Special Counsel on Fabricated Indictments to Probe Cases on Trial, Rekindling Indictment Withdrawal Controversy

Probe Into 12 Cases, Including Daejang-dong and Ssangbangwool, Overlaps With Ongoing Trials

Uncovering Fabricated Indictments Cited as Rationale; Debate Over Impact on Trials

Team of Up to 309 to Strain Public Prosecution Office and SCIA Wit

A special counsel is poised to launch an investigation into the investigation and indictment processes in cases already on trial. The National Assembly deleted a provision that would have forcibly transferred existing cases, a provision that had sparked controversy over the withdrawal of indictments, but retained cases currently on trial as targets for the special counsel’s investigation. Critics also say that granting dispatched prosecutors their former investigative powers just over a month after the Prosecutors’ Office was abolished could conflict with the criminal justice system. If the seventh special counsel investigation under the Lee Jae-myung administration gets underway, it is also expected to add to the burden on the understaffed Prosecution Service and Serious Crime Investigation Agency.

On November 6, the National Assembly plenary session passed a special counsel bill to investigate allegations that prosecutors and other agencies under the Yoon Suk Yeol administration fabricated investigations and indictments, with 167 votes in favor and one against among the 168 members present. The People Power Party boycotted the vote. The special counsel team will have up to 309 members, including the special counsel, eight deputy special counsels, 70 special investigators, 20 dispatched prosecutors and 210 other dispatched public officials. The investigation period, including the preparation period, will be up to 200 days.

People Power Party Rep. Joo Jin-woo delivers a filibuster against the Special Counsel Act on Fabricated Indictments in the National Assembly plenary chamber on Nov. 6, 2026. Photo by Yoon Dong-ju

Indictment Withdrawal Provision Deleted... Cases on Trial Retained

The special counsel will investigate 12 matters, including six involving President Lee Jae-myung: the Daejang-dong, Wirye New Town and Baekhyeon-dong development projects; donations to Seongnam FC; and the Ssangbangwool remittances to North Korea. The targets also include the Moon Jae-in administration’s alleged manipulation of statistics, the shooting of a South Korean official by North Korea in the West Sea, and alleged manipulation of an economic feasibility assessment for the Wolseong nuclear power plant. Many of these cases have already led to indictments, and trials are underway or verdicts have been handed down.

Rather than reconsidering the defendants’ guilt or innocence in these cases, the special counsel will investigate whether the prosecution, the National Intelligence Service and the Board of Audit and Inspection abused their investigative and prosecutorial powers at the time, including by manipulating evidence or coercing statements. The issue is that the evidence and statements the special counsel will examine are also being used as a basis for determining guilt or innocence in the existing trials. In effect, the special counsel and the courts will each assess the investigation and indictment processes in the same cases.

As originally drafted, the bill would have allowed the special counsel to take over cases under investigation by the prosecution or in which the prosecution was maintaining an indictment, and decide whether to continue prosecuting them. It also would have allowed prosecutors previously assigned to the cases to be removed from their prosecutorial duties if they failed to comply with the special counsel’s instructions. When controversy arose over whether these provisions could be used to withdraw indictments in cases involving President Lee, the National Assembly’s Legislation and Judiciary Committee deleted them during its review of the bill.

However, Article 2, Paragraph 1, Item 6 of the revised bill retains as investigation targets cases that have already been indicted and are still on trial. Article 6 also recognizes the special counsel’s authority to maintain prosecutions and applies the powers granted to prosecutors under the Criminal Procedure Act. The authority to forcibly take over existing cases was removed, but some provisions allowing the special counsel to intervene in cases on trial remain.

Main entrance of the Prosecution Service in Seocho-gu, Seoul. Photo by Kang Jinhyeong.

As a result, legal interpretations of the special counsel’s authority to withdraw indictments may differ. Choi Gi-do, an expert adviser to the National Assembly Legislation and Judiciary Committee, argued in a review report on the original bill that applying Article 255 of the Criminal Procedure Act would allow the special counsel to withdraw indictments even without a separate provision. He also said that the bill would need to explicitly exclude that authority if the intention was to deny it. However, since the revised bill removed the power to forcibly transfer cases, whether the special counsel can directly withdraw indictments in existing trials handled by the Prosecution Service must be examined separately.

The special counsel’s findings could also affect existing trials. Article 327 of the revised Criminal Procedure Act, which took effect in October 2026, added grounds for dismissing an indictment when it was based on a serious illegal investigation or when a prosecutor had significantly exceeded their discretion to prosecute. If the special counsel confirms evidence manipulation or coercion of statements, the defendants may cite its findings to argue for dismissal of the indictment. However, courts are not bound by the special counsel’s conclusions, and the trial court will independently decide whether to dismiss an indictment.

The Democratic Party says an independent special counsel investigation is necessary because the existing investigative agencies are themselves implicated in the allegations of fabricated investigations. By contrast, concerns are widespread in legal circles that if the special counsel concludes that the prosecution of cases on trial constitutes an abuse of prosecutorial authority, it could exert undue pressure on the trials.

Direct Prosecutorial Investigations Abolished, but Special Counsel Exempt

Another point of contention is the provision granting prosecutors dispatched to the special counsel their former prosecutorial investigative powers. On October 2, the government abolished the Prosecutors’ Office and divided its functions, transferring investigations to the Serious Crime Investigation Agency and prosecution and the maintenance of prosecutions to the Prosecution Service. The stated aim was to prevent the concentration of investigative and prosecutorial powers by abolishing prosecutors’ direct investigative authority in principle.

The special counsel bill makes an exception to that principle. Article 6 of the supplementary provisions stipulates that the Criminal Procedure Act as it stood before its amendment will govern the investigative and supervisory powers of the special counsel, deputy special counsels and dispatched prosecutors. Prosecutors from the Prosecution Service dispatched to the special counsel will be able to exercise the investigative powers formerly held by prosecutors. The admissibility of evidence, including records prepared by the special counsel, will also be governed by the provisions that were in effect before the amendment.

The revised Criminal Procedure Act also provides an exception allowing the special counsel to exercise the investigative powers previously held by prosecutors. This special counsel bill is a case in which that exception is explicitly set out in a separate law. This is why some in legal circles question the institutional consistency of separating investigations from prosecutions to prevent abuses of prosecutorial power while granting both powers to a special counsel tasked with investigating allegations of such abuse.

The Ministry of Justice also expressed disagreement during the legislative process. Acting Justice Minister Lee Jin-su said during the Legislation and Judiciary Committee’s review of the bill on November 4, "If prosecutors from the Prosecution Service become involved in investigations, concerns about fairness could arise, so the number of dispatched prosecutors should be reconsidered." He also reportedly conveyed the position that "even if dispatching prosecutors is unavoidable, the number should be kept to a minimum." The revised bill, however, retained the limit of 20 dispatched prosecutors.

Serious Crime Investigation Agency. 2026.10.16 Reporter Kim Hyunmin

One of 10 Requested... Staffing Shortages at Related Agencies Set to Worsen

The special counsel can receive up to 20 prosecutors and up to 210 other public officials dispatched from related agencies, including the Prosecution Service, the Serious Crime Investigation Agency and the National Police Agency. The heads of agencies that receive dispatch requests must comply, and the special counsel may also request the initiation of disciplinary proceedings against agency heads who refuse. However, the agencies expected to provide personnel are already facing staff shortages and a backlog of cases.

The Prosecution Service is also struggling with staffing shortages and a backlog of cases. On October 8, Acting Minister Lee told the National Assembly that the Suwon Prosecution Service had about 500 unresolved cases per prosecutor’s office. Other Prosecution Service offices also have to handle 200 to 300 cases each. The backlog has not been resolved even after investigations and prosecutions were separated, and the agency now faces the additional burden of dispatching prosecutors and investigators to the new special counsel.

The situation at the Serious Crime Investigation Agency is even more serious. It launched in October with only about 1,900 staff out of an authorized workforce of 2,874. In other words, roughly one-third of its authorized positions remain vacant as it investigates existing cases and puts its organization in order. The staff shortage has also become apparent in dispatch requests from other special counsel teams. On October 23, Special Counsel Lee Tae-han, who is investigating allegations involving the National Election Commission, met with Serious Crime Investigation Agency chief Kim Ji-yong and requested the dispatch of around 10 investigators to assist with search and seizure operations and digital forensics. Lee later specified seven investigators in a dispatch request, but on November 4, the agency replied that it would be difficult to send them. It said it could dispatch just one investigator instead.

This content was produced with the assistance of AI translation services.