The special prosecutor for manipulated prosecutions, aimed at uncovering allegations of abuse of investigative and prosecutorial powers by the Yoon Suk Yeol administration, faces challenges regarding the independence of its appointments and investigations even before its launch. Concerns about fairness arise from the structure that allows the president to appoint the special prosecutor, who will verify the investigation and prosecution processes related to presidential cases, while attention is also focused on how the investigation results may impact ongoing trials.
According to legal sources on November 9, the special prosecutor law, which passed the National Assembly on November 6, mandates investigations into allegations of manipulated investigations and prosecutions involving the prosecution, the National Intelligence Service, and the Board of Audit and Inspection. Following the law's promulgation, the president will appoint the special prosecutor from one candidate each recommended by the Democratic Party, the People Power Party, and the Justice Party.
The special prosecutor team will consist of one special prosecutor, eight deputy special prosecutors, 20 dispatched prosecutors, 70 special investigators, and 210 dispatched public officials, totaling up to 309 members. The investigation period includes a 20-day preparation phase and a basic investigation period of 90 days, with the possibility of two extensions and a maximum duration of 200 days with presidential approval.
Among the twelve investigation targets, six are related to cases involving Lee Jae-myung, including the Daejang-dong, Wirye, and Baekhyeon-dong development projects, violations of the Public Official Election Act, witness tampering, remittances to North Korea by Ssangbangwool, sponsorship funds for Seongnam FC, and the use of corporate cards in Gyeonggi Province.
Given that the president, who has a vested interest in the investigation results, will select the special prosecutor and that the ruling party has the right to recommend candidates, there are calls for ensuring objectivity and transparency from the outset of the appointment process. However, some argue that since the investigation targets involve allegations of abuse of power by national agencies and that past special prosecutors were also appointed by the president, the appointment structure alone cannot be deemed unconstitutional.
The controversy over charge cancellations persists. The National Assembly removed the provision for the special prosecutor to decide on 'charge maintenance' and to request the transfer of existing investigation and prosecution cases. While the Democratic Party claims this focuses on uncovering the truth, there are conflicting interpretations due to remaining provisions that apply prosecutorial powers to the special prosecutor under the Criminal Procedure Act. However, it is difficult to conclude that the mere application of these provisions allows for direct cancellation of charges related to presidential cases.
There is also speculation that the prosecution office may reconsider whether to maintain charges in existing cases based on the special prosecutor's findings. Lee Yong-cheol, the nominee for Minister of Justice, who was appointed on the same day the special prosecutor law passed, stated regarding charge cancellations, "I believe it is appropriate to focus on uncovering the truth," adding, "I think it is desirable for the rest to be handled according to law and principles," without specifying his stance on charge cancellation directives.
If the special prosecutor confirms evidence tampering or witness coercion, this could be presented as material challenging the credibility of evidence and testimonies in ongoing trials. Concerns arise that the special prosecutor's findings could pressure the judiciary, while counterarguments suggest that investigating and prosecuting power abuses cannot be viewed as an infringement on judicial independence.
The potential for sentence reductions for cooperating witnesses also presents a variable. The special prosecutor law allows for reduced or waived sentences for individuals who provide key testimonies or materials that help clarify others' crimes, which could encourage cooperation but may lead to disputes over the credibility of testimonies expected in exchange for leniency.
Concerns about the publication of sensitive information arise from the decision not to limit media briefings to 'investigative processes outside of the facts of the case.' It has been pointed out that the impact of publicly disclosed information on the defendants' rights to defense and the presumption of innocence must be considered.
Challenges are also anticipated in forming the investigation team. Current prosecutors with experience in special prosecutor assignments have not yet received specific offers for dispatch, but there is a reluctance to participate due to the burden of investigations involving their colleagues. There are concerns that additional assignments could affect the handling of cases and trial duties at local prosecution offices amid existing burdens from previous special prosecutor assignments and reforms in the criminal justice system.
The provision granting investigative powers to dispatched prosecutors is also a point of contention. The special prosecutor law applies pre-amendment provisions of the Criminal Procedure Act regarding investigative and directive powers. Critics argue that the government and ruling party, which abolished prosecutors' investigative powers, contradict the intent of separating investigation and prosecution by allowing exceptions for the special prosecutor.
The operational cost of 38.056 billion won is based on estimates from the National Assembly Budget Office in May and is not a finalized budget. This estimate was calculated based on six special prosecutors, 150 special investigators, and 30 dispatched prosecutors, and does not reflect changes in personnel in the final resolution. Actual costs may vary depending on personnel composition and operational duration.
Members of the People Power Party's Legislative Judiciary Committee have declared their intention to boycott future schedules, including budget subcommittees, in protest against the handling of the special prosecutor law and have called on the president to exercise the right to request reconsideration.
* This article has been translated by AI.
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