Prosecutors in Deep Deliberation, What If the Investigation Review Committee Recommends Non-Prosecution?

Lee Jae-yong, Vice Chairman of Samsung Electronics, who is under prosecution investigation for allegations of unfair succession of management rights related to the merger of the former Samsung C&T and Cheil Industries, as well as accounting fraud allegations involving Samsung Biologics, is entering the courtroom to attend the warrant hearing held at the Seoul Central District Court in Seocho-gu, Seoul, on the morning of the 8th. Photo by Kang Jin-hyung aymsdream@

[Asia Economy Reporters Seokjin Choi and Hyungmin Kim] As the Prosecutorial Investigation Deliberation Committee (hereafter, the Deliberation Committee) is set to convene to decide whether to indict Samsung Electronics Vice Chairman Lee Jae-yong (52), the prosecution is facing deep deliberation.

Since the prosecution has already requested an arrest warrant for Vice Chairman Lee, it is widely assumed that indictment will proceed. However, if the Deliberation Committee issues a non-indictment opinion, the prosecution would find itself in a very awkward position.

Legal insiders familiar with the structure and workings of the prosecution believe that even in this case, the prosecution will decide to indict. Ignoring the 'check-and-balance body' created by the prosecution itself could lead to strong public criticism.

According to prosecution sources on the 10th, the Seoul Central District Prosecutors' Office will hold a sub-Deliberation Committee meeting on the 11th to review the agenda for convening the Deliberation Committee requested by Samsung.

If the sub-Deliberation Committee approves, the Deliberation Committee will convene to gather opinions on the appropriateness of indicting Vice Chairman Lee and convey them to the prosecution. Given that the arrest warrant requested by the prosecution in this case was dismissed, it is highly likely that the sub-Deliberation Committee will approve the agenda.

The problem arises if the Deliberation Committee issues a 'non-indictment' opinion. The prosecution has followed all decisions from the previous eight Deliberation Committees. However, there is an analysis that this case differs from the previous eight.

Notably, the suspect, not the prosecution, requested the convening of the Deliberation Committee, and the prosecution had even requested an arrest warrant, marking a significant difference.

Typically, the prosecution requests the convening of the Deliberation Committee to seek external experts' opinions on ambiguous cases where opinions on indictment are divided. However, in this case, the prosecution has already concluded that the matter is serious enough to require an arrest warrant, making it difficult to follow a different conclusion from the Deliberation Committee. In fact, there is hardly any precedent of non-indictment for a suspect for whom an arrest warrant was requested.

Attorney Baek Seong-moon said in a phone interview, "The Deliberation Committee's opinion is only advisory," adding, "Since the prosecution requested an arrest warrant, it means they have already firmly believed there is a criminal charge, so they will inevitably indict." However, he noted, "They are likely to explain it by saying, 'We respect the committee's opinion but decided to indict and let the court make the judgment.'"

While acknowledging the high possibility of prosecution indictment, some believe that if the Deliberation Committee issues a non-indictment opinion, the prosecution should respect it.

Attorney Kim Han-gyu (former president of the Seoul Bar Association) said, "Since the committee is not an externally imposed body but a system the prosecution created to receive external checks, I think its opinion should be respected."

Kim also added, "The committee members are not just ordinary citizens but experts from various sectors with knowledge and experience in the judicial system. They will listen to both sides' explanations, deliberate, and present grounds for their conclusion. If the prosecution intends to make a decision different from their opinion, they should at least explain why they do not respect that opinion."

The prosecution usually considers reapplying for an arrest warrant after dismissal, but it seems difficult ahead of the Deliberation Committee convening. However, since the Deliberation Committee is not allowed to deliberate on matters related to arrest warrants when the request is made by a party involved in the case, the prosecution cannot be ruled out from taking the bold step of reapplying for the warrant regardless of the schedule.

Since the Deliberation Committee system was introduced in 2018, eight committees have been convened. If the request by Vice Chairman Lee and others is accepted, it will be the ninth case and only the second time a case requested by a party involved has been convened.

The other seven cases were convened at the request of the chief prosecutor. Specific cases include the 2018 Kia Motors strike obstruction case (suspension of prosecution), former Ministry of Justice Prosecutor General Ahn Tae-geun's sexual harassment and personnel retaliation case involving a female prosecutor (indictment), former Home & Shopping CEO Kang Nam-hoon's breach of trust case (indictment), and the non-indictment of firefighters involved in the Jecheon Sports Center fire in Chungbuk for professional negligence causing death.

Last year, the Ulsan District Prosecutors' Office issued a result stating "the investigation was lawful" regarding a case where a police officer who disclosed suspect information before indictment was booked.

A prosecution official said, "There are many cases where parties involved request the convening of the committee, but most did not pass the sub-Deliberation Committee stage." Conservative YouTuber Kim Sang-jin applied for the Deliberation Committee after being investigated by the prosecution for allegedly threatening Prosecutor General Yoon Seok-youl in May last year, but the request was rejected at the sub-Deliberation Committee stage.

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