A controversy is escalating surrounding the so-called 'Manipulated Indictment Special Prosecutor Act' proposed by the Democratic Party of Korea. 

The superficial point of contention is the right to withdraw indictments. The question is whether a special prosecutor can take over cases already under trial and decide whether to continue or withdraw the prosecution. 

However, the controversy does not end there when examining the bill's text. 

The bill includes ongoing trials within the scope of investigation, grants the special prosecutor the power to decide on indictment, prosecution maintenance, or their discontinuation, and allows for the transfer of cases handled by existing prosecutors or other special prosecutors. 

The fact-check conclusion is clear. 

The issue is not solely about the right to withdraw indictments. The right to withdraw indictments is merely one of the key points of contention. 

Looking at the overall structure of the bill, it can be seen as a legislative proposal that largely designs separate procedures, differing from general criminal procedures, for a specific category of cases, encompassing investigation, indictment, prosecution maintenance, ongoing trials, warrants, public trials, and sentence reduction. 

Cases Under Trial Included

The first characteristic of this bill is the scope of investigation subjects. 

Article 2 of the bill enumerates 12 categories of cases: the Daejang-dong, Wirye, Baekhyeon-dong, Seongnam FC, Ssangbangul North Korea remittance, violations of the Public Official Election Act, instigation of perjury, suspicions of statistical manipulation during the Moon Jae-in administration, the incident of a public official shot in the West Sea, and defamation investigations targeting journalists and media outlets. 

This also includes related complaints and accusations, related cases discovered or investigated during the investigation process, and obstruction of the special prosecutor's investigation. 

The core lies in Article 2, Paragraph 1, Item 6. 

This provision includes "cases in which indictment has been made and trial is ongoing, including consolidated cases" related to the cases in Items 1 through 5, within the scope of investigation. 

This differs from special prosecutor laws that simply investigate new suspicions. It is a structure that brings cases already filed in court and undergoing trial into the scope of the special prosecutor. 

The Power to Decide on Prosecution Maintenance is Key

The controversy over the right to withdraw indictments is not merely an interpretive debate. 

Article 6 of the bill defines the special prosecutor's scope of duties as "investigation, indictment, prosecution maintenance, and the decision on whether to do so." It also stipulates that the decision on whether to indict and maintain prosecution shall be exclusively vested in the special prosecutor. 

The bill does not directly use the term 'withdrawal of indictment'. 

However, given that the power to decide on prosecution maintenance is granted to the special prosecutor, it is difficult to avoid the controversy regarding the possibility of withdrawing indictments in cases where the first trial is ongoing. 

However, this does not mean that all trials can be immediately withdrawn. Under the Criminal Procedure Act, withdrawal of indictment is only possible before the pronouncement of judgment in the first instance. The legal effect varies depending on the trial stage of each case. 

Compulsory Transfer and Prosecutor's Prosecution Maintenance

A more significant issue is Article 8. 

Article 8 stipulates that if the special prosecutor deems it necessary, they may request the transfer of cases currently under investigation, indictment, or prosecution maintenance by a prosecutor or a special prosecutor appointed under the four special prosecutor acts. 

The head of the requested institution must comply. If the transfer is not made, the case is deemed to have been transferred to the special prosecutor 15 days after the date of the transfer request. 

This is not a simple request for cooperation. It is effectively a compulsory transfer structure. The entity prosecuting cases handled by existing prosecutors or other special prosecutors can change. 

Articles 7 and 8 also establish a system for prosecutors in charge of maintaining prosecution. 

The special prosecutor may appoint prosecutors to maintain prosecution from among special investigators with legal qualifications, and if a prosecutor handling the prosecution refuses to comply with the special prosecutor's direction, that prosecutor may be excluded from prosecution duties. 

Even without withdrawing the indictment, changes in the entity and method of maintaining prosecution can alter the substance of the trial. This is because the strategy for arguing evidence, the aggressiveness in maintaining prosecution, and the decision to pursue appeals can all change. 

Where Does the Controversy Over Unconstitutionality Arise?

The constitutionality is a matter for the Constitutional Court or the courts to decide. Therefore, it is difficult to immediately conclude that this bill is "unconstitutional." However, the points giving rise to constitutional controversy are clear. 

First is the issue of separation of powers. 

Revising the prosecution maintenance structure for cases already ongoing in court through legislative action raises questions about the extent to which legislative power can influence criminal trial procedures. 

Second is the issue of judicial independence. 

If the prosecuting entity and method of maintaining prosecution for cases under trial are reorganized under the direction of the special prosecutor, it could indirectly influence the court's deliberation and judgment. 

Third is the issue of equal protection. 

If specific politicians or specific categories of cases are subject to different procedures than ordinary defendants, it could lead to controversy over special treatment or discrimination in criminal proceedings. 

Fourth is the issue of conflict of interest. 

The justification for the bill directly mentions "cases related to former Democratic Party leader Lee Jae-myung." However, the appointment of the special prosecutor involves the President appointing one of the recommended candidates. If the President appoints a special prosecutor who can influence whether cases involving the President are prosecuted, independence will inevitably be questioned. 

Warrants, Trials, and Sentence Reductions Also Separately Designed

This bill does not stop at investigation and prosecution maintenance. 

Article 12 designates the Seoul Central District Court as the exclusive jurisdiction for applications for search and seizure, arrest, and detention warrants. Article 13 includes provisions for the appointment of judges specializing in warrants. Article 14 requires that trials for cases indicted by the special prosecutor proceed with priority, with judgments to be rendered within 6 months for the first instance and within 3 months each for the second and third instances. Provisions for public trials and broadcasting are also included. 

Notably, Article 14, Paragraph 5, stipulates that while broadcasting trials, there is no need to anonymize trial content, including personal information, private life, or state secrets. 

This point can conflict with the privacy of defendants, witnesses, and related parties, their right to defense, and the protection of state secrets, separate from the public's right to know. 

The sentence reduction provision in Article 29 is also noteworthy. 

It allows for the reduction or exemption of sentences for voluntary surrender, reporting others, or providing key statements, testimony, or materials. Article 5 of the supplementary provisions stipulates that this applies to cases under investigation or ongoing in court at the time of the law's enforcement. 

While this can be seen as a mechanism to encourage cooperation with the investigation, it can also lead to controversy over transactional testimony and the inducement of testimony. 

Fact-Check Verdict

The issue is not solely about the right to withdraw indictments. 

The biggest controversy surrounding the Manipulated Indictment Special Prosecutor Act is the possibility of withdrawing indictments. However, upon examining the bill's text, this issue is far broader. 

The bill includes cases still under trial within the scope of investigation and grants the special prosecutor the power to decide on indictment and prosecution maintenance. 

It also allows for the transfer of cases being investigated, indicted, or prosecuted by existing prosecutors and special prosecutors, and includes a structure where cases are automatically transferred after 15 days if a transfer is not agreed upon. 

In addition, it incorporates provisions for appointing prosecutors to maintain prosecution, excluding existing prosecutors, exclusive jurisdiction for warrants, appointment of warrant judges, priority trial progression, trial broadcasting, exceptions to anonymization, and sentence reductions. 

This can be viewed not as a mere special prosecutor law, but as a bill that largely designs separate procedures, differing from general criminal procedures, for a specific category of cases. 

The precise conclusion is as follows. 

The essence of the Manipulated Indictment Special Prosecutor Act is not the controversy over the right to withdraw indictments, but the controversy over the exception to criminal procedures. 

Suspicions of manipulated investigations and indictments can be investigated. If there are suspicions of abuse of prosecutorial power, the truth must be revealed. 

However, if the method involves rewriting the prosecution maintenance and trial proceedings for cases already filed in court through a special prosecutor law, this goes beyond uncovering the truth. 

Special prosecutors should be a system for uncovering the truth. They should not be a channel for circumventing trials or redesigning the exit strategies for specific categories of cases. 

The core of the scrutiny surrounding the Manipulated Indictment Special Prosecutor Act lies precisely here. 

Can the National Assembly, through the exceptional system of a special prosecutor, redesign the entire investigation, indictment, and trial procedures for ongoing criminal cases? If this question is not answered, the controversy over the right to withdraw indictments is bound to escalate into a larger constitutional debate. 

※ This article was published in the 10th issue of Weekly Hanmiilbo (3rd week of May).