Ministry of Justice vs. Prosecutor General Yoon, Legal Dispute Over 'Recusal'... Likely to Influence Court's Decision on Disciplinary Cancellation and Suspension of Execution

Supreme Court: "When Reasons Are Common, Other Members Cannot Participate in Recusal Vote"
The Key Issue Is Whether Prosecutor General Yoon's Recusal Request Can Be Seen as 'Abuse of Recusal Rights'

Yoon Seok-yeol's legal representatives, Lee Seok-woong (left) and Lee Wan-gyu, are attending the Prosecutor Disciplinary Committee meeting for Prosecutor General Yoon Seok-yeol held at the Ministry of Justice building in Gwacheon, Gyeonggi Province on the 10th.
/Gwacheon=Photo by Kim Hyun-min kimhyun81@

[Asia Economy Reporter Choi Seok-jin] The Ministry of Justice and Prosecutor General Yoon Seok-yeol's sides are engaged in intense legal battles over Yoon's recusation requests against the disciplinary committee members and the committee's decision to dismiss those requests.

The right of a disciplinary suspect to request recusation is a legally guaranteed system to ensure the fairness of disciplinary decisions, and it is expected to significantly influence court rulings on cancellation lawsuits or suspension of execution applications following disciplinary decisions against Yoon.

Ministry of Justice and Prosecution Engage in Legal Disputes Citing Supreme Court Rulings

According to the legal community on the 11th, regarding the dismissal of all four recusation requests against committee members at the disciplinary committee held by the Ministry of Justice the previous day, Yoon's side argues that “it is illegal for a member who was the subject of a recusation request to participate in the quorum for the recusation decision of other members.”

In particular, they criticize Shim Jae-cheol, Director of the Ministry of Justice's Prosecutor's Office, who judged himself to be suspected of partiality and 'recused' himself, but participated in all recusation decisions against members before the meeting started and only then recused himself, calling it a manipulative method that circumvents the quorum regulations under the Prosecutor Disciplinary Act.

On the other hand, the Ministry of Justice counters, stating, “The consistent position of the courts is that a member who is the subject of a recusation request cannot participate only in the decision regarding themselves but can participate in recusation decisions concerning other members,” and adds, “Even if they recuse themselves after participating in the decision on the recusation request, it aligns with the intent of the ruling.”

Furthermore, they argue, “If recusation requests are made simultaneously against all or most members, making it impossible to form a disciplinary committee or for the committee to make decisions, or if it is clear that the recusation requests are intended to delay disciplinary procedures, such requests constitute an abuse of the right to request recusation.”

However, it is difficult to fully accept the Ministry of Justice's claims as they stand.

First, Yoon's side requested recusation against four of the five remaining members excluding Minister of Justice Choo Mi-ae, who was disqualified, and a resigned member: Vice Minister of Justice Lee Yong-gu, Director Shim Jae-cheol, Professor Jeong Han-jung of Hankuk University of Foreign Studies Law School, and Professor Ahn Jin of Chonnam National University Law School. Numerically, it is clear that many members were subject to recusation requests.

However, considering the current legal provisions that allow the Minister of Justice, who requested the disciplinary action, to appoint or designate all disciplinary committee members who can even decide on dismissal of the Prosecutor General, and the profiles of the members subject to recusation requests, it is questionable whether Yoon's recusation requests can be seen as clearly aimed at procedural delay.

Of course, from Yoon's perspective, under current law, if members inevitably appointed or designated tend to side with the Minister, he might decide to give up on the committee's composition and challenge the disciplinary decision later through litigation. However, as Yoon must take all possible measures to ensure the fairest outcome in the disciplinary committee, requesting recusation against members whose political bias has already been revealed through past actions is an unavoidable choice.

Supreme Court: “Unless Abuse of Recusation Right, Members Subject to Common Recusation Reasons Cannot Participate in Recusation Decisions”

Moreover, the Supreme Court ruling (Supreme Court 2015Da34154) cited by the Ministry of Justice as grounds that “members subject to recusation requests can participate in recusation decisions concerning other members” relates to a case where the right to request recusation was recognized as abused, so it is difficult to see it as unilateral support for the Ministry's position.

The ruling cited by the Ministry concerns a case related to disciplinary action against university staff, where the Supreme Court interpreted the recusation clause in the 'Regulations on Disciplinary Action against Faculty and Staff' and set forth legal principles on whether members subject to multiple simultaneous recusation requests can participate in recusation decisions concerning other members.

The court referred to a 2009 Supreme Court ruling, which includes the following three points.

First, the Supreme Court stated, “Recusation requests are originally individual to each disciplinary committee member, and decisions on recusation requests must also be made individually for each member. Therefore, even if multiple recusation requests are made against several members, a member subject to a request cannot participate only in the decision regarding themselves but can participate in decisions concerning others.”

This means, for example, if two of six members are subject to recusation requests for different reasons, they may attend each other's recusation decisions without issue.

Next, the Supreme Court clarified, “However, if the recusation reasons stem from a common cause, the member cannot participate not only in the decision regarding themselves but also in decisions concerning others.”

In the previous example, if the two members subject to recusation requests share the same reason, they cannot participate in each other's recusation decisions.

Finally, the Supreme Court added, “If the disciplinary suspect makes recusation requests simultaneously against all or most members, making it impossible to form a disciplinary committee or for the committee to make decisions, or if it is clear that the recusation requests are intended to delay disciplinary procedures, such abuse of the right to request recusation renders the requests invalid. In such cases, the members subject to recusation requests are not prohibited from participating in recusation decisions.”

In other words, if multiple members are subject to recusation requests for common reasons and it is clearly an abuse of the right to request recusation, then those members may participate in recusation decisions concerning others, according to the Supreme Court.

On the day, Yoon's lawyer Lee Wan-gyu stated regarding the dismissal of recusation requests by the disciplinary committee the previous day, “The defense submitted recusation requests listing ▲ reasons applicable to each of the four members ▲ reasons common to two members ▲ reasons common to three members,” and clarified, “Not all recusation requests against the four members were dismissed on the grounds of abuse of the right to request recusation.”

Lee explained, “The committee dismissed the request concerning reasons common to three members because one member did not meet that reason, and the request was deemed an abuse of the right to request recusation for forcing a common reason on three members. The other reasons, including those common to two members or individual reasons, were dismissed as not constituting valid recusation reasons.”

Ultimately, whether members subject to recusation requests for common reasons involving three or two members should have refrained from participating in each other's recusation decisions depends on whether Yoon's recusation requests can be considered an abuse of the right to request recusation.

“Shim Jae-cheol’s Recusal After Recusation Decisions Circumvents Quorum Rules”… Disqualified Minister Choo’s Chairmanship Also Problematic

Meanwhile, Yoon's side argues that Shim Jae-cheol's recusal after participating in all recusation decisions against members is also problematic.

They claim that if Shim had recused himself in advance, the two members subject to common recusation reasons would not have been able to participate in each other's decisions, leaving only two members to decide on recusation, which would not meet the quorum (a majority of four members, i.e., three members). Therefore, one member should have been supplemented, according to Yoon's side.

The Ministry of Justice and Yoon's side are also clashing over procedural issues such as Minister Choo's designation as chairperson.

The Ministry argues that since the Prosecutor Disciplinary Act prohibits the person requesting disciplinary action from participating in case deliberations, it is not problematic for them to be involved in preliminary procedures rather than deliberations.

Conversely, Yoon's side contends that the meaning of 'deliberation' should not be narrowly interpreted as only the deliberation session but should encompass the entire procedure initiated by the disciplinary request, making Minister Choo's performance of chairperson duties illegal.

They emphasize that, similarly, when a judge is disqualified, they are excluded from all procedures including scheduling hearings.

These controversies are expected to become important criteria for courts when judging the legality of disciplinary procedures once litigation challenging disciplinary actions against Yoon begins.

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