The light and shadow of the court. A ray of sunlight fell upon the void left by procedural illegality. The Supreme Court opened the door to dismissal of charges, stating, "Investigations without investigative authority are void." Hanmiilbo Graphic

The possibility of dismissal of charges in the rebellion case against former President Yoon Suk-yeol is increasing. The basis is law, not politics.

The Supreme Court's ruling in case 2022Do10256, announced on September 11, stated that "if a prosecutor directly investigates beyond the scope of their investigative authority, this constitutes a procedural violation, making the subsequent indictment legally void and a reason for dismissal of charges under Article 327, Section 2 of the Criminal Procedure Act."

This ruling, which shook South Korea's investigative system in a single sentence, went beyond a mere legal interpretation; it effectively declared a new constitutional order where investigations initiated by agencies lacking investigative authority, and indictments based on those investigations, are all procedurally void.

This ruling stemmed from the prosecution's investigation into the Anyang, Busan, and Sokcho apartment pre-sale cases. The prosecution directly investigated separate crimes on the periphery of the transferred cases, and while the lower court found these guilty, the Supreme Court overturned it.

The court stated, "Based on the legislative intent of Article 4, Paragraph 1, Subparagraph 1, Proviso of the former Prosecutors' Office Act and Article 3 of the former 'Regulations on the Scope of Criminal Investigations Initiated by Prosecutors,' the scope of investigation initiation must be strictly interpreted." It also explicitly stated that mere common evidence or connection for investigative convenience cannot be recognized as "direct relevance."

This means that a prosecutor's independent investigation is not permitted unless there is a joint offense with the transferred case or an inseparable relationship in the means or results of the crime.

Ultimately, the Supreme Court recognized only a portion of the Anyang apartment case as a lawful investigation and ruled that the Busan and Sokcho apartment cases, the pre-sale rights brokerage case, and the cases against other defendants were all initiated with illegal investigations.

The court overturned the lower court's ruling and remanded the case, stating, "The prosecutor's direct initiation of an investigation into a case for which they lacked investigative authority constitutes a procedural violation," thereby codifying the principle that procedural illegality leads to the invalidity of charges.

This precedent was the first substantial brake applied by the Supreme Court since the adjustment of investigative authority between prosecutors and police in 2022. It limited the scope of direct investigation by prosecutors in accordance with the legislative intent to establish a system of checks and cooperation, where judicial police officers handle the initial investigation, and prosecutors conduct supplementary investigations or issue corrective measures.

The underlying judgment was that if prosecutors were to engage in direct investigations without limitation, it would undermine the system of checks with the police and could lead to the abuse of power.

This legal principle directly applies to former President Yoon's rebellion trial. Article 2, Paragraph 3 of the Corruption Investigation Office for High-ranking Officials Act (CIO Act) limits the CIO's investigative targets to "crimes related to the duties of high-ranking officials and their accomplices." While corruption, abuse of power, destruction of evidence, and bribery are included, rebellion is not specified.

Despite this, the CIO directly investigated the President on charges of rebellion, leading to searches, seizures, arrest warrant requests, and indictments by the prosecution based on its findings. This was an exercise of investigative authority without a legal basis, meaning "investigation without investigative authority."

Applying the logic of the Supreme Court's precedent, the CIO's actions are deemed a clear procedural violation. The conclusion reached is that investigations initiated by an agency lacking investigative authority are legally void, and the subsequent searches, seizures, and indictments are also void.

If an investigation is illegal from its initiation, subsequent procedures also become void according to the "fruit of the poisonous tree" principle. If the CIO requested a warrant, the court issued it, and the prosecution used that evidence, the entire process is tied to a procedurally unlawful investigation.

Articles 215 and 216 of the Criminal Procedure Act limit the subject of warrant requests to "investigative agencies." Warrant requests from agencies not granted investigative authority are legally flawed, and Article 12, Paragraph 1 of the Constitution, concerning the due process principle, is only effective when the legal authority of the investigative agency is presumed.

Therefore, the series of procedures, from searches and seizures to arrests and indictments, could lead to a chain of voidness. If the court accepts this logic, President Yoon's trial would lose its formal procedural legitimacy, and the likelihood of a substantive dismissal of charges would increase.

In its ruling, the Supreme Court added, "Even after a dismissal of charges becomes final, a lawful investigative agency can initiate a new investigation and re-indict." This means that while the procedure may be void, the case itself does not disappear.

Therefore, even if President Yoon's case is dismissed, re-indictment is possible if a lawful investigative agency initiates a new investigation. However, political turmoil and judicial uncertainty surrounding the reinvestigation and re-indictment would be inevitable. The case would effectively be reset, and the presidential trial would enter a prolonged state of flux.

This Supreme Court ruling is assessed as a decision that has put a brake not only on prosecutorial abuse of investigative authority but also on the expansion of power by all investigative agencies. The CIO's investigation into the rebellion case can be interpreted as an act that crossed the boundaries of legal authority, beyond the debate over political neutrality.

Until now, prosecutors have expanded their investigative scope under the guise of "direct relevance," and the CIO has repeated that precedent. The Supreme Court has put an end to this practice, stating emphatically, "If there is no direct relevance, even a connection for convenience makes the investigation illegal."

This was a decision that redrew the balance of power within the judicial system. It contained a constitutional message that the results of any prosecutorial, CIO, or police agency exceeding their respective initial investigative authorities would all lead to procedural nullity.

The essence of the Yoon Suk-yeol case is not the substance of rebellion but a crisis of constitutional procedure.

Although the CIO was established to eradicate corruption among high-ranking officials, by exceeding the boundaries of investigative authority, it undermined its own reason for existence. This Supreme Court precedent is read as a decision by the judiciary to re-establish procedural limits in the name of the Constitution.

If the court accepts this logic and pronounces a dismissal of charges, it would not be personal immunity but a redesign of the investigative authority system and a reset of the judicial order. It could also mark the starting point for the South Korean judicial system to once again write its "Constitution of Investigative Authority."

Ultimately, the point where this ruling and the presidential case intersect is procedural legitimacy. Investigations not permitted by law cannot achieve justice. The procedures stipulated by law are not merely formalities but the substance of the Constitution that prevents the abuse of power.

Investigations without investigative authority are void, and their results are also void. This sentence will remain a sentence that determines not only the fate of an individual but also the future of the entire Korean judicial system. The scope of the CIO's investigation, the structure of prosecutorial indictments, and the court's trial procedures will all be redesigned within this single sentence.

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