Case on Special Prosecutor to Probe Myung-bak Lee, Presidential Candidate of Grand National Party

[20-1(A) KCCR 1, 2007Hun-Ma1468, January 10, 2008]

In this case, the Constitutional Court invalidated Sections 6 and 7 of Article 6 and Section 2 of Article 18 (hereinafter, "Accompanying Order Provision") of the Act on Appointment of Special Prosecutor to Probe Myung-bak Lee, Presidential Candidate of Grand National Party over Allegations of Stock Price Manipulation, etc. (Act No.8824, enacted on December 28, 2007, hereinafter the "SPA"), which enabled the Special Prosecutor to order a witness to accompany to a designated place and to impose on the witness a fine of less than 10,000,000 Won when the witness refused to follow the accompanying order with no justifiable reasons, on the ground that the Accompanying Order Provision infringed upon the complainant's right to equality and bodily freedom in violation of the principle of warrants and the principle of proportionality. However, the Court found the provisions, regarding the object of investigation by the special prosecutor, appointment procedure of the special prosecutor, and the trial period of the case in which the special prosecutor filed an indictment, did not infringe complainants' right

Background of the Case

On December 17, 2007, two days before the 17th Presidential Election Day, the National Assembly passed the SPA. SPA is promulgated to appoint a special prosecutor who has independent status to dispel all doubts of Korean people by impartial and fair investigation of the alleged involvement of Myung-bak Lee : in violation of the Securities and Exchange Act by manipulating stock prices through LK e-BANK Inc., and investment counseling BBK Inc. in property crime such as embezzlement and malfeasance related to the above Securities and Exchange Act violation; in violation of the Public Service Ethics Act relating to stocks and shares of DAS Inc.; and in the case on the building site of Digital Media Center (DMC).

Later, the candidate Myung-bak Lee was elected as President in the Presidential Election on December 19, 2007. The complainants, who were witnesses or the accused of the cases to be investigated under SPA, was expected to be subject to SPA, filed a constitutional complaint on December 28, 2007, arguing that SPA infringed upon their right to equality and fair trial, bodily freedom.

Summary of Decision

1. Review On the Object of Investigation (SPA, Article 2)

A. Majority Opinion

(1)SPA, Article 2 empowers the special prosecutor to investigate and prosecute a specific case. Considering the merits and demerits of Special Prosecutor System and its history in Korea, the National Assembly has, in essence, wide discretion in deciding whether to allow the Special Prosecutor System as an exception of exclusive power and discretion of the prosecutors to make an indictment under the current criminal procedures, whether to conduct an investigation by the special prosecutor for a specific case, and to what scope the special prosecutor would investigate by taking into account various factors such as appropriateness of prosecutors' exclusive power to indict, necessity to control prosecutors' power to indict, merits and demerits of the Special Prosecutor System and public interests and demands in the specific case. Hence, it is neither arbitrary nor unreasonable that the National Assembly empowers a special prosecutor to investigate the matters provided under Article 2 of SPA after consideration of such circumstances above.

(2)Since the discriminatory regulation pursuant to SPA, Article 2 as case-specific legislation subjecting specific person instead of general public could be justified for the reasons above, the inquiry to the complainants based on the above provision would not constitute an unconstitutional or unlawful inquiry violating the due process and the principle of proportionality. Hence, Article 2 did not infringe upon the complainants' liberty of body, i.e., the right not to have an illegal

inquiry.

(3)As SPA, Article 2 provides the scope of the investigation by the special prosecutor concerning the investigation before trial stage, it does not give direct impact on the trial procedure and does not infringe upon the right to fair trial of the complainants. Although the case on violations of the Securities and Exchange Act including Kyong-joon Kim's manipulation of stock prices under Article 2 Item 1 has been already prosecuted and the trial is pending, the complainants' right to a fair trial would not be infringed upon simply because the special prosecutor reinvestigated the already-prosecuted case or participated in the trial.

B. Dissenting Opinion of Two Justices (Unconstitutional)

In that only the cases and persons specified under Article 2 would be subject to investigation and prosecution by the special prosecutor and the possibility that this Act would apply to many other unspecific cases or persons under similar situations is excluded, Article 2 is deemed to fall into so-called "case-specific legislation". Then, we should examine whether Article 2 has reasonable grounds in discriminating against the presidential candidate from the opposition party and his persons concerned

SPA, Article 2 on the subjects of investigation by Special Counsel goes beyond the scope of Special Counsel System and has no reasonable grounds for discriminatory regulation, considering the fact : This Article 2 was enacted to investigate the presidential candidate from opposition party and his persons concerned not the high officials in the executive or members of prosecutory body, and there is no reasonable grounds the prosecution composed by the current administration could not investigate impartially only because the presidential candidate from the opposition party had been top-rated candidate the allegations suspecting the impartiality and fairness of the prosecution in the investigation concerned with the cases in Article 2 of the Act have no objective grounds.

2. Review on the Appointment of Special Prosecutor (SPA, Article 3)

A. Majority Opinion

1) According to the said SPA, Article 3, Chief Justice recommends two candidates of Special Counsel to the President, and the President appoints the Special Counsel between them. Although Chief Justice shall appoint the judges (Article 104 Section 3 of the Constitution), it is limited to the affairs concerned with judicial administration that Chief Justice can command and supervise the personnel of all the instances of courts (Court Organization Act Article 13 Section 2). Hence, Chief Justice cannot give effect to a specific case pending in a trial. Further, article 3 of SPA provides that Chief Justice only recommends two candidates of Special Counsel among lawyers to the President and the President appoint the Special Counsel. Accordingly, it can not be seen that the prosecuting organization and the decision-making organization are not separate or the decision-making organization determines the cases where they are self- interested parties. Finally, the appointment processes in the Article 3 of SPA are neither against the great principle of modern criminal law, that is, the separation of the prosecuting organization and the decision-making organization, nor due process doctrine.

2) Considering the purport and function of Special Counsel system that essentially has the function of power regulation, it cannot be acknowledged that it is against the separation of powers doctrine that the power to decide whether to adopt the Special Counsel system or not is given to the legislature and the power to appoint Special Counsel is distributed among other constitutional organizations. Although the issue of making Chief Justice, who should strictly maintain political impartiality, involved with the appointment of Special Counsel who will be in charge of political cases is desirable could be in controversy, the political decision by the National Assembly on this issue is neither against the constitutional doctrine of separation of power nor beyond the scope of legislative discretion.

3) Therefore, the Article 3 of the Act does not infringe upon the basic right of complainants related with the violation of the due process doctrine nor the separation of power doctrine.

B. Dissenting Opinion by Two Justices

SPA, Article 3 is against the principle separating the prosecuting organization and decision-making organization because judges under Chief Justice's power of personnel management decide the case which was investigated and prosecuted by the Special Counsel who was practically appointed by Chief Justice. In addition, it results in the unreasonable situation where Chief Justice becomes the presiding judge when the case comes before the full-bench of Supreme Court. Furthermore, Article 3 of the Act hinders the functions of the judiciary whose essential function is to contribute to the maintenance of legal order and peace through dispute resolutions and is against the separation of power doctrine through imposition to Chief Justice, who is required to be more impartial than anyone else to achieve judicial independence as the personnel manager in judiciary, the obligation to recommend Special Counsel. Also, it makes him possibly involved in political conflict between political forces. Therefore, SPA, Article 3 is against the Constitution by infringing upon the complainants' constitutional right not to have illegal check and right to fair trial.

3. Review on the Accompanying Order Provision

A. Opinion to be Unconstitutional by Five Justices

1) The Warrant Clause in Article 12 Section 3 of the Constitution should be applied to the accompanying order system to the witnesses because it is practically same as taking him a certain place virtually restricting the witness's freedom of body. Nevertheless, the Accompanying Order Provision provides that not the judge but the Special Counsel shall issue accompanying order and punish the witness when the witness refuse the order without any justifiable reasons. It also results in the same effect with taking the witness to a designated place practically infringing upon the witness's freedom of body. Hence, the Accompanying Order Provision is against the Article 12 Section 3 of the Constitution.

2) Since a witness is only a cooperator of an investigation, the

witness has no duty to attend in principle. In legislation, it does not impede the achievement of the object of the investigation that a judge orders subpoena of a witness when Special Counsel urgently needs to forcibly summon a witness and requests a judge for the issuance of the summon. In addition, the Special Counsel can 'secure the witness's statement indispensable to find out the truth of an affair' from the witness who refuse the summon by the process for the preservation of evidence (Article 184 of Criminal Procedural Act) and the process requesting for the examination of witness before the first court day (Criminal Procedural Act, Article 221-2). Considering these fact, the restriction of the freedom of body by the Accompanying Order Provision in this case is not within the boundary of necessary minimum for the accomplishment of the purpose. Besides, the infringement upon the freedom of body which the complainants should suffer from is exceedingly serious while the public interest, 'securing the witness's statement indispensable to find out the truth of an affair', to attain from the Accompanying Order Provision is unclear in its attainment because of the limit in the effective value ofwitness's statement in investigation. Thus, the Accompanying Order Provision infringes upon the complainants' freedom of body and equality right violating the principle of proportionality.

B. Opinion to be Unconstitutional by Two Justices

The principle of warrant concerned with the freedom of body should be applied to 'the case when a direct and real compelling force is exercised to human body'. The Accompanying Order Provision is not providing that it can exercise direct and real compelling force to the witness refusing accompanying order. However, it compels the duty to follow the summon in a psychological and indirect way by imposing a witness who has no justifiable excuses refuse the order to attend a designated place and by sanctioning them with fines. Hence, the constitutional principle of warrant cannot be applied to the Accompanying Order Provision. However, the Accompanying Order Provision infringed upon the complainants' freedom of body violating the rule of the least restrictive means by criminally punishing the witness who refused the accompanying order without justifiable

excuses.

C. Opinion to be Unconstitutional on Article 18 Section 2 by One Justice

SPA, Article 6 Sections 6 and 7 are just giving the Special Counsel the authority to issue an accompanying order to a witness but is not imposing the witness the duty of accompanying. The witness's duty of accompanying is imposed by Article 18 Section 2. It is doubtful that the means provided in Article 18 Section 2 of SAP is reasonable and indispensable to the investigation processes by Special Counsel and that the public interest sought by the means is superior to the restriction of the witness's freedom. In addition, the adopted means is not the least restrictive means. Therefore, Article 18 Section 2 of SPA is against Article 37 Section 2 of the Constitution by exceedingly restricting the witness's freedom of behavior beyond the necessary limit.

D. Dissenting Opinion by One Justice

The purport of the Accompanying Order Provision is just to secure the presence of witness through psychological and indirect coercion by sanctioning with fines and is not to exercise direct and real coercion power to the body of witness refusing accompanying order. Hence, Article 12 Section 3 of the Constitution is not applied to the Accompanying Order Provision. The concrete detriment incurred to the witness by the accompanying order would be 'the restriction of the freedom to refuse the accompanying order of Special Counsel with no justifiable excuses' or 'fines imposed when the witness refuse accompanying order with no justifiable excuses'. As long as there is no objective and clear evidence that imposing administrative penalty would be enough to attain the legislative purpose of SPA, I cannot conclude that sanctioning with fines would be against the Constitution on the vague ground that the effect of an administrative penalty would be smaller than that of a fine in the impact to the restriction of basic rights. Further, the scope of the fine above is not too serious compared with the interests that the Accompanying Order Provision

protects and pursues, and does not lose the balance of interests. Finally, as the principle of warrant cannot apply to the Accompanying Order Provision, the provision violated neither the principle of warrant nor the principle of proportionality, and is not against the Constitution.

4. Review on the Trial Period (SPA, Article 10)

A. Majority Opinion

SPA, Article 10 provides the trial period to be short. It is just to dispel all suspicions from Korean people in early stages and settle political disorder by ending the trial as soon as possible within the period above considering the character of the case and the peculiarity of the Special Counsel system. It doesn't purport that the trial should end within the period above without securing the due process and right of the accused for defense. It also doesn't purport that the effect of the judicial decision is lost when the period above ends. Based on this purport, ending the trial within the period provided in the provision doesn't seem to be unreasonable if the bench manages the case in concentrative trial method. Article 225 of the Public Election Act provides election cases should be decided within 180 days from the initiation of the suit considering the peculiarities of election cases. Article 270 of the Public Election Act provides the first instance of election cases should end within 6 months from the initiation of the suit, and the second and third instances should end within 3 months from the lower court's decision. Considering these, it has justifiable excuses that the provision above limits the court period like this. Then, Article 10 of SPA didn't infringe upon the right to fair trial. In addition, it didn't infringe upon the equality right by discriminating against the accused by the Special Counsel in this case from the accused in general criminal case.

B. Dissenting Opinion by Two Justices

Since Articles 2 and 3, Article 6 Sections 6 and 7, and Article 18 Section 2 of SPA are unconstitutional, in principle, the Court should declare only the provisions above to be unconstitutional. However,

Article 2 of SPA provides the investigation scope by Special Counsel and Article 3 provides the appointment method of the Special Counsel. Both of these two provisions are basic factors of Special Counsel system in this case. If one of the provisions loses force by the decision to be unconstitutional, the entire provisions of SPA cannot be enforced. Hence, we don't review on the unconstitutionality of Article 10 of SPA separately because we should issue the decision to be unconstitutional to the entire SPA without examining the other provisions of SPA.