Jung Sung-ho “Vague elements burden corporate management” Pushing abolition or easing of requirements
If abolished, depending on the content of substitute legislation, room for President Lee’s ‘dismissal’…opposition backlash expected
On the Criminal Procedure Act “Need a basis for the Joint Investigation Headquarters”…negative on dispatching Prosecution Office prosecutors to a special counsel

The Ministry of Justice said on the 5th that it would swiftly push to overhaul the breach-of-trust offense. The aim is to enhance stability in corporate management and spur rapid investment. President Lee Jae Myung has been indicted on breach-of-trust charges in connection with the Daejang-dong development corruption case.

At a pre-briefing ahead of the president’s policy report held at the Government Complex in Gwacheon, Minister of Justice Jung said, “We will overhaul the breach-of-trust offense, which has burdened corporate management with unclear constituent elements,” adding, “To prevent any gap in punishment, we will also swiftly pursue substitute legislation to guarantee companies’ free managerial activities.” Accepting the claim that the offense’s constituent elements are vague and constrain the exercise of corporate management rights, the ministry intends to clarify those elements.

It has not yet been decided whether to abolish the offense of breach of trust. The Ministry of Justice is conducting a final review of two options: ‘abolish the offense of breach of trust and create a new special act to replace it’ and ‘refine the current breach-of-trust provisions to make them clearer’. Minister Jung said, “We analyzed 3,500 breach-of-trust precedents over the past five years and are in the final stage of gathering academic opinions,” adding, “We are also consulting with aides in the presidential office, so improvements will come soon.”

Revising the breach-of-trust offense could spark political controversy, because President Lee is currently indicted on that charge. When the government and ruling party announced in September last year their intention to abolish the offense, the opposition protested, arguing the goal was to resolve President Lee’s legal risks. If the offense disappears, the court would enter a dismissal (case terminated without a finding of guilt or innocence). However, Minister Jung said that day, “The idea that we are keeping the president’s case in mind is like a story from a novel.”

If, instead of abolishing the offense, a new special act is enacted, President Lee’s dismissal would depend on how it is crafted. If the special act’s constituent elements differ from the current offense so that President Lee’s conduct falls outside the scope of punishment, a dismissal would be entered. If some elements are retained or narrowed, the trial could proceed via an amended indictment. The Ministry of Justice is also reviewing whether to maintain the Joint Investigation Headquarters (JIH), to which frontline prosecutors are dispatched. With prosecutorial investigative powers abolished, the legal basis has also disappeared for the JIH’s activities, in which prosecutors direct and supervise investigations. There are currently nine JIH units operating for cases such as narcotics crimes and the shortage of ballot papers.

Regarding this, Minister Jung said, “With the amended Criminal Procedure Act taking effect, evidence obtained by prosecutors after October will lose admissibility, so a legal basis for establishing and operating the JIH must be created quickly.”

He drew a line against dispatching Prosecution Office prosecutors to a future special counsel. The amended Criminal Procedure Act allows only prosecutors dispatched to a special counsel to conduct investigations as an exception. Minister Jung said, “Even though the Criminal Procedure Act has been enacted, prosecutors from the Prosecution Office should not be dispatched to a special counsel,” adding, “Wouldn’t that be contradictory to its intent?”