The second comprehensive special prosecutor team, led by Kwon Chang-young, has faced criticism for concluding that there was 'no prosecutorial authority' regarding former President Yoon Suk Yeol's rebellion charges under the Military Criminal Act. Attorney Kim Kyung-ho argued that the court should have been given the opportunity to rule on the matter. Kim plans to file charges of distortion of law against the special prosecutor team that investigated the rebellion, led by Cho Eun-seok.
In a Facebook post on August 27, titled 'Kwon Chang-young Special Prosecutor Has Committed a Crime Before History,' Kim pointed out flaws in the comprehensive special prosecutor's reasoning for not prosecuting the rebellion charge.
The first issue raised was the logic of 'double prosecution.' The comprehensive special prosecutor concluded that since the rebellion special prosecutor had already charged the same historical facts with rebellion, it would be difficult to prosecute again for the same offense.
However, Kim believes that the court could still hear the rebellion charge. He argued that if rebellion and insurrection can occur simultaneously in a single act, then the indictment could be amended in the ongoing insurrection trial.
Conversely, if the two charges are considered separate, he contended that they could be prosecuted independently. Kim criticized the notion that 'there is no path' as an answer not found in criminal procedure law, stating, 'They erased it with a single piece of paper without even making a substantive judgment.'
Kim intends to hold accountable those involved in the investigation who did not apply the rebellion charge. He mentioned that he has already filed a complaint against former prosecutor Park Se-hyun for distortion of law and plans to do the same against Cho Eun-seok and Kwon Chang-young.
The case against former President Yoon regarding insurrection is currently under appeal at the Seoul High Court. In February, the first trial sentenced Yoon to life imprisonment. Kim argues that the court should determine the applicability of the rebellion charge through an amendment to the indictment in the upcoming insurrection appeal.
Kim also believes that the comprehensive special prosecutor's decision contradicts its own principles. Kwon stated on August 24 during the announcement of the investigation results that 'it is the prosecutor's duty to broaden the scope so that the court can make a free choice regarding the end of the insurrection.'
Kwon also noted that the facts surrounding the 1997 case involving Chun Doo-hwan and Roh Tae-woo differ from those of the December 3 martial law. He emphasized the need for the court to have the opportunity to assess new legal principles rather than being confined to a 30-year-old precedent.
Kim believes that the rebellion charge should have been left to the court's judgment. The comprehensive special prosecutor concluded that the likelihood of the court accepting an amendment to the indictment in the appeal was low, which led to the exclusion of the rebellion charge from the trial.
There were differing opinions within the comprehensive special prosecutor's office regarding the application of the rebellion charge. Special Prosecutor Kim Jung-min explained that there were arguments supporting the establishment of the rebellion charge and the need for a change in precedent. Kim also personally believes that the rebellion charge is applicable and that there is a possibility of viewing the two charges as concurrent, but the comprehensive special prosecutor ultimately ruled 'no prosecutorial authority.'
Kim stated, 'If you haven't read the extensive content of the Chun Doo-hwan Supreme Court ruling, you can only understand half of it by pretending to have read it.'
Additionally, Kim offered a different interpretation of the rebellion special prosecutor's decision not to apply the rebellion charge. The rebellion special prosecutor concluded that it would be difficult to apply the rebellion charge to military actions ordered or approved by the President or the Minister of National Defense, citing the 1997 Supreme Court ruling (96Do3376) as a basis.
Kim pointed out that the circumstances of that ruling differ fundamentally from those of the December 3 martial law. During the May 17 incident, former President Choi Kyu-ha did not participate in the rebellion but approved troop movements, whereas former President Yoon was himself indicted as the leader of the insurrection following the declaration of martial law. Yoon was removed from office after a parliamentary impeachment and a Constitutional Court ruling.
He also referenced the ruling that recognized the armed occupation of the National Assembly as rebellion. The Supreme Court determined that the actions of the Army's 33rd Division occupying the National Assembly and controlling access for lawmakers on May 18, 1980, constituted military rebellion.
In a previous post, Kim emphasized, 'The precedent is not blocking the rebellion charge; it is commanding it,' highlighting that both special prosecutors only cited part of the ruling. He argued that the ruling's consideration of the armed occupation of the National Assembly during the May 17 incident should not be interpreted solely as a basis for not applying the rebellion charge.
* This article has been translated by AI.
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