[Fact Check] Is the Phrase 'Presidential Approval' Absent in the Prosecutor Disciplinary Act?

Prosecutor Disciplinary Act Stipulates 'President Executes Disciplinary Actions'... Ministry of Justice Disciplinary Committee Decision Does Not Grant President Authority to Reject

[Asia Economy Reporter Ryu Jeong-min] Could the disciplinary action against Prosecutor General Yoon Seok-yeol have had a different outcome depending on President Moon Jae-in's judgment? On the 16th, Cheong Wa Dae's Senior Secretary for Public Communication Jeong Man-ho stated, "I received a proposal from the Minister of Justice regarding the disciplinary committee's decision on the Prosecutor General's disciplinary action and approved it."

The focus of attention, President Moon's 'approval (재가, jaega),' has already been given. President Moon accepted Prosecutor General Yoon's 'two-month suspension' disciplinary action, but questions still remain. The dictionary definition of approval (재가) is that a person with the authority to approve permits and endorses a proposal.

Considering the dictionary meaning, it can be interpreted that President Moon had the authority to decide whether to permit (approve) the disciplinary action against Prosecutor General Yoon. However, there is also an opinion that political authority (responsibility) and legal authority should be distinguished. This means that public perception and the actual content of the law may differ.

[Image source=Yonhap News]

Disciplinary actions against prosecutors (including the Prosecutor General) are stipulated in the 'Prosecutors Disciplinary Act.' The only article in the Prosecutors Disciplinary Act that includes the word 'President' is Article 23 (Execution of Disciplinary Action). An interesting point is that the Prosecutors Disciplinary Act does not contain the expression 'presidential approval (재가).'

Article 23 of the Prosecutors Disciplinary Act states that in cases of dismissal, removal, suspension, or reduction of pay, the execution of disciplinary action is carried out by the President upon the recommendation of the Minister of Justice, thereby differentiating the executing authority depending on the severity of the disciplinary action. In the case of a reprimand, the disciplinary action is executed by the Prosecutor General of the affiliated prosecution office, the Chief Prosecutor of the High Prosecutors' Office, or the Chief Prosecutor of the District Prosecutors' Office. However, if a prosecutor receives disciplinary action of reduction of pay or higher (including suspension), as in Prosecutor General Yoon's case, the President is the executing authority.

The Prosecutors Disciplinary Act does not include provisions regarding the President's permission, approval, or adjustment of disciplinary actions. A senior Cheong Wa Dae official explained, "According to the Prosecutors Disciplinary Act, the disciplinary action must be executed as is, without rejection, reduction, or increase."

In the legal community, there are also criticisms that if President Moon does not execute the Ministry of Justice's disciplinary committee decision or adjusts the severity of the disciplinary action, it would rather be an abuse of discretion. This means that even the President cannot act beyond the authority stipulated by law.

Attorney Yang Ji-yeol explained, "According to the Prosecutors Disciplinary Act, it does not say the President decides or can decide the execution of disciplinary action, but that the President executes it upon the recommendation of the Minister of Justice," adding, "(Prosecutor disciplinary action) is not something the President can arbitrarily determine."

Considering the provisions of the Prosecutors Disciplinary Act and opinions from the legal community, the view that President Moon cannot arbitrarily adjust Prosecutor General Yoon's disciplinary action is judged to be 'generally true.'

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