Controversy Over Active Judges and Prosecutors Directly Running in General Elections Undermining Neutrality

Published 10 Jan.2024 16:10(KST)

"Political Judges as Leverage" vs "No Restrictions on Eligibility for Election"

The renewed attention is being drawn to the 'Prosecutor Candidacy Restriction Act' (Amendment to the Prosecutors' Office Act) following a series of declarations of candidacy by active prosecutors. Proposed in December 2020 by former National Assembly member Choi Kang-wook and 12 others, the Prosecutor Candidacy Restriction Act limits prosecutors from running for public office within one year after retirement. The purpose is to prevent the political neutrality of the judiciary and investigative agencies from being compromised, but it has sparked heated debate due to potential unconstitutionality as it restricts the right to be elected.

Kim Sang-min, former chief prosecutor of the Seoul Central District Prosecutors' Office, and Lee Sung-yoon and Shin Sung-sik, research fellows at the Judicial Research and Training Institute, who are known to be preparing to run in the April general election (from left)
[Photo by Legal Times]

Kim Sang-min (46, 35th class), former chief prosecutor of the Seoul Central District Prosecutors' Office, registered as a preliminary candidate for the general election by joining the People Power Party despite warnings from Prosecutor General Lee Won-seok and a demotion. Last Chuseok, Kim, who was under investigation after sending a text implying his candidacy, resigned after the Supreme Prosecutors' Office Inspection Committee recommended a warning to the chief prosecutor. Lee Seong-yoon (62, 23rd class), former chief prosecutor of the Seoul Central District Prosecutors' Office and research fellow at the Judicial Research and Training Institute, also submitted his resignation again on the 8th, announcing his intention to run in the general election. His first resignation submitted in April last year was not accepted because he is currently on trial for allegedly obstructing the investigation into former Deputy Minister of Justice Kim Hak-ui's travel ban. Shin Seong-sik (59, 27th class), a research fellow at the Judicial Research and Training Institute, is also reportedly preparing to run without his resignation being accepted.

The likelihood of legal disputes arising from active prosecutors running for office is low. This is because the Supreme Court previously ruled in favor of Hwang Un-ha, a Democratic Party member who retained his police position while running and was elected, regarding the loss of his parliamentary seat. At that time, the Supreme Court judged that "if a resignation letter was submitted within the deadline stipulated by the Public Official Election Act, the candidate registration can proceed regardless of whether the resignation was accepted."

Even if under investigation, candidacy cannot be blocked. Once the inspection and disciplinary procedures are completed, resignation acceptance is possible, and even if a minor disciplinary action is requested, the resignation will be accepted. However, this can still raise suspicions of violating the political neutrality obligation of public officials. It is difficult to avoid suspicion that preparations for candidacy were made while in office, and there is a high risk of criticism that political bias was involved in decisions made as a prosecutor.

A Supreme Prosecutors' Office official also expressed concern, saying, "There is much criticism about the violation of political neutrality, and the prosecution feels a heavy burden. Even if the prosecution regains trust through a hundred efforts, a single candidacy can turn it into a 'political prosecution.' The public will see prosecutors using their positions as leverage for political participation. They will perceive that prosecutors assigned to key posts are used as tools for political involvement."

A former chief judge turned lawyer pointed out, "Public officials have an obligation of political neutrality. When a public servant runs for office while still in position, misunderstandings about their previous work are inevitable. Even if there are no restrictions on candidacy qualifications, a cooling-off period is necessary. Going into politics is a personal choice, but that choice can harm the organization they belonged to."

The courts are also unsettled by news that at least one judge is moving into politics. Recently, Jeon Sang-beom (45, 34th class), chief judge of the Uijeongbu District Court, submitted his resignation. Inside and outside the court, it is said that the resignation was submitted to run for office. Four years ago, judges also resigned to run in the general election, so vigilance remains high. In 2020, former chief judges Lee Su-jin (55, 31st class) of the Suwon District Court and Choi Ki-sang (55, 25th class) of the Seoul Northern District Court resigned to run in the general election as members of the Democratic Party. Former chief judge Jang Dong-hyuk (55, 33rd class) of the Gwangju District Court also resigned and joined the Liberty Korea Party.

At that time, there was much criticism about judges moving directly into politics after retirement. On January 31, 2020, then Liberty Korea Party member Kim Jin-tae proposed an amendment to the Court Organization Act to restrict active judges from running for election. The amendment aimed to establish a provision that "a person who has not passed two years since retirement as a judge cannot run for election with a party's recommendation." However, it was discarded due to the expiration of the legislative session.