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Former Blue House Senior Secretary to the President for Policy Cooperation Ahn Jong-beom enters Seoul Central District Prosecutors’ Office for questioning on Nov. 2. Ahn was arrested due to concerns that he might seek to destroy evidence. (by Park Jong-shik

Controversy is brewing over prosecutors’ decision to charge Choi Sun-sil with abuse of authority (as an accomplice) rather than bribery in their Nov. 2 arrest warrant request.

The move may have been intended to reduce the likelihood of the investigation reaching President Park Geun-hye, as the charge carries a markedly lighter sentence than bribery and presumes no quid pro quo arrangement in the establishment of the Mir Foundation.

Many in the legal community argued that Choi and former Blue House Senior Secretary to the President for Policy Cooperation Ahn Jong-beom should be charged with both third party bribery payment and abuse of authority. Article 123 of the Criminal Act defines abuse of authority as causing “a person to perform the conduct which is not to be performed by the person,” while Article 130 defines third party bribery payment as “acceptance of an unjust solicitation in connection with duties.” The argument is that forcing corporations to pay foundation contributions constituted abuse of authority, while the payments themselves could be viewed as bribes in nature. In cases of bribes of more than 100 million won (US$87,500), the Act on the Aggravated Punishment, etc. of Specific Crimes is invoked, resulting in sentences from ten years or more. Abuse of authority, in contrast, carries a lighter maximum sentence of five years.

Prosecutors concluded that Choi did conspire with Ahn to force the companies to pay when they had no obligation to do so, but did not view the payments as bribes.

“The money that was passed along does not meet the conditions for bribery, and it will not be viewed as a bribe going ahead,” said a source with prosecutors.

But Choi and Ahn were both in positions to leverage their relationships with Park to exert heavy influence not only on state economic policy but also on individual corporations. It is also likely that the companies expected benefits when they donated.

“Bribery needs to meet three conditions: reciprocity, relation to duties, and illicit profits,” said attorney Lee Gwang-cheol. “In this case, the odds are high that all three would be met.”

Many are also taking issue with the prosecutors‘ insistence that the payments would “not be viewed as a bribe going ahead.” While 53 companies donated to the Mir Foundation (48.6 billion won/US$42.5 million) and K-Sports Foundation (28.8 billion won/US$25.2 million), just two - the Lotte Group and SK Group - have been questioned by prosecutors to date. The argument is that prosecutors reached their conclusion on the charges before other companies had been properly questioned.

“[A charge of] bribery appears to be more suitable here if you look at the big picture, including the President,” said one sitting judge.

“The prosecutors seem to have looked at the smaller picture and decided it would be difficult to prove a quid pro quo nature to the bribes, but they seem to have been hasty in reaching that conclusion.”

The prosecutors’ abuse of power charges also appear to be based on the assumption there was nothing problematic about the Mir Foundation’s establishment.

“Their decision [with the abuse of power charge] was that the problem lay in the coercive nature of the Mir Foundation’s fundraising process, but that there weren’t any issues with the establishment itself,” said a current prosecution official. “It looks like the allegations that the Mir Foundation was set up for after the President leaves office aren’t going to be a focus of the investigation.”

But Ahn‘s testimony that the fundraising efforts were based on orders from the President suggests a greater need for prosecutors to look into the possibility of her involvement. Justice Minister Kim Hyun-woong, who initially maintained Park could not be investigated because of constitutionally granted immunity from prosecution, told the National Assembly on Nov. 4 that the “decision on the need to investigate [the President] will be based on the investigation.” Kim’s remarks may have reflected a change in the prevailing attitude among prosecutors.

Another interpretation of the abuse of authority charges is that they are a master stroke to allow Choi and Ahn - and ultimately Park - to escape their current predicament.

“Abuse of authority isn‘t often recognized in courts unless it’s to the degree of utterly suppressing the other party’s will,” said a source with prosecutors. “We’re going to have to wait and see whether the charges against Choi or Ahn are recognized in court.”

Prosecutors said they are “currently investigating” another of the key allegations against Choi, namely violation of the Presidential Records Act, and could include additional charges based on further investigation. The implication is that when prosecutors indict Choi, they could apply other charges besides the abuse of power and attempted fraud charges assigned on Nov. 2, including embezzlement and malfeasance.

By Choi Hyun-june and Seo Young-ji, staff reporters

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