Constitutional Court: "Prosecutorial Discretion in Professor Im Miri's 'Except the Democratic Party' Column Case Partially Faulty"

Im Miri, Research Professor at Korea University
Photo by Yonhap News

[Asia Economy Reporter Kim Daehyun] On the 26th, the Constitutional Court partially accepted the constitutional complaint filed by Professor Im Miri of Korea University, who was given a suspended prosecution disposition by the prosecution for writing a column titled 'Anything but the Democratic Party' before the 2020 general election, requesting the cancellation of that disposition.

That afternoon, the Constitutional Court stated, regarding the constitutional complaint filed by Professor Im, who requested "the cancellation of the suspended prosecution disposition by the Seoul Southern District Prosecutors' Office against the petitioner," "the distribution of printed materials by illegal means infringed on the rights to equality and the pursuit of happiness, so it is canceled," but by a 5 to 4 decision of the justices, "the remaining claims are dismissed."

The Constitutional Court ruled, "The newspaper in which the column was published is a formal periodical regularly issued, and only cases where it is issued or distributed by non-ordinary methods are punishable under Article 95 of the Public Official Election Act to protect freedom of reporting and commentary related to elections. It does not fall under the general documents or flyers regulated by Article 93 of the Public Official Election Act."

However, "Considering the title of the column, its specific content, the timing of the act, and the social circumstances at the time, the act of publishing the column by Professor Im corresponds to 'an act of encouraging voting including content opposing a specific political party by methods not permitted under the Public Official Election Act,'" the court pointed out.

On the other hand, Justices Lee Jongseok, Lee Youngjin, Kim Kiyoung, and Lee Miseon dissented, stating, "The tone is critical of the obsession with elections and emphasizes the importance of continuous public oversight of political parties and political power," and "Therefore, it is difficult to see that this column was written for the purpose of a specific election or voting itself."

Earlier, in January 2020, Professor Im contributed a column titled 'Anything but the Democratic Party' to Kyunghyang Newspaper and received a suspended prosecution disposition from the prosecution. The reason was that she encouraged voting against a specific party outside the election period, violating the Public Official Election Act. A suspended prosecution means the charges are acknowledged, but the prosecutor decides not to indict the suspect considering various circumstances.

However, Professor Im argued, "The judicial disposition is an attempt to discipline expression harmful to the ruling party by using the power of law," and "My column is completely unrelated to acts that undermine election fairness." Especially regarding the phrase "Let's vote except for the Democratic Party," she emphasized, "It was directed at the Democratic Party, not voters," and "Even outside the election period, it was a call to fear the people as if it were election time, to treat them like masters."

Professor Im stated, "The prosecution acknowledged the facts of the case but decided to suspend prosecution considering that I am a first-time offender," and "Although this disposition is disgraceful to me personally, I decided to file a constitutional complaint because it could suppress criticism of political power and freedom of expression in Korean society as a whole."

At the time, the Democratic Party of Korea filed a complaint against Professor Im, claiming that the column encouraged voting outside the election campaign period, but withdrew the complaint due to public backlash. However, a civic group filed a complaint again, leading to the start of the prosecution investigation.