So-called members of the "elite-university drug club" and a doctor took drugs but were released because their sentences could not be executed. Under the so-called "prosecution reform" implemented during the Moon Jae-in administration, prosecutors' investigative powers were restricted, and this case arose because a prosecutor conducted an investigation beyond that scope.
The Supreme Court's First Division (Presiding Justice Chun Dae-yup) on the 13th upheld a lower court ruling dismissing the indictments of a doctor, a person surnamed Lee (36), and a club member, a person surnamed Bae (24), who were charged with violating the Narcotics Control Act (psychotropics, etc.). A dismissal of indictment ends a case without the court examining the merits when the prosecutor's filing procedure violates the law, among other reasons.
Earlier, the joint club "Kkanbu," formed mainly by students from 13 prominent universities in the greater Seoul area, distributed and used drugs as a group for a year starting at the end of 2022. The club included many students from top schools such as Seoul National University, Yonsei University, and Korea University, as well as students preparing to reenter medical and pharmacy schools. The club president, a person surnamed Yeom, regarded as the ringleader, had a sentence of 1 year and 6 months in prison finalized by the Supreme Court in June.
A doctor surnamed Lee, who worked as a clinical instructor at a tertiary hospital in Seoul, bought and took narcotics with club member Bae in Oct.–Nov. 2023 from the club president, a person surnamed Yeom (33). In addition, Bae bought and used narcotics from Yeom from Feb.–Dec. 2023.
In the first trial, Lee was sentenced to 1 year in prison, suspended for 2 years, and Bae was sentenced to 2 years and 6 months in prison, suspended for 3 years. However, the appellate court took issue with the prosecution's investigative process and dismissed the indictments against Lee and Bae.
After investigating the drug club case, police referred the suspects to prosecutors in Dec. 2023 and July 2024. At the time, the crimes of Lee and Bae were not included, and during the investigation they were neither suspects nor witnesses.
While a prosecutor was investigating the referred case, another accomplice submitted a voluntary confession revealing that Bae had also taken drugs. The prosecutor then investigated and indicted Bae and Lee.
The appellate court found that the specific and individual connection between the crimes of Lee and Bae and the originally referred case was not established. It ruled the investigation unlawful because it was initiated based on a separate tip—another suspect's voluntary confession—rather than during the course of investigating the referred case.
Article 4(1)1 of the Prosecutors' Office Act limits the scope of crimes for which a prosecutor may initiate an investigation to ▲ serious crimes prescribed by presidential decree, such as corruption crimes and economic crimes ▲ crimes committed by police officers and officials of the Corruption Investigation Office for High-ranking Officials ▲ crimes that are directly related to each of the crimes recognized in connection with crimes transferred by judicial police officers.
The appellate court noted that recognizing direct relevance solely because Bae and the accomplice were members of the same club would risk indiscriminately expanding the range of crimes a prosecutor may initiate, and added that Lee was not even a club member.
In addition, Article 4(2) of the Prosecutors' Office Act provides, "A prosecutor may not file an indictment for a crime the prosecutor has initiated an investigation into. However, this does not apply to crimes transferred by judicial police officers." During the trial, the sides of Bae and Lee argued that the indictment procedure violated the law and was therefore void.
The appellate court said, "Because this crime is not recognized as being directly related to the referred case, the indictment in this case cannot be viewed as one that the investigating prosecutor is permitted to file."
The Supreme Court also found that the investigating prosecutor in this case violated the Prosecutors' Office Act, dismissed the prosecutor's appeal, and finalized the lower court's ruling dismissing the indictments.
The reason Bae and Lee were able to have the dismissal of indictment finalized was the "prosecution reform" carried out during the Moon Jae-in administration.
Until 2020, prosecutors could initiate direct investigations into all crimes and direct police investigations to proceed with cases. Under the prosecution reform pushed by the Moon Jae-in administration and the Democratic Party of Korea, a bill adjusting investigative powers between prosecutors and police passed the National Assembly in 2020, and from 2021 the scope of crimes prosecutors could investigate was restricted.
On May 9, 2022, the last day of the Moon Jae-in administration, a revision to the Prosecutors' Office Act was approved at a Cabinet meeting, changing the law so that a prosecutor may not indict for a crime the prosecutor initiated. After losing the presidential election in March 2022, the Democratic Party moved the revision through the National Assembly quickly and completed promulgation before the launch of the Yoon Suk-yeol administration.