"Separation of Investigation and Prosecution Authorities Deemed Improper" Constitutional Court Also Criticized

[Image source=Yonhap News]

[Asia Economy Reporter Seongpil Cho] The Lawyers' Association for Constitutional Thought (Heonbyeon) on the 20th criticized the 'separation of investigation and prosecution' plan proposed by Justice Minister Choo Mi-ae as a "highly inappropriate attempt." Amid growing opposition within the prosecution, Heonbyeon, one of the largest lawyer organizations in South Korea, also voiced criticism of Minister Choo's attempt.

In a statement released that day, Heonbyeon said, "There is no provision in the Constitution, the Prosecutors' Office Act, or the Criminal Procedure Act that prohibits the investigating prosecutor from being involved in the prosecution of the case," and urged, "The Ministry of Justice should stop illegal activities that do not fall under its supervisory authority."

The Prosecutors' Office Act, referenced by Heonbyeon, states that "a prosecutor, as a representative of the public interest, has duties and authority necessary for criminal investigation, filing and maintaining public prosecution, and other related matters." The Criminal Procedure Act also stipulates that "when a prosecutor believes there is suspicion of a crime, they must investigate the suspect, the facts of the crime, and evidence," and "the prosecutor files and conducts the public prosecution."

Heonbyeon pointed out, "Since public prosecution is a shared duty of prosecutors, restricting the right to prosecute is not permissible." They added, "It is not uncommon to continue investigations after filing a public prosecution, and among important investigative matters, there are secrets that only the investigating prosecutor can know," emphasizing that "it is reasonable for the investigating prosecutor to decide whether to prosecute."

Heonbyeon also stressed that the separation of investigation and prosecution does not fit the circumstances of South Korea. They argued, "Although fairness in filing public prosecution is mentioned, South Korea's acquittal rate is less than 1%," and "Compared to countries like the United States and Germany, where the acquittal rate is over 10%, the issue is not about making prosecution more cautious but rather about measures against over-prosecution."

Regarding Japan, which Minister Choo cited as a basis for separating investigative and prosecutorial roles, Heonbyeon pointed out, "Although Japan's acquittal rate is even lower, this is due to the unique characteristics of Japanese society and cannot serve as a basis for changing South Korea's criminal procedures." They also warned, "If the investigative and prosecutorial duties of prosecutors are separated, contradictions will arise even in the special prosecutor system."