On the first day after the Prosecutors' Office was abolished and replaced by the new Public Prosecution Office, a court hearing allegations of favoritism in the relocation of the presidential residence suspended proceedings after raising doubts about whether the secondment of prosecutors to a special counsel team remains valid. The court said it was unclear whether secondment orders issued while the prosecutors belonged to the former prosecution service remain in force after the launch of the new agency, which could undermine the validity of the day's proceedings. The same issue is likely to surface in other trials involving special counsel teams.
The 36th Criminal Division of the Seoul Central District Court, presided over by Chief Judge Lee Jung-yeop, asked the special counsel team led by Kwon Chang-young on the 2nd: "There was a secondment order issued under the former prosecution service. If the affiliation changes to the new office, does that order remain validly in effect?" The question came during a hearing for former Interior and Safety Minister Lee Sang-min, former presidential chief of staff Kim Dae-ki, former senior secretary for general affairs Yoon Jae-soon and former senior secretary for management Kim O-jin, who face charges including abuse of authority. The court sought to confirm whether secondment orders issued when the prosecutors were attached to the former prosecution service remain valid now that they belong to the new Public Prosecution Office.
The special counsel team said it was "in consultation through the Ministry of Personnel Management, but we were told it may not be resolved in a short time, so discussions are ongoing." It added that "because this happened abruptly, we had been discussing matters related to the secondment orders."
"There are doubts about whether the attendance of the seconded prosecutors is lawful," the court said. "There does not appear to be a clear transitional provision stating that a secondment order issued under the former prosecution service remains valid after the change in affiliation." The court added that "no such provision appears to exist in the special act, the special counsel act or the Criminal Procedure Act either."
The court asked the special counsel team to first complete the secondment request procedure and postponed the closing arguments to the 16th. "If the conclusion is that a new secondment order is required, what we do today could become meaningless," the court said. "There is a possibility the proceedings would be void." It added that "to resolve this with certainty, it would be safest to obtain a secondment order under the new Public Prosecution Office."
The special counsel team said: "This is not something the Public Prosecution Office can do on its own. We understand it requires presidential approval as a matter of prosecutorial personnel decisions." It added that "we have held discussions, but it is taking time to request and win approval for the secondment internally."
With no clear standard at the courts regarding prosecutors seconded from the new office, confusion is expected in trials involving special counsel teams. "Other divisions have also discussed this, but nothing has been decided yet," the court said. It is also unclear whether, even if the secondment procedure for prosecutors of the new office is carried out again, its effect would apply retroactively to proceedings already held. Other special counsel trials, including one over allegations that first lady Kim Keon-hee intervened in the residence relocation, proceeded as scheduled that day.
The special counsel team has indicted Kim Dae-ki and the others on charges of pressuring the Ministry of the Interior and Safety to illegally divert 2.09 billion won ($1.5 million) of its budget in 2022 to pay construction costs to 21gram, an unqualified contractor with ties to Kim Keon-hee, during work on the presidential residence. The team believes 21gram demanded an estimate of about 4.1 billion won without objective grounds, despite lacking the qualifications to work on the residence, a top-level security facility. The budget originally secured for the residence work was just 1.44 billion won.
