Following Prosecutor General Lee Won-seok's directive on the 2nd to "form a dedicated investigation team and conduct a swift investigation" five months after the receipt of the complaint regarding allegations of Kim Geon-hee's acceptance of luxury bags, the Seoul Central District Prosecutors' Office investigation team has begun a full-scale investigation. They notified the complainants to appear for questioning on the 9th and secured the original video footage on the day of the incident.
While the prosecution is simultaneously investigating the case in which Pastor Choi Jae-young, who gifted the luxury bag to Mrs. Kim, was accused of trespassing and other charges, the police are separately investigating the case in which Pastor Choi was accused of violating the Stalking Punishment Act.
![[Q&A] The Full Story and Investigation Outlook of the ‘Kim Geon-hee Luxury Bag Receipt’ Case](https://cphoto.asiae.co.kr/listimglink/1/2021122615153975861_1640499339.jpg)
The opposition parties argue that the prosecution's sudden rush to investigate is an attempt to create grounds for President Yoon Seok-yeol to exercise his veto power against the soon-to-be-proposed "Kim Geon-hee Special Prosecutor Act," maintaining their determination to introduce a special prosecutor. Some opposition members even allege that the presidential office and prosecution are colluding through the investigation of the luxury bag case, which has a relatively lower likelihood of punishment, to cover up the prosecution's inadequate investigation into Mrs. Kim's "Deutsche Motors stock manipulation" allegations.
Under the current Improper Solicitation and Graft Act, only the prohibition on the acceptance of valuables applies to the spouse of a public official, without any penalty provisions. Therefore, it is impossible to indict Mrs. Kim for violating the Improper Solicitation and Graft Act concerning the acceptance of luxury bags. In President Yoon's case, there are penalty provisions related to whether he took any action after becoming aware that Mrs. Kim received the luxury bag and whether he violated the obligation to report to his affiliated agency head. According to Article 84 of the Constitution, which stipulates the "non-prosecution privilege," it is impossible to indict President Yoon while in office, but investigation is possible, and indictment is possible after leaving office.
However, since the reporting obligation of public officials applies only when their spouse receives prohibited valuables, it must be recognized that Mrs. Kim received the luxury bag from Pastor Choi in connection with President Yoon's official duties to examine whether President Yoon violated the law. This is why the "connection to official duties" has emerged as the key issue in this case. In conclusion, if the connection to official duties is recognized, violations of the Improper Solicitation and Graft Act by Mrs. Kim, President Yoon, and Pastor Choi may be at issue; if denied, Mrs. Kim's acceptance of the bag, President Yoon's failure to report or take return measures, and Pastor Choi's provision of the bag are unlikely to constitute violations of the Improper Solicitation and Graft Act.
The beginning of the Kim Geon-hee luxury bag acceptance case, recent investigation status, legal issues, and investigation prospects are summarized in a Q&A format.
Q. What is the Kim Geon-hee luxury bag acceptance case?
A. It is the case in which Pastor Choi Jae-young, a Korean-American, visited Mrs. Kim Geon-hee at the Kobana Contents office in the basement of Acro Vista in Seocho-dong, Seoul, on September 13, 2022, after President Yoon Seok-yeol's inauguration, and gifted her a Christian Dior pouch worth about 3 million won. At that time, the presidential residence in Hannam-dong was not yet prepared, so President Yoon commuted between his home at Acro Vista and the Yongsan Presidential Office.
Q. When and how was it revealed?
A. It surfaced last November when the internet media outlet "Seoul's Voice" reported a video showing Pastor Choi meeting Mrs. Kim and gifting her the luxury bag.
Q. How was the filming done, and who prepared the bag?
A. The video was filmed through a hidden camera attached to the wristwatch Pastor Choi wore. The watch with the hidden camera was prepared and provided to Pastor Choi by Seoul's Voice. Regarding the bag delivered to Mrs. Kim, reporter Lee Myung-soo of Seoul's Voice, who recorded and released a 7-hour phone call with Mrs. Kim, personally purchased the bag with his own money and provided it to Pastor Choi. The reporter also filmed and released footage of himself purchasing the bag at a department store.
Q. Why did it become an issue?
A. Because in the released video, Mrs. Kim neither refused the gift nor returned it to Pastor Choi. The Improper Solicitation and Graft Act prohibits the spouse of a public official from receiving valuables related to the public official's duties.
Q. Where is the bag now?
A. After the allegations surfaced, the presidential office stated that "the bag is classified as a 'returned gift,' has not been unwrapped, and is stored in the gift warehouse of the Yongsan Presidential Office." There is interpretive controversy over whether it should be transferred to the Presidential Archives as a presidential record under the Presidential Records Management Act or considered as belonging to the state treasury and thus non-returnable.
Q. How did the investigation start?
A. Baek Eun-jong, CEO of Seoul's Voice, filed a complaint with the Supreme Prosecutors' Office in December last year against President Yoon and his wife for violating the Improper Solicitation and Graft Act and bribery. The Seoul Central District Prosecutors' Office is currently investigating the complaint. Meanwhile, Kim Soon-hwan, Secretary-General of the Citizens' Committee for the Protection of the Common People, filed a complaint with the Seoul Central District Prosecutors' Office earlier this year against Pastor Choi for trespassing and obstruction of official duties by deception for filming the hidden camera video. Separately, Pastor Choi was also reported to the Seoul Metropolitan Police Agency for violating the Stalking Punishment Act, and the Seocho Police Station is currently investigating.
Q. What is the current status of the prosecution's investigation?
A. On the 2nd, Prosecutor General Lee Won-seok received a regular weekly report from Song Kyung-ho, head of the Seoul Central District Prosecutors' Office, and ordered the formation of a dedicated investigation team for the complaint against Mrs. Kim under the Improper Solicitation and Graft Act, instructing a swift and thorough investigation to clarify the facts. The Central District Prosecutors' Office formed a dedicated investigation team by adding three prosecutors from the Anti-Corruption Investigation Division 3, Fair Trade Investigation Division, and Crime Proceeds Recovery Division under the 4th Deputy Chief Prosecutor to the lead prosecutor of the Criminal Division 1, who had been investigating Mrs. Kim's case. The investigation team notified Baek, who filed the complaint against President Yoon and his wife, and Kim, who filed the complaint against Pastor Choi, to appear for questioning on the 9th. Kim is scheduled to appear for questioning on the 9th, while Baek, who requested a postponement, will appear on the 20th for complainant questioning. Additionally, on the 7th, the prosecution requested Pastor Choi and Seoul's Voice to submit the original video footage filmed by Pastor Choi.
Q. The complaint was filed at the end of last year; why has the investigation only started now?
A. The prosecution's position is that it is customary not to conduct full-scale investigations into politically sensitive cases that could influence elections during the pre-election period. Since the general election has ended, there is no reason to delay the investigation further, and Prosecutor General Lee simply ordered a swift investigation without other intentions. However, rumors of internal conflicts within the prosecution regarding the investigation of Mrs. Kim have continuously circulated. It is also true that the prosecution leadership finds it difficult to conduct the investigation as a normal case without considering President Yoon's intentions or political repercussions. Especially with the opposition's "Kim Geon-hee Special Prosecutor Act" proposal looming after their landslide victory in the general election, the opposition claims that the prosecution rushed the investigation to create grounds to oppose the introduction of a special prosecutor.
![[Q&A] The Full Story and Investigation Outlook of the ‘Kim Geon-hee Luxury Bag Receipt’ Case](https://cphoto.asiae.co.kr/listimglink/1/2022081815464591346_1660805206.jpg)
Q. What charges under the Improper Solicitation and Graft Act can be applied to Mrs. Kim?
A. Article 8, Paragraph 4 of the Improper Solicitation and Graft Act prohibits the spouse of a public official from receiving valuables related to the public official's duties. The provision prohibits the spouse from receiving valuables that the public official is prohibited from receiving under Paragraphs 1 or 2 of Article 8. Paragraph 1 prohibits a public official from receiving valuables exceeding 1 million won per occasion or 3 million won per year from the same person, regardless of relation to official duties. Therefore, there is room to interpret that the spouse is also prohibited from receiving valuables exceeding certain amounts regardless of official duties. However, considering that the phrase "related to official duties" precedes "Paragraphs 1 or 2" in Paragraph 4, it should be interpreted that the classification of valuables by amount in Paragraphs 1 and 2 is emphasized, not the presence or absence of official duty relation. In other words, the spouse of a public official is subject to the prohibition only when the valuables are related to official duties, unlike the public official themselves.
Article 8 (Prohibition on Receipt of Valuables, etc.) ④ The spouse of a public official shall not receive, request, or promise to receive valuables, etc. (hereinafter referred to as "prohibited valuables") that the public official is prohibited from receiving under Paragraphs 1 or 2 of this Article in connection with the public official's duties.
Q. Can Mrs. Kim be indicted for violating the Improper Solicitation and Graft Act?
A. The Act prohibits the spouse of a public official from receiving valuables but does not provide penalty provisions for such violations, making indictment impossible.
Q. What charges under the Improper Solicitation and Graft Act can be applied to President Yoon Seok-yeol?
A. For public officials themselves, receiving valuables exceeding 1 million won per occasion or 3 million won per year from the same person is prohibited regardless of relation to official duties (Article 8, Paragraph 1). If related to official duties, any amount of valuables is prohibited (Paragraph 2). The bribery crime does not require a quid pro quo with official duties (Paragraph 2). However, in this case, since President Yoon did not directly receive the bag, nor is it considered that he received it through Mrs. Kim or was aware of it beforehand, these prohibitions do not apply.
Meanwhile, the Act requires public officials to report in writing without delay to their affiliated agency head if they become aware that their spouse received prohibited valuables (Article 9, Paragraph 1, Item 2). It also requires the public official to return or cause the return of the valuables to the provider without delay (Paragraph 2). If returning to the provider is difficult, the valuables must be delivered or caused to be delivered to the agency head. The agency head receiving the report must ensure the return or delivery of the valuables and notify investigative agencies without delay if investigation is deemed necessary (Paragraph 3). Even if no report is made, if the agency head becomes aware that the public official or spouse received prohibited valuables and deems investigation necessary, they must notify investigative agencies without delay (Paragraph 4). Reports or deliveries can also be made to supervisory agencies, the Board of Audit and Inspection, investigative agencies, or the Anti-Corruption and Civil Rights Commission (Paragraph 6). However, the reporting obligation, return obligation, and notification obligation arise only when the spouse receives prohibited valuables related to official duties.
If a public official knows that their spouse received prohibited valuables but fails to report to the agency head, they can be punished with imprisonment of up to three years or a fine of up to 30 million won under Article 22, Paragraph 1, Item 2. Additionally, a fine amounting to two to five times the value of the valuables can be imposed under Article 23, Paragraph 5, Item 2.
Article 8 (Prohibition on Receipt of Valuables, etc.) ① Public officials shall not receive or request valuables exceeding 1 million won per occasion or 3 million won per fiscal year from the same person, regardless of relation to official duties or the name of donation, sponsorship, or gift.
② Public officials shall not receive or request valuables of any amount related to official duties, regardless of quid pro quo.
Article 9 (Reporting and Handling of Prohibited Valuables) ① Public officials must report in writing without delay to their agency head in the following cases:
2. When the public official becomes aware that their spouse received or was promised prohibited valuables.
② Public officials must return or cause the return of prohibited valuables to the provider without delay or express refusal. If returning is difficult, the valuables must be delivered to the agency head.
③ The agency head must ensure return or delivery and notify investigative agencies without delay if investigation is necessary.
④ The agency head must notify investigative agencies without delay if aware of prohibited valuables received by the public official or spouse and deems investigation necessary.
⑥ Reports or deliveries can also be made to supervisory agencies, the Board of Audit and Inspection, investigative agencies, or the Anti-Corruption and Civil Rights Commission.
Article 22 (Penalties) ① Anyone who falls under the following shall be punished by imprisonment of up to three years or a fine of up to 30 million won:
2. A public official who knows that their spouse violated Article 8, Paragraph 4 by receiving prohibited valuables but fails to report under Article 9, Paragraph 1, Item 2 or Paragraph 6.
Article 23 (Fines) ⑤ Anyone who falls under the following shall be fined two to five times the value of the related valuables. However, if criminal punishment has been imposed under other laws, fines shall not be imposed or shall be canceled if imposed before criminal punishment.
2. A public official who knows that their spouse violated Article 8, Paragraph 4 by receiving prohibited valuables but fails to report under Article 9, Paragraph 1, Item 2 or Paragraph 6.
![[Q&A] The Full Story and Investigation Outlook of the ‘Kim Geon-hee Luxury Bag Receipt’ Case](https://cphoto.asiae.co.kr/listimglink/1/2023103111053034942_1698717929.jpg)
Q. The agency head of the president is the president himself, right?
A. The issue is that the president is his own agency head. Whether he must self-report is a question. Since there is no precedent, interpretations vary. The complainants argue that according to Enforcement Decree Article 18 of the Improper Solicitation and Graft Act, which requires written reports to include the provider's personal information, the circumstances and reasons for the report, the type and value of valuables, and whether the valuables were returned, the president should have documented these details in writing even if he is the agency head.
Q. Is investigation or indictment of President Yoon possible?
A. Article 84 of the Constitution stipulates that "the president shall not be subject to criminal prosecution during their term except for crimes of rebellion or treason," establishing the president's non-prosecution privilege. This privilege is strictly interpreted as meaning "cannot be indicted," but its purpose is to maintain the dignity of the head of state and ensure smooth performance of duties. It is interpreted that the president cannot be summoned as a defendant or witness, nor be arrested, detained, searched, or seized during the term. When the prosecution cannot exercise its authority, it issues a "no prosecution" disposition. Even if indicted, the court must dismiss the indictment under Article 327, Item 1 of the Criminal Procedure Act (lack of jurisdiction over the defendant).
However, investigation of the president during the term is possible, and the restriction applies only to prosecution, not to exemption from responsibility. Therefore, indictment is possible after leaving office. The Constitutional Court views the non-prosecution privilege as a legal obstacle to prosecution, suspending the statute of limitations during the president's term.
Q. President Yoon and his wife were also accused of bribery. What about that?
A. Bribery is a status crime applicable to public officials or intermediaries. For Mrs. Kim, who is not a public official, to be guilty of bribery, complicity with public official President Yoon must be recognized. Since it is not considered that Mrs. Kim conspired with President Yoon when receiving the bag from Pastor Choi, bribery is unlikely to be recognized. Bribery requires the status of a public official, relation to official duties, quid pro quo, and subjective awareness. Although the courts broadly recognize bribery for legislators and presidents, in this case, since President Yoon did not conspire with Mrs. Kim or receive the bag through her, bribery is unlikely. However, the fact that President Yoon did not immediately cause the return of the bag after learning of it may be problematic, but if the presidential office's explanation that it was classified as a "returned gift" and stored accordingly is true, it is difficult to recognize intent to accept the bag, making bribery charges unlikely.
Q. What charges can be applied to Pastor Choi Jae-young?
A. Pastor Choi is under investigation for violating the Improper Solicitation and Graft Act by gifting the bag to Mrs. Kim, as well as for trespassing or unlawful entry, obstruction of official duties by deception, and violation of the Stalking Punishment Act. Article 8, Paragraph 5 of the Act prohibits anyone from providing or promising to provide prohibited valuables to a public official or their spouse. Although the wording is unclear, since the spouse is only prohibited from receiving valuables related to official duties, the provision should be interpreted as limiting prohibited provision to cases related to official duties. Therefore, whether Pastor Choi's provision of a luxury bag worth about 3 million won to Mrs. Kim constitutes a violation depends on the connection to official duties. Seoul's Voice claims that conversations between Mrs. Kim and Pastor Choi included references to unification, arguing for official duty connection, which could be unfavorable to Pastor Choi.
Article 22 (Penalties) ① Anyone who falls under the following shall be punished by imprisonment of up to three years or a fine of up to 30 million won:
3. Anyone who violates Article 8, Paragraph 5 by providing prohibited valuables to a public official or their spouse.
Article 8 (Prohibition on Receipt of Valuables, etc.) ⑤ No one shall provide or promise to provide prohibited valuables to a public official or their spouse.
Regarding trespassing (unlawful entry), even if entry was with the occupant's consent, if the purpose was criminal, whether trespassing is established is debated academically. The Supreme Court, in the "Chowon Bokjip" case, ruled that even if a restaurant is open to the public, entering against the owner's explicit or presumed will constitutes trespassing, recognizing trespassing for a defendant who entered disguised as a customer to install a wiretap. However, in this case, since the location was not open to the public and Pastor Choi notified Mrs. Kim by text in advance and obtained consent before entering the office, trespassing is unlikely to be recognized.
Obstruction of official duties by deception refers to Pastor Choi wearing a watch with a hidden camera and entering the office, which was guarded by presidential security staff who controlled access and searched for prohibited items, thereby obstructing official duties by deception. The stalking charge alleges that Pastor Choi stalked Mrs. Kim by requesting meetings about ten times. Currently, aside from the Sexual Violence Punishment Act's prohibition on filming with cameras, there is no general law punishing filming of ordinary conversations. The Personal Information Protection Act imposes fines for violating obligations when filming in public places but applies only to personal information handlers.
![[Q&A] The Full Story and Investigation Outlook of the ‘Kim Geon-hee Luxury Bag Receipt’ Case](https://cphoto.asiae.co.kr/listimglink/1/2024050723391763756_1715092757.jpg)
Q. What are the future procedures of the prosecution's investigation?
A. The Seoul Central District Prosecutors' Office investigation team notified the complainants who filed complaints against President Yoon and his wife and against Pastor Choi to appear on the same day (the 9th). However, Baek Eun-jong, who filed the complaint against President Yoon, requested a postponement and has scheduled to appear at 2 p.m. on the 20th after coordinating with the prosecution. Since there are not many people involved, after questioning the complainants, the prosecution is expected to proceed with questioning the accused, Mrs. Kim and Pastor Choi, after completing necessary witness investigations. Also, upon receiving the original videos from Pastor Choi or Seoul's Voice, the prosecution is expected to review the unedited full footage to examine the connection to official duties.
Q. How will the investigations of Mrs. Kim and President Yoon proceed?
A. There is keen interest in how the prosecution will investigate Mrs. Kim. Possible methods include summoning her to the prosecution office for questioning, conducting face-to-face questioning at a third-party location outside the prosecution office, or written questioning. Since there are no penalty provisions and indictment is impossible, even if Mrs. Kim refuses to appear, the prosecution cannot forcibly detain her. However, given the prosecution's recent active investigation and criticism that it is a defense against the special prosecutor, if the investigation is limited to written questioning, it will likely face criticism for being superficial or formalistic. Therefore, it is widely expected that at least face-to-face questioning at a third-party location or summons for questioning will be conducted.
For President Yoon, the prosecutor in charge may visit the presidential office to verify necessary facts, but written questioning is more likely.
Q. There are speculations that the prosecution might investigate Mrs. Kim's "Deutsche Motors stock manipulation" allegations as well.
A. Some speculate that the prosecution may investigate both the luxury bag case and the stock manipulation case simultaneously, as it would be burdensome to summon Mrs. Kim separately for each. However, since the stock manipulation case is currently excluded from the Prosecutor General's investigation command, the recent directive for a swift investigation applies only to the luxury bag case.
Q. There is controversy over entrapment reporting. What about that?
A. Shortly after the controversy arose, Seoul's Voice provided Pastor Choi with a watch equipped with a camera and the bag to give to Mrs. Kim, filmed the gift-giving scene, and reported the recorded video, leading to entrapment reporting controversy. Under the Criminal Procedure Act, "sting operations" involve investigative agencies inducing suspects to commit crimes for arrest. There are two types: "opportunity-providing sting," which merely provides a chance to commit a crime, and "inducement sting," which induces a person with no criminal intent to commit a crime. The Supreme Court holds that the latter is illegal. In such cases, the inducer may be punished as an instigator or indirect perpetrator. Regarding entrapment reporting in Korea, the Newspaper Ethics Guidelines and Journalists Association Code of Ethics require assessing significant public interest, necessity (lack of other methods), and urgency to permit such reporting. Seoul's Voice claims these conditions are met, noting that in June 2022, Mrs. Kim received luxury gifts and was suspected of interfering in personnel matters, prompting the investigation. Conversely, some view Seoul's Voice's hidden camera reporting as unethical and criminal.
Q. If Mrs. Kim and President Yoon cannot be indicted anyway, what is the significance of the prosecution's investigation?
A. Both the prosecution and the opposition advocating for a special prosecutor are aware that Mrs. Kim cannot be indicted due to the lack of penalty provisions in the Improper Solicitation and Graft Act, and President Yoon cannot be indicted during his term due to the non-prosecution privilege. However, this investigation appears to be an unavoidable step for President Yoon, who has acknowledged the public sentiment after the general election defeat.
The prosecution's investigation of Mrs. Kim and President Yoon will likely proceed in the following order: confirming when President Yoon became aware that Mrs. Kim received the luxury bag from Pastor Choi; what actions President Yoon took upon learning of the bag; whether the process was documented in writing as required by law; verifying the presidential office's explanation that the bag was moved unopened to the Yongsan Presidential Office gift warehouse; determining the exact timing and records of the transfer; why Mrs. Kim did not refuse or immediately return the expensive gift on site; verifying Seoul's Voice's claim that this was not the first luxury gift Mrs. Kim received from Pastor Choi and how previous gifts were handled; confirming whether Mrs. Kim and Pastor Choi discussed unification or North Korea policy; and whether Pastor Choi conveyed any proposals to President Yoon. Afterward, the investigation will review violations of current laws. These items are also the facts the public is curious about regarding this case.
How Prosecutor General Lee Won-seok's prosecution investigates this case and to what extent it uncovers the truth will significantly influence the opposition's special prosecutor bill and the prosecution reform drive in the future.
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