Under the Improper Solicitation and Graft Act, whether to report to the head of the affiliated institution
or to submit a written report directly to the President remains disputed
The prosecution plans to verify whether President Yoon Seok-yeol reported First Lady Kim Geon-hee's receipt of luxury bags.
According to the legal community on the 26th, the Criminal Division 1 of the Seoul Central District Prosecutors' Office (Chief Prosecutor Kim Seung-ho) will soon confirm necessary details for the investigation, including whether a report was made, with the Presidential Office.
During the prosecution's investigation on the 20th, it was reported that First Lady Kim testified that President Yoon became aware of her receipt of luxury bags around November last year when the internet media outlet Seoul's Voice requested coverage of the luxury bag incident from the Presidential Office.
First Lady Kim stated that after receiving the bag in September 2022, she instructed her staff to return it later, but the staff forgot to do so, and she learned of this fact through Seoul's Voice's investigation. It is implied that President Yoon also became aware of her receipt of the luxury bag at the same time.
Earlier, from the afternoon of the 20th to the early hours of the 21st, the prosecution questioned First Lady Kim at a third location. Based on her testimony, the prosecution is expected to verify with the Presidential Office whether President Yoon indeed became aware of the luxury bag receipt at that time, whether he reported it according to the procedures stipulated by the Improper Solicitation and Graft Act, and if not, the reasons for not reporting.
Under the current Improper Solicitation and Graft Act, while the spouse of a public official is prohibited from receiving gifts, there is no penalty clause, making it impossible to indict First Lady Kim for violating the Act regarding the luxury bag receipt.
In President Yoon's case, there are penalty provisions related to whether he took any action after becoming aware of First Lady Kim's receipt of the luxury bag and whether he violated the obligation to report to his affiliated institution head. According to Article 84 of the Constitution, which stipulates the 'immunity from prosecution,' it is impossible to indict President Yoon while in office, but investigation is possible, and indictment after leaving office is allowed.
Article 9, Paragraph 1, Subparagraph 2 of the Improper Solicitation and Graft Act requires a public official to report in writing without delay to the head of their affiliated institution if they become aware that their spouse has received prohibited gifts. Additionally, Paragraph 2 of the same Article mandates that the public official must promptly return or cause the return of the gift to the provider.
If a public official knows that their spouse has received prohibited gifts but fails to report to the head of their affiliated institution, 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, Subparagraph 2 of the Act. Furthermore, under Article 23, Paragraph 5, Subparagraph 2, a fine ranging from twice to five times the value of the gift may be imposed.
There has been no ruling from investigative agencies or courts on whether the president must report in writing to themselves as the head of their affiliated institution, so interpretations vary within the legal community.
Previously, the Anti-Corruption and Civil Rights Commission concluded the report on First Lady Kim's luxury bag receipt as 'no violation,' judging that there was no connection to the president's duties and thus it was not subject to reporting.
Moreover, even if there were a connection to official duties, the Commission determined that gifts received by the president and spouse are immediately designated as presidential records owned by the state, so there is no reporting obligation.
Once the verification process with the Presidential Office is completed, the prosecution is expected to finalize the investigation into First Lady Kim's luxury bag receipt case after thoroughly reviewing the investigation details and the Presidential Office's responses regarding President Yoon's potential violation of the Improper Solicitation and Graft Act.
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