검찰 인사의 칼날, 법의 저울 앞에 서다: 정유미 검사장 강등 처분 취소 판결의 함의 > K-wave Trends

The case began in November of last year, when the prosecution gave up its appeal against the partial acquittal of the first trial verdict in the Daejeon-dong case. Chief Prosecutor Jeong Yu-mi, who expressed strong doubts about the prosecution's decision at the time, poured out unstoppable criticism toward the leadership through the prosecution's internal network 'Ipros'. Afterwards, the Ministry of Justice transferred Chief Prosecutor Jeong from a research fellow at the Legal Research and Training Institute to a prosecutor at the Daejeon High Prosecutors' Office, which was accepted within the prosecution organization as a de facto disciplinary appointment downgraded from the level of chief prosecutor to deputy chief or deputy chief prosecutor. The Ministry of Justice responded by protesting that Prosecutor Jeong damaged trust in the organization by criticizing internal members, and that the measure was taken in comprehensive consideration of the circumstances of the poor investigation in the past case of suspicion of involvement in Myung Tae-gyun's nomination. However, the court found that the Ministry of Justice's personnel background explanation did not have proper procedural justification.

The Seoul Administrative Court judge pointed out that this personnel appointment was very unusual in light of prosecution personnel practices and, in fact, had many purposes to induce the person involved to voluntarily resign. The court partially accepted the Ministry of Justice's logic that although under the Prosecutor's Office Act, the rank of prosecutor is divided into only the president and general prosecutor, this appointment is technically not a 'demotion'. However, it was clarified that in reality, it constitutes an 'invasive disposition' that moves a person from a high-ranking position to a low-ranking position. The court's judgment is that making such unfavorable appointments and not giving the parties any opportunity to explain themselves is an act that violates the basic principles of administrative procedures. In particular, if there is a reason for disciplinary action, legal disciplinary procedures should be followed, but imposing de facto disadvantages in the name of personnel rights is a clear abuse of discretion.

Meanwhile, this ruling keenly delves into the point where the two values of expressing critical opinions within the prosecution and establishing organizational discipline clash. The court acknowledged that Prosecutor Jeong's posts on the internal network had a public interest purpose of discussing the appropriateness of exercising prosecutorial power, but evaluated them negatively, saying that the way they were expressed was somewhat categorical and exaggerated, which posed a risk of harming trust in the organization. However, such critical voices cannot be a direct basis for personnel disadvantages, and in particular, issues such as suspicions of poor investigation should not be used as a basis to support the legitimacy of personnel dispositions without objective proof. This is interpreted as a warning from the judiciary that the expression of opinions within the prosecution should not be subject to indiscriminate personnel retaliation simply because it tarnishes the reputation of the organization.

The Ministry of Justice has countered with the logic that granting prosecutors' positions falls within the minister's unique personnel discretion, and that there have been cases in the past in which prosecutors from the Supreme Prosecutors' Office were appointed to the level of prosecutors from the High Prosecutors' Office. In fact, last April, the Ministry of Justice sought to strengthen personnel rights by limiting the tenure of research fellows at the Legal Research and Training Institute to one year and establishing new regulations to adjust their positions. However, this ruling showed that such administrative measures cannot be used as a means of justifying abuse of personnel rights. While the court acknowledged that personnel rights are a necessary tool to correct organizational discipline, it made clear that it is absolutely unacceptable for that tool to be reduced to a means to oust or silence specific individuals. How the prosecution, which is the foundation of the rule of law, accepts and handles internal criticism is a measure of the democratic legitimacy of the organization.