Special Prosecutor's Indictment in Coup Case Questioned

A special prosecutor's recent indictment of Colonel Cho Seong-hyun and former National Intelligence Service Deputy Director Hong Jang-won in connection with a 1980s coup attempt has drawn sharp criticism. The decision overturns findings from previous investigations by the police, prosecution, and the Corruption Investigation Office for High-ranking Officials.

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The indictment appears to excessively expand the legal definition of insurrection and overturn factual judgments made by the Constitutional Court and the first-instance trial court in the Yoon Suk-yeol insurrection case.

The special prosecutor cites Colonel Cho's alleged actions, including mobilizing troops and relaying orders to "drag out lawmakers," as evidence of conspiracy. However, legal precedent requires proof that the individual understood and supported the "subversion of constitutional order" goal of the insurrectionist group. Colonel Cho reportedly questioned the feasibility of the order and did not immediately relay it to his subordinates. Furthermore, he was the only commander to order his troops back without higher approval after the National Assembly voted to lift martial law.

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If the individual had the intent to subvert constitutional order, would they have acted in this manner?

Indicting former Deputy Director Hong is seen as even more problematic. The special prosecutor points to his contacts with intelligence agencies and explanations of the martial law situation to foreign entities after its lifting. However, Hong did not execute a key order to arrest politicians and refused to send NIS agents for arrests, actions that contradict the conspiracy charge.

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He refused key orders.

Previous rulings by the Constitutional Court and lower courts relied on the testimonies of Hong and Cho. The special prosecutor's logic implies that even if individuals transmit unlawful orders or perform routine duties during an emergency, they can still be considered co-conspirators if they later refuse orders or expose the insurrection. This interpretation could deter individuals from intervening in future constitutional crises. The special prosecutor is urged to seriously discuss the prosecution of these charges with the original special investigation team and correct any errors before the trial begins if the charges cannot be proven beyond a reasonable doubt.

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If one transmits an unlawful order or performs routine duties in an emergency, they become a co-conspirator even if they later refuse orders and expose the insurrection.