaint, now face a complaint filed with HOICA as well.

The People Power Party insists that HOICA should promptly investigate to maintain fairness with the allegations involving former Prosecutor General Yoon. However, this case is not subject to HOICA investigation under the HOICA Act.

Under the HOICA Act, HOICA holds investigative authority over crimes committed by high-ranking officials or their families during their tenure.

Specifically, Article 2, Subparagraph 3 of the HOICA Act limits investigation to certain crime types such as dereliction of duty, abuse of authority, forgery or alteration of official documents related to duties, embezzlement, breach of trust, bribery under the Act on the Aggravated Punishment of Specific Crimes, and political fund law violations. However, the subject must be a high-ranking official as defined in Article 2, Subparagraph 1 of the HOICA Act.

Article 2, Subparagraph 1 (ta) lists local government heads including special mayors, metropolitan mayors, special self-governing mayors, provincial governors, special self-governing provincial governors, and education superintendents as high-ranking officials. Thus, Seoul Mayor, Busan Metropolitan Mayor, Sejong Special Self-Governing Mayor, Jeju Special Self-Governing Provincial Governor, and Gyeonggi Province Governor are high-ranking officials subject to HOICA investigation. However, the position Lee held at the time of the allegations, Seongnam Mayor, is not considered a high-ranking official under the HOICA Act.

Considering the principle of legality, the enumeration of high-ranking officials subject to HOICA investigation in the above provision should be interpreted as exhaustive, not illustrative. Therefore, HOICA likely lacks investigative authority over crimes committed during Lee's tenure as Seongnam Mayor.

HOICA is undoubtedly aware of this but has taken a cautious stance, stating it will 'review the complaint' for now.

A potential variable is the involvement of former high-ranking legal officials such as former Supreme Court Justice Kwon Soon-il, former Special Prosecutor Park Young-soo, former Prosecutor General Kim Soo-nam, and former Suwon District Prosecutor General Kang Chan-woo, who have served or are serving as advisors to Hwacheon Daeyu.

If evidence emerges that these individuals influenced Lee's trial in exchange for large advisory fees or engaged in lobbying to resolve various permits or legal issues during the Daejang-dong development project, the case could fall under high-ranking officials' crimes and become subject to HOICA investigation. However, since police and prosecution investigations currently focus on tracing Hwacheon Daeyu's fund flows, this possibility seems unlikely at present.

The civic group Citizens' Action for Judicial Justice (Sasaehaeng) announced plans to file a complaint with HOICA against People Power Party lawmaker Kwak Sang-do and his son on charges of bribery under the Act on the Aggravated Punishment of Specific Crimes, related to receiving 5 billion won in severance pay from Hwacheon Daeyu this week.

Delicate Dynamics Among Investigative Agencies... HOICA and Police Face Deep Dilemmas

As such, HOICA, prosecution, and police are conducting investigations or preliminary inquiries into the 'Report Solicitation' and 'Daejang-dong' allegations, which have emerged as the biggest issues in the presidential election landscape. However, the agencies holding investigative leadership differ according to relevant laws.

In the 'Report Solicitation' allegations, since abuse of authority by current and former prosecutors is the main charge and HOICA has the authority to request case transfer to other investigative agencies such as prosecution or police, it seems most appropriate for HOICA to request transfer and jointly investigate the entire case.

Conversely, the 'Daejang-dong' allegations occurred during Lee's tenure as Seongnam Mayor, outside HOICA's jurisdiction. Given the need for large-scale investigative manpower to trace Hwacheon Daeyu's suspicious fund flows and investigate various favoritism allegations during the development project, it seems appropriate for prosecution or police to lead the investigation.

Moreover, these two cases mark the first time since the adjustment of investigative authority between prosecution and police and the establishment of HOICA that all three agencies are simultaneously investigating the same cases. This raises the possibility of fierce investigative competition as each agency seeks to assert its presence.

Especially for the police, who received notification from FIU about Hwacheon Daeyu's suspicious fund flows in April but have only conducted a preliminary investigation for five months without starting a full investigation, there is a pressing need to produce investigative results on the 'Daejang-dong' allegations quickly. This would demonstrate the police's investigative capabilities, which have been broadly granted through investigative authority adjustments. Failure to show clear results, as seen in the 'LH speculation' allegations, could lead to criticism of 'investigation obstruction' or 'incompetent investigative ability' if the police lose initiative to HOICA or prosecution in these two cases.

HOICA also faces significant dilemmas.

While accelerating the 'Report Solicitation' investigation, HOICA has also received a complaint from Yoon Seok-yeol's campaign accusing National Intelligence Service Director Park Ji-won and whistleblower Jo Seong-eun of violating the National Intelligence Service Act and the Public Official Election Act in the so-called 'Whistleblower Solicitation' allegations.

HOICA Chief Kim Jin-wook must decide whether HOICA will investigate both the 'Report Solicitation' and 'Whistleblower Solicitation' allegations simultaneously or transfer the latter to prosecution or police.

According to Article 24 of the HOICA Act, the HOICA Chief has the authority to request case transfer to other investigative agencies conducting overlapping investigations and may transfer cases if deemed appropriate considering suspects, victims, case content, and scale.

Considering HOICA's limited investigative manpower and experience, it seems challenging for HOICA to handle the 'Whistleblower Solicitation' case as well. However, since the two cases are closely related like two sides of the same coin, separate investigations by different agencies could reduce efficiency. Moreover, if HOICA, which swiftly registered former Prosecutor General Yoon as a suspect and conducted searches in the 'Report Solicitation' case, transfers the 'Whistleblower Solicitation' case to another agency, it could face criticism over 'political neutrality,' posing a burden for Chief Kim.

Both the 'Daejang-dong' allegations, accusing ruling party presidential candidate Lee Jae-myung of favoritism during his tenure as Seongnam Mayor, and the 'Whistleblower Solicitation' allegations, accusing National Intelligence Service Director Park Ji-won of conspiring with whistleblower Jo in the 'Report Solicitation' case, are sensitive cases for HOICA, prosecution, and police to investigate. With the presidential election approaching, swift investigative results are necessary. If the allegations are dismissed as groundless, criticism of 'inadequate investigation' will be unavoidable. Conversely, if illegal acts by Lee or Director Park emerge during investigation, it would deal a severe blow to President Moon Jae-in and the ruling party.

Investigations into the 'Report Solicitation' allegations involving opposition presidential candidate former Prosecutor General Yoon may be less burdensome for these agencies. However, given the politically sensitive election period, special care is needed to avoid disputes over 'investigative fairness' among the cases.

In this context, the recent attitude of Justice Minister Park Beom-gye appears quite inappropriate. After the 'Report Solicitation' allegations surfaced, Minister Park has made statements in parliamentary government questioning and media interviews such as 'Yoon and Son had a very special relationship,' 'There are four grounds,' and 'It is not unreasonable to interpret the Son Jun-sung in the Telegram messages as former Deputy Director Son,' which could lead the public to prejudge the investigation results. This is especially incomprehensible given his emphasis on investigation confidentiality and the revision of public relations guidelines allowing human rights officers in each prosecutors' office to conduct fact-finding or internal investigations when investigative reports are released.

It is now time for everyone to closely observe how HOICA, prosecution, and police, which have simultaneously launched investigations into these sensitive allegations, coordinate to divide investigative responsibilities, maintain political neutrality, and conduct swift and fair investigations to minimize electoral impact.