Submitted Opinion Letter to Ministry of Justice Yesterday Highlighting Issues with 'Investigation Guidelines'
"Discussion Needed to Enhance Public Interest in Investigation Structure Reform"
[Asia Economy Reporter Choi Seok-jin] The Ministry of Justice has received a written opinion from a related academic society pointing out issues with the "Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Principles (hereinafter Investigation Principles)" currently under legislative notice.
The Investigation Principles, a presidential decree, stipulate the details of the adjustment of investigative authority between prosecutors and police as outlined in the amended Criminal Procedure Act.
In the opinion letter, the academic society identified problematic provisions in the Investigation Principles, including ▲ prosecutors' requests for supplementary investigations to judicial police officers ▲ prosecutors' requests for reinvestigation to judicial police officers ▲ and judicial police officers' decisions to suspend investigations, stating these exceed the limits of delegated legislation, contradict the superior law?the Criminal Procedure Act?and may infringe on the rights of crime victims or defendants.
They also urged the enactment of Ministry of Justice ordinances to concretize the warrant review committee system under the amended Criminal Procedure Act and revisions to the Investigation Principles to prevent delays in investigative procedures that could undermine the trial-centered principle.
According to the legal community on the 16th, the Korean Criminal Procedure Law Society (President Jeong Woong-seok) submitted a 19-page A4-sized "Academic Opinion on the Investigation Principles" to the Ministry of Justice the previous day, stating, "If there is a societal demand to reform the current investigative authority system, an objective and sober analysis and review of our current status surrounding the investigative system must precede," emphasizing, "Above all, the evaluation of legislation changing the investigative structure should be based on whether it can enhance the rights and interests of society's members through substantive truth-finding."
They added, "Because designing a structure where checks and balances among investigative agencies can be realized is not an end in itself but merely a means to establish an institutional foundation for the proper and fair operation of investigative authority."
"Article 59 Paragraph 1 of the Investigation Principles on Requests for Supplementary Investigations Should Be Deleted"
First, the society pointed out the interpretive ambiguity of Article 59 Paragraph 1 of the Investigation Principles, which regulates the subjects and scope of prosecutors' requests for supplementary investigations to judicial police officers, currently under legislative notice.
The society noted that Article 197-2 Paragraph 2 of the amended Criminal Procedure Act (Request for Supplementary Investigation) stipulates that when a prosecutor requests a supplementary investigation, the judicial police officer "shall promptly comply unless there is a justifiable reason and notify the prosecutor of the result." However, it is unclear whether the phrase "unless there is a justifiable reason" modifies only "promptly" or the entire phrase "comply and notify."
In other words, it is unclear from the wording alone whether judicial police officers must always comply with prosecutors' requests for supplementary investigations or may refuse if there is a justifiable reason. The society stated that considering the legislative intent of the amended law, which defines the relationship between prosecutors and police as cooperative rather than hierarchical and abolishes the "investigative command" authority while introducing this system for prosecutorial control, the judicial police officers' "duty to comply" should be interpreted as imposed.
Furthermore, the society argued that Article 59 Paragraph 1 of the Investigation Principles, which states, "When a prosecutor deems it necessary to conduct a supplementary investigation on a case transferred by a judicial police officer pursuant to Article 245-5 Paragraph 1 Item 1 of the Act, it is principle to request the judicial police officer to conduct the supplementary investigation unless it is especially necessary for the prosecutor to conduct it directly," is disputable and ineffective and should be deleted.
In other words, the prosecutor should decide whether to conduct the supplementary investigation directly or request the police to do so depending on the situation, and there is no need to prescribe precedence in the principles.
"Article 51 of the Principles on 'Suspension of Investigation' Not Provided in the Criminal Procedure Act Is Also Problematic"
The society emphasized that the provision in the Investigation Principles allowing police to decide on "suspension of investigation," which is not stipulated in the superior Criminal Procedure Act, is problematic.
The society pointed out, "The amended law in Article 245-5 only contemplates the judicial police officer's primary investigation termination disposition as either 'case transfer' under Item 1 or 'other cases' involving submission of case records under Item 2. However, Article 51 Paragraph 1 Item 4 of the proposed Investigation Principles provides for a decision on 'suspension of investigation' for suspects and witnesses, which raises issues regarding its nature."
The society stated, "Since the 'suspension of investigation' under the Investigation Principles falls under 'other cases' in Article 254-5 Paragraph 2 of the amended law, the procedures under that provision should be followed. However, if this suspension is regarded as a distinct type of investigation termination disposition different from 'other cases,' it would violate the law and thus cannot be permitted."
They further explained, "Suspension of investigation is a decision to leave room for continued investigation in cases where the suspect or important witness's whereabouts are unknown and it is unclear whether a crime is established until the truth is clarified. Since sufficient evidence to recognize the crime has not been collected, it is essentially equivalent in nature to a 'no charge (insufficient evidence)' decision."
They added, "When judicial police officers make a 'no charge' non-prosecution decision, the case is transferred to the prosecutor upon objection by the complainant, guaranteeing the complainant the opportunity to receive judgment from the prosecutor, a legal expert and prosecutorial authority. However, when a suspension of investigation decision is made, even if the complainant objects, the case is not transferred to the prosecutor. Therefore, even if sufficient evidence for prosecution is collected from the prosecutor's perspective, prosecution cannot proceed, and the complainant cannot even receive a non-prosecution decision from the prosecutor, nor can they file an appeal or a request for reconsideration."
The society argued, "Ultimately, when a case is suspended, complainants cannot exercise constitutionally guaranteed rights such as the victim's right to testify in court, the right to appeal under the Prosecutors' Office Act, or the right to request reconsideration under the Criminal Procedure Act. They can only urge indirect protection of their rights through prosecutorial corrective requests or actions by the superior agency of the judicial police officer involved."
They emphasized, "If interpreted otherwise, the presidential decree Investigation Principles would deprive complainants of legally guaranteed rights to appeal, request reconsideration, and constitutionally guaranteed rights to testify in court, exceeding the limits of delegated legislation and violating the parent law."
"Limitations on Prosecutors' Requests for Reinvestigation and Case Transfer Period Also Problematic"
Article 245-8 Paragraph 1 of the amended Criminal Procedure Act (Request for Reinvestigation, etc.) states, "If a judicial police officer does not transfer a case in violation or unfairness under Article 245-5 Paragraph 2, the prosecutor may request reinvestigation by specifying the reasons in writing."
It only stipulates that prosecutors can request reinvestigation when the police's judgment not to transfer a case despite suspicion of a crime is unlawful or unfair, without limiting the number of such requests.
However, Article 64 Paragraph 2 of the Investigation Principles stipulates, "The prosecutor may not request reinvestigation or case transfer again for cases where the judicial police officer has notified the reinvestigation results under Paragraph 1 Item 2 (when the police maintain the original non-transfer decision)," limiting the number of reinvestigation requests to one.
The society expressed strong concern, stating, "Since the amended law does not limit the number of reinvestigation requests, limiting the number in the Investigation Principles exceeds the scope of delegation. Especially, limiting the number of reinvestigation requests may result in cases being closed without sufficient reinvestigation, potentially causing harm to the public."
They added, "Although an exception allowing prosecutors to request case transfer after one reinvestigation by judicial police officers was introduced, in reality, many cases will be difficult for prosecutors to decide whether to request case transfer based on only one reinvestigation result."
The society stated, "Even considering the legal stability of investigative parties by preventing repeated reinvestigation requests and case transfers, such Investigation Principles violate the limits of delegated legislation and the law. There is a need to add reasons allowing prosecutors to exceptionally request case transfer at their discretion when illegality or unfairness is not remedied despite reinvestigation, such as when new crimes emerge requiring changes in judicial precedents."
The society also pointed out that the 30-day period for requesting case transfer after reinvestigation is unrealistically short.
They noted, "Considering that Article 63 of the Investigation Principles sets the reinvestigation request period as 90 days from the date of receipt of related documents and evidence to determine the illegality or unfairness of non-transfer, the 30-day period for requesting case transfer after reinvestigation results is insufficient as a realistic period to judge whether illegality or unfairness has been remedied. It should be revised to 90 days accordingly."
Additionally, the society argued that regulations ensuring the smooth operation of the "warrant request review application system," introduced as a check on prosecutors' warrant request authority under the amended Criminal Procedure Act, need to be organized.
"Investigation Structure Reform and Prosecution Reform Are Different"... "Avoid Turf Wars Between Prosecutors and Police"
Finally, at the end of the opinion letter, the society stated, "'Sui-sa-gwon Dok-rip' (investigative authority independence) or 'Geomsal Gaehyeok' (prosecution reform) slogans have been uncritically used as if synonymous with 'investigation structure reform' across academia and practice," emphasizing, "It is necessary to distinguish between organizational interest adjustments such as dispersing prosecutorial power or establishing equal relationships among investigative agencies and the objectives of investigation structure reform."
The society criticized, "If the investigative authority, an important power function for the state's criminal punishment realization, is treated merely as a subject of power disputes and turf wars between the two power agencies involved, it is a deviation from value-rational goal setting and deserves criticism."
They added, "It is also important to carefully set the direction and goals for reforming the current investigative authority system, objectively judging and deciding what the current system's problems are and to what extent those problems should be improved from the perspective of enhancing citizens' freedom, human rights, and convenience."
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