De facto Directive to Supreme Prosecutors' Office to Refrain from Applying Abuse of Authority and Breach of Trust Charges
"Concerns Over Passive Administration by Public Officials and Managerial Contraction in Corporations"
Sung Ho Jung, Minister of Justice, is delivering his inaugural speech at the inauguration ceremony held at the Government Gwacheon Complex on the 21st. Photo by Yonhap News
Minister of Justice Jung Sungho has issued a directive to the Supreme Prosecutors' Office, effectively instructing restraint in investigations and indictments of public officials and corporations.
The Ministry of Justice announced that on the 29th, Minister Jung conveyed to the Supreme Prosecutors' Office a directive titled "Precautions for Investigations and Handling of Cases Related to Decision-Making in the Course of Public Duties and Corporate Activities."
Minister Jung stated to the Supreme Prosecutors' Office, "There have been ongoing concerns that retrospective, strict evaluations of policy decisions made during the performance of public duties are being prosecuted as abuse of authority, and that strategic decisions made in corporate management are being widely investigated and indicted as embezzlement after the fact. As a result, risk aversion within the public and corporate sectors is intensifying."
He further pointed out, "This could induce passive administration among public officials, hindering the creative execution of duties for the benefit of the people. On the corporate side, there is concern that risk aversion could lead to managerial contraction."
Specifically, Minister Jung ordered that, in investigations and handling of cases related to decision-making by public officials and corporate executives: ▲ the statements of parties involved, such as public officials and businesspeople, should be fully heard; ▲ related evidence and legal principles should be carefully assessed in light of accumulated case law; ▲ if it is clear from the outset that a crime has not been established based on the investigative leads, such as complaints, the case should be promptly closed; ▲ active and responsible decision-making in the course of public duties and corporate activities should be thoroughly protected.
This directive from Minister Jung appears to be related to the recent acquittal of Chairman Lee Jaeyong in the Samsung improper merger and accounting fraud case. Prosecutors believed that Samsung carried out the 2015 merger between Samsung C&T and Cheil Industries to facilitate succession of management rights, and that various illegal acts were committed during this process to maintain Chairman Lee's high shareholding. After nearly two years of investigation, prosecutors concluded that false disclosures and market manipulation, among other illegal acts, had occurred during the merger, and in September 2020, indicted Chairman Lee without detention.
However, both the first and second instance courts found Chairman Lee not guilty of all charges brought by prosecutors, and even rejected the admissibility of key evidence submitted by the prosecution. The prosecution, arguing that the Supreme Court should review the purpose and circumstances of the group's succession of control, appealed the case after going through the Supreme Court Appeal Review Committee. Nevertheless, the Supreme Court found no issues with the lower court's judgment and ultimately acquitted Chairman Lee.
Additionally, Minister Jung's instruction for prosecutors to exercise caution in applying abuse of authority charges to public officials for actions taken in the course of their duties appears to be a follow-up to President Lee Jaemyung's remarks at the senior secretaries and aides meeting on the 24th, when he stated, "We will review legislative amendments to ensure that investigations into abuse of authority are conducted prudently and that the abuse of authority charge is not misused."
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