[Law & Story] Five Overreaches by Prosecutors in the Failed Investigation of Lee Jae-yong

Indictment Ignored Prosecution Deliberation Committee's Recommendation
Applied Breach of Duty Charge Against Supreme Court Precedent
Mechanical Appeals and a Meaningless Supreme Court Petition
A Chance to Correct Flawed Prosecution Practices

Seokjin Choi, Law & Biz Specialist

The prosecution's investigation into Samsung Electronics Chairman Lee Jae-yong's alleged unfair merger and accounting fraud has completely failed. Although the prosecution has appealed and the Supreme Court review is underway, the possibility of the verdict being overturned seems very slim.

All 23 charges against Chairman Lee were acquitted, and all 13 others indicted, including the corporation, were also found not guilty. After 4 years and 5 months of trial, the results the prosecution received are so dismal that it is hard to believe this was the outcome of an investigation conducted by the prosecution's elite personnel into the head of the country's top-ranked conglomerate.

Like the first trial court, the second trial court denied the evidentiary value of the key evidence submitted by the prosecution. This was based on the judgment that the mandatory selection procedures during the seizure and search process were omitted or that the accused was not guaranteed substantial participation rights.

Moreover, the court examined even the illegally obtained evidence to discover the substantive truth but concluded that the charges were not proven. At this point, it must be considered that the initial indictment itself was unreasonable.

Right after Chairman Lee was indicted, his legal team pointed out, "The investigation team's attitude, repeatedly forcing unreasonable actions, suggests that rather than seeking the substantive truth based on evidence, they proceeded with the investigation with the predetermined goal of indicting Samsung Group and Lee Jae-yong from the start," which has proven to be true.

In fact, the prosecution made several unreasonable moves during the investigation, indictment, and prosecution maintenance process against Chairman Lee.

First, on June 2, 2020, when Chairman Lee requested the convening of the Prosecution Investigation Deliberation Committee, the prosecution suddenly applied for an arrest warrant two days later. Since the issuance of an arrest warrant would render discussions on whether to continue the investigation or indict at the deliberation committee meaningless, this was an attempt to neutralize the committee.

Second, the prosecution ignored the committee's recommendation and proceeded with the indictment. Although the prosecution had accepted the results of all eight previous deliberation committees, as this system was introduced as part of its own reform measures, it took a different approach only in Chairman Lee's case. Despite the majority of the 13 members participating in the vote being professionals such as lawyers and law professors, and 10 members recommending 'suspension of investigation and non-indictment,' the prosecution did not heed their advice.

Third, needing justification to indict despite the committee's non-indictment recommendation, the prosecution delayed for over two months, consulted other experts, held meetings of senior prosecutors, and then suddenly added the charge of breach of duty, which had never been mentioned during the arrest warrant application or the deliberation committee, to the indictment. Although internal conclusions had already been reached that applying this charge to Chairman Lee was difficult based on Supreme Court precedents regarding the subject and victim of breach of duty, the prosecution forcibly included this new charge that was not addressed by the committee.

Fourth, when the first trial court denied the evidentiary value of key evidence and acquitted all charges, the prosecution should have focused on charges that could be proven with evidence collected legally. However, the prosecution maintained its stance on evidentiary admissibility and instead applied to amend the indictment to add four more charges.

Finally, it is difficult to understand the decision to appeal despite the court's judgment that the evidentiary value and proof of charges were unlikely to change.

The prosecution's investigation into Chairman Lee was fraught with unreasonable actions from start to finish. This case should serve as an opportunity for the prosecution to shift its investigative paradigm away from the flawed practice of "as long as it gets to Seoul, it doesn't matter how" toward 'investigations that save people and companies.'