Supreme Court Decision 2026Do6127, July 16, 2026 [Violation of the Attorney-at-Law Act]

【Holding】

Criteria for determining whether a matter falls within the subject of investigation of the special prosecutor, or the scope of the special prosecutor's duties based thereon, under the "Act on the Appointment, etc. of a Special Prosecutor to Uncover the Truth of the State Affairs Manipulation and Illegal Election Interference Cases, etc. Related to Kim Keon-hee, Myung Tae-kyun, and Geonjin Beopsa" (Special Prosecutor Act) (= whether the matter has a reasonable connection with the subjects of investigation enumerated in the Special Prosecutor Act, etc.), and the meaning of "reasonable connection" in this context (= where a personal connection and an objective connection with the alleged cases prescribed in Article 2(1)1 through 15 of the Special Prosecutor Act are reasonably recognized)

【Summary of Decision】

Article 2(1) of the "Act on the Appointment, etc. of a Special Prosecutor to Uncover the Truth of the State Affairs Manipulation and Illegal Election Interference Cases, etc. Related to Kim Keon-hee, Myung Tae-kyun, and Geonjin Beopsa" (hereinafter the "Special Prosecutor Act") provides in its main text that "The subjects of investigation of the special prosecutor under this Act shall be limited to the following cases and cases related thereto," enumerates the relevant alleged cases in subparagraphs 1 through 15, and prescribes in subparagraph 16 "related criminal acts discovered in the course of investigating the cases under subparagraphs 1 through 15 and any act obstructing the investigation of the special prosecutor." The Special Prosecutor Act appoints a special prosecutor with an independent status to take charge of the investigation and prosecution of the various alleged cases enumerated in Article 2(1) in order to uncover the truth of those cases.

In light of the fact that the Special Prosecutor Act was enacted at the stage of allegations in order to ensure fairness and objectivity by appointing, for cases inappropriate to be handled by the ordinary prosecution system, a prosecutor of temporary and special status rather than an ordinary prosecutor to take charge of the investigation and prosecution of the cases, whether a specific case falls within the subject of investigation of the special prosecutor, or the scope of the special prosecutor's duties based thereon, must be determined, within limits that do not depart from the constitutional principle of due process or the principle of statutory criminal procedure, according to whether it has a reasonable connection with the subjects of investigation enumerated in the Special Prosecutor Act, etc., taking into account the legislative background and purpose of the Special Prosecutor Act and the special nature of the Act.

Here, a "reasonable connection" means a case in which a personal connection and an objective connection with the alleged cases prescribed in Article 2(1)1 through 15 of the Special Prosecutor Act are reasonably recognized. A personal connection with an alleged case may be recognized where a person is in a relationship with a direct party to the alleged case as an accomplice, such as a co-principal, instigator, or aider, or as an indirect principal, or as a necessary accomplice, etc., or where a person has a close relationship with a direct party to the alleged case through the alleged case such that there is a reasonable need to make that person a subject of investigation. In addition, an objective connection with an alleged case may be recognized where there is a specific and individual connection with the alleged case, considering comprehensively the type of offense, the time and place of the offense, the motive and circumstances of the offense, the means and method of the offense, the content of the relevant evidence, the course of the investigation, the necessity of the investigation, etc. Since the scope of the special prosecutor's duties cannot go beyond the scope permitted by the constitutional principle of due process or the principle of statutory criminal procedure, and there is a risk that the rights of defense, etc. of the persons concerned may be substantially infringed by an indiscriminate expansion of the subjects of investigation by the special prosecutor, the subjects of investigation of the special prosecutor can be recognized only within the scope of such "reasonable connection."

【Referenced Statutes】

Article 12(1) of the Constitution; Articles 1 and 2(1) of the Act on the Appointment, etc. of a Special Prosecutor to Uncover the Truth of the State Affairs Manipulation and Illegal Election Interference Cases, etc. Related to Kim Keon-hee, Myung Tae-kyun, and Geonjin Beopsa

【Referenced Precedents】

Supreme Court Decision 2002Do5296, December 24, 2002 (Gong2003Sang, 549)

(Source: Supreme Court Decision 2026Do6127, July 16, 2026 | Judicial Information Disclosure Portal, Precedents)

2026. 10. 14. · By Attorney Dongwoo Shin