'Judicial Three Laws' (Law Distortion Crime, Impeachment Court System, Supreme Court Justice Increase Law) and the special law for administrative integration of Jeonnam and Gwangju passed the cabinet meeting on the 5th. The photo shows President Lee Jae-myung during a cabinet meeting on the 5th. [Photo=Yonhap News]

The revision bill to the Criminal Act, which newly establishes the so-called 'Law Distortion Crime', has been resolved at the Cabinet Meeting on the 5th, reigniting the debate surrounding President Lee Jae-myung's decision to halt the retrial of his public official election law case.

The Seoul High Court Criminal Division 7 (Presiding Judge Lee Jae-kwon), which is currently hearing the case after the Supreme Court's decision to send it back for retrial with a guilty verdict, has canceled the trial date based on Article 84 of the Constitution and will set a new date later.

Although it is a formal change in the trial date, the proceedings are effectively suspended.

This case is assessed as a complex legal issue that extends beyond a mere adjustment of trial schedules to include constitutional interpretation, the binding force of Supreme Court rulings, the principle of speedy trials for election law cases, and the scope of application of the newly introduced Law Distortion Crime.

Ultimately, the debate converges on one question:

Should the President's criminal trial be suspended according to the Constitution, or should it proceed?

Debate on the Interpretation of Article 84 of the Constitution

Article 84 of the Constitution stipulates as follows:

"The President shall not be subject to criminal prosecution during his tenure, except for cases of rebellion or treason."

The core of the debate lies in the meaning of 'prosecution' as used here.

In the criminal justice system, prosecution generally refers to the prosecutor's filing of charges, i.e., indictment. Based solely on the text of the Constitution, new indictments are prohibited during the President's tenure, but there is no provision that mandates the suspension of ongoing trials.

For this reason, constitutional scholars have long debated the interpretation of this article.

Theory of Continued Trial vs. Theory of Trial Suspension

There are broadly two interpretations within constitutional academia.

The first is the theory of continued trial.

This view interprets 'prosecution' in Article 84 of the Constitution as the act of indictment. Therefore, while new indictments are prohibited during the President's tenure, ongoing trials can continue.

This interpretation is introduced in textbooks by constitutional scholars such as Huh Young and Kwon Young-sung. The main basis for this argument is that the constitutional text only prohibits prosecution and does not stipulate the suspension of trials.

The second is the theory of trial suspension.

This view emphasizes the President's constitutional status. It argues that trials should also be suspended during the term of office because the President's performance of state affairs could be burdened if tied up in criminal trial proceedings.

However, this interpretation is often considered an expansive interpretation based on the purpose of the system rather than the literal text of the Constitution.

Basis for the Court's Decision

The retrial court canceled the trial date based on Article 84 of the Constitution and set a new date later.

It is understood that the court considered that criminal proceedings during the President's tenure could burden the performance of state affairs. The intention is that the criminal trial process can be limited to some extent, considering the President's constitutional status.

However, the court did not terminate the trial but postponed the proceedings by setting the trial date for 'a later time'.

Issue of the Binding Force of the Supreme Court's Ruling

The binding force of the Supreme Court's remanding decision is also being discussed as an important issue in this case.

According to the Criminal Procedure Act, when the Supreme Court remands a case, the appellate court is bound by the Supreme Court's legal interpretation.

This case is one in which the Supreme Court remanded the case for retrial with a guilty verdict regarding the alleged violation of the public official election law.

The role of the retrial is typically to re-examine the facts based on the Supreme Court's legal interpretation or to determine the sentence.

Therefore, it is pointed out that if the retrial is effectively suspended, it could lead to a delay in the substantial execution of the Supreme Court's ruling.

Principle of Speedy Trials for Election Law

This case is also a public official election law case.

Article 270 of the Public Official Election Act stipulates that election-related trials shall be completed within six months for the first instance, three months for the second instance, and three months for the third instance.

The purpose of this provision is to promptly confirm the legal legitimacy of election results.

Therefore, it is pointed out that if the suspension of the trial is prolonged, it could conflict with the legislative intent of the election law.

Requirements for Establishing Law Distortion Crime

The amendment bill to the Criminal Act, recently passed by the Cabinet, includes the so-called Law Distortion Crime provision.

This provision stipulates that public officials, such as judges and prosecutors, can be criminally punished if they distort the law to give unlawful or unfair benefits to others or infringe upon their rights.

The legal community believes that quite strict requirements must be met for the Law Distortion Crime to be established.

First, there must be an act of clearly violating the law or intentionally distorting the meaning of the law.

Second, there must be an intent to provide unlawful or unfair benefits to a specific person or infringe upon their rights.

Third, intent must be proven, meaning the person knew the purpose of the law and intentionally distorted it.

Therefore, the general view in the legal community is that the Law Distortion Crime is unlikely to be established solely based on differences in legal interpretation or errors in judgment.

Boundary Between Judicial Independence and Accountability

Another debate surrounding the Law Distortion Crime concerns its relationship with judicial independence.

The Constitution stipulates that judges shall try cases independently in accordance with the Constitution and laws.

For this reason, concerns are raised that making legal interpretations or judgments made during the trial process subject to criminal punishment could infringe upon judicial independence.

On the other hand, those who support the introduction of the Law Distortion Crime argue that judges or investigative agencies cannot be protected under the name of judicial independence if they intentionally distort the law to benefit specific individuals.

Ultimately, the core of this debate is one:

Is Article 84 of the Constitution simply a provision prohibiting indictment, or does it include the suspension of trials?

While the constitutional text is concise, its interpretation can vary in actual political situations.

This case is likely to be recorded as an instance where a constitutional interpretation issue, which has remained a matter of academic debate, has clashed within real politics and judicial proceedings.

Simultaneously, this case is expected to be the first test case to determine whether the Law Distortion Crime will function as a substantive norm of accountability or remain merely a declarative piece of legislation.