Court rules prosecutors' investigation was unlawful

Former Supreme Court Justice Kwon Soon-il, who faces charges of providing legal counsel to Hwacheon Daeyu Asset Management — a firm whose largest shareholder is Daejang-dong developer Kim Man-bae — without registering as an attorney after retirement, speaks to reporters outside Seoul Central District Court on Thursday after the first-instance sentencing hearing. [Yonhap]
Former Supreme Court Justice Kwon Soon-il, who faces charges of providing legal counsel to Hwacheon Daeyu Asset Management — a firm whose largest shareholder is Daejang-dong developer Kim Man-bae — without registering as an attorney after retirement, speaks to reporters outside Seoul Central District Court on Thursday after the first-instance sentencing hearing. [Yonhap]

A Seoul court dismissed charges Thursday against former Supreme Court Justice Kwon Soon-il, who had been indicted for providing legal advice to Hwacheon Daeyu Asset Management without registering as an attorney, ruling that the indictment was unlawful.

Judge Kim Dae-gyu of Seoul Central District Court's Criminal Division 21 ruled that the case fell under circumstances in which "the procedure for filing charges violated the law and is therefore void," dismissing the indictment against Kwon on charges of violating the Attorney-at-Law Act. A dismissal on these grounds closes a case on procedural defects without reaching a verdict on whether a crime was actually committed.

Judge Kim said prosecutors had launched their own investigation into the alleged Attorney-at-Law Act violations "without the judicial police having lawfully initiated an investigation or exercised their primary authority to close the case," and that this amounted to a continuation of an unlawful investigation.

Kwon was accused of providing legal counsel to Hwacheon Daeyu Asset Management — whose largest shareholder is Daejang-dong developer Kim Man-bae — and receiving payment for it after retiring from the bench without registering with the Korean Bar Association. Under the Attorney-at-Law Act, anyone who provides legal advice and receives compensation without being registered as an attorney is subject to criminal punishment.

At the closing arguments hearing in April, prosecutors asked the court to sentence Kwon to one year in prison, saying the case was serious as it involved a former Supreme Court justice violating the Attorney-at-Law Act. They also urged the court to consider that he had denied the charges and shown no remorse.

Kwon's defense denied the charges and argued the indictment should be dismissed.

His attorney said at the time that the case had been transferred to prosecutors through improper means without a formal referral from the judicial police, and that the investigation and indictment had proceeded through unlawful procedures and therefore lacked legal legitimacy.

In his final statement, Kwon said the experience had taught him that "prosecutors are the ones who manufacture crimes." He said he felt ashamed as a member of the legal profession and questioned whether such an investigation could be considered lawful. He also denied the charges, saying he had signed an annual contract with Hwacheon Daeyu and had done no more than offer general management advice, and that no violation of the Attorney-at-Law Act had occurred.

The court accepted Kwon's arguments.

Under the restructured division of investigative authority between prosecutors and police, violations of the Attorney-at-Law Act are not among the crimes for which prosecutors hold independent investigative jurisdiction. Prosecutors may open an investigation into additional offenses discovered in connection with a case referred by the judicial police only when those offenses are directly related to the referred case. The court said the Attorney-at-Law Act violation "was not something prosecutors independently identified — it was simply included in the original complaint."

The court added that it was impermissible for prosecutors to receive and investigate a crime outside their investigative jurisdiction while the judicial police had yet to complete their own investigation.

The court further explained its dismissal by noting that even if the case had been re-referred to the judicial police during the unlawful investigation, the police appeared to have conducted only a limited inquiry premised on prosecutors having already initiated the investigation and could not be said to have conducted a proper investigation of their own. "It was no more than a continuation of an unlawful investigation," the court said.

Kwon appeared visibly tense throughout the hearing, standing with his hands clasped behind his back and trembling. When the ruling was delivered, he bowed to the presiding judge and was the first to leave the courtroom.


notstrong@heraldcorp.com