🚨 Abuse of Prosecution Power
Today Korean Social News for Beginners | 2026.02.13
0️⃣ No Sang-won Gets 2 Years in Appeal — Split Indictment and Judicial Review in Focus
📌 Court Upholds 2-Year Sentence for No Sang-won: "No Abuse of Prosecution Power"
💬 No Sang-won, the former chief of the Defense Intelligence Command (DIC), was sentenced to 2 years in prison at his appeal trial. He was charged with receiving personal data of DIC agents to help form a second investigation unit — a group that was allegedly being set up to investigate the National Election Commission after the December 3 martial law declaration. The court found that there was clearly an improper purpose behind obtaining the personal data. No argued that his intent was to prepare for a North Korean defection crisis, and that being charged again separately was an abuse of prosecution power. The court rejected both arguments, stating that the two charges involve different crimes and that the act in question was an unconstitutional and illegal preparation for the martial law operation.
💡 Summary
- Former DIC chief No Sang-won was sentenced to 2 years in prison at his appeal trial.
- The key issue was whether charging him separately — while he was already being tried on other charges — counted as an abuse of prosecution power. The court said no, ruling the two charges are separate crimes.
- The court reaffirmed that even political acts like declaring martial law can be reviewed by the courts if they violate the constitution or law.
1️⃣ Definition
Abuse of prosecution power means when a prosecutor uses their legal authority to bring criminal charges in a way that goes beyond the purpose of the law — for example, charging someone for political reasons or in a way that is clearly unfair.
Courts look at why and how the charges were filed to decide if prosecution power was abused. If abuse is confirmed, the court can dismiss the case entirely — called a dismissal of indictment — without even deciding whether the person is guilty or innocent.
💡 Why does this matter?
- Prosecutors have very strong powers that only they can use. If those powers are abused, people's basic rights can be seriously harmed.
- This case raised the question of whether charging someone separately, while they are already on trial for other charges, is allowed.
- It also confirmed that even political decisions like declaring martial law can be reviewed by courts.
- Making sure powerful authorities like prosecutors are properly checked is a core part of the rule of law.
2️⃣ Key Issues in This Case
📕 Background and Core Legal Questions
There were three key legal questions in this case. Here is what each one was about:
- Question 1: Was the personal data obtained to prepare a martial law investigation unit, or to respond to a North Korean defection situation? The court concluded it was to prepare for a martial law investigation.
- Question 2: Was it an abuse of prosecution power to charge No again separately, while he was already being tried on charges of participating in an insurrection? The court said no — the two sets of charges are different crimes.
- Question 3: Can courts review the decision to declare martial law, even though it is a high-level political act? The court said yes — if a political act violates the constitution or law, courts can and should review it.
Why did the court decide there was no abuse of prosecution power? The main reasoning was:
- Korean Supreme Court precedent sets a very high bar for abuse of prosecution power. It is only accepted in extreme cases where the prosecution is clearly against justice and fairness.
- In this case, the two charges protected different legal interests and had different elements under the law.
- When two charges involve different crimes, they can be filed separately. The court found nothing unlawful about that.
- The court also stated that the act in question was an unconstitutional and illegal preparation for the martial law operation.
📕 Can Courts Review Political Acts?
- High-level political decisions are not completely beyond judicial review. Here is why:
- "Political acts" (called governing acts in Korean law) refer to high-level decisions made by the president — such as declaring martial law, signing treaties, or declaring war.
- In the past, some argued these decisions were beyond the reach of the courts.
- However, the basic principle of constitutional order is that all government actions must stay within the limits set by the constitution and the law.
- This court ruling confirmed again: even if an act is political in nature, courts can still review whether it violated the constitution or the law.
💡 Key Issues in This Ruling
- Legality of split indictment: Is it allowed to charge the same person separately for different charges?
- Purpose of obtaining personal data: Was receiving agents' personal data for martial law preparation illegal?
- Judicial review of political acts: Can courts review decisions like declaring martial law?
- Standard for dismissing charges: How narrow is the window for courts to recognize abuse of prosecution power?
3️⃣ Key Terms Explained
🔎 Prosecution Power
- Prosecution power is the authority prosecutors have to bring criminal charges.
- In Korea, only prosecutors have the power to formally charge someone with a crime and bring them to trial. This is an exclusive power given to the prosecution.
- Because this power is so strong, it must be exercised fairly and objectively. Prosecutors cannot use it in an arbitrary or discriminatory way, and they must respect defendants' rights to a fair process.
- If prosecutors decide not to charge someone, that is called a decision not to indict. If a victim or reporting party disagrees with this decision, they can ask a high court to review it. These checks help prevent the power from being misused.
🔎 Criminal Procedure and the Double Jeopardy Principle
- A person cannot be charged twice for the exact same crime.
- Korea's Code of Criminal Procedure sets rules for how criminal charges must be filed. Prosecutors must clearly state what crime was committed and which law applies.
- The double jeopardy principle means that once a person has been tried and a verdict has been reached, they cannot be tried again for the same act. This protects people from being put through the legal system over and over for the same thing.
- However, if two charges protect different legal interests and have different elements under the law, they are considered separate crimes. In this case, separate charges can be filed. That is exactly what the court decided here.
🔎 Dismissal of Indictment
- A dismissal of indictment ends the trial without deciding guilt or innocence.
- When there is a serious problem with how the charges were filed — for example, if prosecution power was abused — the court can dismiss the indictment. This means the trial ends without a guilty or not-guilty verdict.
- The Korean Supreme Court has recognized abuse of prosecution power only in very rare, extreme cases. The bar is set very high, so it does not happen often.
- For the defendant, a dismissal of indictment means the trial is over and they avoid punishment in that particular case. However, it is not the same as being found innocent, and in some situations the prosecutor may be able to refile the charges.
🔎 Governing Acts (Political Acts)
- Even high-level political decisions must stay within the constitution and the law.
- Governing acts refer to major political decisions made by the president — declaring martial law, signing international treaties, declaring war, and similar actions. Traditionally, there have been debates about whether courts should review these decisions.
- However, the fundamental principle of constitutional order is clear: all government actions must comply with the constitution and the law. Courts have the authority to check whether they do.
- Korea's Constitutional Court has also reviewed acts classified as governing acts in the past. The consistent legal principle today is that any government action directly affecting the basic rights of citizens is subject to judicial review.
4️⃣ Frequently Asked Questions (FAQ)
Q: What happens to a defendant if abuse of prosecution power is recognized?
A: The court dismisses the indictment and the trial ends for that case.
- If abuse of prosecution power is confirmed, the court ends the trial without ruling on guilt or innocence. This is because the problem lies with how the charges were brought, not the facts of the case.
- However, a dismissal of indictment is not the same as a not-guilty verdict. It does not mean the person is cleared of suspicion. In some cases, the prosecutor may be able to refile the charges properly. In this case, the court did not find any abuse of prosecution power, so the trial proceeded and No was sentenced to 2 years in prison.
Q: Is it always allowed to charge the same person separately for different crimes?
A: Yes, if the crimes have different legal elements — but there are limits.
- When one person's actions violate multiple laws, or when separate acts each meet the requirements of different crimes, separate charges can generally be filed. This case is a clear example: the insurrection-related charges and the personal data charges were recognized as different crimes.
- However, if prosecutors split up what is essentially the same act just to bring more charges, or if they appear to be targeting someone unfairly with excessive charges, that could be considered an abuse of prosecution power. This is closely linked to the defendant's right to a fair defense and the principle of due process.
Q: Can ordinary citizens also be harmed by abuse of prosecution power?
A: Yes, in theory — and the legal system has mechanisms to protect against it.
- Arbitrary or discriminatory charging decisions by prosecutors can affect ordinary people too. To prevent this, Korean criminal procedure law includes several checks and balances.
- If a victim or reporting party disagrees with a decision not to indict, they can ask a high court to review that decision. On the other side, if someone believes they were charged unfairly, they can challenge the prosecution during trial or file a constitutional complaint to seek relief. Most importantly, anyone who is charged with a crime should seek legal representation as early as possible to fully exercise their right to a defense.
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