The Supreme Court decided to hold a plenary session on the case of Lee Jae-myung, former leader of the Democratic Party of Korea, which is charged with violating the Public Official Election Act, on the 24th following a meeting on the 22nd.
In the first trial, the former leader received a one-year prison sentence with a two-year probation, which was overturned to not guilty in the appeal trial. Depending on the conclusion reached by the Supreme Court's plenary session before the June 3 presidential election, the possibility of the former leader's candidacy may change.
In the legal community, there are analyses suggesting that the Supreme Court's plenary session is considering three options. The three options include "dismissal of the appeal resulting in a not guilty verdict," "reversal of decision," and "remand for a new trial." A lawyer with experience as a Supreme Court research judge noted, "All three options have their pros and cons."
Option ① Dismissal of the appeal resulting in a not guilty verdict
Lee Jae-myung, the former leader, is currently undergoing a first trial for cases other than the election law violation or is in the appeal trial stage with a not guilty verdict from the first trial.
If the Supreme Court's plenary session determines that there are no issues with the appeal verdict that declared the former leader not guilty regarding the election law violation, it can confirm the not guilty verdict by dismissing the appeal. Should this happen before the June 3 presidential election, the former leader would have no legal barriers to running for president.
In this regard, a legal expert said, "There is much debate within and outside the legal community regarding the appeal verdict that declared the former leader completely not guilty." They added, "If the Supreme Court's plenary session confirms a not guilty verdict in this situation, there may be strong criticism that the former leader received a legal amnesty before the presidential election."
Another legal expert noted, "If the Supreme Court confirms a not guilty verdict before the presidential election, it may also provide indications about other trials involving the former leader."
So far, the former leader has claimed that if he is elected president, all trials must be suspended under Article 84 of the Constitution. Article 84 states that "the president shall not be prosecuted during their term of office except in cases of insurrection or treason." There is a debate about the interpretation of this clause regarding whether ongoing trials prior to the president's election should also be suspended.
Option ② Reversal of decision
If the Supreme Court determines that the appeal verdict was incorrect during the appeal trial, it will issue a reversal decision. The method in which the Supreme Court delivers a verdict directly after a reversal is called reversal of decision. Conversely, returning the case to a lower court for a new verdict is referred to as remand.
Generally, a reversal of decision can result in a quicker resolution compared to remand. This may explain why the People Power Party is demanding a reversal regarding the former leader's election law violation case.
However, it has been found that there has not been a single case from 2002 to 2023 where the Supreme Court confirmed guilt through a reversal of decision in a case previously ruled not guilty.
One legal expert stated, "There are legal hurdles for the Supreme Court to reverse an entirely not guilty appeal verdict and rule guilty. In order to determine the sentence after ruling not guilty to guilty, the facts must be examined, but the Supreme Court conducts legal reviews, making it difficult to proceed with that part."
Another legal expert mentioned, "The Supreme Court might create legal reasoning allowing for a reversal of decision, but if it happens, it may appear as a means to punish a specific individual."
Option ③ Remand
If the Supreme Court remands the election law violation case of the former leader with a guilty ruling, the case will be sent back to another panel of the Seoul High Court, where the appeal trial was previously conducted. Generally, when the Supreme Court remands with a guilty ruling, the High Court also rules accordingly. However, this process may take time, and a final ruling before the June 3 presidential election may be difficult.
A legal expert said, "If the Supreme Court remands this case, it will be far from resolving the legal controversies regarding the former leader's candidacy before the presidential election."
Another legal expert stated, "Though rare, there are cases where the High Court issues a not guilty verdict again on a remand with a guilty ruling from the Supreme Court, resulting in a shuttle-like situation where the case bounces back and forth."