On the 1st, there was a controversy over the call history between Prosecutor General Yoon Seok-yeol and Prosecutor Han Dong-hoon, which was disclosed by Prosecutor Park Eun-jeong at the Prosecutor's Office of the Ministry of Justice.
The point of the controversy was whether Park Eun-jung violated the'Communication Secret Protection Act'.
This is because the call details used by Park in charge of the investigation of President Yoon Seok-yeol came from the so-called'probate confusion suspicion' investigation team.
The attacker in charge of Park
argues that'The Protection of Communications Secrets Act strictly restricts the use of communication data secured by the investigating agency, but it is illegal to write the data received from the prosecutors' office in the prosecution of Prosecutor General Yoon Seok-yeol
.
In response, Park sent a long statement to the reporters to clarify.
Handonghun prosecutor Inspector reasons of
'geomeon adhesion events, and
Yun-General discipline of' handonghun inspection diffuse alleged "claims the reason is related to stomach the case
said,
not one thing Communications Privacy Act violations utilization of communications received from geomeon adhesions investigation team
is the effect that.
It's one of the most unprecedented battles surrounding the dismissal of the prosecutor general, but there's no reason why people need to know the detailed legal debate over it.
The only thing to be wary of is that in the process of fighting, the possibility of negatively affecting the lives of ordinary people is derived.
But unfortunately, if Park's act of using data from a prosecutor's office for the investigation of President Yoon is regarded as'no problem', the human rights of ordinary people who are investigated by state agencies may be open to infringement.
It can also go against the current government prosecution reform stance to break through the old practices of the prosecutors who were involved in the investigation.
Let's see why.
● If an investigative agency uses communication data on
a'case
that seems to be related',
the key to whether it is justifiable to bring the investigation data to the prosecutor General Yoon's so-called'prosecutor's office' is the'relationship between crimes'. .
Park Eun-jung explained,'For the inspection of the prosecutor Han Dong-hoon, the investigation data was legally handed over from the Criminal Division 1 of the Central District Prosecutor's Office in accordance with the inspection regulations of the Ministry of Justice.
At the same time, he said,'This data is also related to the charges of unawareness of the prosecutor's office, Dong-hoon Han, the reason for the disciplinary action of General Yoon, so it was used in the inspection of the general public.
Comprehensively, Articles 12 and 5 of the Communications Secret Act, the
investigative agency can use the data to confirm the communication facts secured only for ▲the crime for the purpose of confirming the communication facts and ▲the investigation of related crimes ▲the disciplinary procedures for the preceding crimes There is.
Officer Park used the data based on the logic that the'suspect of prosecutor's prosecutor Han Dong-hun', the reason for the disciplinary action of President Yoon Seok-yeol, was the'suspect of prosecution of prosecution' and'related case' in the 1st Central District Prosecutor's Office, which he took over.
However, our court has presented a precedent to apply very strict standards when using the communication records secured by the investigative agency in the investigation of other cases.
Investigation agencies have put a brake on the widespread use of communication records for convenience.
A representative example is the subject of the Supreme Court ruling of Yoo Sang-bong, who was at the core of the alleged lobbying for political relations with the so-called'King Hamba'.
2016 Do 13 489'Hamba King' Yoo Sang-bong's Supreme Court ruling
A crime
related to the crime that
was the purpose of the request for the provision
of
communication fact confirmation data
is
objectively related to
the
alleged fact
stated in the request for the provision
of
communication fact confirmation data,
and between the subject and the suspect for which the data is requested Means a crime with human relevance to
it.
(…)
However, the
Communication Confidentiality Protection Act restricts the scope of use of communication fact confirmation data, by preventing the use of communication fact confirmation data provided on the premise of specific allegations to investigate or prosecute the fact of a separate crime. Legislative intent is to minimize restrictions on freedom and freedom
.
Therefore, the relevance is recognized only when there is a specific and individual relationship by synthesizing the contents of the alleged facts stated in the request permission for the provision of communication facts confirmation data, the subject of the investigation and the investigation process, etc.,
and the reason that the alleged fact is simply the same or similar crime. It is not just relevant.
In its ruling, the Supreme Court stipulates that the public's confidentiality and freedom of communication can be restricted if the data obtained by the investigating agency are used indiscriminately in the investigation of separate crimes that seem'similar' in appearance.
This is also against the purpose of the Protection of Communications Secrets Act.
In charge of Park Eun-jeong argues that the so-called'prosecutor's prosecutor's suspicion' by Prosecutor Han Dong-hoon and'Prosecutor General Han Dong-hoon's suspicion of'prosecutor's office' are'related cases'.
However, according to the Supreme Court precedent that it is necessary to examine whether or not it is a'related case', if we strictly examine the personal and objective relevance of the two cases, there is an opinion that the two cases are not'related crimes' that can be used to take away the facts of communication.
According to this logic, in order for the'personal relationship' between the two crimes to be established, Yoon, who is accused of ignoring the prosecution, must be in the position of a criminal'accomplice' even in the so-called'words collusion' case.
This means that, apart from politically attacking Yoon as being behind a prosecutor, he must be in a relationship with a'accomplice' when he puts strict criminal standards.
However, the first criminal investigation of the Seoul Central District Prosecutors' Office, which is currently investigating the case of'prosecution of prosecutors', did not claim Yoon as an accomplice, and that there was a'human relationship' between President Yoon and the prosecutor's charges. Point out comes out.
The same goes for the interpretation of'objective relevance'.
Of course, through the clarification of the reporters described earlier, Park interpreted the charges against the prosecution of President Yoon and the charges of one of the prosecutors as'related cases'.
However, I think that this interpretation is quite self-contradictory in the Ministry of Justice, Minister Chu Mi-ae, who said it would put a brake on the convenience practices of investigative agencies to protect human rights.
In the sense that Yoon Seok-yeol and Han Dong-hoon are close friends, they argue that the two cases are similar in appearance, and it is free to attack politically.
However, as a lawyer, when applying the Protection of Communications Secrets Act, you need to be more precise and strict.
This is even more so in the case of the prosecution officer of the Justice Department, Minister Choo Mi-ae, who criticizes the prosecution's arbitrary and convenient investigation behavior and calls for reform at the prosecution.
This is because, if this sets a precedent and is used as a logic to widen the door for the investigation agency to use the communication data arbitrarily, the way to use the communication data secured by the prosecution for separate investigations may be widened.
The act of inspecting General Yoon for reform of the prosecution rather than undermines the philosophy of prosecution reform.
●'Personnel liquidation' that has eroded'institutional reform'…
This is not the first time such a scene after
avoiding political responsibility
.
Criticism was poured from everywhere when Justice Minister Choo Mi-ae said that he created the'Hands-on Prevention Act' that allows investigative agencies to open the suspect's cell phone.
It was pointed out that'making a law that violates the human rights of the suspect to get a prosecutor Han Dong-hoon goes against the spirit of reforming the prosecution'.
It is a bursting sound that occurred as Attorney General Choo Miae and the ruling powers took the liquidation of Yoon Seok-yeol and Han Dong-hoon as a key task in reforming the prosecution.
Justice Minister Choo Mi-ae and the ruling powers judge President Yoon Seok-yeol as the biggest obstacle to the reform of the prosecution because it is the political freedom of political judgment.
Then, the National Assembly, which holds the vast majority of seats, would have had to remove Seok-yeol Yoon appointed by them by impeaching the Prosecutor General and take on political responsibility accordingly.
It would have been a good idea to sterilize President Yoon Suk-yeol as if by a legal procedure and push forward the ‘pure prosecution reform’ they think.
However, those who chose the direction of avoiding this responsibility were not very precise in the alternative path they took.
Unexpected plosives in procedures and processes are a by-product of incompetence or laziness.
I don't know if they view this burst as a side effect of the cause.
However, the precedent they leave behind throughout the criminal justice system may in the future come back to the common people as tremendous consequences.
There have been numerous ideologues in history that screamed, ``For the sake of revolution, everyone's sacrifices come,'' but it should be remembered that most of them eventually fell into the trap of transposition of purpose and drowned in the swamp of the name of cause, where the value of important human rights was truly important. Do it.
Prosecutor General Yoon Seok-Yeul needs to be documented in detail.
This is because, even if other governments don't know, it shouldn't be more in the government elected with the slogan'People come first'.
(Photo = Yonhap News)