‘위법 수사’의 덫에 걸린 검찰, 권순일 전 대법관 사건이 던진 사법적 파장 > K-wave Trends

The key to this case is whether the prosecution really had the authority to directly investigate the charge of ‘violation of the Attorney General’s Act.’ The court clearly drew the line that violations of the Attorney-at-Law Act are not included in the types of crimes for which prosecutors can directly initiate investigations under the current Prosecutor's Office Act. The prosecution argued that the investigation was justified by citing its connection to the Daejeon-dong incident, but the court did not accept it. In particular, it was judged that the prosecution did not meet the requirements to independently exercise the right to initiate an investigation, as the investigation was conducted based on the contents specified in the complaint rather than a crime recognized by the prosecution. This shows the judiciary's strict attitude that investigative agencies should not arbitrarily interpret legal grounds for the convenience of investigation.

The illegality of the so-called ‘ping-pong investigation’ between the prosecution and the police also emerged as an important issue in this ruling. In the process of transferring the case, which was initially transferred to the Gyeonggi Southern Police Agency, back to the Seoul Central District Prosecutors' Office, it was pointed out that the police's primary right to conclude the investigation was not properly exercised. The court considered that this retransfer was not a legally required procedure, but rather a ‘circumvention investigation’ conducted arbitrarily for the convenience of the prosecution’s investigation. Even though the police had the right to investigate and terminate the case, the prosecution's actions of ignoring this and recalling the case and proceeding with direct prosecution were regarded as an illegal act that directly violated the ‘separation of investigative power’, which is the purpose of the revision of the Criminal Procedure Act.

Former Supreme Court Justice Kwon Soon-il is strongly protesting against this ruling, saying that the investigation process that continued over the past five years was a violation of human rights. He claims that the reason he did not register as a lawyer after retiring as a Supreme Court Justice was only because he had no intention of practicing law, and that it was never his intention to commit illegal activities. Nevertheless, his position is that a coercive investigation was continued, including large-scale search and seizure, cell phone forensics, and communication inquiries into family members. Former Supreme Court Justice Kwon evaluated this ruling as a courageous decision that established the principles of the law, and raised his voice that investigative practices that manipulate evidence or create crimes for political purposes must be eradicated.

This decision to dismiss the indictment is expected to have a significant impact on a series of cases related to the scope of the prosecution's direct investigation in the future. The prosecution has been expanding the scope of investigation under the name of ‘corruption and economic crimes,’ but the court is demanding a strict interpretation of the right to initiate an investigation through this precedent. In particular, it was reaffirmed that if the investigative agency does not comply with the law and abuses its power to prosecute, the case itself may be invalidated due to flaws in the legal procedures, no matter how serious the charges may be. This is expected to serve as a strong judicial control mechanism that requires prosecutors to more closely review legal requirements from the start of future investigations.