Supreme Court: "Private Use of Lawyer-Client Meetings by Housekeeper Does Not Constitute Deceptive Obstruction of Official Duties"… Reversal and Remand in Former Representative Choi Kyuseon's Case

[Asia Economy Reporter Choi Seok-jin, legal affairs specialist] The Supreme Court has ruled that even if a detainee hired a "jipsa" lawyer and used attorney visits to receive company-related documents or conduct personal business unrelated to the trial, it does not constitute the crime of obstruction of official duties by deception.

The ruling is based on the reasoning that conversations and exchanged documents between a detainee and their attorney are not originally subject to prison guards' surveillance or supervision, and therefore cannot be considered as obstructing the guards' official duties.

The Supreme Court's 3rd Division (Presiding Justice Lee Heung-gu) on the 30th overturned the previous ruling that had sentenced Choi Gyu-seon, former CEO of UI Energy (62), to six years in prison for fraud under the Act on the Aggravated Punishment of Specific Economic Crimes, violations of the Capital Markets Act and Labor Standards Act, and obstruction of official duties by deception, and remanded the case to the Seoul High Court.

The court stated, "When a detainee's attorney applies for an attorney visit to a prison guard, the guard is not authorized to examine what specific defense activities the attorney is conducting, whether the attorney genuinely intends to provide defense, or what documents are exchanged during the visit regarding the detainee's criminal case. Furthermore, the content of conversations between the detainee and the attorney during the visit is not subject to the guard's surveillance or supervision. Therefore, it is difficult to consider the defendant's actions as 'deception' or that they concretely and realistically obstructed the prison guards' official duties."

Choi, who was also a central figure in the "Choi Gyu-seon Gate" during the Kim Dae-jung administration, was accused of hiring attorney A in December 2016 while in custody, agreeing to pay 3 million KRW monthly on the condition of three visits per week, and instructing the attorney to pretend to visit for case defense but actually handle company business.

Choi reportedly contracted with a total of six "jipsa" lawyers in this manner, having them perform personal tasks and errands over 47 visits, and received documents unrelated to litigation.

The prosecution applied the charge of obstruction of official duties by deception, arguing that Choi's actions interfered with the legitimate execution of duties by the prison guards responsible for attorney visits.

Additionally, Choi faced charges of fraud under the Act on the Aggravated Punishment of Specific Economic Crimes for receiving approximately 5.5 billion KRW in US dollars and Japanese yen from another company by offering his own company's shares as collateral in 2008, and violations of the Labor Standards Act for withholding about 3 billion KRW in employee wages and severance pay.

The first trial was split into two separate proceedings, resulting in a five-year prison sentence for the fraud case and a three-year sentence for the other charges.

In the combined appeal trial, the court found Choi guilty of fraud under the Act on the Aggravated Punishment of Specific Economic Crimes, violations of the Capital Markets Act, and obstruction of official duties by deception, but acquitted him of some Labor Standards Act violations, sentencing him to six years in prison.

Regarding the obstruction of official duties by deception related to the "jipsa" lawyers, the second trial court stated, "The defendant had the visiting attorneys create the appearance of attorney visits not for defense of ongoing investigations or trials but to conduct company operations and personal communications, exceeding the limits of legitimate attorney visitation rights. This not only does not constitute a proper exercise of visitation rights but also concretely and realistically obstructed the prison guards' duties related to attorney visits and correspondence handling. Even if the guards performed their duties diligently, the deception used made detection difficult during normal operations, constituting obstruction of official duties."

However, the Supreme Court overturned the second trial's ruling, acquitting Choi of charges that he obstructed prison guards' official duties by using "jipsa" lawyers.

The court reasoned that: ▲ whether an attorney is conducting specific defense activities or genuinely intends to defend is not subject to prison guards' examination, so merely applying for attorney visits for personal tasks or errands does not constitute deception against the guards nor concretely and realistically obstruct their duties; ▲ correspondence between detainees and attorneys cannot be censored unless the recipient cannot be confirmed as an attorney within the correctional facility, so exchanging non-litigation documents does not constitute deception or obstruction of guards' duties; ▲ the Execution of Sentences Act allows listening, recording, or filming of visits between detainees and external persons in certain cases but explicitly prohibits guards' participation or monitoring of conversations between detainees and attorneys, so conversations during attorney visits are not subject to guards' surveillance or control, and thus attorneys performing personal communications for the defendant does not constitute deception or obstruction of official duties.

For these reasons, the court concluded, "Although the defendant's instructions to the visiting attorneys created only the appearance of defense activities and were actually for purposes other than exercising the right to defense in criminal cases, exceeding the limits of visitation rights, it is difficult to consider such acts as 'deception' or that they concretely and realistically obstructed the prison guards' official duties."

A Supreme Court official explained, "This ruling is significant as it is the first to clarify that acts by detainees hiring so-called 'jipsa' lawyers to handle personal business unrelated to criminal defense, even if constituting abuse of visitation rights and subject to internal prison sanctions or disciplinary actions against the attorneys, do not constitute the crime of obstruction of official duties by deception."

Choi is a figure who caused a scandal by using his friendship with Hong Geol, the third son of former President Kim Dae-jung, to receive kickbacks from companies. He was later sentenced to nine years in prison by the Supreme Court in June 2018 for embezzlement and breach of trust involving approximately 15 billion KRW and is currently incarcerated.

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