Will the impeachment againstPresident Park become a failed coup?

1. Court denied the necessity ofimprisonment on Mr. Lee (Samsung vice chairman)

Today (January18, 2017), the Korean court reviewed the ¡®legality of imprisonment¡¯ against Mr.Lee (vice chairman of Samsung) and didn¡¯t acknowledge the necessity of imprisonment.The reason is that the bribery charge issue is controversial in terms ofrelated facts and legal principle.

2. Direct and indirect bribery charge

According to theKorean Criminal Act, there are only two kinds of bribery charges. One is a direct bribery charge between two parties and theother is an indirect bribery through a thirty party. Thus, in case of indirect bribery charge, there must be 3 partiesto constitute a crime.

In order toavoid the risk of a direct bribery charge, two parties can use a thirty party. Oneparty (a public officer) requests the other party (a giver: an individual or acorporation) to give money to a thirty party (a taker).

In Korea, thebribery charge applies only to a kickback transaction between a public officer anda civilian (including a corporation), but not between civilians. Thus, a directbribery charge cannot be applied to Ms. Choi (who is an acquaintance ofPresident Park) in principle.

The independentspecial prosecutor (ISP) argues that Ms. Choi received a kickback on behalf ofPresident Park. In this case, ISP shall apply an indirectbribery charge (not a direct bribery charge) to three parties (Ms. Choi,Samsung, and President Park) according to the Korean Criminal Act.

It is reportedthat the kickback in issue is both a ¡®horse riding activity support¡¯ to adaughter (Miss Jung) of Ms. Choi by Samsung and a business transaction betweenSamsung and Ms. Choi¡¯s sports corporation in Germany.

3. Korean Supreme Court precedent onindirect bribery charge

The KoreaSupreme Court precedent (2019 Do 12313) held that, in case of indirect bribery charge through a thirty party, theremust be a clearagreement of ¡®give and take¡¯ between a public officer (taker) andthe other party (giver).

The reason is thatif there would be no such condition (clear agreement of ¡®give and take¡¯), itwould be possible for the prosecution to punish any thirty party (a taker)which is personally related to a public officer without a clear evidence ofbribery.

ISP cannot applythe indirect bribery charge between Samsung and President Park since ISP didn¡¯tfind out a clear evidence showing ¡®agreement of give and take¡¯ between Samsungand President Park.

Nevertheless, ISPunreasonably argues that it can apply a direct bribery charge to Ms. Choi,Samsung and President Park since ¡®Ms. Choi andPresident Park share an economic interest¡¯.

ISP¡¯s arguesthat Ms. Choi equals President Park from the legal perspective, and thus thedirect bribery charge (two party kickbacktransaction) shall be applied to three parties (Ms.Choi, Samsung, President Park). It sounds very ridiculous. There are no precedentsin Korea where this kind of approach was applied to the bribery charge.

4. Sham (conduit) bribery transaction

There is aspecial case where a direct bribery charge can be applied to three partiesaccording to the Korean Supreme Court precedent. It is a ¡®sham (conduit) transaction case¡¯.

For example, ¡®A¡¯(a public officer) is going to do a kickback transaction with ¡®B¡¯ (acorporation). But it is very dangerous as there is a high possibility ofdetection.

Thus, A and Bagree to get a thirty party ¡®C¡¯ (a corporation) involved in this kickbacktransaction. The CEO of C corporation is A¡¯s brother and A actually controls C¡¯sall business activities including the provision of operating funds. That is, A's brother is just a formal CEO who has no actual authority to operate ¡®C¡¯ corporation. Inthis case, the Korean Supreme Court acknowledged that a direct bribery chargecan be applied to three parties since C is a just sham.

Thus, if ISPwants to apply this sham transaction principle, it should establish that Ms.Choi¡¯s sport corporation in Germany which did a business transaction withSamsung is wholly controlled by President Park and President Park is an actualowner of the sport corporation in Germany.

5. ISP¡¯s approach against theprinciple of law

Ms. Choi arguesthat athletes¡¯ horse riding activities support by Samsung are open and officialin preparation for Olympic. Nevertheless, ISP argues that these activities bySamsung could be a kickback. ISP¡¯s assertion means that Samsung¡¯s kickback goesto President Park through two step procedures. It means that Ms. Choi and herdaughter Miss Jung must be a sham (conduit) respectively. This assertion doesnot make sense at all. Miss Jung¡¯s benefit from Samsung can never become aPresident Park¡¯s benefit since Miss Jung is a quite different person fromPresident Park from the legal perspective.

What is more, thereis no any possibility that President Park actually has the ownership of Ms.Choi¡¯s sports corporation in Germany when considering all facts andcircumstances reported by the press.

In conclusion, ISP¡¯sunreasonable and arbitrary approach is directly against a principle of law.

6. Impeachment rule of KoreanConstitution

Article 65 ofthe Korean Constitution provides ¡°The National Assembly can determine an impeachment in case where a public officer infringes a Constitution or a law.¡±

However, Article84 of the Korean Constitution clearly provides ¡°President shall not be criminallyprosecuted unless he/she commits an external orinternal treason during his / her tenure.¡± That is, the KoreanConstitution clearly distinguishes President from general public officers interms of criminal prosecution.

General publicofficers can be criminally punished in case where they infringe a criminal lawwhereas President cannot be prosecuted unless there is an external or internaltreason.

7. Possibility of success of politicalcoup

The approval of impeachmentby the Korean Constitutional Court immediately results in the criminalprosecution against President. Thus, we could come to a conclusion that theimpeachment against President is possible only when President commits anexternal or internal treason during his/her tenure.

Korea, which wasnewly born as a democratic state in 1948, adopted Article 84 of the KoreanConstitution in order to strengthen the position of President during his/hertenure.

Thus, the KoreanNational Assembly should have made an impeachment against President only whenPresident committed an external or internal treason. However, theKorean National Assembly infringed this principle of law.

What is more, ISPis very likely to fail in applying the bribery charge to President Park. Thus, thepossibility of success of political coup by the Korean National Assembly willbe greatly decreased.

This writing canbe also seen in http://www.sungsoohan.com/?p=2968.