‘Yoon Seok-yeol’s Savior’ Kim Hong-il’s Defense Team Must Break Down ‘Purpose’ and ‘Riot’ Elements of Insurrection [Preview of Yoon’s Legal Battle]②

[Preview of the Litigation War]②Litigation
Must Break Down the Elements of Rebellion Specifying 'Purpose' and 'Riot'
Conservative Lawyer Group Composed Mainly of Legal Professionals
Variables Exist That Could Completely Change the Statements of Conspiracy Suspects

Editor's NoteIn an unprecedented ‘12·3 Martial Law Incident,’ President Yoon Seok-yeol stands trial for impeachment. There is also a possibility of emergency arrest due to refusal to comply with prosecution summons. Asia Economy is launching a series of reports to examine the flow, context, core, and key points of this incident, focusing on how the ‘Yoon Seok-yeol Treason Trial’ will unfold in court and the issues involved. The series will diagnose the issues over three installments with the keywords: ① Evidence, ② Arguments, and ③ Punishment.

(Yoon Seok-yeol's presidential legal team candidates from left) Yoon Gap-geun, former Daegu High Prosecutor General, Kim Hong-il, former Chairman of the Korea Communications Commission, Seok Dong-hyun, former Secretary General of the National Unification Advisory Council.

The investigative authorities’ blade, aimed squarely at President Yoon Seok-yeol, is closing in right under his chin. The ‘Yoon Seok-yeol Defense Team,’ led by former Broadcasting and Communications Commission Chairman Kim Hong-il, must simultaneously defend against ① compulsory investigations by investigative agencies, dismiss ② 24 impeachment charges, and dismantle ③ the elements constituting the crime of treason?a complex equation to solve. There are even forecasts that organizing a unified defense team to stand together until the final argument will be difficult. This is because public outrage toward the president is extremely high. Several law firms have refused to take on President Yoon’s case.

Notably, some of President Yoon’s current legal aides (Seok Dong-hyun, former Secretary-General of the National Unification Advisory Council, and Chae Myung-sung, former Senior Administrative Officer at the Presidential Office of Civil Affairs) have been active in the conservative lawyers’ group ‘Hanbyun’ (Lawyers for Human Rights and Unification of Korea). Based on a clear political stance, they could argue the legitimacy of emergency martial law as an act of governance linked to conservative rallies. Public opinion warfare is also a variable. It is expected that, learning from the precedent of former President Park Geun-hye’s impeachment acceptance, they will actively engage in public discourse outside the courtroom.

According to the legal community on the 17th, whether the ‘elements constituting the crime of treason’ related to President Yoon will be established is expected to be a key issue in the impeachment trial arguments. The causal relationship from the establishment of treason to the acceptance of impeachment is likely to be strongly established. In this case, breaking down the elements of treason will be the defense team’s critical battleground. Treason is a collective crime that requires fulfilling the ‘purpose’ of disturbing the national order and the ‘riot’ element. Proving the charges is more difficult than the decision on ‘presidential impeachment.’ However, being acquitted of treason charges does not necessarily mean dismissal of impeachment. A public security specialist lawyer said, “The requirements for impeachment and treason are clearly distinguished,” adding, “The Constitutional Court is likely to rule that presidential impeachment is not bound by the elements of ‘treason’ under criminal law.” Another former judge turned lawyer said, “Sending the military to the National Assembly itself betrayed the president’s constitutional duty to uphold the constitution. Apart from treason, there are sufficient grounds for impeachment.”

In fact, the declaration of martial law, failure to notify the National Assembly, and the deployment of martial law troops to the National Assembly building itself are already serious constitutional violations. In a statement released on the 12th, President Yoon said martial law was an unavoidable choice to ‘block the opposition party’s legislative violence’ and ‘normalize government functions.’ However, a significant portion of the public was not convinced at all.

Treason is a key issue. The core keywords for the leader of treason under criminal law are ‘purpose’ and ‘riot.’ From the defense team’s perspective, it will be emphasized that it was a high-level act of governance without the purpose of disturbing the national order, and that no riotous disturbances or violent threats occurred. A lawyer with a prosecution background said, “A riot usually must reach the level of disturbing the peace of a region, which did not happen here, and it can be argued that the purpose was a legitimate act to uphold the constitution.” The part where President Yoon stated ‘martial law was an act of governance’ is viewed as difficult to accept. A lawyer in Seocho-dong said, “It is based on the ‘judicial restraint theory’ that legal standards should not be applied to high-level political decisions, but in an era governed by the rule of law, this argument is hard to accept.”

Therefore, there is also a view that the only realistic cards the defense team can play are procedural issues such as illegally obtained evidence and trial delays rather than substantive truth. Examples include filing recusals against progressive constitutional court justices or emphasizing the illegality of admitting prosecution investigation records as evidence. Considering the impeachment trial of former President Park Geun-hye, the defense may also submit numerous witnesses centered on presidential aides (such as former Secretary Jeong Ho-seong) to serve as shields for President Yoon.

A wild card is the testimony of ‘key men.’ President Yoon’s December 12 statement, which was like a ‘brief of arguments,’ could become a turning point that reverses the court testimonies of those accused of treason. The president’s defense team may send signals to co-conspirators through an active public relations strategy. A representative case is former Minister Kim Yong-hyun, who has exercised his right to remain silent after the president’s statement. If Special Forces Commander Gwak Jong-geun, who testified in the National Assembly that “the president ordered to remove the lawmakers,” reverses his testimony in court, proving President Yoon’s treason charges could become even more difficult.