The most controversial thing among the contents that Justice Minister Choo Mi-ae suggested on the charges of disciplinary action by Prosecutor General Yoon Seok-yeol on the 24th is the suspicion of "illegal inspection of the court."
Then, on the 26th, two days later, Prosecutor General Yoon Seok-yeol self-disclosed the full report of the Office of the Supreme Prosecutor's Office of Investigation and Information Policy, which Minister Chu had troubled, refuting that it was not illegal.
However, the controversy continues even after the full document was released.
One side argues that the prosecution is a horrifying case that reveals that even judges have been inspected illegally, while the other is confronting that it is a document that the prosecutor can make enough to use in prosecution.
The reason why the judgment is divided even on the same document is that there is no clear arrangement of the standards for illegal inspections.
So, in this article, first of all, we will consider what illegal inspections are based on a few precedents, and then review whether the report writing that the Ministry of Justice has designated as "Illegal Inspection Documents of the Justice Department" is an illegal inspection.
● Requirements for "Illegal Inspection": Security Guard Civilian Inspection Judgment The
most classic and typical illegal inspection case is a civilian inspection by a military intelligence agency, which has been
only a few years ago.
In 1998, the Supreme Court sentenced the ROK Military Security Command to compensate for damages in the case of civilian inspections, and in 2012, the state decided to compensate the victims for damages in the case of a Democratic Labor Party member inspection of a military officer.
This year, the Appeals Department of the Seoul Central District Court convicted former security officers who were accused of inspecting the families of the Sewol ferry.
Among them, the Supreme Court's judgment of compensation for damages issued by the Supreme Court in 1998, especially in relation to the case of civilian inspection by the Armed Forces Security Command, provides a good standard for determining which requirements among the information-gathering activities of state agencies can be judged as illegal, that is,'illegal inspection'. It is organized.
The standards established in this precedent were practically applied to the decision to compensate for damages related to the Democratic Labor Party member inspection case in 2012.
In the ruling, the judge said, "All citizens shall not be infringed upon the secrecy and freedom of their personal life", as opposed to Article 17 of the Constitution, "not only the passive right not to disclose their private life, but also the active right to autonomously control information about themselves." It is interpreted that it is meaningful to guarantee.
Infringement of privacy does not occur only when state agencies disclose illegally collected civilian information to the outside, but the indiscriminate collection and management of private information by state agencies is itself a constitutional right of privacy and freedom. It means that it could be an infringing act.
Accordingly, the Supreme Court proposes the following requirements as an illegal activity that violates the basic rights of individuals guaranteed by the Constitution, in other words, as a standard for'illegal inspections'.
(See Supreme Court sentenced on July 24, 1998, sentencing 96C 42789)
1) The intelligence agency is out of the scope of the statutory duties
2) For the purpose of monitoring and grasping the usual trends for civilians
3) Activities related to individual assembly and association In the
case of secretly collecting and managing
information on private life by means of
4) following, using a telescope, and collecting inquiries
●'Judge Disposition Analysis Document' and the Four Requirements
Then, I will review the recently controversial suspicion of the so-called "Illegal Inspection of the Court" in light of the above four requirements.
First, the two sides are struggling to see if the Office of the Supreme Prosecutor's Office of Investigation and Information Policy has collected information about the judges in the judiciary who were in charge of major cases prosecutors prosecution.
Justice Minister Choo Mi-ae argues that the Office of the Supreme Prosecutors' Investigation Information Policy Office is required to collect and manage only investigation-related information, so collecting information on the prosecution is beyond the scope of the legal duties.
Even if it is interpreted as having the authority to collect information on the case where the trial takes place after the prosecution, the position is that information on the personal disposition of the judge cannot be regarded as information related to the case.
On the other hand, Prosecutor General Yoon Seok-yeol said that according to the regulations related to the Office of the Supreme Prosecutor's Office of Investigation and Information Policy, it is allowed to collect information on the case that has been prosecuted.
In the U.S., some argue that it is taken for granted to collect information or opinions on the propensity of judges in relation to lawsuits.
Let's also look at the second requirement.
Looking at the full text of the material that the Ministry of Justice pointed to as a "Illegal Inspection of the Justice Department", it does not appear that the document was written for the purpose of understanding the usual trends of judges.
It is true that information on judges' hobbies, family relations, past major judgments, and personal dispositions is included, but there is nothing that seems to have monitored or grasped the judges' usual trends.
To expand and interpret the second requirement, it can be seen that there is a need to consider whether there is any illegal purpose other than the usual purpose of identifying trends, but for now, there is a special basis for doubting President Yoon Seok-yeol's claim that it was created to support the maintenance of prosecution. Does not appear.
(The Sword gamchalbu investigation is in progress aimed at the yunseokyeol president probably will be very focused on this regard, focus on the day to find the evidence to prove the illegality of the written document purpose. You need to watch the results.)
The third requirement 'Information on privacy' seems to be clearly included in the report written by the Great Sword.
This is because some of the contents mention the judge's hobbies or family relationships.
It doesn't just contain personal flaws or negative opinions, but it certainly does contain information about your personal life.
What about the fourth requirement?
The Ministry of Justice claimed that there were contents that appeared to be made using non-public information such as family relations, but looking at the full text of the published documents, most of the contents could be confirmed through public information such as media reports, legal representatives, and stories heard.
There seems to be no ``use of methods such as follow-up, telephoto use, and search and gathering,'' and there is currently no evidence that other illegal information collection methods were used.
However, the fact that the document contained information that a certain judge was included in the [List of Judicial Justices] became a big controversy.
This is because suspicion was raised that the prosecution had illegally used the document [List of Judicial Justices], which is the court's internal personnel data obtained during the Judicial Nongdan investigation process, to collect information.
In this regard, Prosecutor Seong Sang-wook, the author of the document (former Chief Investigative Information Officer of Supreme Prosecutors' Office 2), insisted that he wrote by referring to stories he had heard from prosecutors at the trial and did not illegally use the [List of Judicial Justices].
During the trial of former Supreme Court Chief Yang Seung-tae, it was known that one of the judges in charge was included in the [List of Judicial Justices] written by Yang Seung-tae to disadvantage certain judges. Because of the controversy, he was told that the judge was included in the [List of Judicial Justices].
In this case, it is argued that the prosecutor has included it in the document as information for reference because a request to evade the judge may come in at a later time or controversy about fairness may arise.
It has been confirmed that there was a controversy between the prosecutor and the attorney due to the fact that the judge in charge was included in the [List of Judicial Justices] in the trial of former Supreme Court Chief Yang Seung-tae.
Although it cannot be completely conclusive, it is possible that the prosecutor's assertion that the controversy has been heard by the court prosecutor and etc. and has been included in the document is true.
In principle, the main case of the trial is that the prosecutor should report it to the superior, and the fact that the judge is included in the [list of judges who have caused the water] would have been reported even before the judge propensity document was prepared.
If so, the results of the review of the four requirements are as follows.
1) Whether the scope of the job according to the law
: Controversy over the interpretation of the regulations
2) Unlawful purpose such as monitoring and grasping the usual trend
: It seems not to be applicable
3) Information related to privacy
: Partly applicable
4) Follow-up, use of telephoto, inquisition collection, or equivalent illegal Method of collecting information
: controversy over "list of judges who cause water".
As for the
view that there is no illegal use, those
who claim that the Supreme Swordsman performed illegal inspections mainly highlight the controversy over the deviation of the scope of duties under the statutory ordinance, which is the first requirement, and those who are in the opposite position are illegal for an illegal purpose or in the process of collection. It emphasizes that there was no action.
In this regard, it is necessary to review the decision of the 2018 First Criminal Trial on the charges of abuse of authority by former Min Jeong-woo related to illegal inspection.
The court convicted some of the various acts prosecutors accused of abuse of authority related to illegal inspections, and some were not guilty.
For example, for the act of instructing the NIS official to inspect the former special inspector Lee Seok-soo, who was conducting an inspection by Woo Byung-woo, former chief of the Ministry of Culture and Sports, was judged guilty. He was acquitted of the charges of instructing the temple to an official of the National Intelligence Service.
The decisive difference between guilt and innocence was the presence or absence of an illegal purpose or a purpose to penalize the other.
The judiciary decided that the purpose of interfering with the inspection of himself was in relation to the act of instructing the NIS executive to collect information about former special inspector Lee Seok-soo by former chief Woo Byung-woo.
It is believed that there is an unreasonable purpose to give the other party, the former special inspector Lee Seok-soo, the disadvantage of interfering with the prosecution, or to take advantage of himself by interfering with the prosecution.
On the other hand, regarding the instructions for collecting information about the Ministry of Culture, Sports and Tourism, it was judged that there was insufficient evidence that there was an unreasonable purpose for Mr. Woo.
It is said that there is no evidence that Mr. Woo knew that former President Park Geun-hye ordered information collection with the intention of ``cutting out'' the government officials in relation to blacklists in the Ministry of Culture and Sports.
Former Chief Woo thought that it was a legitimate purpose of instruction and instructed the NIS executive to collect information on officials from the Ministry of Culture, Sports and Tourism.
For this reason, the judiciary judged that Woo, who only instructed the NIS officials to collect "seepyeong", but did not instruct the officials to find negative defects only.
In this regard, the judiciary said that former chief Woo Woo did not abuse his authority as chief civil servant for an unfair purpose.
● Rep. Park Ju-min's Criteria for the'Black List'
I am not the only one who has tried to establish the standard for illegal inspections or black lists based on the first trial decision of former Chief Woo
When the Ministry of Environment's blacklist case broke out in late 2018, Democratic Party lawmaker Park Ju-min also stipulated the blacklist criteria, citing former chief first-trial ruling Woo Byeong-woo.
Rep. Park Joo-min argued that the other party was "blacklisted only when personal infractions, weaknesses, and vulnerabilities that could be threatened, reduced, or controlled" were collected and cleaned up.
At the same time, Rep. Park also expressed the position that only documents that are judged to have an unreasonable purpose to penalize the other party can be interpreted as blacklists.
Let’s move the remarks on the radio broadcast that shows the thoughts of Congressman Park Ju-min.
### Rep. Park Joo-min / YTN Radio'Lee Dong-hyung's news head-to-head match' (December 31, 2018)
"Because the conceptual arrangements were different about what the requirements of the blacklist were, only words and words were confronted. content I saw something found I continue? But I'm in the recent case law relating to woobyeongwoo former chief among cases listed in. some lists right is convicted, any list creation downed being innocent.
so looked analyze that portion of publicity Collecting, collecting opinions of public officials or people of various public institutions involved is inevitably allowed as a way of doing business, which becomes blacklisted and, if it is to be violated, threatens or diminishes those who have collected these opinions. , Or controllable personal misconduct, weaknesses, and vulnerabilities must be collected and sorted out, but the ruling is that it is a blacklist,
but as I said before, the document of the Ministry of Environment that the Free Korea Party claims to be a blacklist is, Since it's all public, it's not a document that contains personal abuse facts or vulnerabilities, but if you're a blacklist, you'll want to use it to control it, but there's no such characteristic content. There are so few rulings related to blacklists. From the light of the light, it's difficult to call this a blacklist. I said so."
Therefore, in light of the logic of the first trial decision on the alleged abuse by Woo Byeong-woo, especially the interpretation of Democratic Party lawmaker Park Joo-min, the criterion for judging an act of collecting information as an illegal inspection seems insufficient only once.
In particular,'Illegal Purpose', which falls under the second requirement, seems to be the standard that must be met in order to regulate certain information-gathering activities as illegal inspections.
(Of course, the Supreme Court ruling on civilian inspections of security firms, which presented four requirements, is for civil illegal acts related to compensation for damages, and the first trial ruling against former chief Woo Byeong-woo is on the establishment of offenses of ex officio abuse of criminal offenders, but the standard of'illegal inspections' In
preparing interview data for the minister, it
is common sense to apply this standard to information-gathering activities that are not generally regulated as illegal inspections.
Suppose the Minister of Health and Welfare has a schedule to meet with professors from renowned universities abroad who have won the Nobel Prize in Medicine.
The minister has instructed a secretary who has studied abroad at the university (though his job has nothing to do with collecting information) to collect and report information about the professor.
It is quite common for the minister to instruct employees to create interview materials before meeting someone.
As mentioned earlier, this task of collecting information and preparing reports is unlikely to be a legal job of the employee.
Among the contents of the report, various personal information such as personal preferences, marital status, past scandals or controversies may be mentioned.
However, no one would call this an illegal temple.
This is because we did not use illegal information collection methods such as following or interrogation, and above all, the purpose of collecting information is not unjust.
In the end, even if we look at such a case, it is not enough to call it an illegal inspection only by the requirement of collecting information that is not applicable to a job according to laws and regulations, and it can be judged as an illegal inspection only when the requirement that the purpose of collecting information is illegal or the method of collecting information is illegal. It seems to fit common sense.
● What is the real purpose: Chu Miae's remarks 7 years ago
Of course, not all illegal temples can be judged as appropriate.
Apart from the controversy on the interpretation of the prosecution's internal regulations, it is questionable whether it is appropriate for the Supreme Prosecutor's Office's Office of Investigation and Information Policy to be the subject of writing documents such as the Judge Propensity Report.
It seems more appropriate to be managed by the Tribunal Division of each High Prosecutor's Office than the Office of the Supreme Prosecutors' Office of Investigation and Information Policy (formerly the Office of Crime Information Planning Office), which has a history of controversy over the collection of information on the trend of civilians in the past.
Given that the prosecution is a power agency with the power of investigation and prosecution, it is also necessary to seriously consider how to block the possibility that the purpose of such reports and information gathering will be transformed into unjust purposes other than maintaining prosecution.
Nevertheless, it is difficult to say that the actions of Minister Choo Mi-ae, who ordered the suspension of the office of the prosecutor general, based on the analysis of the propensity of judges as the main ground.
In addition, five of the charges of disciplinary action by Secretary-General Yoon Seok-yeol announced by Minister Chu Mi-ae directly, except for the "illegal inspection suspicion," which was first raised this time, were argued by Minister Chu for a long time.
Because of this level of suspicion, it is compelling to ask what the real purpose of Minister Choo Mi-ae, who has repeatedly ruled out the prosecutor-general's authority to command the investigation, is what it is.
'Even if it is difficult to see this document as the result of illegal inspection, it is not a matter of skipping.
It is also meaningful to point out that there is an inappropriate aspect.
But on the basis of this, isn't it even more important to reveal what the real intention of Justice Minister Choo Mi-ae to push for a suspension of the prosecutor general's job, which even progressive groups are requesting reconsideration?
Perhaps the answer lies in the remarks of Minister Chu Mi-ae to the National Assembly seven years ago.
## Secretary Choo Mi-ae / Question to the National Assembly's Government (November 20, 2013)
▶ Democratic Party member Cho Mi-ae
: Didn't you kick the prosecutor general (Chae Dong-wook)
And, didn't the investigator (Suk-yeol Yoon), who insisted on the investigation and prosecution, go out?
In this situation, will an investigation result that the people can understand?
▷ Prime Minister Chung Hong-won
: Then, no matter how badly the prosecutor general is, should he just leave it alone?
▶ Mi-ae Chu, then Democratic Party member
: (Prosecutor General Chae Dong-wook) If he wasn't actively involved in the (National Intelligence Service) presidential election intervention (investigation), he would have hidden such misconduct!
I wouldn't have said anything!
You will see it later!