This Week's Fate of Prosecutor General Yoon Seok-yeol Decided by Injunction... Minister Chu Mi-ae Likely to Face Backlash if Court Upholds

Minister of Justice Choo Mi-ae (left) and Prosecutor General Yoon Seok-youl. [Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin] The court's decision on Prosecutor General Yoon Seok-yeol's request to suspend the enforcement of his two-month suspension disciplinary action is expected to be announced this week.

Earlier, before the disciplinary action was decided, on the 1st, the court accepted Yoon's request to suspend the enforcement of the Ministry of Justice Minister Choo Mi-ae's order to suspend his duties, allowing Yoon to return to his position.

However, this current request for suspension differs in several respects from the previous case, making it difficult to predict the court's decision.

◆Hearing Scheduled for Tuesday This Week... Conclusion Expected by Christmas at the Latest

According to the Seoul Administrative Court on the 20th, the 12th Division of the Seoul Administrative Court (Presiding Judge Hong Soon-wook), which is handling the disciplinary action cancellation lawsuit and suspension request filed by Prosecutor General Yoon against the 'two-month suspension' disciplinary action, will hold a hearing on the suspension request case on Tuesday (22nd) this week.

After hearing statements from the plaintiff, Prosecutor General Yoon, and the defendant, Minister of Justice Choo Mi-ae, the court is expected to reach a conclusion as early as late afternoon on the same day or within a day or two at the latest.

Given the significant public interest and the fact that Yoon's suspension period is two months, the court is compelled to expedite its decision on the suspension request.

In the previous suspension request case regarding the duty suspension order, the court held a hearing on the 30th of last month and issued a partial acceptance decision on the suspension request the very next day, the 1st of this month.

Therefore, the result of this suspension request case concerning the suspension disciplinary action is also expected to be announced around the 23rd or 24th, before Christmas at the latest.

◆Significant Differences from the Previous Suspension Case

The previous case and the current case differ primarily in the subject of the suspension request.

The previous case sought to suspend the enforcement of Minister Choo's order to suspend Prosecutor General Yoon's duties until the cancellation lawsuit against that order was finalized. In contrast, the current case requests the suspension of the enforcement of the 'two-month suspension' disciplinary action until the ruling on the cancellation lawsuit of the disciplinary action is finalized.

In other words, the previous case involved suspending Minister Choo's duty suspension (or exclusion) order, whereas the current case involves suspending President Moon Jae-in's suspension disciplinary action.

However, in administrative lawsuits concerning presidential actions, the defendant is formally the relevant minister according to Article 16, Paragraph 2 of the Administrative Litigation Act. Thus, the defendant is the Minister of Justice in form only.

Before filing the complaint, Yoon's lawyer Lee Wan-gyu stated, "It is indeed a lawsuit against the President," but later tried to clarify by saying, "It is an oversimplification and distortion to say that the Prosecutor General filed a lawsuit against the President." The Blue House also emphasized that the President's approval was a lawful action, noting that under the Prosecutor Disciplinary Act, the President has no discretion to refuse enforcement or reduce the disciplinary level decided by the disciplinary committee. Nonetheless, it is undeniable that the substance of this lawsuit is a cancellation lawsuit against the President's suspension disciplinary action, and the suspension request also seeks to suspend the enforcement of the President's suspension disciplinary action.

The impact of the court's acceptance or rejection of the suspension request also differs.

First, the duty suspension order subject to the previous suspension request was a measure that would lose its effect shortly after, as the disciplinary committee for Prosecutor General Yoon was scheduled to convene and decide on disciplinary action.

If dismissal or removal was decided and enforced by the disciplinary committee, there would be no duty to suspend. If suspension was decided, Yoon's duties would be suspended by the President's disciplinary action following the disciplinary committee's decision, not by Minister Choo's duty suspension order.

In other words, although the suspension request sought to suspend the enforcement of the duty suspension order until the cancellation lawsuit was finalized, the duty suspension order itself would soon become meaningless due to the disciplinary committee's decision and the President's enforcement. If the disciplinary action had been enforced before the lawsuit was filed, both the cancellation lawsuit and suspension request could have been dismissed for lack of legal interest.

The court at that time stated in its decision, "As the disciplinary procedure is imminent and disciplinary action is expected soon, even if the disciplinary reasons against the applicant (Yoon) are recognized and severe disciplinary action is taken, the applicant's duties would only be maintained for a short time before the disciplinary action is enforced, so it cannot be concluded that the integrity of the duties would be seriously impaired." The court rejected the Ministry of Justice's argument that accepting the suspension request could threaten the fair exercise of prosecutorial and supervisory authority.

In contrast, the current suspension request concerns a disciplinary action of a two-month suspension that has already been imposed. Yoon seeks to suspend the enforcement of the suspension disciplinary action until the cancellation lawsuit ruling is finalized, which could significantly affect Yoon's ability to perform his duties as Prosecutor General depending on the court's decision.

Especially since Yoon has only seven months left in his term, the impact could be much greater.

If the court accepts Yoon's suspension request, he can immediately return to his duties as Prosecutor General upon the court's decision. He would perform his duties while pursuing the cancellation lawsuit, which typically takes several months to over a year for a first-instance ruling, and several years to finalize through appeals and Supreme Court review. Thus, the lawsuit's outcome would likely be announced after Yoon completes his remaining term.

Even if the disciplinary action is later upheld, the disciplinary request by Minister Choo, the disciplinary committee's decision, and President Moon's enforcement would effectively become meaningless.

The opposite is also true. If the court rejects Yoon's suspension request and maintains the enforcement of the suspension disciplinary action, Yoon will be unable to perform his duties as Prosecutor General for two months starting from the 16th, when President Moon approved the disciplinary action.

Yoon would return to his position on February 16 next year and serve until his term expires on July 24 of the same year. However, even if the Supreme Court later rules that the disciplinary action was unlawful and cancels the two-month suspension, the lost two months cannot be restored.

This decision will have significant influence on Yoon himself, Minister Choo who requested the disciplinary action, and President Moon who approved it.

◆Court's Judgment Likely Influenced by Specific Disciplinary Reasons

According to the Administrative Litigation Act and previous Supreme Court rulings, in cases seeking suspension of administrative actions, the legality of the administrative action itself is not subject to judgment.

In other words, when deciding whether to suspend the enforcement of Yoon's 'two-month suspension' disciplinary action, the court does not consider whether the disciplinary action itself is lawful. The specific disciplinary reasons underlying the action are generally not referenced in deciding the suspension request.

When deciding on suspension, Article 23, Paragraph 2 of the Administrative Litigation Act requires weighing whether there is an irreparable harm to Yoon caused by the suspension and whether there is an urgent need to prevent it.

The Ministry of Justice's claim that there is a risk of significant impact on public welfare is considered a negative condition under Article 23, Paragraph 3 of the same law.

Thus, the court will balance the irreparable harm Yoon would suffer from the suspension disciplinary action against the public interest impact of suspending the enforcement of the disciplinary action until the main case is decided.

However, since the subject of suspension is the disciplinary action itself and the main lawsuit's outcome will likely be irrelevant timing-wise, the court is expected to examine the specific disciplinary reasons and procedural issues related to the disciplinary process while reviewing the suspension request.

The court's perspective on the 'court information collection document' included among the disciplinary reasons and Yoon's statements at the National Assembly audit could influence the suspension decision.

Previously, Judge Cho Mi-yeon of the 4th Administrative Division of the Seoul Administrative Court, who handled the suspension request against Minister Choo's duty suspension order, partially accepted the suspension request by suspending the enforcement of the order until 30 days after the ruling. She pointed out that the Minister of Justice's authority to direct and supervise the Prosecutor General should be exercised very restrictively and noted procedural flaws in the disciplinary request process, siding with Yoon.

◆Court's 'Suspension' Decision Likely to End the Choo-Yoon Conflict

The court's decision on this suspension request is expected to bring an end to the nearly one-year-long conflict between Minister Choo and Prosecutor General Yoon since her appointment.

On the 16th, Minister Choo visited the Blue House to submit the disciplinary recommendation against Yoon to President Moon and expressed her intention to resign as Minister of Justice.

President Moon praised her, saying, "I especially appreciate your faithful fulfillment of the mission entrusted by the times," and added, "I also highly value your expression of resignation and decision on your position."

If the court finds that the harm Yoon would suffer from the two-month suspension is not significant, or acknowledges the harm but decides that reinstating Yoon immediately would negatively impact public welfare more, and thus rejects the suspension request, pressure from the ruling party for Yoon's resignation is expected to intensify.

Although Yoon has been skeptical about resigning before his term ends, if the President has approved the disciplinary action and the court also rejects the suspension request, he will be forced to seriously consider his position.

Under the acting leadership of Deputy Prosecutor General Cho Nam-gwan, major investigations such as the 'Wolseong Nuclear Power Plant Unit 1' case and the 'Lime and Optimus' related political lobbying investigations are expected to face setbacks.

There are also expectations that Minister Choo, who has expressed her intention to resign, will carry out the last personnel reshuffle of her term in January next year, demoting prosecutors who opposed Yoon's disciplinary action en masse and dismantling investigation teams targeting the current government. Given Minister Choo's past personnel patterns, these are not merely unilateral claims or concerns from Yoon's side.

Conversely, if the court once again accepts the suspension request and suspends the enforcement of the suspension disciplinary action, Minister Choo's position will inevitably weaken.

Voices from the opposition camp are likely to increase, calling for Minister Choo's dismissal or removal rather than voluntary resignation. Although Minister Choo pushed for Yoon's disciplinary action, President Moon, who approved and enforced the disciplinary action, is also likely to face public backlash.

Minister Choo has previously suffered several defeats related to the investigation and disciplinary request against Yoon.

First, the Ministry of Justice Inspection Committee, which Minister Choo tried to prevent from convening by amending related regulations, held an emergency meeting on the 1st, a day before the Ministry of Justice Prosecutor Disciplinary Committee convened, and unanimously decided that Minister Choo's disciplinary request, duty suspension, and investigation referral against Yoon were all inappropriate. It was highly unusual for an internal Ministry of Justice committee to officially oppose the actions of the Ministry head, which was a painful blow to Minister Choo.

On the same day, the court accepted Yoon's suspension request. Judge Cho Mi-yeon notably accepted most of Yoon's claims, such as the disciplinary reasons not being objectively substantiated and the occurrence of irreparable harm, while rejecting Minister Choo's argument that the authority to suspend duties is discretionary, stating that administrative discretion has limits and abuse of discretion is subject to judicial review. She also emphasized that the relevant regulations should not be abused as personnel authority over the Prosecutor General, refuting all of Minister Choo's claims.

Despite this court decision, Minister Choo proceeded with convening the disciplinary committee against Yoon, prompting collective statements from prosecutors ranging from junior prosecutors to senior high-ranking officials, including frontline high prosecutors, requesting Minister Choo to withdraw the disciplinary request. Not only within the prosecution but also from lawyer associations such as the Korean Bar Association, academic groups like the Korean Law Professors Association, and progressive civic groups like People's Solidarity for Participatory Democracy, Minister Choo's actions were criticized as excessive.

Ultimately, the only victory Minister Choo achieved in this disciplinary dispute was the disciplinary committee, where she could directly influence the appointment of all members. With the cancellation lawsuit's conclusion expected after Yoon's term ends, this is Minister Choo's last chance to make up for previous defeats.

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