Impeachment of Yoon Seok-yeol? Replacement of Chu Mi-ae? Appointment of the Chief of the Corruption Investigation Office? ... A Turbulent Week Begins

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

[Asia Economy Reporter Choi Seok-jin] Voices calling for the impeachment of Prosecutor General Yoon Seok-yeol, who returned to duty following the court's decision to suspend the execution of disciplinary action, are emerging within the ruling party. But is this realistically feasible?

Attention is focused on the whereabouts of Justice Minister Chu Mi-ae, who tendered her resignation while recommending the disciplinary proposal against Prosecutor General Yoon to President Moon Jae-in on the 16th. Although it is expected that President Moon will replace the Minister of Justice as early as this week once the candidate recommendation for the High-ranking Officials' Crime Investigation Office (Gongsa) chief is finalized, the timing of the replacement may be delayed due to the upcoming launch of the Gongsa and the prosecution personnel reshuffle.

The final two candidates for the inaugural Gongsa chief are expected to be recommended this week. Since the ruling party's amendment to the Gongsa Act has rendered the opposition's veto power meaningless, it is highly likely that the final two candidates will be decided at the Gongsa Chief Candidate Recommendation Committee meeting scheduled for the 28th.

Is it possible to impeach Prosecutor General Yoon Seok-yeol or Judge Jeong Gyeong-sim's trial panel?

Voices within the ruling party are growing louder, calling for the impeachment of Prosecutor General Yoon, who was twice suspended from duty by Minister Chu's order and President Moon's disciplinary action but returned to duty by court decision.

Also, as of 9 a.m. on the 27th, more than 380,000 people have agreed to a Blue House national petition calling for the impeachment of the judges who sentenced former Justice Minister Cho Kuk's wife, Professor Jeong Gyeong-sim of Dongyang University, to four years in prison and ordered her detention in court last week.

To conclude, while it is not impossible for the National Assembly to pass an impeachment motion against Prosecutor General Yoon or the first trial judges of Jeong Gyeong-sim and request an impeachment trial at the Constitutional Court, the likelihood of the Constitutional Court ruling in favor of impeachment is close to zero in reality.

Regarding impeachment, Article 65, Paragraph 1 of the Constitution states, "When the President, Prime Minister, State Council members, heads of administrative departments, Constitutional Court justices, judges, members of the Central Election Commission, the Auditor General, auditors, or other public officials prescribed by law violate the Constitution or laws in the execution of their duties, the National Assembly may pass a motion for impeachment." In other words, judges are directly stipulated as subjects of impeachment in the Constitution.

Meanwhile, for prosecutors, Article 37 (Job Security) of the Prosecutors' Office Act stipulates that "Prosecutors shall not be dismissed except in cases of impeachment or sentencing to imprisonment or higher, and shall not be dismissed, discharged, suspended, demoted, reprimanded, or retired without disciplinary action or suitability review," thus including prosecutors as subjects of impeachment.

Therefore, it is correct that Prosecutor General Yoon and the first trial judges of Jeong Gyeong-sim are subjects of impeachment by the National Assembly according to law and the Constitution.

The required quorum for impeachment motions in the National Assembly is stipulated in Article 65, Paragraph 2 of the Constitution: for the President, "a proposal by more than half of the total members of the National Assembly and approval by two-thirds or more of the total members," and for other public officials, "a proposal by one-third or more of the total members and approval by more than half of the total members."

With the Democratic Party holding 180 seats, if they so desire, they can propose and pass an impeachment motion against Prosecutor General Yoon or the first trial judges of Jeong Gyeong-sim and request an impeachment trial at the Constitutional Court.

Article 130, Paragraph 1 of the National Assembly Act (Proposal of Impeachment) states, "When an impeachment motion is proposed, the Speaker shall report it at the first plenary session after the proposal, and the plenary session may refer it to the Legislation and Judiciary Committee for investigation by resolution."

Paragraph 2 of the same article stipulates, "If the plenary session does not resolve to refer the impeachment motion to the Legislation and Judiciary Committee under Paragraph 1, the plenary session shall vote by secret ballot on whether to impeach within 72 hours after 24 hours from the time of reporting. If the vote is not held within this period, the impeachment motion shall be deemed discarded."

According to Article 134 of the National Assembly Act, a person against whom an impeachment motion is passed shall have their authority suspended from the time the impeachment resolution is delivered. Also, from that time, the appointing authority cannot accept the resignation or dismiss the impeached person. The suspension of authority lasts until the impeachment trial is concluded, as per Article 65, Paragraph 3 of the Constitution.

Constitutional Court requires 'serious legal violation' even if statutory law is violated

The issue lies in the grounds for impeachment. Article 65, Paragraph 1 of the Constitution states, "When the execution of duties violates the Constitution or laws," requiring that the violation be related to the duties performed during tenure.

Article 53, Paragraph 1 of the Constitutional Court Act states, "If the impeachment trial petition is justified, the Constitutional Court shall issue a decision to dismiss the respondent from the relevant public office."

However, in the 2004 impeachment trial of the late President Roh Moo-hyun (2004HeonNa1), the Constitutional Court interpreted Article 53, Paragraph 1 of the Constitutional Court Act as not mandating automatic dismissal for all cases where grounds for impeachment under Article 65, Paragraph 1 of the Constitution are recognized. The Court stated that if all minor legal violations due to official acts required dismissal, it would violate the principle of proportionality in constitutional punishment. Therefore, the phrase "when the impeachment trial petition is justified" in Article 53, Paragraph 1 refers not to all legal violations but only to "serious" legal violations justifying dismissal.

In other words, only when the balance between the seriousness of the official's legal violation and the effect of dismissal justifies dismissal can the Constitutional Court accept the impeachment and issue a dismissal decision.

For this reason, although the Constitutional Court recognized that former President Roh violated the neutrality obligation of public officials in elections by expressing support for a specific party at a press conference, expressed regret over the Central Election Commission's election law violation decision, disparaged the election law, and proposed a re-endorsement referendum, violating the constitutional duty to protect the Constitution under Article 72, it dismissed the impeachment petition, ruling that these violations did not constitute "serious legal violations" warranting dismissal.

Most disciplinary reasons against Prosecutor General Yoon are violations of internal 'codes' and 'regulations'

The Ministry of Justice Disciplinary Committee, which decided on the disciplinary action against Prosecutor General Yoon, viewed the disciplinary reason of "ordering the preparation and distribution of a document analyzing the trial panel" as violating Article 15, Paragraph 1 and Article 17, Paragraph 2 of the Personal Information Protection Act and Article 13-3, Item 2 of the Prosecutors' Office Code of Conduct.

It was considered that the document was prepared and distributed with the purpose and intent to create a negative image of judges such as "teachers' union judges" and "leftist judges supporting student movements," forming unfavorable public opinion against the trial panel, attacking, defaming, mocking, or ridiculing the judges.

Violations of Article 15, Paragraph 1 of the Personal Information Protection Act, which limits the scope of personal information collection and use by personal information handlers, and Article 17, Paragraph 2, which requires notifying the data subject before providing personal information to third parties, are punishable by fines rather than criminal penalties under Articles 75, Paragraph 1, Item 1 and Paragraph 2, Item 1 of the same law.

Even if the Disciplinary Committee's claims were accepted, it would be a matter of fines, not criminal punishment, but the court did not recognize even this. In other words, the court ruled that the document could not be seen as prepared for the purpose claimed by Minister Chu or the Disciplinary Committee.

Meanwhile, the Disciplinary Committee cited violations of Article 5 of the Prosecutors' Office Code of Conduct and Article 4 of the Supreme Prosecutors' Office Inspection Headquarters Establishment and Operation Regulations regarding "obstruction of inspection in the Channel A case," but did not present any legal or regulatory violations regarding "obstruction of investigation in the Channel A case." The court judged that the obstruction of investigation was not proven, while the obstruction of inspection was provisionally proven but required further examination.

Finally, regarding "inappropriate remarks concerning political neutrality and damage to dignity," the Disciplinary Committee only cited a Constitutional Court decision mentioning Article 7, Paragraph 2 of the Constitution, which regulates political neutrality of public officials, without presenting clear violating legal provisions or regulations, concluding vaguely that "the conduct damaged the dignity of the Prosecutor General concerning political neutrality."

However, the court also did not recognize this as a violation of political neutrality and rejected it as a disciplinary reason. It even criticized the Disciplinary Committee's claims such as "raising suspicion about political neutrality" and "the mere discussion of the applicant (Prosecutor General Yoon)'s possible political activities excludes the possibility of political use of major case investigations" as mere speculation inappropriate as grounds for recognizing misconduct.

Minister Chu previously presented as many as eight allegations of misconduct as grounds for disciplinary action against Prosecutor General Yoon. However, the Disciplinary Committee acquitted two, dismissed two without action, and ultimately imposed a "two-month suspension" based on four allegations.

But again, the court ruled that the political neutrality-related reasons could not be disciplinary grounds and that the document analyzing the trial panel could not be recognized as illegal surveillance of judges as claimed by Minister Chu.

The decisive factor was the disciplinary level decided by the Disciplinary Committee. After the Disciplinary Committee's decision, Minister Chu chose the ambiguous disciplinary level of "two-month suspension" to prevent another court decision suspending the execution.

This choice was once evaluated as a "masterstroke" in legal circles. Since it was not dismissal, discharge, or a "six-month suspension," but only a "two-month suspension," it was widely expected that the court would find it difficult to recognize "irreparable damage," considering that Prosecutor General Yoon could resume his duties for the remaining five months of his term after the suspension period.

However, the result was a decision to suspend the execution of even the "two-month suspension" as inappropriate.

Now, Minister Chu and the Ministry of Justice's "trick" seems to have backfired, effectively making the ruling party's next moves, such as impeachment, impossible.

The Ministry of Justice Disciplinary Committee decided on a "two-month suspension," which is much lighter than dismissal, discharge, or a "six-month suspension," and with the court's suspension of execution decision, if the ruling party now brings out the impeachment card against Prosecutor General Yoon, it would be forcing a case that is not grounds for impeachment anyway.

As previously examined, the Constitutional Court has already stated that it will only accept impeachment petitions and issue dismissal decisions when "serious legal violations" justifying dismissal are recognized, not for simple legal violations.

Ultimately, the push for Prosecutor General Yoon's impeachment can only be interpreted as an attempt to suspend his duties by passing an impeachment motion using the National Assembly's 180 seats, despite knowing that there are no grounds for impeachment or likelihood of acceptance.

The impeachment petition against the first trial judges of Professor Jeong Gyeong-sim of Dongyang University is also unlikely to have significance beyond political offensive.

Article 103 of the Constitution guarantees judicial independence, stating, "Judges shall be independent in their adjudication according to their conscience in accordance with the Constitution and laws."

It seems practically impossible to recognize the acts of judges who judged based on the prosecution's indictment, assessed facts, interpreted, and applied laws as "serious violations of the Constitution and laws" constituting grounds for impeachment.

Attention on timing of Minister Chu Mi-ae's replacement... Successor appointment also in focus

With all possible means such as inspection and investigation orders, Minister Chu's push for disciplinary action against Prosecutor General Yoon has been halted, and the conflict between Minister Chu and Prosecutor General Yoon that lasted for a year since her inauguration has effectively ended in Minister Chu's complete defeat.

There was speculation that if Minister Chu succeeded in excluding Prosecutor General Yoon from duty, she could launch the Gongsa, complete the prosecution personnel reshuffle early next year, and then return to politics to aim for the Seoul mayoral by-election or the next presidential bid.

However, with two court decisions proving the disciplinary request against Prosecutor General Yoon was unreasonable, and President Moon even issuing a public apology, expectations are growing that the replacement timing will be accelerated.

It is of interest whether President Moon will appoint a former prosecutor such as Democratic Party lawmaker So Byung-chul, focusing on stabilizing the divided prosecution organization, or appoint a non-prosecutor again to tighten prosecution reform.

Especially since the amended Criminal Procedure Act and Prosecutors' Office Act, which include the adjustment of investigative authority between police and prosecution, will be enforced from January next year, the role of the new Minister of Justice is more important than ever.

When the minister is replaced, attention will focus on how to reassign prosecution executives who publicly defied Minister Chu through collective statements during the high-level personnel reshuffle scheduled for January next year, and whether prosecutors conducting investigations targeting the regime, such as Daejeon District Prosecutor Lee Doo-bong investigating the Wolseong Nuclear Power Plant Unit 1, will be demoted again.

Furthermore, it is also of interest whether the Ministry of Justice and prosecution executives who helped Minister Chu oust Prosecutor General Yoon will face demotion or be rewarded.

Two candidates for inaugural Gongsa chief likely to be decided at the 28th meeting

Meanwhile, the much-discussed inaugural Gongsa chief is expected to be appointed soon.

The Gongsa Chief Candidate Recommendation Committee will hold another meeting on the 28th to decide the final two candidates.

With the vacant opposition-recommended member now filled and no additional candidate recommendations, it is highly likely that Kim Jin-wook, Senior Researcher at the Constitutional Court (recommended by Lee Chan-hee, President of the Korean Bar Association), who received the most votes (5) at the last meeting, and lawyer Jeon Hyun-jung (recommended by Minister Chu Mi-ae) will be selected as the final candidates.

The ruling party recently amended Article 6, Paragraph 5 of the Gongsa Act, changing the quorum for the Gongsa Chief Candidate Recommendation Committee's resolution from "approval by six or more members" to "approval by two-thirds or more of the total members." Thus, even if the two opposition-recommended members oppose, the remaining five members can decide the final candidates.

Once the Gongsa Chief Candidate Recommendation Committee recommends the final two candidates to President Moon Jae-in, the committee will automatically dissolve. President Moon will then nominate one of the two candidates and appoint the Gongsa chief after a confirmation hearing. The Gongsa chief's term is three years and cannot be renewed.

The opposition criticizes the ruling party's forced appointment of the Gongsa chief by abolishing the opposition's veto power through legal amendments as a "tactic to change the political situation."

In fact, amid mounting criticism of the government due to successive failures in real estate policies and delays in securing COVID-19 vaccines, the court's decision to suspend the execution of disciplinary action against Prosecutor General Yoon and the detention of Professor Jeong Gyeong-sim, wife of former Minister Cho Kuk, have become a significant burden for President Moon and the ruling party, who had supported Minister Chu. Therefore, seeking a political turnaround through the early launch of the Gongsa appears to be an inevitable choice.

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