[Interview file] Why are progressive lawyers critical of Minister Choo Mi-ae's exercise of the investigation command?

"What would have been the reactions if there was an exercise of command like this one four or five years ago?"

When asked for opinions on the recent exercise of the investigation command by Justice Minister Chu Mi-ae, Gachon University professor Lee Geun-woo said:

I felt stuffy.

Professor Lee, who participated in the fact-finding group of the Supreme Prosecutors' Office as an external member of the investigation team and has argued for reform of the prosecution for a long time

, added,

In order to properly understand Professor Geun-woo Lee's story, it is necessary to take a closer look at the recent exercise of the ministerial investigation and command authority.

The question of'is the prosecutor general's subordinate to the minister' and'is the minister's total commander of the prosecution's affairs?' only personalizes the debate as a conflict between Justice Minister Choo Mi-ae and Prosecutor General Yoon Seok-yeol, but rather becomes an obstacle to approaching the nature of the debate. I can.

We need to ask different questions if we want the conflict between the two to be productive, not just political debates, but beneficial to our society.

'What is democratic control over the prosecution?'

and'Democratic

recent invocation of command by Minister Chu Mi-ae is based on the deprivation of the prosecutor general's command power.

It deprived the president of the prosecutor's office in the'Lime-related case' and'the case related to the president's family and close associates'.

The main reason is that there are concerns about unfair investigations because the suspects and the prosecutor general are directly or indirectly involved.

It is also added that this is democratic control over the prosecution by elected powers.

Many changes are expected with the enforcement of the adjustment of the prosecutor's right to investigate next year, but the prosecution now has the so-called omnipotent authority.

They have the right to investigate directly, and the right to prosecute is monopolized.

If the prosecution is not prosecuted, criminal proceedings cannot even begin.

It is the so-called prosecution convenienceism.

In this process, there is a possibility that the cases that should be covered by the criminal justice process will be covered up.

It is clear that there is a need for control over whether the prosecution's investigation is conducted objectively and whether the judgment of prosecution is significant.

The question is who will control the prosecution.

In this regard,'democratic control' that the elected power must control the prosecution is mainly discussed.

It is'democratic control' by the Minister of Justice, which has been talked about recently with a passport.

We will look at the discussion later on whether it is appropriate for the minister to be the'subject of democratic control', but the problem lies in that the Minister of Justice is essentially a politician.

The line between control and involvement is not clear.

When control, which originated in good faith, encounters a specific event, control may appear as political external pressure.

In particular, in the case of a politicized criminal case, the odds and losses may vary depending on the results of the prosecution's investigation.

The control of the Justice Minister, who is essentially a politician, is controversial at this point.

The current Prosecutors' Office Act guarantees the minister's command right in specific cases, but for this reason, the subject of command is limited to the prosecutor general.

The purpose of this is that the prosecutor general, whose term of office is guaranteed by law, should be a shield to protect the independence (neutrality) of the investigation.

In addition, it is a general opinion of jurists and legal circles that the minister's power to conduct investigations should be supplemented in special cases, as it can cause political misunderstandings.

It is that there must be'prudence' in the exercise of authority.

However, the recent exercise of the investigation and command of Minister Chu Mi-ae raised another concern about how democratic control can be tolerated.

The question is whether the minister's power to command the investigation can be exercised in the form of depriving the prosecutor general of the investigation and command power.

Whether this form is possible or not, the Prosecutors' Office Act does not clearly define.

The phrase'only the prosecutor general directs and supervises' has been usually interpreted as'directs through the prosecutor general', but'investigation command in the form of excluding the prosecutor general is unexpected.

Our society is now assigned the task of'legal interpretation'.

Since the evaluation of the legitimacy of the minister's command authority can change depending on the political position or the possession of power, it goes without saying that an evaluation based on the spirit of the law and a calm evaluation of the appropriateness as a means for realizing the cause of prosecution reform is of course necessary.

Han Sang-hee, a professor at Konkuk University Law School, who is called a representative liberal figure,

said,

.

He said,

Law

.

He added, "The contents of the investigation and command of the Minister of Justice are wrong."

."

Professor Sanghee Han cited the ambiguity of the contents of the investigation and command and the unreview of the succession of command as a basis for criticism.

will have.

If the president's command is deprived, it is wrong to deprive the president of command without deciding who will act on behalf of that command.

According to the contents of Minister Choo Mi-ae's command, the intention is that the Seoul Central District Prosecutors' Office and the Seoul Southern District Prosecutor's Office should independently investigate, and in this case, criticism is added that the Minister will decide the subject of the investigation and give too much authority.

In addition, in the case of Professor Jeong-gu Kang, it was a clear investigation order for'containment investigation or uncontrolled investigation', but there are also criticisms that the investigation by Minister Chu is causing confusion because there is no specific instruction on specific cases.

Office Act and'democratic

Professor Jeong Woong-seok, Seokyeong University chairman of the Korean Criminal Procedure Law Association, and Lee Wan-gyu, a former prosecutor, criticized Minister Choo Mi-ae's exercise of investigative command by focusing on the legislative purpose of the Prosecutors' Office Act.

It also uses an interpretation of the Japanese Prosecutors' Office Act, which has a structure similar to that of the Korean Prosecutors' Office Act.

The Prosecutors' Office Act states that'the minister directs only the prosecutor general in a specific case', and this presupposes the primary command authority of the prosecutor general, so it is a position that "deprivation of the general prosecutor's authority is against the prosecution law".

Attorney Wan-kyu Lee also criticized Chu's exercise of the investigation command in terms of'democratic legitimacy' for the prosecution.

,

and

.

Objections may be raised.

The'special prosecutor' is also independently investigated and only the results are reported by the prosecutor general, so the prosecutor general cannot command the investigation.

In this case, as a result, objections may be raised as to whether it is in the same form as Minister Chu's exercise of the investigative command.

Regarding this, attorney Wan-kyu Lee argues that "the special prosecutor is decided and appointed by the president," and "this is completely different from the investigation command of the minister as the command of the prosecutor general was exercised."

The idea is that when you enter a cave, it is different from what was a tiger's cave and voluntarily entered a tiger's cave.

.

Even in the situation where the president is instructing the front-line prosecutors not to conduct family-related investigations, should the president's command be maintained?

It won't be possible.

For this reason, lawyers Yang Hong-seok and professor Lee Geun-woo of Gachon University, who served as directors of the Public Interest Law Center of the Participatory Solidarity, argue that it is possible to conduct an investigation in the form of depriving the president of command.

Attorney Hong-Seok Yang presupposes that "the situation is in the area of ​​interpretation due to the lack of concreteness of the current Prosecutors' Office Act", and "Chu's investigation and command is located at the boundary between legal and illegal".

He added,

,

.

he said.

Although it is possible to deprive the president of the investigation and command authority, it is a claim that is focused on a special situation.

Prof. Lee Geun-woo said, "It is possible to deprive the president of command in a special and limited situation," but recently expressed regret about the appropriateness of the exercise of the command power of the minister.

It is said that the authority of command was lost due to the minister's frequent exercise of command and command of investigation, and the intention was questioned.

Prof. Geun-woo Lee argues that the essence of the reform of the prosecution has been pushed back as the conflict between the minister and the president emerged.

Professor Lee added that the unique position of the Prosecutor's Office Act should also be considered.

The prosecution is a member of the administration.

It seems natural to follow the direction of the President, who is the head of the administration, and the Minister of Justice, who is delegated the authority of the President and becomes the highest supervisor of the prosecution's affairs.

Nevertheless, what is the reason why the Prosecutors' Office Act separately stipulates the command of the prosecution, especially the command of specific cases?

This is a rule that is hard to find for external agencies from other ministries.

Professor Lee Geun-woo explains that

."

The intention is to take into account that the prosecution is also an investigative agency (administrative agency) and a quasi-judicial agency with the right to prosecute.

In addition, as the regulations are exceptional,

they argue that

."

At the same time, he was concerned that the recent exercise of the investigation and command of Minister Chu Mi-ae could be seen as "a disgrace to the president."

As the cause of the exercise of command is the reform of the prosecution, he added that the minister and the president should not collide on the sidelines, but

.

liberal camp. Since the exercise of the minister's authority to command investigations can cause political controversy, it has been argued that the minister's authority to command specific cases should be abolished.

Although the minister's right to command the investigation of specific cases has been said to be a representative means of'democratic control', it is intended that a review of the essential meaning of'democratic control' is necessary.

Although democratic control is mainly understood as control by an elected power, explanations follow that the minister is not an elected power like the prosecutor general.

In this respect, it is argued that'democratic control' should be'controlled by the people', and that the minister's right to command the investigation in specific cases abolished.

In a dissertation titled "Democratic Control of Prosecutors and the Tasks of Prosecution Reform", Lee Ho-jung, a professor at Sogang University Law School, insisted on the abolition of the Justice Minister's right to command the investigation and to establish a public participatory control system.

.

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It is also emphasized that'the Minister of Justice's authority to command investigations can be greatly influenced by the individual's personality and values, and above all, because the Minister of Justice is a government official.'

However, Professor Lee is clearly wary that the repeal of the Minister of Justice's right to conduct investigations in the paper is interpreted as exclusion of external control over the prosecution.

The reason is that it is because it is a request of democracy that the prosecution's power should block the fascination power, and the citizen's continuous monitoring and control of its fairness should be effectively guaranteed.

At the same time,

is suggested as an alternative, and the activation and substantiveness of the Prosecutors' Citizen's Committee or the Investigation Review Committee introduced after the publication of Professor Lee can be an example.

There may be disagreements on the evaluation of Minister Chu Mi-ae's exercise of the investigation command, the necessity of alternatives, and whether the alternatives are appropriate.

However, as the conflict between the Minister of Justice and the President continues to intensify, it seems clear that the conflict needs to be ended.

The conflict between the two (or the forces represented by the two) is of no benefit to the general public.

Professor Han Sang-hee, Yang Hong-seok attorney, and Jeong Woong-seok are in the end that "the Minister and the President, who are the president's appointment authority, must solve this problem."

In particular, Professor Han Sang-hee said, "The democratic control of the elected power is being talked about a lot, and since neither the Minister nor the Prosecutor General is elected, the President, the elected power, needs to be resolved."

There is also a counterargument that "if the President comes forward, the current conflict situation can change more politically" (Professor Lee Geun-woo).

Regarding the exercise of the investigation command by Justice Minister Choo Mi-ae, the Blue House has not provided a detailed explanation other than the position that it is "inevitable".

However, it seems that President Moon Jae-in's thoughts about the right to command the investigation can be inferred through "Think of the Prosecutors" in 2011 with Professor Kim In-hoe of Inha University Law School.

First, the statement President seems to be a negative perspective about the abolition of the raised center of the liberal rhetoric in command.

In his book, President Moon

,

.

In this regard, he specifically introduced that there are claims to abolish command and that it should be exercised only in extremely limited cases.

However,

is assessed

is an

.'

To borrow from President Moon's expression of internal investigation command, not an open exercise of investigation command power, it seems to be a criticism of the past evils, which consisted of ``rubbing in a closed room''.

President Moon

affirmed the minister's authority to conduct investigations in specific cases, saying,

.'

At the same time, he also suggested some kind of requirements for invoking command.

.

However, President Moon said,

the abuse of command power,

he cautioned against abuse of the investigative command power.

As a basic requirement to prevent this,

he said,

.

Justice Minister Choo Mi-ae's investigation was conducted openly.

The opinions of various fields regarding the investigation command of Minister Chu can be seen as a disprove that the investigation command of Minister Chu has progressed compared to the past, which consisted of ``flicking in the closed room''.

However, it is not clear whether President Moon will evaluate that Minister Chu's investigation command is not a problem in the light of the'constitution','law','human rights' and'conscience'.

If it is "inevitable", that is why it is necessary to explain why.

In addition, it is unclear how President Moon will evaluate whether or not the investigation and command authority is abused or appropriate.

The Cheong Wa Dae made an official position, saying, "It's inevitable," but

because it

, for Minister Cheon Jeong-bae's command of an uncontrolled investigation against Professor Kang Jeong-gu

.

President Moon Jae-

in wrote in a book

that'the

.

he added.

Was the recent exercise of the Justice Minister's authority to command the investigation the best or the second best for reforming the prosecution?

What does President Moon Jae-in have?

(Photo = Yonhap News)