[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Min Hyung-bae, a member of the Democratic Party of Korea (Gwangju Gwangsan-gu Eul), who faced criticism for 'disguised withdrawal' to neutralize the agenda adjustment committee in order to pass the 'complete removal of prosecution investigation rights' ('Geomsu Wanbak') bill and was even reported to the prosecution, has angrily responded to the accusation of 'disguised withdrawal' by asking, "Who promised reinstatement?"
At the confirmation hearing for Han Dong-hoon, the nominee for Minister of Justice, held on the 9th at the National Assembly's Legislation and Judiciary Committee, Min strongly protested against Rep. Jo Su-jin of the People Power Party, who made remarks suggesting that he had disguised his withdrawal from the Democratic Party.
Min claimed that he actually withdrew from the Democratic Party and became an independent lawmaker, so he did not conspire with the party to fake his withdrawal. However, this seems to show a lack of understanding of the public criticism's essence, as Yang Hyang-ja, an independent lawmaker, opposed the 'Geomsu Wanbak' bill, forcing Min to withdraw and serve as an independent member on the agenda adjustment committee, thereby neutralizing its function.
Rep. Jo Su-jin: "Feigning disguised withdrawal on the premise of reinstatement" vs. Min Hyung-bae: "Who promised reinstatement?"
During the resumed Q&A session that afternoon, Rep. Jo pointed out the procedural unconstitutionality of passing the 'Geomsu Wanbak' bill, saying, "Since the Sasa-oip constitutional amendment during the Syngman Rhee administration, various cunning tricks have been rampant," and "Among them, the most representative is disguised withdrawal."
He added, "Participating in the agenda adjustment committee and ending the longest 90-day period in just 17 minutes was a trick among tricks," and asked, "Candidate, in our law, disguised moving-in and disguised divorce are punishable, right?"
Rep. Jo also questioned, "If disguised withdrawal is left unchecked, wouldn't it be difficult to punish even if disguised moving-in or disguised divorce are confirmed as facts?"
Rep. Jo further stated, "There are many criticisms under civil law about 'collusive false declarations,' and so-called collusive acts are invalid."
He said, "In other words, acts pretending to disguise withdrawal on the premise of reinstatement afterward are invalid from the start, according to legal experts." He asked the nominee again, "Have you heard that such disguised withdrawal acts are considered collusive false declarations under civil law because they involve withdrawing to pass a bill and then reinstating afterward? This is called a collusive act."
Upon hearing Rep. Jo's remarks, Min requested to make a procedural statement to Chairman Park Kwang-on of the Legislation and Judiciary Committee. When Chairman Park said he would grant one minute as usual, Min, with an agitated voice, asked, "Please give me three minutes."
Min said, "Rep. Jo Su-jin used the term 'disguised withdrawal' here in the National Assembly," and "The media uses it as some kind of metaphor or euphemism, which is still inappropriate, but a lawmaker sitting next to me has withdrawn and is sitting as an independent, yet they use the term disguised withdrawal. Is this possible?" he said angrily.
He continued, "What did I disguise in my withdrawal? Did I say I withdrew without actually withdrawing?" he asked again. "I am not currently a member of the Democratic Party. I withdrew. Yet you call it disguised withdrawal? Do you think this is a media desk?" He expressed displeasure targeting Rep. Jo, who is a former journalist.
Min said, "Media desks use words carelessly. Chairman, if such expressions are allowed in the future, it should not be permitted at all. It does not correspond to the truth," and raised his voice, "Who promised reinstatement? Did you confirm it?"
Finally, Min said, "Such rude and insulting remarks are made in the Judiciary Committee confirmation hearing, which the entire nation is watching," and "That's why they act recklessly. Chairman, please make it clear," he requested Chairman Park.
After Min's remarks, as loud voices were exchanged between ruling and opposition members, Chairman Park said, "Please be quiet for a moment," and "Let's proceed with the meeting. Follow my instructions," he calmed the members.
He added, "I ask both the hearing members and the nominee to be cautious in their choice of words."
Current Chief Prosecutor: "Min Hyung-bae's 'disguised withdrawal' is a collusive false declaration and thus invalid"
Earlier, Gong Bong-sook, head of the Women and Children Crime Investigation Division at the Seoul Southern District Prosecutors' Office (age 47, Judicial Research and Training Institute class 32), posted an article titled <'The Effectiveness of 'Disguised Withdrawal'?> on the prosecution's internal network E-Pros on the 21st of last month, arguing that the Democratic Party's act of causing Min to withdraw is a collusive false declaration under civil law and therefore invalid.
At that time, Chief Gong said, "I couldn't believe my eyes when I read the article. In my life, I never thought I'd see 'disguised withdrawal,' a lawmaker conspiring with their party for all the nation to know," he said.
He explained, "'Collusive false declaration' is invalid under Article 108 of the Civil Act," and "'Collusive false declaration' refers to a declaration of intention that is not genuine but made in collusion with the other party, and the conditions perfectly fit."
Article 108(1) of the Civil Act (Collusive False Declaration) stipulates that 'a declaration of intention made in collusion with the other party is void,' invalidating the legal effect of such acts.
However, to protect bona fide third parties who believe such invalid acts to be valid and engage in transactions, Article 108(2) states that "the invalidity of the declaration of intention under the preceding paragraph cannot be asserted against bona fide third parties."
Chief Gong said, "Min followed the Democratic Party's party line to achieve the goal of 'Geomsu Wanbak' by temporarily withdrawing to process the agenda, then immediately reinstated and devoted himself as a Democratic Party member. Not only the Democratic Party and Min Hyung-bae but the entire nation knows this fact," and asked, "Isn't this a collusive false declaration without genuine intent to withdraw?"
He argued, "According to Article 108(2) of the Civil Act, 'the invalidity of collusive false declarations cannot be asserted against bona fide third parties,' but the entire nation can be considered 'malicious.' Therefore, it can be asserted..."
Article 108 of the Civil Act invalidates the legal effect of collusive acts (paragraph 1) but protects bona fide third parties who rely on the appearance of such acts (paragraph 2). Since everyone knows that Min temporarily withdrew without genuine intent for other purposes, it implies invalidity even in relation to third parties or the public.
Civil Group Reports to Prosecution for Obstruction of Business by Deception
Meanwhile, the civic group "Action Alliance for Upholding the Rule of Law" (Beopse-ryeon) filed a criminal complaint against Min on the 22nd of last month at the Seoul Central District Prosecutors' Office for obstruction of business by deception and intimidation.
At that time, Lee Jong-bae, head of Beopse-ryeon, said, "Min, a member of the National Assembly's Legislation and Judiciary Committee, disguised his withdrawal to cunningly pass the so-called 'Geomsu Wanbak' bill that completely strips the prosecution's investigative rights," and "The Democratic Party immediately assigned Min, who became independent, to the Judiciary Committee and applied for the formation of the agenda adjustment committee. The agenda adjustment committee is composed of three members from each party, but with Min becoming independent and participating as the opposition's quota, the committee effectively becomes 4 to 2, allowing the bill to be submitted to the full committee without subcommittee review, enabling the Democratic Party to unilaterally pass the bill."
He continued, "To hear and reflect minority voices, the opposition's quota in the agenda adjustment committee includes parties without negotiation groups, but if Min, an independent who is effectively a Democratic Party member, participates as the opposition's quota, preventing non-negotiation parties from participating in the committee, this constitutes obstruction of the non-negotiation parties' business by intimidation, and by disguising as independent to confuse the agenda adjustment committee and obstruct its members' work, we are filing a criminal complaint against Min for obstruction of business by deception and intimidation," explaining the reason for the complaint.
Originally, the Democratic Party tried to neutralize the agenda adjustment committee through Yang Hyang-ja, an independent lawmaker formerly from the Democratic Party, but when Yang opposed the forced passage of the 'Geomsu Wanbak' bill, Min was made to withdraw and assigned to the Judiciary Committee's agenda adjustment committee.
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