Yoon Suk Yeol's Conflict of Interest and Lee Jae-myung's Conflict of Interest: Is a Special Counsel Without Authority to Withdraw Charges Acceptable?

During his presidency, former President Yoon Suk Yeol exercised his right to request reconsideration (hereinafter referred to as the "veto") three times regarding special counsel bills related to his spouse, Kim Keon-hee. In response, not only members of the Democratic Party but also numerous legal scholars criticized this as a "conflict of interest."

Those Who Criticized the Kim Keon-hee Special Counsel Bill as a "Conflict of Interest"

▶ Representative Jeon Hyun-hee (then-Supreme Council member of the Democratic Party): "Exercising a veto that constitutes a conflict of interest to block an investigation into one's spouse will become a boomerang that cuts off the life support of the Yoon-Geon-hee [Yoon Suk Yeol + Kim Keon-hee] administration." (Remarks at the Democratic Party Supreme Council meeting on November 27, 2024)

▶ Representative Lee Un-ju (then-Supreme Council member of the Democratic Party): "Since it is so obvious that First Lady Kim (Keon-hee), the spouse, is a suspect of the special counsel, exercising the veto against it is an unconstitutional exercise of veto power that violates the constitutional principle of conflict of interest." (Remarks at the Democratic Party Supreme Council meeting on September 30, 2024)

▶ Lee June-il, Professor at Korea University School of Law: "Bills that target the president themselves or their family members have an inherent difference in that a conflict of interest exists in relation to the president, who is the subject of the authority to exercise the veto." (Remarks at an emergency forum hosted by the Democratic Institute on January 5, 2024, titled "Kim Keon-hee Bulletproof Veto: What is the Problem?")

It did not stop at criticism. Seventy-four lawmakers from the Democratic Party and the Rebuilding Korea Party, including Representative Jeon Hyun-hee, proposed an amendment to the Act on the Prevention of Conflict of Interest of Public Servants, which restricts the president's exercise of veto power over bills targeting the president themselves or their family members. It was the very first bill proposed in the 22nd National Assembly.

Only after former President Yoon Suk Yeol was impeached could the Kim Keon-hee special counsel law be implemented. The outcome is well known to everyone. The Democratic Party lawmakers and others who criticized former President Yoon's exercise of the veto as a conflict of interest would naturally still hold the same view today. The problem is that the so-called "Fabricated Prosecution Special Counsel Bill" related to President Lee Jae-myung is also hard to escape from conflict of interest controversies for the exact same reason.

'Conflict of Interest' Also Applies to the 'Fabricated Prosecution Special Counsel Bill'... Is It Fine as Long as the Authority to Withdraw Charges Is Removed?

The reason the conflict of interest controversy arose regarding the Kim Keon-hee special counsel bill was that the president exercised a decisive power (the veto) over a bill closely tied to the interests of the president's family. According to the "Fabricated Prosecution Special Counsel Bill" regarding President Lee Jae-myung's cases, which has currently been proposed by 31 Democratic Party lawmakers, the president would exercise a decisive power (the authority to appoint a special counsel) over a bill closely tied to the president's own interests. If it is a conflict of interest for the president to exercise authority over bills related to family members, it is difficult to avoid the conclusion that it is also a conflict of interest for the president to exercise authority over bills related to themselves.

Meanwhile, the core issue pointed out in the "Fabricated Prosecution Special Counsel Bill" has mainly been that the special counsel would exercise the authority to withdraw charges. Regarding this, even among so-called progressive media outlets and legal experts, the prevailing assessment is that it is "unconstitutional" or "excessive." However, some argue that if only the authority to withdraw charges is excluded, the introduction of a special counsel to uncover the truth is necessary and justified. Others suggest that after the special counsel uncovers the truth, the charges can be withdrawn through the Minister of Justice exercising their authority to direct the case (investigative command) or the Prosecutor General exercising their command authority.

However, even if the clause granting the special counsel the authority to withdraw charges is deleted from the bill, the conflict of interest issue remains unresolved. This is because the primary beneficiary of the special counsel's investigation and prosecution is President Lee Jae-myung, who holds the authority to appoint the special counsel. To reiterate, if the logic holds that the president exercising a veto over a bill related to the president's family is a conflict of interest, then the president exercising appointment power over a bill where the president themselves is the beneficiary is also a conflict of interest. If prioritizing one's own interests over those of a spouse is human nature, the potential for a conflict of interest in exercising authority over bills related to oneself could be seen as even greater than exercising authority over bills related to one's spouse.

(According to Article 4 of the Fabricated Prosecution Special Counsel Bill currently pending in the National Assembly, if the president does not appoint a special counsel, the oldest candidate among those recommended by each negotiating group in the National Assembly is automatically appointed as the special counsel. However, if the exercise of the president's appointment power is fundamentally impossible due to a conflict of interest, this clause could lead to a ridiculous spectacle where each negotiating group competes to recommend their oldest candidate.)

The Answer Has Already Been Given: We Must Follow Principles, Not Exceptions

The most uncontroversial way to handle the allegations of "fabricated prosecution" in President Lee Jae-myung's cases already has a clear answer. It is to uncover the truth through existing systems and procedures generally applied to high-ranking public officials, rather than a procedure designed solely for a specific individual who is the sitting president, and to have the legitimacy of the prosecution judged through existing systems and procedures generally applied to all citizens, rather than a procedure designed solely for a specific individual who is the sitting president. This means that the proper path is for the Corruption Investigation Office for High-ranking Officials (CIO), which was established under the leadership of the Democratic Party, to investigate the allegations of fabricated prosecution, and for the legitimacy of the charges already filed in court to be judged through a trial.

Our Constitution explicitly guarantees equality before the law (the right to equality) for all citizens. Accordingly, the enactment of laws that apply only to specific individuals or individual cases (individual-case laws) is prohibited in principle. However, constitutionality can be recognized only "when there is a rational reason that can justify the inequality inherent in the individual-case law." (Constitutional Court Decision 96Hun-Ga2, etc., decided on February 16, 1996) The Fabricated Prosecution Special Counsel Bill is a typical individual-case law. However, in a situation where there is a potential conflict of interest regarding the exercise of presidential power and the CIO exists as a general system to investigate and prosecute allegations of abuse of authority by prosecutors, questions can be raised about whether the legitimacy of an individual-case law like the Fabricated Prosecution Special Counsel Bill should be recognized solely on the grounds of legislative discretion.

Leaders who try to force the recognition of an exceptional state instead of following principles ultimately end up unhappy. This was the case with the immediate past president. I hope to see a president who uses principles, not exceptions, as the foundation of their power.
※ Please note: This article was translated by AI and may contain errors.