[Law & Story] POCI-Favored Commentary on the POCI Act Authored by POCI Supporters

Opinions of Participants in the People's Solidarity for Participatory Democracy's 'Prosecution Reform' Forum Directly Reflected
Author Oh Byung-doo Presents His Own Views as “There Is Also Such an Opinion”

On March 24th last year, the 'Current Status and Tasks of Prosecution Reform' forum was hosted by the People's Solidarity for Participatory Democracy and the Minbyun Judicial Center. At the forum, Oh Byung-doo, Director of the Judicial Monitoring Center at the People's Solidarity for Participatory Democracy, presented the keynote speech, and Kim Young-joong, Associate Research Fellow at the Korea Institute of Criminology, and Yoon Dong-ho, Professor of Law at Kookmin University, participated as discussants.
/Photo by People's Solidarity for Participatory Democracy website.

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being bound by specific themes or formats. Today marks the fourteenth story, discussing the 'Commentary on the High-ranking Officials' Crime Investigation Office Act (the Public Officials Corruption Investigation Office Act, or POCI Act)' recently published and disclosed by the High-ranking Officials Crime Investigation Office (POCI).

[Asia Economy, Choi Seok-jin, Legal Affairs Specialist Reporter] The High-ranking Officials Crime Investigation Office (POCI) recently published a 'Commentary on the POCI Act' containing interpretations of each article of the POCI Act.

The commentary, released on the POCI website, includes the history from the first discussions on an independent investigative agency to handle corruption crimes of public officials, starting with the 1996 People's Solidarity for Participatory Democracy's petition for the 'Anti-Corruption Act,' through the enactment of the POCI Act, its subsequent amendments, and the characteristics of the POCI Act.

However, what draws the most attention is the interpretation of the POCI Act articles contained in Part 2 of the commentary. Until now, POCI has had conflicts with the prosecution over issues such as ▲ referral with reserved prosecution rights (or conditional referral) ▲ application for arrest warrants ▲ and the authority to decide non-prosecution. This commentary can be considered the first official research result on the POCI Act articles where interpretations between POCI and the prosecution diverged.

Many commentaries have already been published on other laws such as civil law and criminal law. Since these laws have been in effect for over 60 years, there is accumulated academic research, and numerous lower court rulings interpreting each legal provision, as well as the Supreme Court's final interpretations, have been established. Commentaries based on these are used in actual trials as grounds supporting the claims of plaintiffs or defendants.

However, since the POCI Act was enacted in January 2020 and enforced from July of the same year, and POCI officially launched on January 21 last year, with less than a year of actual investigative work, research on the POCI Act is still insufficient. Although the Constitutional Court has recognized the authority of POCI prosecutors to apply for warrants during constitutional review cases on the POCI Act, court rulings or Constitutional Court decisions specifically addressing POCI Act interpretation remain extremely rare.

Though Not an Official POCI View... "Will Refer to It in Investigations," They Say

Therefore, the recently published commentary on the POCI Act holds some significance. In the future, when conflicts arise between POCI and other investigative agencies such as the prosecution or police over the interpretation of the POCI Act during investigations or other duties, POCI may present this commentary as an important basis supporting its claims.

Of course, POCI states “The research was commissioned solely for reference in performing POCI’s duties such as investigation, prosecution, and maintenance of public prosecution, and the contents of the commentary do not represent POCI’s official stance.” In other words, “We don’t necessarily think this way ourselves; we just asked experts, and this is what they said.” It’s somewhat like that.

If POCI had announced while publishing the commentary that “we will try to follow this commentary when applying the POCI Act in practice” or “when there are differing views on the interpretation of the POCI Act, this commentary will be the standard,” scholars holding views opposite to those of the prosecution or the commentary authors would likely not have remained silent. POCI’s use of cautious expressions such as “for reference in performing duties” or “not an official stance” seems to be a measure taken in consideration of the prosecution’s backlash.

However, since this commentary contains interpretations favorable to POCI on provisions that have been sharply disputed with the prosecution in practice, it is likely to be used as a basis supporting POCI’s position in the future, making it difficult to simply categorize it as a mere research result.

Authors Who Have Voiced ‘Reduction of Prosecutorial Power and Strengthening of POCI’... Disappointing Bias

This research was led by Deputy Research Fellow Kim Young-jung of the Legal Policy Research Division at the Korea Institute of Criminology and Justice, with Professor Oh Byung-doo of Hongik University’s Department of Law as a co-researcher. Compared to previous commentaries on civil or criminal law, which involved senior professors recognized as top authorities in their fields, and the 2020 Supreme Court-published commentary on family and inheritance law, where Justice Min Yoo-sook served as chief editor and 21 family law specialist judges participated as authors, the number of participants and the experience of the authors in this research are somewhat lacking.

Moreover, both individuals have expressed support for introducing the ‘direct election system for chief prosecutors’ and have been vocal advocates for prosecutorial reform. In particular, Professor Oh, currently head of the Judicial Monitoring Center at the People's Solidarity for Participatory Democracy, has argued through various forums since POCI’s launch that the prosecution’s direct investigative authority should be further reduced and that the current mini-POCI’s powers and capabilities should be supplemented, advocating for strengthening POCI’s authority and reducing prosecutorial power. Deputy Research Fellow Kim also participated as a discussant in prosecutorial reform forums hosted by the People's Solidarity for Participatory Democracy and the Lawyers for a Democratic Society, advocating for measures to check the remaining warrant application and prosecution rights held by prosecutors.

At the ‘Current Status and Tasks of Prosecutorial Reform’ forum held on March 24 last year by the People's Solidarity for Participatory Democracy and the Lawyers for a Democratic Society Judicial Center, Professor Oh, head of the Judicial Monitoring Center, presented, and Deputy Research Fellow Kim participated as a discussant.

According to statements introduced on the People's Solidarity for Participatory Democracy website, Professor Oh analyzed the prosecution’s actions after the ‘Prosecutorial Reform Three Acts’ and described the prosecution’s backlash as “proof that so-called prosecution advocates saw prosecutorial reform as nothing more or less than a reorganization and streamlining of the prosecution organization suitable for the times.” He also described the prosecution’s powers as “not reduced despite the enactment and amendment of the ‘Prosecutorial Reform Three Acts,’” taking a stance that prosecutorial powers should be further curtailed and restricted.

On the other hand, he acknowledged that “the establishment of POCI is significant in that it resolved the prosecution’s monopoly on prosecution,” but emphasized the need for additional measures to strengthen POCI’s authority, pointing out limitations such as POCI’s investigative authority being controlled by the prosecution, which holds prosecution rights, due to limited prosecution rights, and the current personnel structure forcing selective investigations.

Deputy Research Fellow Kim also evaluated that “the enactment and amendment of the ‘Prosecutorial Reform Three Acts’ are insufficient to disperse prosecutorial power and check prosecutorial abuse,” and regarding legislative efforts underway in the National Assembly for ‘complete separation of investigation and prosecution,’ he argued for discussions on handling cases previously investigated by the prosecution or those dismissed, and on means to check the warrant application and prosecution rights remaining with prosecutors, raising his voice for further reduction of prosecutorial power.

POCI states that it did not commission these two individuals directly but entrusted the research to the Korea Institute of Criminology and Justice, a specialized research institution in criminal law and investigative systems. From my perspective, it means that POCI did not directly commission the research to Deputy Research Fellow Kim or Professor Oh, who hold quite biased views regarding the powers and mutual relations of the prosecution and POCI, nor did it specifically have Deputy Research Fellow Kim in mind when commissioning the Korea Institute of Criminology and Justice.

There is no way to verify the commissioning process or the selection of the research institution, but it is indeed regrettable that the research was not entrusted to more objective criminal law experts. From the standpoint of the prosecution, which has had conflicts with POCI, as well as the general public, the trustworthiness of the commentary might have been much higher if experts with different or neutral views had participated in the research rather than only these two who have continuously called for ‘reduction of prosecutorial power’ and ‘strengthening of POCI power’ before and after POCI’s launch.

What Does the Commentary Contain?

The recently published commentary includes past legislative discussions, the legislative intent and history of each article, main contents of the articles, and opinions on amendments.

POCI stated, “The commentary describes these contents from an objective standpoint and especially introduces opposing views in a balanced manner on major issues.”

In a press release, POCI presented the ‘main contents covered in the commentary’ as ▲ support for investigative activities and cooperation related to investigation (Article 17, Paragraph 4) ▲ the POCI chief’s referral request authority (Article 24, Paragraph 1) ▲ notification of recognition by other investigative agencies (Article 24, Paragraph 2) ▲ prosecutors’ handling of high-ranking officials’ crime allegations (Article 25, Paragraph 2) ▲ dispatch and duties of judicial police officers (Article 44) ▲ and the legal nature of POCI regulations (Article 45), introducing conflicting interpretations for each.

The commentary actually introduces various opinions on several provisions where interpretations diverged from the prosecution. However, throughout the commentary, the authors’ own opinions (mostly interpretations favorable to POCI) are conspicuously recorded as if these interpretations are correct.

First, regarding the interpretation of the POCI chief’s referral request authority (POCI Act Article 24, Paragraph 1), the commentary pointed out that the prosecution’s internal regulations (guidelines) contradict the explicit provisions of the POCI Act.

Article 24, Paragraph 1 of the POCI Act states that “when the chief determines that it is appropriate for POCI to investigate a crime overlapping with investigations by other investigative agencies, considering the progress and fairness controversies of the investigation, the relevant investigative agency shall comply with the referral request.”

This provision mandates that when the POCI chief requests referral of a case under overlapping investigation by the prosecution or police, the other investigative agency must comply. There are various views on the meaning of overlap and the timing (stage) when referral can be requested, but the main conflict with the prosecution concerns whether other investigative agencies must always comply without exception when the POCI chief requests referral.

The authors of the commentary stated, “The provision in the ‘Guidelines on Transfer and Referral of High-ranking Officials’ Crime and Investigation and Petition Cases’ established by the Supreme Prosecutors’ Office, which requires the Prosecutor General to recommend approval of referral requests to POCI, appears inconsistent with the explicit provisions of Article 24, Paragraph 1 of the POCI Act.”

The prosecution’s guidelines require the Prosecutor General to consider whether referring a case to POCI based on overlapping investigations and investigation progress might infringe on the right to a speedy trial or the suspect’s defense rights, or infringe on the rights of complainants or accusers, or cause fairness controversies, and then recommend approval of the referral request. This effectively grants the Prosecutor General approval authority over referrals, which contradicts the POCI Act’s provision that agencies receiving referral requests from the POCI chief must comply without exception.

In other words, the decision on whether to refer high-ranking officials’ crime cases rests entirely with the POCI chief, and other investigative agencies receiving referral requests must comply without exception, aligning with POCI’s existing stance.

The commentary also criticized the guideline’s provision allowing prosecutors to internally close investigations of petition cases they judge as difficult to register even if other agencies are investigating, stating that this interpretation “may contradict the purpose of introducing POCI to professionally respond to high-ranking officials’ crimes.”

Regarding whether POCI must hold overlapping cases with other investigative agencies to request referral, the commentary introduced both views: ‘yes’ and ‘no.’

It also cited criminal procedure law provisions on overlapping investigations between police and prosecution, adding a caveat that “it seems effective to require POCI to hold overlapping cases to request referral to other investigative agencies to eliminate controversies and ensure effectiveness,” but concluded that “considering the legislative intent of the POCI Act and the purpose of the notification provision, if it is inappropriate for other agencies such as prosecution or police to investigate, POCI should take precedence, so whether POCI holds overlapping cases is not essential.” In short, it interprets that POCI can request referral to prosecution or police even without holding overlapping cases.

Commentary Supports POCI’s Position on ‘Referral with Reserved Prosecution Rights’... Based on Co-researcher Oh Byung-doo’s Paper

The issue of whether POCI, which holds both investigative and prosecution rights, can refer cases to the prosecution for investigation and then have the case returned to POCI after investigation?i.e., whether ‘referral with reserved prosecution rights’ is possible?has been the most contentious between POCI and the prosecution.

As conflicts intensified, POCI created ‘Case Handling Rules,’ explicitly including the POCI chief’s ‘referral with reserved prosecution rights’ in Article 14, Paragraph 3, Subparagraph 2, and Article 25, Paragraph 2 of the rules. However, the prosecution has not recognized the effectiveness of these rules in practice, so the issue remains unresolved.

The cases that triggered the problem were those involving Lee Seong-yoon, Seoul High Prosecutor’s Office Chief Prosecutor, implicated in the ‘Kim Hak-ui illegal deportation’ case, and Prosecutor Lee Gyu-won, dispatched to the Supreme Prosecutors’ Office’s Past Affairs Investigation Team. Initially, the Suwon District Prosecutors’ Office, which handled the cases, referred them to POCI following the POCI Act’s enforcement, which assigned investigation of high-ranking officials’ crimes to POCI. However, since POCI had not yet appointed prosecutors and was practically unable to conduct direct investigations, it re-referred the cases back to Suwon District Prosecutors’ Office in March last year. POCI requested that prosecution decisions be ultimately made by POCI and asked for the cases to be sent back after investigation, causing conflict with the prosecution over ‘referral with reserved prosecution rights.’

The prosecution strongly opposed, arguing, “The subject of referral is the ‘case,’ not the ‘investigative authority.’” At the time, Lee Jeong-seop, head of the Criminal Division 3 at Suwon District Prosecutors’ Office, even said, “The POCI chief put forward an absurd and unprecedented argument.”

Ultimately, the prosecution investigated and indicted Prosecutor Lee directly, and the defense argued in court that the indictment violated the POCI Act and requested dismissal, but this was rejected.

The commentary authors introduced both views on this issue but sided with POCI.

First, regarding the ‘re-referral authority to other investigative agencies,’ the commentary stated, “The POCI Act grants POCI investigative and prosecution rights over high-ranking officials’ crimes involving judges, prosecutors, and police officers of rank at or above police superintendent (Article 3, Paragraph 1), and Article 24, Paragraph 3 grants the chief discretionary authority to refer cases to other investigative agencies. Therefore, there is a view that it is possible to request other agencies to investigate and then refer the case back to POCI, called conditional referral. In other words, since discretionary referral authority is recognized, conditional referral is possible for high-ranking officials’ crime cases with prosecution rights beyond simple referral. The Case Handling Rules specify this discretion.”

It continued, “According to the Case Handling Rules, for high-ranking officials’ crime cases involving judges, prosecutors, and police officers of rank at or above police superintendent, for which POCI holds investigative and prosecution rights under Article 3, Paragraph 1, the chief may request other investigative agencies to investigate the case under Article 24, Paragraph 3, and request referral back to POCI after investigation completion under Article 24, Paragraph 1. In such conditional referrals, the analysis and investigation prosecutor can register the case as a POCI public official crime case under the chief’s command and supervision upon referral, allowing registration regardless of whether the prosecution complies with re-referral.”

The authors explained, “Referral means ‘sending a case investigated by a specific agency to another agency for handling.’ Since other investigative agencies can also investigate high-ranking officials’ crimes, exclusive jurisdiction is difficult to recognize. Since the law states ‘cases may be referred,’ it is impossible to refer only investigative authority. Considering potential infringement of suspects’ rights and fairness controversies during referral and re-referral, there is a view that conditional re-referral is impossible.” The commentary cited a paper titled ‘Critical Review of the POCI Chief’s Discretionary Referral’ by Professor Jeong Woong-seok of Seokyeong University, president of the Korean Criminal Procedure Law Association, published last year, which aligns with the prosecution’s position.

Conversely, the authors introduced the view that “Article 24, Paragraph 3’s ‘referral’ should not be understood as a final disposition, and considering that Article 24, Paragraph 1 is difficult to apply after investigation completion and is rather possible only before investigation ends, such re-referral is also possible.” The source cited in the footnote was a paper by co-author Professor Oh titled ‘POCI’s Six-month Achievements and Tasks: Birth of a New Investigation and Prosecution Agency?’ and materials from the ‘Six-month Evaluation Forum of POCI - Asking the Way After Six Months of POCI’s Launch’ hosted by the People's Solidarity for Participatory Democracy, etc. In other words, Professor Oh’s own opinion, favorable to POCI, was quoted as if it were a third-party view in the commentary. For the commentary to be recognized as objective, it should have cited third-party views as much as possible, or if it had to cite the author’s own views, it should have clearly stated “I think this way.”

The authors also stated, “Although POCI requested conditional referral for high-ranking officials’ crime cases involving judges, prosecutors, and police officers of rank at or above police superintendent, the agencies receiving such requests may independently investigate and decide on prosecution or non-prosecution, or refer the case to the competent prosecution office for prosecution even though POCI has prosecution rights. The law does not clearly regulate how to handle such cases. However, there is a view that in such cases, the prosecution cannot exercise prosecution rights and must send the case to POCI after investigation.” According to the footnote, this view belongs to Professor Yoon Dong-ho of Kookmin University’s Department of Law, who participated as a discussant with the two authors at the ‘Current Status and Tasks of Prosecutorial Reform’ forum hosted by the People's Solidarity for Participatory Democracy and the Lawyers for a Democratic Society last year, and is included in the ‘Six-month Evaluation Forum of POCI’ materials mentioned earlier.

The authors concluded, “Since POCI’s investigative targets include crimes for which POCI holds prosecution rights, it is a legislative consideration to limit and check the prosecution’s prosecution rights, so only investigative authority can be referred to the prosecution. Otherwise, if the same crime is referred to the police, POCI refers it back for prosecution, and if referred to the prosecution, the prosecution investigates and prosecutes, causing issues with differing prosecution rights depending on the case.” This aligns with Professor Oh’s long-standing argument supporting POCI.

The commentary also mentioned, “There are attempts to resolve these issues through investigative consultations. To give POCI a leading role in investigation consultations via the referral system, Articles 24 and 25 should be interpreted integrally to recognize the POCI chief’s authority to re-refer referred cases. To prevent a ping-pong game of high-ranking officials’ crime investigations, the POCI chief’s status and role as an investigation coordinator should be emphasized. To avoid repeated cumbersome referrals and re-referrals, prior consultation and coordination stages are essential, and priority decision-making authority should be granted to the POCI chief.” The footnote cites a 2020 paper by Professor Oh published in Volume 32 of the Korean Journal of Criminal Policy titled “How Should POCI Be Operated? Suggestions on POCI’s Operational Direction.”

In summary, the commentary introduces views supporting both POCI and the prosecution regarding the POCI chief’s re-referral authority and ‘referral with reserved prosecution rights,’ but the view supporting POCI ultimately derives from co-author Professor Oh’s own opinion, which was used as a basis to reach conclusions favorable to POCI. This aspect is somewhat regrettable.

Professor Han Sang-hee: “POCI’s First Year Has Been Almost a Failure Despite Prosecutorial Reform Advocacy”

Professor Han Sang-hee of Konkuk University Law School, who significantly contributed to POCI’s launch, recently expressed in a media interview that “POCI’s past year has been almost a failure” and voiced deep concerns about “amateurish investigations and human rights violations.”

He cited the conflict with the prosecution as one of the reasons for POCI’s failure. Professor Han said, “Under the Moon Jae-in administration, prosecutorial reform emerged as an important social issue, and POCI’s purpose was expanded to include checking and controlling prosecutorial power as a pillar of prosecutorial reform. The problem is that in establishing and operating POCI, the slogan of prosecutorial reform was overly emphasized, turning the issue of high-ranking officials’ crimes, which should be addressed cooperatively by state agencies upholding judicial justice, into a confrontation between POCI and the prosecution.” He lamented that the confrontation structure between POCI and the prosecution was formed as the prosecutorial reform function was prioritized over POCI’s original purpose of investigating power crimes by high-ranking officials, preventing POCI from utilizing the prosecution’s accumulated investigative capabilities and crime-related know-how.

Ultimately a Legislative Issue... Need to Listen to Opposing Views

The conflict between POCI and the prosecution over the interpretation of the POCI Act must ultimately be resolved through legislation by the National Assembly. The law was enacted without detailed provisions on several potentially problematic articles due to the urgency of launching POCI quickly.

Until the law is amended, individual cases will inevitably be contested in courts, and conclusions will be reached based on the Supreme Court’s final interpretation as the ultimate legal authority.

Professor Han’s remarks deserve careful attention. POCI should be an agency cooperating with the prosecution and police to eradicate corruption crimes by high-ranking officials, not an agency locked in a power struggle with the prosecution under the banner of prosecutorial reform. Just because POCI’s investigative targets are high-ranking officials does not mean POCI is a superior agency to the prosecution, nor can the POCI chief, at vice-ministerial level, be considered a superior to the Prosecutor General, at ministerial level. Repeated claims of “You must obey me unconditionally” in interpreting referral provisions will never solve the problem.

In this regard, the recently published commentary is somewhat disappointing. When interpreting various contentious provisions of the POCI Act, listening only to voices supporting one’s side will not resolve issues. Broadening perspectives and listening openly to opposing views will help find solutions.

We hope that POCI Chief Kim Jin-wook’s apology, saying “I regret the shortcomings that did not meet the public’s expectations,” is sincere, and that his pledge to “return to the original intention and start anew” will be fulfilled this year.