Prosecutor General Yoon Seok-yeol's Fate Likely Decided by 'Judiciary Analysis Document' and 'Procedural Defects'

A Suspension Hearing Will Be Held Tomorrow at 2 PM... A Decision Is Expected by the 24th at the Latest

Yoon Seok-yeol, Prosecutor General. [Photo by Yonhap News]

[Asia Economy Reporters Seokjin Choi and Gyeonghwan Bae] The court's decision on the suspension of execution that will determine whether Prosecutor General Yoon Seok-yeol returns to duty early is expected to hinge on how the bench views the disciplinary reason of ‘preparing and distributing the court analysis document’ and whether it acknowledges any ‘procedural defects’ in the investigation and disciplinary committee process.

According to the legal community on the 21st, the Seoul Administrative Court’s 12th Division (Presiding Judge Hong Soon-wook), which is handling the disciplinary cancellation lawsuit and suspension of execution application filed by Prosecutor General Yoon against the ‘two-month suspension’ disciplinary action, will hold a closed hearing on the suspension of execution application case at 2 p.m. on the 22nd. The conclusion on whether to suspend the execution of the suspension is expected to be announced as early as late afternoon on the 22nd or by the 24th at the latest.

During the weekend, Yoon’s side focused on devising a legal strategy to emphasize the legitimacy of Yoon’s return to duty. It is known that Yoon himself actively expressed opinions during the process of formulating rebuttal arguments for each disciplinary reason.

◆The Uniqueness of This Case... Likely to Affect Judgment on Disciplinary Reasons

The suspension of execution judgment is basically based on whether there is ‘irreparable harm’ and ‘urgent necessity to prevent it’ according to Article 23, Paragraph 2 of the Administrative Litigation Act. However, it is not allowed if there is a concern that it will have a serious impact on public welfare.

In other words, the bench will weigh the necessity to prevent irreparable harm that Prosecutor General Yoon would suffer due to the suspension against the negative impact on public interest if the effect of the suspension is stayed until the main case’s judgment is finalized, and then make a final decision.

Earlier this month, the court accepted Yoon’s suspension of execution application to suspend the effect of Minister of Justice Choo Mi-ae’s order to suspend Yoon’s duty, allowing Yoon to return to duty.

However, there are several differences between the previous case and this case.

First, the subjects of the suspension of execution differ: the previous case involved Minister Choo’s order to suspend duty, while this case involves President Moon Jae-in’s suspension disciplinary action. Also, the suspension of duty order in the previous case was a disposition that would lose effect once the disciplinary committee for Yoon was held and the discipline was decided and executed a few days later. In contrast, this suspension disciplinary action can be a final disposition unless invalidated through the cancellation lawsuit.

Therefore, the impact of the court’s acceptance or rejection of the suspension of execution application will also differ. However, compared to dismissal or removal, the ‘two-month suspension’ disciplinary action may be evaluated as causing relatively less harm to Yoon.

Meanwhile, in this case, since the subject of the suspension of execution is the disciplinary action itself and the result of the main case (the cancellation lawsuit of the suspension) is almost certain to come after the two-month suspension period, the bench is likely to examine the specific disciplinary reasons underlying this disciplinary action and procedural issues in the disciplinary process while hearing the suspension of execution application case.

How the bench views the ‘court information collection document’ included among the disciplinary reasons and Yoon’s remarks at the National Assembly audit may influence the suspension of execution decision.

First, regarding the ‘court analysis document,’ it was considered the most legally problematic among the eight disciplinary reasons cited by the Ministry of Justice against Yoon.

On the 24th of last month, Minister of Justice Choo Mi-ae mentioned the ‘illegal surveillance of major case courts’ as the second misconduct allegation against Yoon during the disciplinary request briefing. Illegal surveillance itself is subject to criminal punishment.

However, Yoon’s side has rebutted that it was merely collecting judges’ reputations and information searchable through internet news to assist prosecutors in maintaining indictments. According to the summary of the Ministry of Justice’s Prosecutor Disciplinary Committee’s deliberation and resolution on Yoon, the Ministry did not use the term ‘illegal surveillance’ at the disciplinary committee but instead used the expression ‘major case court analysis document’ as claimed by Yoon’s side.

This suggests that Minister Choo may have used provocative terms like ‘illegal’ and ‘surveillance’ somewhat excessively during the briefing to shape negative public opinion against Yoon.

Also, the Ministry of Justice argued that Yoon’s instruction to the Supreme Prosecutors’ Office’s Investigation Information Policy Office (now Investigation Information Department) to prepare and distribute such documents was itself problematic. However, according to related guidelines, ‘investigation information’ that the Investigation Information Policy Office can collect and manage is known to include ‘information related to maintaining indictments.’

Opinions are divided even within the judiciary on whether such information collection was illegal. However, at the National Judges Conference held on the 7th, although this issue was formally raised as an agenda item, all proposals to express a special stance on it were rejected.

Among the other seven reasons, the disciplinary committee recognized obstruction of investigation into the Channel A case, obstruction of the Channel A case investigation, and inappropriate remarks regarding political neutrality causing damage to dignity as disciplinary reasons.

However, since the investigation team could not even indict Prosecutor Han Dong-hoon in the Channel A case and the ‘prosecutor-media collusion’ frame that Seoul Central District Prosecutor Lee Sung-yoon, supported by Minister Choo, was confident in has collapsed, it is difficult to consider Yoon’s actions, which advocated for the establishment of a professional investigation advisory group, as obstruction of investigation or supervision.

Also, Yoon’s remark during the National Assembly audit in response to opposition lawmakers’ questions that “I will slowly think about how to serve society and the people after retirement” is widely interpreted as not a clear indication of entering politics. The Constitutional Court ruled unconstitutional the then Prosecutors’ Office Act Articles 12, Paragraphs 4 and 5, which prohibited the Prosecutor General from taking public office or becoming a founding member or member of a political party for two years after retirement, citing infringement of suffrage, the right to hold public office, and equality rights in 1997.

◆Attention on Whether ‘Procedural Defects’ Will Be Recognized This Time

Another important variable is whether the bench will recognize procedural defects in the investigation and disciplinary committee’s resolution. Yoon’s side is expected to actively argue the illegality of the disciplinary committee procedures during the hearing on the 22nd. So far, Yoon’s side has gathered evidence step-by-step for the suspension of execution trial.

Before the disciplinary committee began, they raised issues such as the Ministry of Justice’s refusal to disclose the list of disciplinary committee members and refusal to allow inspection and copying of investigation records. After the disciplinary committee started, they pointed out several problems including dismissal of recusals of disciplinary committee members, quorum issues due to unfilled alternate members, and omission of the final statement process.

Meanwhile, the Ministry of Justice’s disciplinary committee has also prepared to accommodate possible requests from Yoon’s side during the disciplinary process, as the court previously pointed out procedural defects when deciding on the suspension of execution of the duty suspension order.

Ultimately, it is at the court’s discretion whether to judge that procedural defects existed despite these efforts.

A lawyer with a prosecution background said, “In Yoon’s case, since he can continue his term even after the two-month suspension period, it is difficult to predict whether the court will see an ‘urgent necessity’ to overturn the disciplinary committee’s decision or regard this process as ‘irreparable harm’ by applying the court’s standards from the previous duty suspension case. The bench is expected to consider the special nature of a Prosecutor General with less than one year remaining in his term and weigh the significance accordingly.”

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