[Editor’s note: On May 3, Professors’ Solidarity for Freedom & Justice announced that it filed a constitutional lawsuit with the Constitutional Court for review of the constitutionality of the recently passed amendments to the Prosecutors’ Office Act and Criminal Procedure Act, which are often dubbed the prosecution reform bill aimed at stripping away the prosecution’s investigation powers except for two crimes – those related to corruption and the economy. The petitioners are the members of the professors’ group that previously filed a criminal complaint against key members allegedly involved in the real-estate scandal surrounding Lee Jae-myung, the former presidential candidate from the liberal Democratic Party who lost the March 9 election. The petitioners argued that they filed a complaint against those people for violating crimes related to the economy and dereliction of duty but due to the recent amendments, the prosecution and police will have to investigate these two charges separately. They said that investigating them separately based on charges would not make any sense and be a burden in finding the truth. They added that their right to pursue happiness was violated since their right to expect fair social justice through due process is no longer guaranteed. On top of the complaint filed to the Constitutional Court, the group filed another petition with the court asking for a preliminary injunction to suspend recently enacted provisions from going into effect until the court decides the constitutionality of the provisions. The following is the petition filed by Professors’ Solidarity for Freedom & Justice on May 4.]
Petition for a preliminary injunction
Petitioners: Five people including Park Young-ah
Main case: 2022HunMa684, the constitutionality of Article 4(1)(a) of the Prosecutors’ Office Act
Purpose of the petition:
The petitioners seek a ruling that would suspend Article 4(1)(a) and (c) and Article 4(2) of the Prosecutor’s Office Act (amended and enacted on May 3, 2022), Article 196(2), and Article 245(7)(1) of the Criminal Procedure Act (amended and enacted on May 3, 2022) until a final ruling by the Constitutional Court is made on their constitutional appeal to review the above provisions.
Reason for the petition:
Park Young-ah and four other petitioners filed a complaint against key government officials and insiders related to the so-called “Daejang-dong scandal,” which include Seongnam Mayor Eun Soo-mi, Seongnam City Development Corporation President Chung Geon-ki, Seongnam City Development Corporation Auditor Kwon Kyuk-joo, an unidentified board member and auditor of Seongnam City Development Corporation, Kim Man-bae, owner of Hwacheon Daeyu Asset Management, Lee Sung-moon, former CEO of Hwancheon Daeyu Asset Management and the former CEO of the first or seventh Chunhwa Dongin, Ko Jae-hwan, CEO of Seongnam Ddeul, and others, for violating Act on the Aggravated Punishment, ETC, of Specific Economic crimes and dereliction of duty to the Seoul Central District Prosecutors’ Office on March 23, 2022.
The petitioners want them to be brought to trial and punished by the prosecution at the Seoul Central District Prosecutors’ Office, followed by the investigation results, and have the truth of the case be revealed. However, the bill to reform the prosecution law and Criminal Procedure Act, which the petitioners are asking to be ruled unconstitutional, was enacted on May 3, 2022. As a result of this, the charge of dereliction of duty that the petitioners filed a complaint against will be excluded from the prosecution’s investigation and will be transferred to the police. Due to this, consistent and rapid investigation of the case became impossible and [those individuals specified by the] petitioners will have to be unnecessarily investigated twice. Our request for objection in the future could be blocked, and even if it is accepted, the procedure can be limited, unjustly violating our right to realize the criminal justice.
In addition, the above provisions, which were made as a result of legislation that was clearly unconstitutional during the legislative process, should be judged unconstitutional because it violates the petitioners’ right to pursue happiness and expect constitutional due process in the legislative process. Thus, the petitioners have filed a constitutional petition for the provisions mentioned above.
However, it usually takes a considerable amount of time for a constitutional petition to be finalized, so there is a chance that the petitioners’ complaint [against key members related to the Daejeang-dong scandal] will be divided between the prosecution and police before a ruling is made [on the constitutional petition]. Also, the petitioners may not be able to file an objection to the investigation in the future, and even if it is accepted, the prosecution would not be able to investigate the case thoroughly. It will cause irreparable damage to the petitioners even if the previously mentioned provisions are found to be unconstitutional in the future.
As a result, the petitioners came to file a petition for provisional injunction, which is the only way in which the provisions of this case can be suspended at this point. Given the lack of retroactive effect of the Constitutional Court’s decision, it will be difficult to find out the facts of the petitioners’ case due to the recent changes to the provisions.
The fact that the newly adopted provisions will go into effect after four months cannot be a reason for the rejection of the provisional injunction because the suspension of the provisions and the invalidation of the provisions are completely different from each other. Rather, there is a good reason to rule provisional injunction since there is no fear of causing any legal instability or public disadvantage.
In addition, the majority of the people, including the Korean Bar Association, the Supreme Court, and scholars, have joined in calling the provisions and their legislative procedures unconstitutional. Some people are even calling for a referendum on this issue. Considering the fact that this could possibly lead to a major political dispute, accepting the provisional injunction of this petition could stabilize the situation and allow people to seek alternatives within a constitutional framework. Thus, we would say that the Constitutional Court needs to make a forward-looking decision.
For the above reasons, we seek a ruling that would suspend Article 4(1)(a) and (c) and Article 4(2) of the Prosecutor’s Office Act (amended and enacted on May 3, 2022), Article 196(2) and Article 245(7)(1) of the Criminal Procedure Act (amended and enacted on May 3, 2022) until the final ruling by the Constitutional Court is made on its constitutional appeal to review the above provisions.
May 4, 2022
The petitioners’ legal representative Lee Ho-sun
