[Exclusive] Sitting Chief Prosecutor: "Min Hyungbae's 'Disguised Resignation' Is a 'Collusive False Representation' and 'Act Contrary to Public Order'... Invalid"

"Resignation from a Political Party Is a Civil Legal Relationship, According to Precedent"

Min Hyungbae, member of the Democratic Party of Korea.

[Asia Economy, Reporter Choi Seokjin (Legal Affairs), Reporter Kim Daehyun] An argument has emerged within the prosecution that the resignation of Min Hyungbae, a member of the Democratic Party of Korea (representing Gwangsan-gu Eul, Gwangju), from the party to push through the so-called "Prosecution Investigation Authority Complete Deprivation" (commonly referred to as "Prosecution Reform") bill constitutes a "collusive false representation" under civil law and is therefore legally "invalid."

A current chief prosecutor who posted about the issue on the prosecution's internal network criticized the Democratic Party's decision to orchestrate Min's disguised resignation in order to pass the bill, stating that it "gravely undermines the spirit of 'representative democracy' and the core values of the Political Parties Act," and asserted, "I am convinced that this is not only a case of moral and political corruption, but also a legal problem."

According to the legal community on April 21, Gong Bongsook, Head of the Women and Child Crime Investigation Division at the Seoul Southern District Prosecutors’ Office (age 47, 32nd class of the Judicial Research and Training Institute), made this argument in a post titled "What Is the Effectiveness of a 'Disguised Resignation'?" on the prosecution's internal network E-Pros the previous afternoon, seeking opinions from fellow prosecutors.

Chief Prosecutor Gong began her post by saying, "I couldn't believe my eyes when I read the article. In all my years, I never thought I would witness something like a 'disguised resignation.' And to think a member of the National Assembly would collude with their own party so openly that the entire nation is aware of it."

She explained, "Originally, a 'collusive false representation' is invalid under Article 108 of the Civil Act. This refers to a declaration of intent made in collusion with the other party that does not reflect one's true intention, and this case fits the requirements exactly."

Article 108(1) of the Civil Act stipulates that "a declaration of intention made in collusion with the other party that is false shall be void," thereby rendering such sham acts legally invalid.

Chief Prosecutor Gong stated, "It is widely known not only to the Democratic Party and Min Hyungbae, but to the entire nation, that Representative Min temporarily resigned from the party, following the party's official stance, to achieve the goal of 'prosecution reform,' handled the agenda, and then immediately rejoined the party, dedicating himself as a party member. In that case, isn't this a collusive false representation without genuine intent to resign?"

She continued, "According to Article 108(2) of the Civil Act, 'the invalidity of a collusive false representation cannot be asserted against a bona fide third party,' but in this case, since the entire nation is 'aware,' it can be said that there are no bona fide third parties to assert against."

Article 108 of the Civil Act renders the legal effect of collusive acts void (paragraph 1), but to protect bona fide third parties who relied on the appearance of such collusive acts, it prohibits asserting the invalidity against them (paragraph 2). In this case, however, since everyone knows that Representative Min had no real intention to resign and did so temporarily for another purpose, the argument is that the act is invalid even in relation to third parties or the public.

Chief Prosecutor Gong emphasized, citing Supreme Court precedents, that the issue of resigning from a political party is a civil legal relationship to which the Civil Act applies.

She noted, "While there are no precedents for 'disguised resignation' as this is unprecedented, there are many precedents where 'disguised retirement' has been ruled invalid," and introduced several cases.

These include: ▲ A Supreme Court ruling that a mid-term retirement, carried out according to company policy to receive severance pay and then rehire the employee, is invalid as a collusive false representation; ▲ Another ruling that even if a worker is formally treated as having retired to take on a high-paying, special assignment for the same employer and is then rehired, the declaration of retirement is invalid.

Chief Prosecutor Gong further argued, "There may be claims that the legal relationship of 'resignation' is a public law matter to which collusive false representation does not apply, but 'joining and leaving a political party' appears to be a civil legal relationship."

She explained, "While political parties play a public role in areas such as parliamentary operations and policy decisions of the executive branch, unlike state institutions, they are freely established, and except for regulation by Article 8 of the Constitution and the Political Parties Act, civil law such as Article 21 of the Constitution, the Civil Act, and the Civil Procedure Act applies. Therefore, for horizontal civil legal relationships such as joining and leaving a party or mergers between parties, the relevant provisions of the Political Parties Act and general civil law apply, whereas for public law relationships such as compulsory dissolution of a party, Article 8 of the Constitution, the Political Parties Act, and the Constitutional Court Act apply," citing a court ruling.

She also cited a Supreme Court decision that, in a lawsuit challenging the validity of a party merger resolution and seeking an injunction to prevent the party leader from performing duties, the matter was judged on the premise that it is a civil legal relationship.

At the end of her post, Chief Prosecutor Gong directly criticized the Democratic Party for using expedients to push through the bill.

She said, "Above all, from a common-sense perspective, orchestrating a disguised resignation to pass an agenda through a vote seems to gravely undermine the spirit of 'representative democracy' and the core values of the Political Parties Act. In fact, I would like to argue that this constitutes not only a 'collusive false representation' under Article 108 of the Civil Act, but also an 'act contrary to public order and morals' under Article 103 of the Civil Act."

Article 103 of the Civil Act stipulates that "a juristic act whose purpose is contrary to good morals or other social order shall be void." This means that contracts whose content is against social order, such as contracts for sexual slavery, concubinage, or gambling debts, are legally invalid.

Chief Prosecutor Gong concluded, "I may not have the academic background to delve deeper, but I am convinced that this 'disguised resignation' is not only 'moral and political corruption,' but clearly poses legal problems as well. What are your thoughts?"

After Representative Min changed his status to independent, the Democratic Party submitted a request to form an agenda coordination committee for the "prosecution reform" bill to the National Assembly’s Legislation and Judiciary Committee the previous day. The party’s initial plan was to have Yang Hyangja, an independent lawmaker and former Democratic Party member, cooperate in the committee, allowing the Democratic Party to secure a 4-to-2 majority. However, when Yang expressed opposition to the bill, the party decided to "replace the player" in this manner.

The agenda coordination committee is a body established to discuss agenda items that require adjustment of differing opinions. It consists of three Democratic Party members, two People Power Party members, and one member from a non-negotiating group from among the Legislation and Judiciary Committee members. If two-thirds or more (four members) agree, the agenda can be passed. Once passed by the committee, the agenda is considered to have undergone subcommittee review and can be immediately submitted to the full assembly.

Representative Yang criticized the move on her Facebook page, writing, "I am appalled by the idea that, just because they are the majority party, they would have one of their own lawmakers resign from the party to serve on the agenda coordination committee."