Handonghun: "Many Issues with the Content and Procedure of the Complete Prosecution Reform Bill"... "Will Continue Efforts to Inform the Public of the Problems"

by Choi Sukjin

Published 09 May.2022 18:36(KST)

Updated 09 May.2022 18:51(KST)

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Citing the Inhyeokdang Incident, "Prosecutorial leadership will use the case as a tool to mishandle it at will"
"Though legal, it is a constitutional amendment-level legislation that essentially changes the backbone of the judicial system maintained since 1974"
"I believe the lack of even a single public hearing is a major procedural flaw"

Minister of Justice nominee Han Dong-hoon is attending the confirmation hearing held at the National Assembly on the 9th, responding to questions from lawmakers. Photo by Yoon Dong-joo doso7@

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Han Dong-hoon, the nominee for Minister of Justice, pointed out at the confirmation hearing held on the 9th that the so-called 'Prosecutorial Authority Complete Transfer' bills, including the amended Criminal Procedure Act and Prosecutors' Office Act, which were promulgated that day, have serious problems in both content and procedure, and expressed his intention to continue efforts to inform the public about the issues of the amended laws.

During the resumed Q&A session of the confirmation hearing that afternoon, when Kim Hyung-dong of the People Power Party asked him to "talk about what the Moon Jae-in administration did wrong regarding legal administration," Han replied, "In the case after the Cho Kuk incident, I think there is a need for reflection on the part where prosecutors who were doing their jobs were driven out and replaced by compliant prosecutors, and the use of investigative command rights to harshly investigate opposition factions."

When asked whether it would be appropriate to say that "the prosecution has become politicized," he answered, "Especially over the past three years, although I have been in the prosecution for a long time, I think the prosecution has become politicized to an unprecedented degree."

When Kim asked whether he confirmed that the fundamental problem of the Prosecution Authority Complete Transfer law is not the separation of investigation and prosecution rights but the granting of investigation termination rights to the police, and whether he acknowledges that the law has substantive problems even if procedural unconstitutionality is set aside, Han replied, "I am confident about that from a professional conscience standpoint."

Kim further asked, "If you become Minister of Justice, will you, based on this logical foundation, continue to inform the public at the Ministry of Justice level about these problems, whether through jurisdictional disputes, constitutional complaints, or even if it does not reach that stage?" He answered, "Of course, and I am speaking from that perspective even today."

Han stated, "Broadly speaking, this bill has about four major problems," and with Kim's consent, he explained the issues of the amended Prosecutors' Office Act and Criminal Procedure Act with specific examples.

He pointed out, "First, when police investigations are conducted, the scope of supplementary investigations by the prosecution upon objection cases is extremely limited," adding, "For example, if a hidden camera (molka) case is closed with no charges, even if hundreds of other hidden cameras are found, the prosecution cannot investigate and must release the person. The victim cannot receive relief."

Han also emphasized, "The complainant's right to object has been taken away," and said, "In such cases, if a neighbor witnesses child abuse and files a complaint, and the police decide not to prosecute, that is the end. In cases like the humidifier disinfectant incident, even if courageous whistleblowers or civic groups file complaints, if the police decide not to prosecute, it ends there."

He continued, "A more serious but less revealed issue is that the provision separating investigation and prosecution within the prosecution was introduced, which basically divides the person studying for the exam and the person taking the exam, leading to a flood of acquittals. However, a bigger problem, which has not been pointed out until now but which I feel on the ground, is that the prosecution leadership could use this as a tool to arbitrarily ruin cases."

He explained, "In the past, during the Inhyukdang case, the investigating prosecutor resisted prosecution due to lack of evidence, but the chief prosecutor assigned the case to a duty prosecutor who prosecuted it. This institutionalizes the handling method used in the Inhyukdang case by law," and pointed out, "In political cases, the investigating prosecutor has no say. The case can be assigned to a prosecution prosecutor as desired and handled arbitrarily."

He added, "Although this was probably not the intention, as someone on the ground, this was the first thing I noticed, and this is how it will operate."

Finally, Han said, "One of the biggest problems with this law is that you really have to think complicatedly about what you can do," and added, "As a result, those seeking relief of rights will give up on it."

When Kim asked, "Do you mean that the procedures for relief of rights are unclear?" Han replied, "Yes."

Meanwhile, Han also expressed strong regret about procedural issues during the passage of the Prosecution Authority Complete Transfer bills through the National Assembly.

When Yoo Sang-beom of the People Power Party asked, "I think procedural errors are not cured just because the purpose is legitimate. How do you think laws should be made, and what content should they contain?" Han replied, "Although my legal experience is limited, speaking very generally, I think the public should know the content during the process, and it should proceed in a sufficiently open state. When changing core laws, various problems and loopholes that may arise from the amendment should be thoroughly simulated."

He added, "Because when laws change, many side effects occur. From a professional standpoint, predictable problems are an issue, but I think unexpected problems that arise during the process are even more frightening," and said, "Although the law's progress was certainly not intended to harm the public, I have a sense of problem that there was a lack of deep consideration about that part."

When Yoo quoted a famous American constitutional scholar saying, "The term 'authority of law' means that laws, even if enacted as positive law, do not have positive legal value unless they conform to constitutional values. In other words, the rule of law, or in Korea's case, liberal democracy, protection of citizens' freedoms, establishment of economic order, and such constitutional values must be properly realized for the law to have authority. Along with that, procedurally, the legislative process must be accurately disclosed to the public, and the law must go through reasonable debate and compromise. Only then does it have authority as law," and asked if Han agreed, Han replied, "Yes, I agree."

Yoo then asked, "However, you said that the Prosecution Authority Complete Transfer law has not only substantive unconstitutionality issues but also procedural errors. Please explain what you meant by pointing out procedural errors."

Han answered, "I think this law is very important, and although it is a law, it is essentially a constitutional-level legislation that changes the core of the judicial system that has continued for 74 years. Therefore, I think the public should have been thoroughly informed about what kind of law was being made."

He continued, "However, it is a big problem that it proceeded without a single public hearing. I think due process under the constitution is a spirit beyond the literal provision in the constitution," and said, "Due process means that even if a public hearing is not required, if a law cannot pass a public hearing, it means it should not be made. Even someone like me, who is in the field, did not know what law was being made until the day of. Such a procedure has a serious flaw."

After Han's answer, Yoo said, "Although I did not speak specifically, as a member who was on the scene, I fully agree with the nominee's criticism. At that time, after the bill passed the first subcommittee of the agenda coordination committee and was referred, a revised bill was created with the participation of the floor leaders and party whips of both ruling and opposition parties. This revised bill was referred to the agenda coordination committee and the full meeting of the Legislation and Judiciary Committee, but ultimately, the bill passed was the one forcibly passed by the Democratic Party in the first subcommittee. The next day, the bill we approved in the full meeting the day before was submitted as a revised bill. This procedure is fundamentally null and void, and I understand that this procedural flaw is probably the biggest reason the prosecution claims the Prosecution Authority Complete Transfer bill lost procedural legitimacy. How much do you know about this?"