One of the hottest news last weekend was the controversy over the assault of a taxi driver by Deputy Minister of Justice Lee Yong-gu.
About last month, before being appointed as vice minister, news that Vice Minister Yong-gu Yong-gu had been investigated by the police for hitting a taxi driver in the process of getting in and out of a taxi after drinking alcohol, because it was first reported in the Chosun Ilbo's exclusive report on Saturday (December 19). is.
According to the results of SBS reporters' direct contact with the Seoul Seocho Police Station, where the incident was handled, as well as the victim, a taxi driver, the facts of this case are clear.
It was an immovable fact that Vice Minister Yong-gu Yong-gu (then at the time) had been drinking alcohol and took a taxi last month and exerted physical force on the body of a taxi driver asking him to get off because he came to his destination.
● The ethical issue of public officials is obvious…
What about the police's suspicion?
In this regard, it will be difficult to avoid criticism that it is deserving of censure as a high-ranking public official regardless of criminal punishment.
If an ordinary prosecutor was drunk and exercised physical force against a taxi driver, he would not have been able to avoid being subject to disciplinary action, whether or not criminally.
Even the average lawyer can face disciplinary action by the Bar Association if it is widely reported that he has done this.
As long as it is known that the Deputy Minister of Justice, who was an ex officio member of the Prosecutor's Disciplinary Committee of the Ministry of Justice and who had done the same just before the appointment of the Deputy Minister of Justice, who may also be involved in the disciplinary action of lawyers, someone will be held responsible, whether they are appointed or the vice minister.
However, apart from the ethical responsibilities of public officials, suspicions have also been raised regarding the criminal process of the case in relation to the case of Vice Minister Lee Yong-gu.
This is because the police, who received the taxi driver's report and investigated the case, handled the case of vice-minister Lee Yong-gu'internal business termination'.
The police looked at Vice Minister Lee Yong-gu, an attorney who served as the head of the legal department of the Ministry of Justice in the current government, and was a lawyer for former Minister of Industry, Baek Woon-gyu, a key suspect in the Wolseong nuclear power plant shutdown, which was of great interest to the Blue House and the ruling party at the time of the incident. Suspicion arose.
There are several issues that need to be reviewed regarding the suspicion of watching Lee Yong-gu.
Before examining the issues one by one, let's start with the conclusion.
'In principle, in the case of the assault by Vice Minister Lee Yong-gu, it is a crime that can be punished even if the taxi driver does not want to be punished.
In practice, it seems that there are cases where prosecutions are not made or prosecutions are suspended in such cases.
However, the real problem is that this case did not even go to the prosecution and was closed at the police stage.
This has implications in relation to the problem of the law to adjust the investigative powers between the prosecutors and the police, which will take effect on January 1 of next year.'
Let's examine how we came to this conclusion one by one.
●'Suspiciousness to look after Lee Yong-gu' Issue 1-Whether Article 5 of the Special
Price Act is applied The most problematic regarding the controversy regarding the assault of a taxi driver by Vice Minister Lee Yong-gu was whether or not the'Special Price Act Article 5'was applied.
The charges the police applied to Vice Minister Lee Yong-gu was'simple assault'.
Since simple assault is an anti-intentional punishment, the state cannot prosecute the perpetrator if the victim expresses their intention that they do not want punishment.
This is expressed as'no public authority.'
The problem is that the act of assaulting a taxi driver who is "in operation" is not a simple assault, but falls under Article 5-1 of Article 5 of the Act on Aggravated Punishment for Specific Crimes (Special Privilege Act).
The condolence is like this.
「Act on aggravated punishment for specific crimes, etc. Article 5-10 (Aggravated punishment for assault, etc. against motorists in operation ) ① During operation (used for passenger vehicle transportation business under subparagraph 3 of Article 2 of the 「Passenger Vehicle Transportation Business Act」 A person who assaults or threatens the driver of a motor vehicle, including the case that the driver temporarily stops for the purpose of boarding or alighting a passenger while operating a motor vehicle), shall be punished by imprisonment for not more than 5 years or a fine not exceeding 20 million won. 」 |
A crime in violation of this provision is not an offense against false punishment.
Therefore, even if the victim clearly expressed his intention that he did not want the perpetrator to be punished, this is a reason for consideration and cannot be a reason for nonprosecution.
If it is admitted that the assault was carried out, even if the damage is not significant, it cannot be prosecuted at all, and in principle, the prosecution should be suspended.
「[Reference] Deferral of Prosecution (起訴猶豫) Even when the offender's conduct falls under a crime, the offender's age, prosperity, intelligence and environment, relationship to the victim, motives, means and consequences of the crime, and the circumstances after the crime A disposition in which the prosecutor defers the prosecution when it is deemed that there is no need for prosecution, taking into account the need for prosecution. 」 |
● The precedents suggested by the police were prior to the revision of the law.
However, even after the police confirmed that Vice Minister Lee Yong-gu had exercised force on the taxi driver, the vice-minister was'terminated internal affairs' without making a criminal investigation.
In the pre-investigation stage, in other words, before the formal criminal proceedings, the case was treated as non-
existent
. The
police proposed the Constitutional Court precedent (2015 Heonba 336) as the basis for the closing of the internal investigation.
The police explained that this precedent maintains the position that'in cases where parking or stopping without intention to continue driving in a place where there is no fear of disturbing the traffic safety order will be excluded from'in operation' (subject to the Special Privilege Act).
Even if the victim expresses his intention that he does not want punishment, in order to be a crime against the special law violation that must be prosecuted, he must have assaulted a taxi driver who is "in operation". According to the constitutional judgment, "a place where there is no fear of disturbing the traffic safety order" It is the logic that if the vehicle stops without intention to continue driving, it should be regarded as not "in operation."
In the case of Vice Minister Yong-gu Lee, it cannot be seen as assaulting a taxi driver who is "in operation" because he exercised physical force on a taxi driver who stopped after arriving at the destination. Therefore, it cannot be seen as a violation of the Special Act, so the victim does not want punishment. The police claim that if they did, they applied a simple crime of assault that did not cause a problem and ended the internal affairs.
But there is a big loophole in the police claim.
This is because, in the Constitutional Court precedents presented by the police as grounds, this interpretation is stated as being based on the Special Price Act before revised on June 22, 2015.
What part of the Special Price Act was amended on June 22, 2015?
A passage that more strict and clarify the word "in operation" was inserted directly into the legal text.
"In operation (including cases where a driver temporarily stops for boarding or disembarkation of passengers while driving a vehicle used for passenger vehicle transportation business under subparagraph 3 of Article 2 of the Passenger Vehicle Transportation Business Act)" It contains a sentence.
The revised provisions make it very clear that a taxi driver's pause to disembark should be interpreted as "in operation."
This is because it explicitly stipulates "Including cases where the driver temporarily stops for the purpose of getting on or off passengers, etc."
Some argue that this is a rule with buses in mind, and that it does not apply to taxis that frequently get on and off.
However, it is an interpretation contrary to what is expressly prescribed in the legal text.
In the legal text, it is stated that the vehicle subject to this provision is a vehicle used for the passenger vehicle transportation business pursuant to subparagraph 3 of Article 2 of the Passenger Vehicle Transportation Business Act.
It is stated in the law that not only buses but also taxis are applicable.
If the provision was for buses only, excluding taxis, the vehicle subject to the provision would not have been explicitly defined as such.
Therefore, according to the revised provisions of the law, Vice Minister Lee Yong-gu should have been interpreted as assaulting a taxi driver who is "in operation", and should have been applied for the charge of violating the Special Act rather than an anti-government crime.
●'Suspicious of looking at Lee Yong-gu' Issue 2-Examples of practical applications
However, there is one point to consider.
Even after the Special Act was revised in 2015, we need to look into how the case similar to that of Vice Minister Yong-gu Lee was handled in practice.
Although accurate statistics cannot be found, it is reported that, as a result of covering multiple prosecutors, if the victim does not want punishment and the degree of assault is minor, despite the provisions of the Special Act, there are cases where the prosecution has not been formally prosecuted.
It means using the prosecution and the like.
To be honest, some say that if the police sent this kind of matter as a non-prosecution opinion, there were cases where they were not condemned anymore, and they were indicted.
This is the summary of the discussion.
1. In principle, the case of Vice Minister Lee Yong-gu appears to be a case of violation of the Special Act, which should be prosecuted regardless of the victim's intention to disapprove.
2. Nevertheless, in practice, there are no cases of prosecution without prosecution in such cases.
However, given only what has been revealed so far, I don't think the real problem in this case is whether or not Vice Minister Yong-gu Lee is prosecuted.
Of course, as some suspect, this would be a separate matter if there was unjust pressure in the process of dealing with the case of Deputy Minister Yong-gu Lee, who was retired after serving as the head of the legal office in the current government.
However, it is a claim that has not exceeded the level of suspicion, which is not yet clear.
In the future, the truth may be revealed if the prosecution or the air defense department conducts an investigation.
● The core of the Yong-gu Lee case-The police's handling of'internal closing'
What I think is the real problem is that the police handled this case'internal closing'.
As mentioned earlier,'internal investigation' means that when a problem arises, it is not even processed for criminal charges, and it is arranged as something that was not in the previous stage of criminal proceedings.
According to the current criminal procedure law, if a criminal case is filed without closing the internal investigation, the police must send the case to the prosecution so that the prosecutor can review the case again and deal with it, even if the investigation concludes that it should be dismissed.
(This is called sending the opinion of non-prosecution.) Until now, the prosecutor has reviewed the case sent by the judicial police officer (= Song Chi-han), and finally concluded whether to prosecute.
However, since this case was ended in a state of internal investigation, there was no need for the police to send the case to the prosecution.
It wasn't made into a criminal case at all.
This can be interpreted as an unusual case.
Like most officials, police officers tend to avoid taking final responsibility for sensitive cases.
In particular, it is unusual for police officers to not even give prosecutors a chance to judge a case that is legally controversial like this case, and in principle, a prosecution opinion must be presented.
Even if the police officer in charge determines that it is right to dispose of nonprosecution in the case of this case, it is common sense to submit the case to the prosecutor and give the final judgment after submitting the case, presenting his innocent opinion.
In fact, under the current Criminal Procedure Act, it is legally controversial that the prosecutor must take over all cases of unsuspecting opinions from the police (this is referred to as ``remission of all cases'') and review the prosecution from the origin. This is to make the case judged by a prosecutor who is a legal expert.
Nevertheless, when a report from a taxi driver to Vice Minister Lee Yong-gu was received, the police did not consider legally controversial matters in an unusual way, thereby eliminating the opportunity for the prosecution to take over the case and review it. I did it.
It is perfectly reasonable for Vice Minister Yong-gu Lee to be a lawyer who was retired from the current government after serving as the head of the legal department of the Ministry of Justice, and was not a person who was evaluated as close to the powers of the government, but it is extremely reasonable that the police handled the case in this way.
(In this regard, the police claim that they did not know that Vice Minister Yong-gu Lee was a famous lawyer from the head of the legal office at the time of the case.)
● The relationship between the investigation structure that will change from next year and the case of Yong-gu Lee
is especially significant because the Criminal Procedure Act, which will be implemented from next year This is because it appears to be in contact with the core issues related to the changes in the investigation structure according to the government and the presidential decree, specifically the police refusal to send the case and the prosecution's request for a re-investigation (formerly'investigation command').
According to the Presidential Decree, which will take effect from January 1 of next year,'Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Rules' (hereinafter referred to as'Investigation Rules'), the police have the right to terminate the primary case.
Only cases that the police deems necessary to be prosecuted are sent to the prosecution to determine whether they are prosecuted. Cases that the police deem necessary to be prosecuted are changed to a structure that does not formally send to the police (= case is not sent).
The current statute adopts the ``transmission of all cases,'' which requires that all cases be sent to the prosecution, whether judged by the opinion of the prosecution or the opinion of non-prosecution, but according to the rules of investigation that will be enforced from next year, the police deem that prosecution is necessary. Mann is sent to the prosecution.
What does it mean?
Until now, in cases where the'internal investigation' was not handled, and once a criminal case was filed, the police had to hand over the case to the prosecutor regardless of the result of the treatment.
It is a structure in which the prosecutor checks all over again whether the police properly applied the laws and whether there was any illegality or preferential treatment in the investigation process.
From the perspective of the policeman, it was uncomfortable because a prosecutor, a public official from another ministry, was looking at his work.
However, from January 1 of next year, it is not necessary to undergo a review by the prosecutor for the process of handling a case that the police determine that prosecution is not necessary.
What the police wanted for a long time would come true.
● The police who
do
not need to be reviewed by the prosecutor even if they do not'close the internal affairs'
What can be expected in this case?
Consider the case of Vice Minister Yong-gu Lee again.
The reason that the case of Vice Minister Lee Yong-gu was not reviewed by the prosecutor is because the police handled'internal affairs closed'.
In this way, the only option the police could choose to avoid being reviewed and commanded by the prosecutors on the course of the case was to do nothing until now, without criminal charges, or'internal investigation'.
However, starting on January 1 of next year, the way in which you may not be reviewed by prosecutors on the process of the case is greatly expanded.
As mentioned earlier, the law changes so that if the police officer determines that prosecution is not necessary even if the case is proceeded after the criminal filing without closing the internal affairs, the law does not have to be sent to the prosecutor.
Of course, the minimum review rules remain in the newly established investigation rules.
In accordance with Article 63, Paragraph 1 of the Rules of Investigation, the police officer must hand over the relevant documents and confiscated evidence to the prosecutor for 90 days, even if the police officer decides that prosecution is not necessary.
The prosecutor will review these documents for 90 days and may request a re-investigation if necessary.
However, this is qualitatively different from'sending' all cases to the prosecutor as it is now.
It is repeatedly reported in the media, and as Justice Minister Chu Mi-ae has emphasized several times, the number of cases handled by prosecutors in the front-line criminal department is too large.
Unlike so far, if the prosecutor is asked to decide whether to request a re-investigation within 90 days of receiving the record, the number of requests for re-investigation after careful examination in a specified period will inevitably decrease.
In addition, the prosecutor can now "direct" a re-investigation of a case sent by the police as a non-prosecution opinion, but starting January 1 of next year, the police may object to the "request" of the prosecutor's re-investigation.
In summary, in the case of a case organized by the police in a non-prosecution opinion, the chance for the prosecutor to meticulously reexamine the case processing process is very small, and even if the prosecutor finds a problem in the review process, he only has to "request" the police officer to correct it. It can only be done, but it cannot be forced to modify it.
The reason for this reconciliation of investigative powers gained a justification because there have been many cases in which prosecutors have abused the investigative command power of the police.
In particular, when the prosecutor or people close to the prosecutor were investigated, there were not a few criticisms that the prosecution used the investigation command power of the police to reduce or conceal the case.
However, in order to correct such a problem, many experts have raised concerns about improving the system in a way that the police do not have to turn over to the prosecution for cases that the police judged as non-prosecution, that is, weakening the prosecution's judicial control of the police. .
It is a general principle that the more stringent the review process and the braking system is, the better the review process and the stricter the braking system is, the more powerful the state power, which is the right of investigation, and the exercise of power that restricts the basic rights of the people (only if there is good reason). This is because the rules of investigation related to the mediation were made to loosen the control device for the police investigation rights in the name of reducing the power that the prosecution had abused.
If the purpose was to correct the prosecution's abuse of the investigation and command authority, there were various alternatives, such as a method of excluding only the investigative command authority for the prosecutor or persons related to the prosecutor, but it was ignored in the process of revising related laws.
● The
police's handling of the'internal investigation' in the case of vice minister Lee Yong-gu
's future'investigation power adjustment' suggested by the Yong-gu case
seems to be related to concerns about the newly introduced investigation structure.
According to the investigation rules that will be in effect from January 1 of next year, even if the police do not have to deal with the closing of the internal affairs, the police have an opportunity to silently organize their own cases without actually receiving a second review of the prosecutor's second review of the cases of persons close to the real situation of the regime, such as Vice Minister Lee Yong-gu. It is because you have it.
Regarding Vice Minister Lee Yong-gu, it remains controversial whether the police concealed the case with unreasonable intentions or handled it normally in accordance with laws and practices.
However, at least you can raise a reasonable suspicion about how the police did not send the case to a prosecutor, who is a legal expert, and handled'internal business termination'.
And from January 1 of next year, similar controversy and suspicions are likely to be raised not only in cases where the internal affairs were terminated, as in the case of Vice Minister Lee Yong-gu, but also criminal cases.
In particular, the controversy will not end whenever it is revealed that the police did not send the case to the prosecution and terminated itself in the case involving the government's actual situation.
In the end, the ‘closing of internal investigations’ for Yong-gu Lee may be an incident that symbolically showed the new method of handling the case and the future of the investigation structure.
Now, under the slogan of'prosecution reform', where many people are confused about what the original meaning is, they will look at the outcome of what has been done despite the concerns of experts with practical experience, and from the standpoint of reporters covering legal and criminal cases. There is no choice but to watch with a big float.