[Legal Issue Check] Did Special Prosecutor Jo Eunseok Abuse Authority in Indicting Kim Yonghyun?

Jo Eunseok, the special prosecutor in charge of investigating former President Yoon Sukyeol and others for charges related to the 12·3 Martial Law, including insurrection, treason, and destruction of evidence, indicted former Minister of National Defense Kim Yonghyun on June 18, just six days after his appointment. In response, Kim's side strongly protested, calling it an "abuse of authority."

In legal circles, there is an assessment that Kim Yonghyun, who had expected to be released unconditionally upon the expiration of his detention period after the court denied his conditional bail, was caught off guard by Special Prosecutor Jo, who was known as a leading specialist in special investigations during his time as a prosecutor.

Eunseok Jo, Special Prosecutor. Photo by Yonhap News

Kim Yonghyun’s Side: "Illegal Indictment, Will File Criminal Complaint"

Kim Yonghyun’s side claims that: ▲ During the investigation preparation period, the special prosecutor does not have the authority to file an indictment, so the indictment against Kim constitutes an illegal abuse of authority; and ▲ The public disclosure of unverified investigation details regarding Kim during the indictment process constitutes a violation of the Special Prosecutor Act on Insurrection (Article 23, Paragraph 2: disclosure of investigation details) as well as criminal defamation under the Criminal Act.

Accordingly, they announced plans to file a criminal complaint against Special Prosecutor Jo for abuse of authority and violation of the Special Prosecutor Act’s provision on disclosure of investigation details, and to exercise their rights to file an objection and request a stay of execution under the Special Prosecutor Act.

Investigation and Prosecution Maintenance Allowed During Preparation Period Under Special Prosecutor Act... But What About Indictments?

Article 10, Paragraph 1 of the Special Prosecutor Act on Insurrection, which sets the investigation period for Special Prosecutor Jo, stipulates that up to 20 days from the date of appointment may be used for investigation preparation. The proviso of Paragraph 1 further states, "However, even during the investigation preparation period, if it is necessary to promptly collect evidence to prevent its destruction, relevant investigations may be conducted and prosecution maintenance for transferred cases may be carried out."

In other words, while it is clear that investigations and prosecution maintenance for already-indicted, transferred cases are permitted during the investigation preparation period under the Special Prosecutor Act, there is no explicit provision regarding whether new indictments may be filed during this period, leaving room for interpretation.

The absence of a provision on "indictments during the preparation period" in the law appears to be due to the legislature not anticipating situations like the present one, where urgent additional indictments and arrest warrant requests may be necessary just before the expiration of the detention period to prevent destruction of evidence, or where police, prosecutors, or the Corruption Investigation Office for High-ranking Officials have already made significant progress in related investigations, making additional indictments on separate charges possible.

It appears that Kim Yonghyun’s side is labeling the indictment as illegal due to this lack of clarity in the law.

Kim Yonghyun, former Minister of National Defense. Yonhap News

Special Prosecutor Jo Began Investigation on the 18th... Preempting Controversy

Some observers believe that Special Prosecutor Jo preemptively addressed this potential controversy, making legal interpretation on whether the special prosecutor can file indictments during the investigation preparation period unnecessary in this case.

On June 19, Special Prosecutor Jo announced to the media, "We commenced the investigation on the 18th and indicted former Minister Kim late on the 18th on charges of obstruction of official duties by deception and instigation of destruction of evidence."

He added, "Going forward, we will swiftly proceed with procedures to request prompt consolidation of cases and the issuance of an additional arrest warrant from the court."

This has been interpreted as Special Prosecutor Jo making it clear that the indictment was not filed during the preparation period, but rather after the official investigation period?which can last up to 150 days?had begun.

However, controversy remains. Article 10, Paragraph 2 of the Special Prosecutor Act on Insurrection stipulates, "The special prosecutor must complete the investigation and decide whether to indict within 90 days from the day after the end of the preparation period as set forth in Paragraph 1."

That is, the official investigation period begins only after the maximum 20-day preparation period ends. There is uncertainty as to whether the preparation period can be considered over when even the assistant special prosecutors have not yet been appointed. If not, it could be concluded that the indictment was indeed filed during the preparation period, bringing the issue back to whether indictments are permissible during this time.

Of course, since investigations are always conducted with indictments in mind, there is an argument that indictments should naturally be allowed if investigations are permitted by law. However, Kim Yonghyun’s side maintains that this indictment by Special Prosecutor Jo is invalid because the prosecution procedure violated legal provisions, and therefore a dismissal of prosecution should be declared under Article 327, Clause 2 of the Criminal Procedure Act.

Depends on Court Ruling... Consolidation of Trials and Detention at Stake

Ultimately, whether there was a procedural problem with this indictment can only be determined by the court.

If the court finds that, despite the lack of explicit legal provisions, indictments are naturally allowed during the preparation period as well as investigations, Kim Yonghyun will stand trial for the newly indicted charges of obstruction of official duties by deception and instigation of destruction of evidence, likely in a consolidated trial with previously indicted cases. He may also once again face the possibility of detention.

On the other hand, if the court sides with Kim’s argument that "indictments during the preparation period are procedurally problematic" and declares a dismissal of prosecution, Kim Yonghyun will be released upon the expiration of his detention period on June 26.