[News Inside] Is There No Problem with One-Point Law Revisions for Lee Jaemyung?

Amendments to the Criminal Procedure Act and Public Official Election Act
Pass Successively in National Assembly Committees
Ministry of Justice Voices Opposition to Criminal Procedure Act Amendment

On May 7, a series of bills aimed at neutralizing the judicial risks faced by Lee Jaemyung, the presidential candidate of the Democratic Party of Korea, were passed in succession by the National Assembly's Legislation and Judiciary Committee and the Public Administration and Security Committee. These included an amendment to the Criminal Procedure Act, which stipulates the suspension of trials for incumbent presidents, and an amendment to the Public Official Election Act, which removes the term "acts" from the elements constituting the offense of disseminating false information. Legal experts both inside and outside the legal community have voiced concerns that, with the presidential election approaching, these bills could be interpreted as being tailored for a specific candidate, and that there are significant risks of unconstitutionality.

The amendment to the Criminal Procedure Act, passed by the plenary session of the Legislation and Judiciary Committee, introduces a new provision to Article 306 of the Act. This provision stipulates that "when a defendant is elected president, the court must suspend the trial proceedings from the date of election until the end of the presidential term." Article 84 of the Constitution states, "The president shall not be subject to criminal prosecution while in office," but there has been debate over whether "prosecution" refers only to the filing of charges by the prosecution or also includes the trial itself. The new provision seeks to clarify that it extends to the trial as well. Notably, the supplementary provisions specify that the amendment will take effect from the date of promulgation and will also apply to the sitting president at the time of enforcement, thereby allowing the suspension of Lee Jaemyung's trial if he is elected under the revised law.

The term "acts" will be removed from the Public Official Election Act. Article 250, Paragraph 1 of the Act currently prohibits the dissemination of false information regarding a candidate's place of birth, family relations, occupation, career, assets, and acts, among others, for the purpose of election. The amendment seeks to remove "acts" from this list. Previously, the Supreme Court ruled that Lee Jaemyung's "golf remarks" and "Baekhyeondong-related remarks" constituted the dissemination of false information about his "acts," and remanded the case for a guilty verdict. Ultimately, the intent behind the amendment can be seen as eliminating the very provision Lee violated, thereby allowing for a dismissal of charges.

In response, a criminal law specialist attorney in Seocho-dong stated, "While the principle of non-retroactivity does not apply when the change is favorable to the defendant under criminal law, this amendment irrationally discriminates between those whose criminal trials are finalized after the presidential election and those whose trials are finalized before the election, resulting in the loss of eligibility to run for office." The attorney added, "This violates the principle of equality and carries significant risks of unconstitutionality." Regarding the amendment to the Public Official Election Act, the attorney said, "The Constitutional Court already ruled the provision constitutional in 2021, concluding that there was no flaw in the law. Legislation should be universally applicable, and a law designed to shield a single individual carries risks of being unconstitutional."

On the 7th, at the National Assembly in Yeouido, Seoul, during the Judiciary Committee plenary meeting held after the departure of People Power Party members, Chairman Chung Cheongrae struck the gavel to announce the passage of the amendment to the Criminal Procedure Act, which includes provisions to suspend ongoing criminal trials upon the election of the president. Photo by Yonhap News

The Ministry of Justice also expressed opposition to the amendment to the Criminal Procedure Act on May 7. The Ministry stated, "Suspending trials for crimes committed before assuming the presidency, which are unrelated to the president's official duties, undermines legal provisions that strictly limit qualifications for public office and results in guaranteeing the term of office for an unqualified defendant." The Ministry further warned, "There is a risk that the presidency could become a refuge for criminals."

However, there are also opinions that, while political criticism may arise, the amendments are not unconstitutional. Attorney Noh Heebeom, a former constitutional researcher, stated, "Given that the Supreme Court delivered an unusual ruling against a leading presidential candidate just before the election, it cannot be deemed illegal for the legislature to respond with an amendment." Noh also said, "The non-prosecution privilege of the president specified in Article 84 of the Constitution includes the trial itself. Considering the intent to guarantee the status and authority of the president and to allow full dedication to official duties, the amendment is not unconstitutional." Regarding the amendment to the Public Official Election Act, Noh commented, "Since the law was revised with a specific candidate in mind during a sensitive period, political criticism is inevitable."