[Fact Check] Prosecutors, Additional Indictment for Lee Jae-myung on 'Perjury Coaching'? Retrial Request?

On the afternoon of the 25th, Lee Jae-myung, leader of the Democratic Party of Korea, attended the 4th Nationwide Rally condemning the forced mobilization solution and the Korea-Japan summit held near Seoul City Hall.
[Image source=Yonhap News]

The prosecution's request for an arrest warrant for the suspect in the Seongnam Baekhyeon-dong development corruption case has drawn attention as it contains allegations that Lee Jae-myung, leader of the Democratic Party of Korea, instructed false testimony.

With the warrant details made public, there are comments questioning whether a retrial request is possible regarding the previous not-guilty verdict Lee received in connection with the false testimony allegations, and prospects that the prosecution may additionally indict Lee on charges of instructing false testimony.

Retrial to Overturn Not Guilty to Guilty Verdict Is Impossible... Criminal Procedure Act Provisions and Supreme Court Rulings

However, the legal community views that a retrial request concerning Lee’s past Public Official Election Act case, in which he was acquitted related to the 'impersonation of a prosecutor' incident, is impossible.

Article 420, Clause 2 of the Criminal Procedure Act, which stipulates grounds for retrial, lists as one reason for requesting a retrial "when testimony, expert opinion, interpretation, or translation that was evidence in the original judgment is proven false by a final judgment."

However, the same article’s main text states, "A retrial may be requested for the benefit of the person sentenced in a final guilty verdict if any of the following reasons apply."

Also, Article 421, Paragraph 1 of the Criminal Procedure Act states, "A retrial may be requested for the benefit of the person sentenced only in cases where the appeal or final rejection judgment involves reasons such as falsification of evidence (No. 1), perjury (No. 2), or other specified reasons (No. 7)."

In other words, the retrial provisions in the Criminal Procedure Act are a system designed for the benefit of defendants who have been found guilty, for example, due to perjury by witnesses or fabricated evidence.

There is also a Supreme Court ruling supporting this.

In a 1983 case regarding the dismissal of a retrial request, the Supreme Court ruled, "As stipulated in Articles 420, 421, and 424 of the Criminal Procedure Act, a retrial can be requested for the benefit of the person sentenced in a final guilty verdict, and it is not permitted for a person who was acquitted to seek a guilty verdict through retrial."

In other words, a retrial request to impose the 'disadvantage of overturning a not-guilty verdict to guilty' on Lee, who has already been acquitted, is impossible.

Attorney A said, "Retrial systems differ by country; some allow retrials that disadvantage the defendant, but Korea does not permit such retrials. Prosecutors are included among those who can request retrials and may do so ex officio, but they cannot request a retrial to overturn a not-guilty verdict to guilty."

Possibility of Additional Indictment for 'Instructing False Testimony' Cannot Be Ruled Out... Seven Years Statute of Limitations Remains

The arrest warrant request containing the circumstances of Lee’s instruction of false testimony pertains to businessman Kim, who is under investigation for receiving money in connection with liaison work during the Baekhyeon-dong development project.

Looking at the false testimony circumstances of Lee recorded in Kim’s arrest warrant, it appears that the prosecution cannot completely rule out the possibility of additionally indicting Lee depending on the case.

The Anti-Corruption Investigation Division 1 of the Seoul Central District Prosecutors’ Office (Chief Prosecutor Eom Hee-jun) requested a pre-arrest warrant on the 26th against Kim on three charges: two counts of bribery under the Act on the Aggravated Punishment of Specific Crimes and perjury. Kim is an associate of Kim In-seop, former CEO of Korea Housing Technology, who is known to have close ties with Lee and Jeong Jin-sang, former Political Coordination Officer of the Democratic Party’s representative office.

The prosecution judged that the three charges against Kim are not unrelated separate crimes but crimes committed by exploiting the long-standing collusive relationship between Kim and CEO Kim In-seop with Lee and former officer Jeong, and that all are organically connected.

The charges applied to Kim are: ▲Receiving 3.5 billion KRW from CEO Jeong as a bribe for facilitating permits related to the Baekhyeon-dong development project promoted by Jeong Ba-ul, CEO of Asia Developer, together with CEO Kim ▲Perjury as a witness in Lee’s Public Official Election Act violation trial at Suwon District Court Seongnam Branch in February 2019, at Lee’s request ▲Receiving 71 million KRW from a company after arranging for the delivery of wiretapping equipment to Seongnam City and others through a request to former officer Jeong, as compensation.

The second charge, perjury, involves Kim testifying in February 2019 at Lee’s trial for violating the Public Official Election Act (false statement) at Suwon District Court Seongnam Branch, giving false testimony contrary to his memory as requested by Lee.

At that time, Lee was on trial for allegedly giving false answers to questions about impersonation of a prosecutor by a rival candidate during the "2018 Gyeonggi Province Governor Candidate KBS Invitational Debate" held in May 2018, a year earlier.

Lee himself had already been indicted in 2002 as an accomplice with KBS 'Chujeok 60 Minutes' producer Choi Cheol-ho for impersonating a prosecutor and had a confirmed guilty verdict with a fine, but the prosecution alleged that Lee lied as if he was not involved and was falsely accused.

The prosecution states that from around December 2018, Lee repeatedly called Kim asking him to testify favorably in his trial, and Kim testified falsely as requested by Lee when appearing as a witness, leading to the addition of the perjury charge in Kim’s warrant request.

Furthermore, the third charge against Kim, receiving 71 million KRW, is alleged to be compensation for assisting Lee’s trial through false testimony.

The prosecution believes that although Kim initially said "I don’t remember" or "I don’t know" several times when receiving Lee’s calls requesting testimony, he eventually gave testimony in court consistent with Lee’s side’s pre-submitted questions, effectively admitting to perjury, and thus concluded that Kim gave false testimony contrary to his memory in Lee’s trial.

According to Kim’s warrant request, theoretically, Lee could be charged with instructing false testimony. Considering that the request for Kim’s testimony began in late 2018, the statute of limitations for instructing false testimony (7 years) still remains.

However, it is difficult at this point to predict whether the prosecution will actually indict Lee on charges of instructing false testimony during the Baekhyeon-dong investigation.

Nonetheless, it is true that a new judicial risk has been added that Lee must prepare for.

Lee Jae-myung’s Side Denies 'Instructing False Testimony,' Says They Only Asked for Truthful Testimony in Court

Regarding reports that the prosecution included circumstances of Lee instructing false testimony in Kim’s arrest warrant charges, the Democratic Party of Korea stated that "Lee did not instruct Kim to give false testimony but merely requested him to testify."

The Democratic Party issued a statement explaining, "Lee’s request to Kim, who was detained in connection with the Baekhyeon-dong project, to testify was related to a separate election law trial unrelated to the Baekhyeon-dong project during his time as Gyeonggi Province Governor, and it was a request to 'testify truthfully,' not to give false testimony."

The party further stated, "Some reports claiming that Kim testified in February 2019 that 'the side of former Mayor Kim Byung-ryang, who sued Lee, suggested withdrawing the complaint against PD Choi to frame Lee as the main culprit impersonating a prosecutor, and that Lee was falsely accused' are not true."

They added, "Kim never testified that 'Lee was falsely accused,' and rather, when asked by the defense if the complaint against Choi Cheol-ho was withdrawn in exchange for cooperating to frame the defendant as the main culprit impersonating a prosecutor, Kim responded that 'given Kim Byung-ryang’s character, that was probably not the intention,' expressing opposition."

Kim’s Arrest Warrant Dismissed... Prosecution Considering Reapplication

Meanwhile, the court dismissed the arrest warrant requested by the prosecution against Kim.

Presiding Judge Yoon Jae-nam of the Seoul Central District Court’s warrant division stated, "Considering the need to guarantee the suspect’s right to defense, the fact that objective evidence seems to have been secured through searches and seizures, and that the suspect’s actual residence has been identified, there is somewhat insufficient reason for detention at this stage."

Although the warrant was dismissed, since the court cited reasons such as 'sufficient evidence secured' and 'certainty of residence' rather than 'lack of evidence of crime,' the prosecution’s investigative momentum is not expected to decline significantly.

A prosecution official said, "We will decide the direction of the investigation, including whether to reapply for the warrant, through additional investigation."