[Q&A] Kim Geon-hee, Yoon Seok-yeol, and Choi Jae-young All Cleared... Reasons Explained by the Prosecutors

On the 2nd, the prosecution dismissed all charges against President Yoon Seok-yeol, his wife Kim Geon-hee, and Pastor Choi Jae-young, who were accused in connection with the 'luxury bag receipt' case involving Kim Geon-hee.

Although the outcome was somewhat expected, the prosecution seemed aware that the investigation conclusion was quite distant from public sentiment, and thus prepared a detailed 107-page presentation (PT) to explain the reasons for the dismissal point by point. After the PT presentation by the chief prosecutor in charge of the investigation (Head of Criminal Division 1), the first deputy chief prosecutor, who leads Criminal Division 1, answered the numerous questions from reporters one by one.

Mrs. Kim Geon-hee. / Photo by Moon Ho-nam munonam@

It seems to be the first time that the prosecution has put such effort into explaining the background of a case where suspects were not indicted, beyond just distributing a press release. The related briefing (so-called tea time) held for reporters at the Seoul Central District Prosecutors' Office from 2 p.m. on the 2nd ended close to 4 p.m.

Below is a Q&A summary of the reasons the prosecution gave for dismissing charges against the three individuals as 'no charges.'

Q. Can you summarize the prosecution's reason for dismissal in one sentence?

A. As expected, the key issue was 'job relevance.' The prosecution judged that under the Improper Solicitation and Graft Act (ISGA), only the receipt of money or valuables related to the public official's duties by the spouse of a public official is prohibited. They found that the various solicitations Pastor Choi claimed to have made to Kim Geon-hee regarding cosmetics and luxury bags were difficult to consider actual solicitations given their content and timing. In President Yoon's case, he would be subject to punishment if he knew that Kim Geon-hee violated the ISGA by receiving bags and did not report it; however, since Kim Geon-hee did not receive the bags in relation to President Yoon's official duties, the obligation to report itself did not arise. Although the law does not explicitly state job relevance for the provider of valuables, the prosecution interpreted that the provider who gives valuables to the spouse of a public official should also be limited to cases related to the public official's duties. In short, the prosecution concluded that since Kim Geon-hee did not receive the bags in relation to President Yoon's duties, none of Kim Geon-hee, President Yoon, or Pastor Choi are subject to punishment under the ISGA.

Q. What is the basis for the prosecution's judgment that there was no job relevance?

A. The prosecution judged that the luxury bag gift was merely a means to secure a meeting opportunity with Kim Geon-hee, not a valuable given as a reward for a solicitation related to the president's duties, based on Pastor Choi's written recollections after meeting Kim Geon-hee, his statements during two rounds of prosecution investigations, and related interviews he gave on radio broadcasts. Pastor Choi later changed his story, claiming he solicited Kim Geon-hee for ▲an invitation to a dinner with U.S. President Biden on May 19, 2022, ▲the appointment of former U.S. Congressman Kim Chang-jun as a national advisory committee member in June 2022, ▲the posthumous interment of former Congressman Kim Chang-jun in a national cemetery in October 2022, and ▲the resumption of broadcasting on Tongil TV in July 2023. However, the prosecution found that the first two were 'rejected solicitations' to which Kim Geon-hee did not respond at all, making it unreasonable to give gifts for them, and the latter matters occurred several months to over a year after Kim Geon-hee received the luxury bag on September 13, 2022, or were merely inquiries about procedures, so they could not be considered solicitations made together with the gift of the luxury bag.

Q. Shouldn't the president's job relevance be recognized more broadly than that of ordinary public officials?

A. The prosecution explained that courts view job relevance in bribery crimes and in the ISGA as the same. In bribery crimes, job relevance includes not only the public official's duties themselves but also duties closely related to or effectively handled in connection with those duties. When judging bribery crimes, a so-called 'comprehensive bribery crime' can be recognized for officials with broad job scopes like the president or members of the National Assembly, but this is a matter of the scope of duties, and the judgment of job relevance cannot differ between the president and other public officials. In this case, for the luxury bag receipt to be recognized as job-related, Pastor Choi must have solicited President Yoon's duties and given the bag as a reward, and Kim Geon-hee must have recognized this job relevance and reward nature when receiving the gift; the prosecution found it difficult to acknowledge both.

Q. Kim Geon-hee received a luxury bag worth 3 million won; why is she not punished for any crime?

A. The charge most likely to be applied to Kim Geon-hee in this case was a violation of the ISGA (receipt of prohibited valuables). However, the ISGA only prohibits the spouse of a public official from receiving certain valuables but does not have a penalty clause for this, so it is impossible to prosecute Kim Geon-hee for violating the ISGA. Nevertheless, whether Kim Geon-hee violated the ISGA by receiving prohibited valuables must be examined as a prerequisite to assessing President Yoon's failure to report under the ISGA.

*Improper Solicitation and Graft Act (ISGA)

Article 8 (Prohibition on Receipt of Valuables) ④ The spouse of a public official shall not receive, request, or promise to receive valuables prohibited to the public official under paragraphs 1 or 2 in relation to the public official's duties.

Article 8 (Prohibition on Receipt of Valuables) ① Public officials shall not receive, request, or promise to receive valuables exceeding 1 million won per occasion or 3 million won per fiscal year from the same person, regardless of job relevance or the name of donation, sponsorship, or gift.

② Public officials shall not receive, request, or promise to receive valuables below the amounts specified in paragraph 1 in relation to their duties, regardless of reward nature.

Article 8, paragraph 4 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. Paragraph 1 prohibits public officials from receiving valuables exceeding 1 million won per occasion or 3 million won per year from the same person regardless of job relevance, so there is room to interpret that the spouse is also prohibited from receiving valuables exceeding certain amounts regardless of job relevance. However, considering that the phrase 'in relation to duties' is placed before 'paragraphs 1 or 2' in paragraph 4, it should be interpreted that 'paragraphs 1 or 2' here emphasize the classification of amounts (valuables below or above the specified amounts) rather than job relevance. In other words, the spouse of a public official is subject to ISGA violations only when receiving valuables related to the public official's duties, unlike the public official themselves. (Refer to our May 8 article [Q&A] 'The Luxury Bag Receipt Case of Kim Geon-hee' and Investigation Prospects.) The prosecution also judged that the spouse is subject to ISGA violations only when receiving valuables related to the public official's duties.

Additionally, the prosecution explained why charges such as aggravated bribery under the Specific Crimes Punishment Act, violation of the Attorney-at-Law Act, bribery, and evidence tampering could not be applied to Kim Geon-hee. First, the crime of receiving bribes for mediation under the Specific Crimes Punishment Act requires receiving valuables in relation to the mediation of matters within a public official's duties. Besides job relevance, reward nature between acceptance of mediation and receipt of valuables must be recognized. As previously examined, since the reward nature between the gift and duties is not recognized in this case, it is difficult to acknowledge that valuables were received as a reward for mediation. Moreover, both Pastor Choi, who gave the bag, and Kim Geon-hee, who received it, did not have awareness of reward nature, according to the prosecution. The prosecution cited the past 'Mercedes-Benz female prosecutor case,' where the court held that vague expectations of future benefits or avoiding losses do not constitute reward nature. If reward nature for mediation is denied, violation of the Attorney-at-Law Act cannot be established. For bribery, a conspiracy relationship with public official Yoon must be recognized, but the prosecution found that President Yoon became aware of Kim Geon-hee's bag receipt more than a year after the receipt. Evidence tampering requires destruction or concealment of evidence related to another person's criminal case; since the bag is evidence related to Kim Geon-hee's own case and was voluntarily submitted by the Blue House to the prosecution, there was no attempt to conceal or destroy evidence, according to the prosecution's conclusion.

President Yoon Suk-yeol.

Q. Isn't it problematic to interpret that the spouse of a public official is not violating the ISGA even if receiving expensive gifts unrelated to duties?

A. When announcing the investigation results, the prosecution stated, "There may be opinions that this decision does not align with public sentiment, but ultimately, the investigation team responsible for maintaining the prosecution and proving the case reached this conclusion based on the professional conscience of legal experts." They also said, "With conflicting conclusions from two investigation review committees, we returned to the principle and carefully examined whether criminal responsibility could be imposed on the accused solely based on evidence and legal principles, and the unanimous judgment of the prosecutors was that dismissal was appropriate." The prosecution cited the conviction rate of cases they prosecute as supporting evidence. They said the conviction rate in court for cases prosecuted by the prosecution exceeds 98%, and if they are not confident in maintaining the prosecution and obtaining a conviction after indictment, it is appropriate not to indict.

The prosecution mentioned discussions during the legislative process when the ISGA was first enacted as the reason for interpreting the scope of prohibited acts by spouses narrowly. According to National Assembly records, if the spouse of a public official were prohibited from receiving valuables exceeding a certain amount regardless of job relevance, it would impose significant restrictions on the spouse's social life and expand the scope of subjects to about 13 million people, one-third of the entire population. In other words, the purpose of prohibiting the spouse's receipt of valuables under the ISGA is to prevent public officials from indirectly receiving valuables through their spouses, so the law should be interpreted according to this legislative intent, the prosecution argued.

Q. Why was President Yoon cleared of charges?

A. The ISGA stipulates that a public official who knows that their spouse has received valuables prohibited under the ISGA but fails to report it is subject to punishment. However, as previously explained, if job relevance is not recognized when Kim Geon-hee received the luxury bag, President Yoon's reporting obligation does not arise. In other words, there is no violation of duty. Like Kim Geon-hee, bribery charges cannot be established without recognizing a conspiracy relationship between the two. The prosecution found that President Yoon became aware of Kim Geon-hee's bag receipt around November 27, 2023, when the controversial video was released and related media reports emerged. The prosecution stated that no separate investigation was conducted on President Yoon based on this premise.

*Improper Solicitation and Graft Act (ISGA)

Article 9 (Reporting and Handling of Prohibited Valuables) ① Public officials shall report in writing without delay to their affiliated institution head in any of the following cases:

2. When a public official knows that their spouse has received or promised to receive prohibited valuables.

Article 22 (Penalties) ① Anyone who falls under any of the following shall be punished by imprisonment for 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(4) by receiving or promising to receive prohibited valuables under Article 8(1) but fails to report under Article 9(1)(2) or Article 9(6). However, this excludes cases where the public official or spouse has returned or refused the valuables under Article 9(2).

Q. Why was Pastor Choi not prosecuted?

A. The prosecution explained that although the ISGA provision punishing those who provide prohibited valuables to the spouse of a public official does not explicitly include the 'in relation to duties' requirement, the provider should also be considered to be punished only when providing valuables related to the public official's duties, just like the spouse. They cited the explanatory materials published by the Anti-Corruption and Civil Rights Commission and court interpretations as the basis for this judgment.

*Improper Solicitation and Graft Act (ISGA)

Article 8 (Prohibition on Receipt of Valuables) ⑤ No one shall provide or promise to provide prohibited valuables to a public official or their spouse.

Article 22 (Penalties) ① Anyone who falls under any of the following shall be punished by imprisonment for up to three years or a fine of up to 30 million won:

3. Anyone who violates Article 8(5) by providing or promising to provide prohibited valuables to a public official (including those performing official duties under Article 11) or their spouse.

Besides ISGA violations, Pastor Choi was also charged with trespassing, obstruction of official duties by deception, and defamation of President Yoon and his wife. The prosecution judged that trespassing could not be established because Pastor Choi coordinated the meeting schedule with Kim Geon-hee's side in advance and entered the office after passing security checks. Although the hidden camera attached to the watch was not discovered by security guards, this was due to insufficient inspection and not an active deception by Pastor Choi to obstruct official duties, according to the prosecution. This aligns with the Supreme Court's stance on deception. Meanwhile, Pastor Choi, along with Baek Eun-jong, head of Seoul's Voice, and reporter Lee Myung-soo of Seoul's Voice, who reportedly prepared the luxury bag and watch-type hidden camera, secretly filmed the process of delivering the luxury bag to Kim Geon-hee and distributed the video on YouTube, defaming President Yoon and Kim Geon-hee. However, the prosecution judged that since the receipt of expensive gifts by the president's spouse is a matter of public interest, even if the defamation elements are met, illegality is excused.

Pastor Choi Jae-young. Photo by Younghan Heo younghan@

Q. The prosecution review committee recommended prosecuting Pastor Choi, but the prosecution did not follow this recommendation. Why?

A. Separate prosecution review committees were held for Kim Geon-hee and Pastor Choi regarding this case. The committee for Kim Geon-hee unanimously decided on 'no indictment.' In contrast, the committee for Pastor Choi voted 8 to 7 in favor of prosecution and recommended the prosecutor in charge to indict Pastor Choi according to relevant regulations. This is reportedly the first time the prosecution has not indicted despite a prosecution recommendation from the review committee.

The prosecution stated, "The review committee did not make a clear judgment on job relevance." They also mentioned that a member of the current affairs committee participating at the time reportedly said through media reports that "it was a suggestion to get a court ruling." Since the review committee consists of ordinary citizens who may lack legal expertise, it was difficult to have in-depth discussions on the most important element of job relevance for recognizing ISGA violations by Pastor Choi. The prosecution interpreted the recommendation as meaning that in uncertain cases, it is not appropriate to impose judicial punishment based only on a suspicion that 'it would be good to get a court ruling' or 'it is worth getting a court ruling.' The prosecution's position is that without political considerations and based solely on evidence and legal principles, they are not confident in indicting and obtaining a conviction.

Q. What will happen to the bag?

A. The prosecution stated that since Kim Geon-hee expressed her intention to relinquish ownership of the bag during the investigation, it will be auctioned off through a public sale procedure according to the Prosecution's Seized Property Management Rules and the proceeds will be credited to the national treasury.

Q. There was controversy over investigation at a third location and the return of the phone during the investigation. What about that?

A. The prosecution said there have been several cases where suspects were investigated at locations other than the prosecution office due to security and other issues, citing examples such as the current National Assembly Speaker and former first ladies. Regarding the investigation location, Article 19 of the 'Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Rules,' known as the Investigation Rules, requires consultation with the suspect and defense counsel, and the investigation location was chosen after consultation as a measure for Kim Geon-hee's security and safety.

*Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Rules

Article 19 (Summons) ② When a prosecutor or judicial police officer intends to summon a suspect, they must consult with the suspect regarding the time and place of the investigation. If the suspect has a defense counsel, consultation with the counsel is also required.

Regarding media reports that prosecutors returned Kim Geon-hee's mobile phone during the investigation, the prosecution strongly denied this. They stated, "Out of respect for the presidential security office's protocol, she entered without carrying a mobile phone; it was not returned." They also said that there was no particular need to use a mobile phone during the investigation. However, since prosecutors usually report investigation progress and receive instructions via internal messenger during investigations at the prosecution office, this explanation seems somewhat weak.

The folded part (left) of the wrapping paper in the video filmed by reporter Lee Myung-su of Seoul's Voice while purchasing a luxury bag to gift Mrs. Kim, and the folded part of the bag wrapping paper that Mrs. Kim voluntarily submitted to the prosecution. Photo by Seoul Central District Prosecutors' Office

Q. Which parts of Pastor Choi's claims or statements did the prosecution find to be lies, and what is the basis?

A. The prosecution disclosed parts of Pastor Choi's claims or statements judged to be false based on objective physical evidence. First, Pastor Choi submitted KakaoTalk conversations with Kim Geon-hee to the prosecution, claiming that some parts were deleted 'by mistake.' However, the prosecution found that contrary to his claim, he deliberately deleted parts unfavorable or embarrassing to him before capturing screenshots. It is hard to believe that 190 deletions were accidental. The deleted conversations included ▲mentions of reporter Lee Myung-soo warning about the progressive camp, ▲praising Kim Geon-hee's beauty compared to former President Moon Jae-in's wife Kim Jung-sook, and ▲criticizing Seoul's Voice as the 'Democratic Party's second squad.'

The prosecution also found false Pastor Choi's claim that the bag Kim Geon-hee submitted to the prosecution was different from the one he gave and that he had noted the serial number of the bag he gave. Pastor Choi testified during the investigation that he had never opened the packaging to check inside, and the prosecution confirmed with Dior headquarters that the product does not have a serial number. Using digital forensic techniques, the prosecution compared the bag Pastor Choi gave (seen in a video filmed by reporter Lee Myung-soo when purchasing the bag) and the actual bag Kim Geon-hee submitted, matching details such as ▲protruding stitching, ▲folded parts of the packaging, and ▲seven locations of bubbles on the plastic sticker on the bag button, concluding they are the same bag.

The folded part and the bubble part of the plastic sticker attached to the button on the bag Mrs. Kim received as a gift. Photo by Seoul Central District Prosecutors' Office

The prosecution emphasized that Pastor Choi's later claim that he made various solicitations to Kim Geon-hee after initially denying job relevance and that his denial during the investigation was due to prosecutorial leading questions was also a lie. Both of Pastor Choi's investigations were conducted with his lawyer present, and all were video recorded, making leading questions impossible. After the investigation, Pastor Choi told reporters that the investigation was intense but prosecutors were kind and that he fully explained the meaning of the gifts he gave, how and why he gave them.

Legal circles believe that Pastor Choi and Seoul's Voice likely did not know that the ISGA has no provision punishing the spouse of a public official for receiving expensive gifts when preparing the hidden filming. They assumed that Kim Geon-hee receiving a luxury bag worth about 3 million won would naturally be punishable under the ISGA, so there was no need to claim that the gift was a reward for a solicitation related to the president's duties when releasing the video. After realizing there was no provision to punish Kim Geon-hee under the ISGA, they began to claim various solicitations were made. Although the investigation is complete, how to address the gap in punishment for the receipt of valuables by public officials' spouses remains a challenge.