Courts rein in prosecutorial overreach

Over the past week, South Korea's courts have thrown out three criminal cases after finding that prosecutors or special prosecutors exceeded their lawful authority. A dismissal of indictment ends a case without addressing guilt or innocence because the prosecution itself is legally defective. Three rulings may not amount to a trend, but together they send a clear signal that courts are prepared to scrutinize how prosecutorial power is exercised.

Most of the roughly 4,000 indictment dismissals issued each year involve offenses such as assault, defamation and certain traffic violations that cannot proceed once victims withdraw their complaints. Under Article 327 of the Criminal Procedure Act, courts must dismiss those cases when victims no longer seek punishment. Article 328 also permits dismissals in limited circumstances, including the defendant's death, although such cases are far less common. What makes the latest rulings different is that the courts directly concluded prosecutors had abused their power to indict or that special prosecutors had ventured beyond the authority granted by law.

Two years and two months ago, former Gyeonggi Province Vice Gov. Lee Hwa-young claimed during a parliamentary hearing that prosecutors served him salmon sashimi and alcohol while questioning him in the Ssangbangwool remittance-to-North Korea investigation in an effort to obtain testimony unfavorable to President Lee Jae-myung. The allegation, dubbed the "salmon and drinks" controversy, quickly became a political issue. After a 10-day jury trial at Suwon District Court, however, both the judges and jurors concluded on June 20 that Lee's account lacked credibility and convicted him of perjury.

The jurors also unanimously acquitted Lee on a separate abuse-of-authority charge related to alleged shipments of flour and other supplies to North Korea. The court, however, saw a different problem. Prosecutors identified Lee as an accomplice when they first indicted a former Gyeonggi Province official in June 2023 but did not charge Lee himself until after that official was convicted at his first trial in February last year. The court ruled that prosecutors had unlawfully manipulated the timing and scope of the indictment and dismissed the case. In a statement accompanying the ruling, the court described it as the first decision to explicitly find an abuse of prosecutorial charging authority.

Seoul Central District Court issued a similar ruling on June 22 in a case brought by the special counsel investigating the failed martial law declaration. Former Legislation Minister Lee Wan-kyu was charged with perjury for describing a meeting at a government safe house in Samcheong-dong immediately after the declaration as nothing more than a "social gathering." The court threw out the case, ruling that the allegation fell outside the special counsel's legal mandate.

Two days later, the Supreme Court reached the same conclusion in a bribery case against a Ministry of Land, Infrastructure and Transport official prosecuted by the special counsel investigating Kim Keon Hee. It upheld lower court rulings dismissing the indictment, saying the special counsel had exceeded the authority granted under the law.

The ruling and opposition parties are once again on a collision course over legislation that would establish a special counsel to investigate allegations of fabricated prosecutions in cases including the Daejang-dong development scandal involving President Lee Jae-myung. Yet the recent rulings demonstrate that the judiciary is fully capable of policing prosecutorial overreach under the existing legal framework. There is little justification for undermining that framework with extraordinary political measures.

As South Korea moves to establish a new Public Prosecution Office and Serious Crimes Investigation Office, lawmakers should remember that creating new agencies alone will not deliver meaningful prosecutorial reform. The real challenge is ending long-standing practices such as unrelated investigations and piecemeal indictments.