“Prosecution’s complete defeat”…”Possible guilty” Jae-myung Lee What are the judicial risks?

“Jaemyung Lee! Jaemyung Lee! Jaemyung Lee!”

Cheers rang out in front of the Seoul Detention Center in the early morning of the 27th. This is because the results of the arrest warrant review for Lee Jae-myung, leader of the Democratic Party of Korea, were delivered to his supporters. Representative Lee, who escaped the risk of arrest, left the detention center around 4 a.m. Holding a cane in one hand, Representative Lee said:

“I would like to express my deepest gratitude to the judiciary for clearly proving that it is the last bastion of human rights.”

The Democratic Party, which was extremely enraged, launched a counterattack against the government and the prosecution, calling it a ‘complete defeat of the prosecution.’ Newly elected floor leader Hong Ik-pyo went on the offensive, saying, “President Yoon Seok-yeol’s official apology for the unreasonable political investigation and the dismissal of Justice Minister Han Dong-hoon, the person in charge of the work, will begin the restoration of politics.” Supreme Council member Jeong Cheong-rae also sharpened his voice, saying, “This has all been revealed to be a fraud by political prosecutors,” adding, “Minister Han’s ‘judicial stalking’ has come to an end.”

The government and the People’s Power Party, which faced bad news ahead of the Chuseok holiday, warned of the spread of the repercussions, saying, “There has not been a verdict of not guilty.” Among the reasons for dismissal, we focused on the expression that some of the reasons were explained. Floor spokesperson Jang Dong-hyuk pointed out that “the key point” in the court’s decision to dismiss the case is that “Representative Lee Jae-myung’s crime has been proven, but he will not be detained because he is the leader of the main opposition party.”

There were also voices criticizing the court that ruled against it. People Power Party representative Kim Ki-hyeon said that this decision to dismiss was “‘voluntary release and non-authoritative detention’ that determines whether or not to be detained based on the presence or absence of power,” and added, “This is a day when it has once again been revealed that the judiciary has been polluted by some politically biased judges.” I aimed. Representative Kim, a former judge, mentioned the name of the judge in charge of warrants and launched an onslaught, calling it a “biased judiciary created by the Kim Myung-soo regime.”

Prosecutors also strongly opposed it. Officials from the investigation team called for a meeting with reporters immediately after the decision to dismiss the case and criticized the court, saying, “There are concerns that there may be political considerations in the judiciary,” which is unusual. He also said, “It is difficult to accept the decision to dismiss the warrant because there is a significant difference of opinion with the prosecution, and I express deep regret over the result.” During the explanation, there were harsh expressions such as, “Does a gang leader have to hold a knife tightly in his hand and order a murder to order it?”

We reviewed the decision to dismiss the arrest warrant for CEO Lee Jae-myeong, which has different interpretations depending on each position, the reasons stated by the court and the prosecution’s rebuttal logic, and listened to the opinions of the legal community.

■ Reasons for dismissing the 892-character arrest warrant, “Only one of the three charges was explained”

After 16 hours of deliberation, the court dismissed the arrest warrant for CEO Jae-myeong Lee and, unlike usual, provided a detailed explanation of 892 characters. We examined whether each crime charge was sufficiently explained and whether there was a risk of destruction of evidence.

The reasons for dismissal stated directly by the court are as follows.

First, it is necessary to briefly review the meaning of the word ‘call’ used by the court. The dictionary says, ‘In a trial, the judge assumes that the facts claimed by the parties are certain, or the parties try to submit evidence to reach that state.’ It is a lower level than the word ‘proof’ that we commonly use. It is interpreted. One legal expert says, “Supposition means something like, ‘Well, that could be possible’ after listening to the parties’ arguments.” At least at the investigation stage, it can be said that a meaningful possibility has emerged, but it is difficult to say that guilt has been proven immediately. Regarding the suspicion of Baek Hyun-dong’s preferential treatment among the two cases that are the main stem of the allegations against CEO Lee Jae-myung, the court pointed out that

“Representative Lee’s <direct evidence itself is insufficient> .” The gist of the suspicion of preferential treatment in Baekhyeon-dong is that in the process of the Baekhyeon-dong development project promoted when Representative Lee was mayor of Seongnam, Kim In-seop, a former member of Lee’s election campaign, acted as a broker and made requests to increase the profits of private businesses. In particular, the prosecution believes that CEO Lee’s failure to secure at least 20 billion won in profits due to Seongnam Urban Development Corporation’s failure to participate in the development project was a breach of trust by CEO Lee. The court said, “Given the status of the suspect, that is, as the mayor who has the final approval authority, as well as the approval documents and statements of those involved, we see that CEO Lee’s involvement is <suspicious> . The problem is that the preferential treatment is at a level where it can be said that CEO Jae-Myung Lee gave it directly;

Regarding the suspicion of remittances to North Korea, which is another branch , he pointed out that “there is room for dispute” regarding the suspect’s awareness, collusion, and degree of involvement . In other words, in the process of Ssangbangwool Group smuggling out Gyeongdo Province’s $5 million humanitarian aid project to North Korea and $3 million for Gyeonggi-do Governor Lee Jae-myung’s visit to North Korea, there was a quid pro quo in exchange for exclusive business rights as claimed by the prosecution, CEO Lee. It is said that the facts themselves have not been confirmed as to whether he was aware of the process itself.

In order to weigh the ‘seriousness of the crime’ and the ‘possibility of destruction of evidence’ claimed by the prosecution, the argument that guilt is suspected at the preliminary stage must be persuasive. However, the brakes were put on at the first hurdle, ‘evidence of the charges’. The court stated that only the charge of instigation of perjury related to the relatively small case of impersonating a prosecutor in 2019 was vindicated. It is known that the prosecution obtained a recording of CEO Lee directly requesting that a person involved in the case testify in the direction he wanted.

■ Concerns about destruction of evidence were not acknowledged, so it was “difficult to determine.”

The threshold for concern about destruction of evidence, which was the second hurdle, was even higher. The court judged that there was a low risk of destruction of evidence in both the perjury teacher and Baekhyeon-dong development allegations because sufficient human and material data were secured. This is interpreted to mean that even if the past perjury teacher has been proven, it cannot be immediately concluded that the current evidence will be destroyed.
The prosecution claimed that in the recent remittance case to North Korea, Lee intervened in the process of retracting the statement of former Gyeonggi Deputy Governor Lee Hwa-young, who played a key role in connecting Gyeonggi Province Governor Lee Jae-myung at the time with Ssangbangwool Chairman Kim Seong-tae. However, the court did not accept it, saying , “Although there are circumstances to suspect inappropriate intervention by people around him, there is <insufficient data to conclude that there was direct intervention> .”

The court then added, “It is difficult to say that there was no randomness” in the statement made by former Deputy Governor Lee Hwa-young at the prosecution. Former Deputy Governor Lee confessed to the prosecution that he reported Ssangbangwool’s remittances to North Korea to CEO Lee Jae-myung, but later reversed this statement in a public statement. The prosecution suspects that there was conciliation and pressure from the Democratic Party behind the change in the statement, and the Democratic Party claims that the original statement made by the prosecution was due to conciliatory pressure from the prosecution. Statements that are not arbitrary and statements made by force through threats of violence are not admissible as evidence. This is an issue that neither side can back down from, as they are fighting over the validity of key statements and the legitimacy of the investigation. The court’s true meaning in saying that ‘there is no arbitrariness’ is that the prosecution can ‘admit’ that former Deputy Governor Lee Hwa-young confessed the facts of Representative Lee’s report, and ‘However, taking into account the subsequent changes to the statement, this trial will determine whether the statement is reliable. It’s close to the meaning of ‘it’s okay if you think about it’. When it comes to whether or not to admit the statement, the prosecution wins. However, the question remains as to whether this is something that needs to be decided in a warrant review rather than in this trial.

Add to,The fact that he was <as a political party representative and subject to public surveillance> also became the basis for believing that the risk of destroying evidence was low.

■ Current judges: “It was expected that the warrant was dismissed…the prosecution lacked proof.”

What do legal experts think?

Current and former judges with experience reviewing arrest warrants responded that they expected the arrest warrant to be dismissed. Prior to the review, a chief judge in the metropolitan area predicted, “Even if we assume that the crime has been proven, there is a high possibility that it will be dismissed if there is no other evidence that the prosecution has not disclosed.” The possibility of destroying evidence according to the warrant review standard is “recognized only when there is evidence of recent communication or countermeasures with an accomplice in order to manipulate this case.” The circumstances surrounding the perjury were in and of themselves grounds for arrest, but it was determined that what the prosecution presented was something that had already happened in the past. After the decision to dismiss was announced, another judge in the metropolitan area also said, “This is a case that was expected to be dismissed from the beginning,” and added, “The current destruction of evidence is in the case of former Deputy Governor Lee Hwa-young, and there is no evidence that Representative Lee Jae-myung was directly involved.” “I see it,” he said.

Another chief judge also noted the same point. “In the end, destruction of evidence is important, and it appears that many of the circumstances of destruction of evidence claimed by the prosecution were done by ‘Representative Lee Jae-myung’s side’ or the ‘Democratic Party side,’” he said. “Based on experience, they probably judged that that was not a reason for arrest.” Another incumbent judge also commented, “We conducted searches and seizures like that during the two-year investigation, and it doesn’t look like the evidence will be destroyed.”

However, there was bitter criticism even within the court regarding the detailed explanation of the reasons for dismissal for each charge. As stipulated by the law, you only have to reveal your decision regarding concerns about flight and destruction of evidence, but by even explaining the explanation of the charges and the relationship between the evidence, you gave the prosecution an excuse to be caught in a ‘trouble’. One judge who responded to the interview said, “I had hoped to briefly disclose whether the dismissal was issued, but it is disappointing that it came out as a judgment.”

■ “In effect, the prosecution ‘completely defeated'”… “Guilty possible at trial”

Lawyers’ opinions were mixed. A lawyer specializing in bribery said that the dismissal of the arrest warrant cannot be viewed as an unreasonable investigation, and expressed concern about the current situation turning into a political controversy. “Considering the charges, it was a matter that the prosecution could sufficiently request an arrest warrant for,” he said, adding, “The court’s decision appears to have taken CEO Lee’s status and political situation into consideration.” A former prosecutor-turned-lawyer indirectly criticized the court’s decision, saying, “The charges of breach of trust or bribery applied to CEO Lee are often assumed to be indirect facts rather than direct evidence, but it is difficult to say that the charges have not been proven due to the lack of direct evidence.”

There was also an opinion that even if the warrant was dismissed, there was no guarantee that the person would be found not guilty at trial. Attorney Lee added, “There are very few people who directly admit to receiving a bribe in a bribery case, and the charges of breach of trust applied in the Baekhyeon-dong preferential treatment case are also made through the reporting process within organizations such as companies, so there are many cases where the charges are proven without direct evidence.” . Another prosecutor-turned-lawyer also predicted, “In conclusion, in order to arrest a person of this magnitude, the charges must be clear, and the circumstances surrounding the destruction of evidence cannot be based solely on indirect evidence.” He also predicted, “In a trial on the merits, indirect circumstantial evidence alone can lead to a conviction.”

On the other hand, a lawyer in Seocho-dong said, “If there is no direct evidence, it is only a statement.” He added, “Statements are always false and sometimes overturned during the investigation and trial.” He said, “In fact, it was a complete defeat for the prosecution.” A lawyer who used to be a judge criticized, saying, “The prosecution would not have requested a warrant if he had been the leader of the ruling party,” and added, “If the court had actually detained him, that should be seen as political.”

■ The prosecution said, “The judiciary should not be politicized,” and criticized “the court for political considerations.” The prosecution

strongly protested, saying, “It is unacceptable and very regrettable.” The investigation먹튀검증 team complained, “The court decided on a conclusion of ‘dismissal’ and used the wording accordingly.” In particular, among the various reasons given as reasons for the low risk of destruction of evidence, the use of the expression ‘representative of a political party’ was attacked. “The fact that there is no fear of extinction as the party leader shows that there was a political consideration.”

Prosecutor General Lee Won-seok also criticized the court’s decision, saying, “It seems that the right to defense was guaranteed due to his status as the leader of the opposition party.” On the contrary, he defended the objection that the prosecution’s investigation was political by directly mentioning the ‘politicization of the judiciary’ several times. Prosecutor General Lee pointed out that “Representative Lee Jae-myung’s investigation all started under the previous government,” and emphasized, “The judiciary should not be degenerated into a political issue, and it cannot and will not be degenerated into a political issue.”

However, the court’s response to criticism of the political bias in the prosecution’s investigation is that ‘judiciary cannot be politicized’ and the court’s response to the prosecution’s attitude of criticizing ‘political considerations’ by only quoting some passages from the court’s judgment is absurd.

One judge directly criticized the prosecution, saying, “The prosecution is acting like a politician, not a lawyer.” “I understand that the prosecution is expressing its position, but as lawyers, they must reveal their plans within established legal procedures, such as re-applying for a warrant,” he said. “On the contrary, it appears that the prosecution is pushing the issue more politically.” A chief judge in the metropolitan area said, “I wonder if there is an organization other than the prosecution that personifies itself and uses the expression ‘very regretful’ regarding the court decision,” and criticized, “We are trying to resolve it through public opinion rather than fighting procedurally.” He also had the opinion that “if a warrant was requested to obtain a court judgment, the result should also be respected.”

■ Raising the stakes in Lee Jae-myeong’s arrest… Han Dong-hoon belatedly says ‘it’s just a process’

In fact, in our judicial system, which is based on the principle of investigation without detention, it is strange to discuss the success or failure of the prosecution’s investigation based on whether or not a warrant is issued. Even within the ruling party, there is an assessment that Justice Minister Han Dong-hoon is primarily responsible for this. Former People Power Party lawmaker Lee Eon-joo said, “Either we exaggerated the results of the actual investigation to the public or there was no investigation or ability,” and added, “He speaks as if he was the prosecutor in charge of the investigation, so he has political responsibility.” pointed out. In fact, a minister attached great significance to the detention review, saying, “Please only bring me in front of a judge so that I can be reviewed in front of a judge” (last February). When an arrest warrant was requested on the day CEO Lee Jae-myeong was taken to the hospital due to fasting, he raised his voice, saying, “A precedent should not be created in which the judicial system is halted just because a suspect under investigation fasts and harms himself. Then, miscellaneous criminals will also do this in the future.” Yes. He also requested that the National Assembly pass the arrest motion, calling it a “crime of violating the national flag,” and after it was passed, he expressed confidence in Representative Lee’s charges, saying, “He is a person suspected of serious crimes.” When asked about his position on the dismissal of the warrant, Minister Han said, “It does not mean that there is no crime,” and minimized the meaning by saying, “It is just an intermediate process for criminal investigation.”What will happen to the prosecution’s investigation going forward? The general outlook in the legal community is that it does not seem easy for the prosecution to immediately request another arrest warrant. It is expected that the prosecution will indict Representative Lee without detention after a supplementary investigation. Representative Lee must appear in court again on the 6th of next month, right after this holiday. The first trial will be held on suspicion of preferential treatment for Seongnam FC, Daejang-dong, and Wirye New Town , which were previously indicted . You must appear in court a week later, on the 13th. It is the day of the trial on charges of violating election law, saying in a broadcast interview, “I did not know Mr. Kim Moon-ki when he was mayor of Seongnam.” Including these trials, it is likely that Representative Lee will have to appear in court every week as a defendant in three criminal trials. In particular, the case of violation of the Public Official Election Act, which has been tried 11 times, is expected to be sentenced in the first trial within half a year, and if even a partial verdict is found guilty, political damage is inevitable. Therefore, the dismissal of this arrest warrant will put a brake on the prosecution’s investigation, but it is still too early to assess that the ‘judicial risk from Seocho-dong’ regarding Representative Lee has completely disappeared.

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