Prosecutorial Review Committee Deemed 'Useless'... Renewed Controversy Over 'Prosecutorial Power Abuse' Following Lee Jae-yong's Arrest Warrant Request

Legal circles: "Even in serious cases, warrant requests are unreasonable based on circumstances"
Business community: "Warrant request itself is inappropriate, principles of non-detention investigation and trial must be upheld"

[Asia Economy Reporters Kim Hyewon and Choi Seokjin] Amid fierce debate over the prosecution's surprise request for an arrest warrant for Samsung Electronics Vice Chairman Lee Jae-yong, concerns about the abuse of prosecutorial power are resurfacing. This comes as voices emerge criticizing the prosecution for undermining the investigative review committee system it established in 2018 to prevent excessive power such as exclusive prosecution rights, and arguing that the reasons for requesting the arrest warrant are inappropriate.

According to the legal and business circles on the 5th, since the introduction of the prosecution's investigative review committee system, this is the first time that during the related procedures of a total of nine cases, the investigation team has pushed forward the investigation schedule by requesting an arrest warrant. The investigative review committee system was introduced by the prosecution itself in 2017 as a countermeasure amid increasing political demands to break the prosecution's monopoly on prosecution rights and warrant requests. It is a compromise measure allowing external experts, rather than the prosecution, to assess the appropriateness of prosecution.

In particular, as controversies over human rights violations due to excessive and targeted investigations by the prosecution intensified, the prosecution, conscious of social criticism, proposed this self-reform plan to "bind itself under external control." However, the prosecution, which directly granted this right, has countered by requesting an arrest warrant against Vice Chairman Lee, making it difficult to avoid criticism.

Although the investigative review committee does not deliberate on whether to request an arrest warrant, since the request itself presupposes prosecution, bypassing the committee's judgment on whether to continue the investigation, file charges, or dismiss the case is seen by some in the legal community as an exploitation of a regulatory loophole and an illegal shortcut. Professor Lee Byung-tae of KAIST's Business Administration Department said, "After investigating for a full 1 year and 8 months, the fact that they could not wait a few more weeks for the investigative review committee and instead requested an arrest warrant shows how difficult it is to do business in Korea. I think this is a representative case of power abuse and prosecutorial abuse."

Within the legal community, opinions differ on the appropriateness of the prosecution's arrest warrant request for Vice Chairman Lee. Some argue that the gravity of the case made the warrant request inevitable, but many view it as an excessive request given various circumstances. Professor Lee Kyung-mook of Seoul National University's Business Administration Department said, "I wonder if there is any evidence to be destroyed after such a long investigation," adding, "They could have waited for the investigative review committee; it was somewhat hasty."

The prosecution is proceeding with the formation of a committee to decide whether to refer this case to the investigative review committee, regardless of the arrest warrant request. After randomly selecting candidates for the referral committee from the Seoul Central District Prosecutors' Office's citizen committee members the previous day, they plan to complete the selection of members who will attend the referral committee today. Former Seoul Bar Association President Kim Han-gyu pointed out, "The committee's results will come out in about two weeks to a month, so it's questionable why the prosecution could not wait and rushed to request the warrant. Trying to persuade a judge instead of external experts is itself a move that undermines the committee."

[Image source=Yonhap News]

In the business community, opinions also arise that the arrest warrant request itself is inappropriate and that the principles of non-custodial investigation and trial should be upheld. Article 70 of the Criminal Procedure Act stipulates grounds for detention only if the suspect has no fixed residence, there is a risk of evidence destruction, or a flight risk exists, none of which apply to Vice Chairman Lee. Some speculate that the prosecution, knowing the arrest warrant would be dismissed, is seeking to punish and humiliate Lee out of spite. Seok Dong-hyun, representative lawyer of the law firm Daeho (former head of Seoul Eastern District Prosecutors' Office), said, "From the prosecution's perspective, even if they think there is a problem and proceed with prosecution to get the court's judgment, it is right for the trial to be held without detention. Separating a global company's executive from management and detaining him is a narrow-minded decision and appears as prosecutorial omnipotence."

In deciding whether to detain Vice Chairman Lee, a decisive criterion is expected to be whether there is concern that he might attempt to coordinate testimonies with former Samsung Future Strategy Office Chief Choi Ji-sung or former Strategy Team Leader Kim Jong-joong, who were also subject to arrest warrant requests. Since Lee's case does not fall under the grounds of unknown residence or flight risk among the three detention reasons under the Criminal Procedure Act, the risk of evidence destruction will likely be the key factor.

On the other hand, the prosecution faces a burden in that the "seriousness of the crime" is a consideration factor, not a ground for detention, in the court's assessment of the necessity of detention. In fact, Article 70, Paragraph 2 of the Criminal Procedure Act explicitly states that the seriousness of the crime should be considered when reviewing grounds for detention. A senior judge at a high court said, "The prosecution insists that the seriousness of the crime should be included as grounds for detention, and a bill was even proposed in 2006, but it failed due to concerns about conflicting with the constitutional principle of presumption of innocence and the principle of non-custodial investigation and trial." He added, "Ultimately, when reviewing detention, the decisive criteria are the risk of evidence destruction or flight as stipulated by the Criminal Procedure Act, rather than the gravity of the case."

This content was produced with the assistance of AI translation services.