The Fuse in Yoon’s Verdict… President Lee Can Now Be ‘Investigated’ While in Office!

What deserves close attention in Presiding Judge Ji Gwi-yeon’s verdict on Yoon Suk Yeol is that it also opens the door to investigations of President Lee Jae-myung.

Under the current Constitution, the president enjoys an “immunity from prosecution while in office.” Immunity from prosecution means the right not to be indicted—but indictment requires an investigation first. An investigation is conducted for the purpose of indictment. If indictment is fundamentally barred, there is no reason to investigate.

For this reason, immediately after the declaration of martial law, former President Yoon initially refused to comply with attempts by the Corruption Investigation Office for High-ranking Officials (CIO) and the prosecution-police to investigate him, citing presidential immunity from prosecution.

In addition, under current law, investigative authority over the crime of insurrection is expressly assigned to the police. Controversy arose when the prosecution and the CIO rushed to investigate the sitting president Yoon first on suspicion of insurrection.

However, Judge Ji’s insurrection trial panel stated that “it is difficult to regard presidential immunity from prosecution as extending to investigations,” adding that “while the scope of investigation may be at issue, the investigation itself may be permitted even for a sitting president.”

The panel continued: “The purpose of the immunity from prosecution under our Constitution is to ensure the smooth performance of the presidential office. It does not appear intended to restrict all investigations unrelated to that purpose; therefore, it is difficult to view the investigation itself as falling within the scope of immunity from prosecution.”

The panel also addressed the fact that the prosecution and the CIO—both lacking original jurisdiction over insurrection—investigated a sitting president for that crime, concluding that this was permissible because they investigated related offenses such as abuse of authority.

If this ruling becomes precedent, it would mean that investigative agencies could investigate President Lee Jae-myung during his term as well, for alleged offenses such as abuse of authority.

Below are excerpts from the court’s verdict in the Yoon Suk Yeol case.

① Whether a sitting president with immunity from prosecution may be investigated
→ Holding: It is difficult to regard immunity from prosecution as including investigations; although the scope of investigation may be at issue, the investigation itself may be permitted even for a sitting president.
→ Reasoning: There is disagreement as to whether immunity under Article 84 of the Constitution includes investigations—namely, whether evidence-gathering investigations are permissible even if prosecution (indictment) is barred. Views range from permitting no investigation at all, to prohibiting only coercive measures such as detention, to permitting all investigations. Looking at foreign constitutional provisions and case law in precedent-based systems, our constitutional text appears to have referenced Taiwan’s Constitution, which uses the term “sugu (訴究)” rather than “prosecution,” and Taiwanese courts take the position that investigations are not permitted. By contrast, Japan’s Constitution uses the term “prosecution” with respect to cabinet ministers; while its form and content differ from ours, debate there presupposes that investigations are permitted and concerns only their scope. Given that our Constitution’s immunity aims to ensure the smooth performance of the presidential office (as recognized in Constitutional Court decisions), it does not appear intended to restrict all investigations unrelated to that purpose; thus, investigations themselves are difficult to include within immunity from prosecution.

② Whether the prosecution may initiate an investigation into insurrection
→ Holding: Upon receiving complaints alleging offenses such as abuse of authority against defendant Yoon Suk Yeol, the prosecution may initiate an investigation into insurrection.
→ Reasoning: Under the Prosecutors’ Office Act, the prosecution may, in principle, initiate investigations only for abuse of authority obstructing the exercise of rights, and not for insurrection. However, Article 4(1)1(d) of the Act provides an exception allowing investigations into crimes directly related to the abuse-of-authority offense recognized in connection with it. The meaning of “directly related” is at issue, and during this trial a Supreme Court precedent was issued, indicating that normative considerations, not merely textual context, should be taken into account. In this case, the alleged abuse-of-authority facts concerning defendant Yoon are connected without intervening acts or causes and display a concrete, specific relationship; thus direct relatedness is recognized in terms of elements and content, and also sufficiently so in a normative sense. Accordingly, it is reasonable to find that the prosecution may initiate an investigation into insurrection as well.

③ Whether the Corruption Investigation Office (CIO) has authority to investigate insurrection
→ Holding: Upon receiving complaints alleging offenses such as abuse of authority against defendant Yoon Suk Yeol, the CIO may initiate an investigation into insurrection.
→ Reasoning: Under the CIO Act, the CIO may, in principle, investigate abuse of authority by high-ranking officials, but lacks authority to investigate insurrection by such officials. However, Article 4(1)1(b) provides an exception allowing investigation of crimes directly related to the high-ranking official crime (abuse of authority) recognized in the course of investigation. The meaning of “directly related” should be understood as discussed above regarding prosecutorial authority, and is not seriously in doubt; however, whether the offense was “recognized in the course of investigation” is contested due to differing statutory language. Although there is some merit to the argument that the CIO effectively investigated insurrection beyond its authority by relying on the inclusion of insurrection in the complaint, this claim is difficult to accept given that the police—who do have authority over insurrection—also initiated a separate investigation; the CIO and police formed a joint investigation headquarters on December 11, 2024; and on December 16, 2024, the police transferred the case to the CIO.

#RuleOfLaw #PresidentialImmunity #ConstitutionalPrecedent