[Law & Story] The Reality of the 'Geomsu Wanbak' Bill

Comparison between Article 4 of the recently proposed amendment to the Prosecutors' Office Act containing the so-called complete prosecution reform by the Democratic Party of Korea (right) and the current Article 4 of the Prosecutors' Office Act.

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 without being bound by topics or formats, discussing key legal issues or prospects of major cases, behind-the-scenes stories, and untold anecdotes. Today marks the seventeenth story, focusing on the so-called 'Geomsu Wanbak' recently proposed by the Democratic Party of Korea.

[Asia Economy, Legal Affairs Specialist Reporter Choi Seok-jin] Geomsu Wanbak is an abbreviation for 'complete deprivation of prosecutorial investigative authority.'

As the term literally means, it refers to completely abolishing the investigative authority that has been considered a natural power of prosecutors since the Prosecutors' Office Act was first enacted, promulgated, and enforced on December 20, 1949, or even before that (given that Article 38 of the Enforcement Decree of the original Prosecutors' Office Act stipulates that 'each prosecutors' office at the time of enforcement shall be deemed to have been established under this Act,' it appears that some prosecutors' offices existed even before the Act was enacted).

Article 4 of the original Prosecutors' Office Act stated, "Except where otherwise specified by law, prosecutors shall perform their duties within the jurisdiction of their affiliated prosecutors' office. However, when necessary for investigation, they may perform duties outside their jurisdiction," clearly indicating that prosecutors could conduct investigative duties outside their affiliated prosecutors' office's jurisdiction.

Furthermore, Article 5 enumerated four duties or powers of prosecutors as public interest representatives in criminal matters beyond their statutory authority: ▲ criminal investigation, filing and maintaining prosecution, ▲ command and supervision of judicial police officers regarding criminal investigations, ▲ requests for proper application of laws to courts, and ▲ command and supervision of trial execution.

Among the prosecutorial investigative authority and supervisory authority over the police that have been maintained for over 70 years, the supervisory authority was abolished with the adjustment of investigative authority between prosecutors and police implemented in January last year. Now, the Democratic Party is pushing for the so-called Geomsu Wanbak, which means completely removing prosecutors' investigative authority and limiting them to deciding whether to prosecute and maintaining prosecutions.

Of course, members of the Democratic Party seem uncomfortable with the term 'Geomsu Wanbak.' They argue that prosecutors will not be entirely or completely barred from investigation, as investigative authority remains for crimes related to duties of police officers or officials of the Corruption Investigation Office for High-ranking Officials (CIO). They seem dissatisfied with the term 'complete deprivation,' likely because they are aware that the term 'Wanbak' carries a negative connotation among the public.

However, examining the bill proposed by the Democratic Party on the 15th reveals that the expression 'complete deprivation of prosecutorial investigative authority' is by no means an exaggeration.

What Does the 'Geomsu Wanbak Law' Contain? A Look at the Democratic Party's Proposed Amendments to the Prosecutors' Office Act and Criminal Procedure Act

On the 15th, the Democratic Party submitted partial amendments to the Prosecutors' Office Act and the Criminal Procedure Act under the names of all its members of the National Assembly.

First, looking at the amendment to the Prosecutors' Office Act, as seen in the photo attached above the article, Article 4 (Duties of Prosecutors) deletes all provisions granting investigative authority over the six major crimes, which had allowed direct prosecution investigations following the adjustment of investigative authority between prosecutors and police.

Moreover, the term 'criminal investigation' was removed from the prosecutors' duties, which previously included matters necessary for criminal investigation and prosecution filing and maintenance.

When the current Prosecutors' Office Act, enforced since January last year, faced growing opposition over concerns about weakening the state's crime response capability, the Democratic Party reassured the public by stating that prosecutors would still investigate the six major serious crimes despite the adjustment of investigative authority. However, just over a year later, they propose abolishing prosecutorial investigative authority over these critical six crimes.

Compared to then, the number of important crimes such as corruption, economic crimes, and crimes by public officials has not decreased, nor has the police's investigative capacity significantly improved. This suggests that the previous assurance that prosecutors would retain investigative authority over the six major crimes was merely a smokescreen to pass the adjustment bill.

Furthermore, the amendment changes the organizational provisions of the Prosecutors' Office Act (Article 16) by renaming all prosecutorial investigative officers to prosecutorial officers and deletes Article 32, which allowed the Prosecutor General to delegate prosecutorial duties to judicial trainees, prosecutorial investigative officers, or investigative clerks.

Also, Article 46, Paragraph 1, which allowed prosecutorial investigators to engage in investigative affairs under the prosecutor's order, was amended to restrict their role to assisting prosecutors only in filing or maintaining prosecutions.

Regarding the Criminal Procedure Act amendment, Article 196 (Prosecutor's Investigation), which stipulated that "when a prosecutor believes there is suspicion of a crime, they shall investigate the suspect, facts, and evidence," was entirely deleted.

Instead, Article 197 (Judicial Police Officers) was revised to Article 197 (Judicial Police Officers and Prosecutors' Investigation), adding Paragraph 3 stating, "A prosecutor may investigate suspects, facts, and evidence only in cases prescribed by other laws," and Paragraph 4 stating, "When a prosecutor performing investigative duties under Paragraph 3 or other laws applies this Act, they shall be regarded as judicial police officers."

By removing investigative provisions from the Criminal Procedure Act, the intent is that prosecutors may exceptionally investigate under other laws (e.g., investigations of police officers or CIO officials under the Prosecutors' Office Act) and be treated as judicial police officers when applying the Criminal Procedure Act.

The opportunity for prosecutors to directly supplement investigations to determine whether to prosecute when police investigations are insufficient has also been removed.

Currently, Article 245-7, Paragraph 1 of the Criminal Procedure Act allows complainants, accusers, or victims to file objections if the police decide not to prosecute due to lack of suspicion, requiring the police to promptly transfer the case and related documents to the prosecutor. (Article 245-7)

However, the amended law adds Item 3 to Article 197-2 (Request for Supplementary Investigation), stipulating that even in such cases, prosecutors cannot conduct supplementary investigations directly but must request the police to conduct supplementary investigations again.

Also, the provision allowing prosecutors to request the police to transfer cases if the police fail to comply with corrective measures after prosecutors review case records for suspected legal violations, human rights infringements, or significant abuse of investigative authority during police investigations (Article 197-3, Paragraph 5) was deleted.

Furthermore, even if prosecutors become aware of new criminal suspicions related to cases transferred or submitted by the police, they cannot investigate directly but may only request judicial police officers to investigate. (Article 245-5, Paragraph 2)

Comparison between Article 201 of the Criminal Procedure Act, recently amended by the Democratic Party of Korea to include the so-called "complete prosecution reform" (right), and the current Article 201 of the Criminal Procedure Act.

Additionally, in provisions related to investigation such as urgent arrest of suspects (Article 200-3), detention (Article 201), forced measures without a warrant (Article 217), and suspect interrogation (Article 241), prosecutors were entirely removed as subjects, leaving only judicial police officers as the actors.

For example, Article 201 concerning suspect detention currently allows prosecutors to directly request detention warrants from judges of the competent district court and detain suspects upon issuance of the warrant, or judicial police officers to apply for detention warrants through prosecutors, who then request judges to issue the warrants. Now, prosecutors are excluded as subjects who can detain suspects, leaving only the police with that authority.

The Real Reason Behind 'Geomsu Wanbak' Hidden in the Supplementary Provisions

Supplementary provisions regulate when a law is to be enforced after enactment or amendment, whether it will be enforced immediately upon promulgation or after a grace period, and how to resolve conflicts with previous provisions.

Both the Democratic Party's proposed amendments to the Prosecutors' Office Act and the Criminal Procedure Act stipulate in Supplementary Provision Article 1 (Enforcement Date) that "this law shall be enforced three months after promulgation."

Why did the Democratic Party, which has emphasized the necessity of Geomsu Wanbak so strongly, fail to set the law to be enforced immediately upon promulgation?

Because immediately abolishing prosecutorial investigative authority would create a gap in investigations of the six major serious crimes, and there is no preparation whatsoever for an institution to replace this function.

In the past, ruling party lawmakers proposed bills to abolish the Prosecutors' Office and establish a Serious Crime Investigation Agency and a Prosecution Agency several times. However, this 'Geomsu Wanbak Law' was pushed too suddenly after Yoon Seok-youl's presidential victory, without proper discussion on where to transfer prosecutorial investigative authority over the six major crimes.

Conscious of public criticism over investigative gaps if the law were enforced without a grace period, the legislative approach seems to be to abolish prosecutorial investigative authority first and think about the rest later.

This is not just my opinion but was confirmed through a message sent by Representative Hwang Un-ha of the Democratic Party, who is at the forefront of pushing the Geomsu Wanbak Law, to fellow lawmakers.

Representative Hwang said, "There were concerns that pushing the Serious Crime Investigation Agency bill would prolong discussions and make it difficult to promulgate the bill by May 9," and proposed, "So let's prioritize passing the urgent bill deleting the basis for prosecutors' direct investigative authority."

He also said that if Geomsu Wanbak is realized, "the six major crimes' investigative authority held by prosecutors will not be transferred anywhere but simply evaporate," resulting in a reduction of the state's total investigative capacity.

This is a shocking idea. The two most important principles of the Criminal Procedure Act are discovering substantive truth and protecting suspects' human rights.

Protecting citizens from crime is one of the state's important duties. What should be reduced is the total amount of crime, not the total amount of investigation. Yet, the Democratic Party is focusing solely on depriving prosecutors of investigative authority, even if it means tolerating gaps in protecting citizens from crime.

So, what situation will arise if the proposed amendments are passed? The answer lies in the supplementary provisions of each amendment.

Supplementary Provision Article 2 (Transitional Measures for Cases Under Investigation by Prosecutors) of the Democratic Party's proposed Criminal Procedure Act amendment states that "cases under investigation by prosecutors at the time of enforcement shall be succeeded by the local police agency having jurisdiction over the location of the district prosecutors' office or branch office that received the case."

Also, Supplementary Provision Article 4 (Transitional Measures for Jurisdictional Affairs) of the Prosecutors' Office Act amendment stipulates that "criminal investigation affairs under the former Article 4, Paragraph 1, Item 1 shall be succeeded by the National Police Agency at the time of enforcement."

This means that all cases currently under investigation by prosecutors, including the six major crimes, will be transferred to and investigated by the respective local police agencies.

In this regard, Representative Kim Woong of the People Power Party wrote on his Facebook, "The hidden intent of law amendments is mostly concealed in the supplementary provisions," and criticized, "They claim to amend laws 'for the people,' but most of it is deception, and the sinister intent of the law amendments is revealed in the supplementary provisions."

Referring to Supplementary Provision Article 2 of the Criminal Procedure Act amendment, he said, "This means stopping ongoing investigations such as the Daejang-dong case, the Ministry of Trade, Industry and Energy blacklist case, and the Samsung Welstory support case currently handled by prosecutors," and "While most supplementary provisions maintain ongoing cases, the Geomsu Wanbak Law transfers them to local police agencies. In other words, the real intent of Geomsu Wanbak is to block investigations against themselves, openly declared domestically and internationally."

Implied Unconstitutionality... Even if Passed, Constitutional Court Review or Jurisdictional Dispute Petition Inevitable

The only way to block the passage of the Democratic Party's Geomsu Wanbak Law, which holds a majority in the National Assembly, is currently the People Power Party's filibuster (unlimited debate).

However, even this becomes impossible if the Democratic Party secures 180 seats by persuading the Justice Party or employs the so-called 'salami tactic' of splitting sessions.

If the bill passes the National Assembly and is promulgated and enforced at the last Cabinet meeting presided over by President Moon Jae-in on May 3 as planned by the Democratic Party, the next step would be to challenge the constitutionality of the amended laws at the Constitutional Court.

The Constitutional Court has taken the position that constitutional complaints or constitutional review petitions can be filed even after promulgation but before enforcement if enforcement is certain.

The prosecution argues that the bill depriving prosecutors of investigative authority directly violates constitutional provisions designating prosecutors as subjects who can request warrants.

Article 12, Paragraph 3 of the Constitution concerning arrest, detention, seizure, and search warrants, and Article 16 concerning search and seizure warrants for residences specify 'prosecutors' as subjects who can request warrants to courts. Historically, the warrant requester changed from 'investigative agency' at the time of the Constitution's enactment to 'prosecutor' in the fifth constitutional amendment after the April 19 Revolution, reflecting the legislature's decision to prevent human rights violations by police warrant applications.

And since warrant requests inherently presuppose investigations, while it cannot be said that only prosecutors can be investigative subjects, enacting laws stating that 'prosecutors are not investigative agencies' or 'prosecutors cannot investigate' directly contradicts our Constitution, according to the prosecution.

In constitutional complaints, the party whose fundamental rights are directly infringed can file a petition. It is difficult to regard prosecutors' investigative authority as a fundamental right, and whether citizens who have suffered or may suffer crime damage due to the amended laws can claim fundamental rights violations remains debatable.

More likely is that the Minister of Justice, who supervises prosecutors as the highest authority under the Prosecutors' Office Act, may file a jurisdictional dispute petition with the Constitutional Court, claiming that their authority has been infringed by the National Assembly, which the Court may accept.

Article 65 (Provisional Disposition) of the Constitutional Court Act states that "when the Constitutional Court receives a jurisdictional dispute petition, it may, ex officio or upon the petitioner's request, issue a provisional disposition suspending the effect of the respondent's disposition until the final decision."

If the Minister of Justice files a jurisdictional dispute petition with a request for provisional disposition to suspend the effect of the amended Prosecutors' Office Act and Criminal Procedure Act, the Court will decide whether to suspend the law's enforcement until the final judgment on the authority infringement.

Professor Kim Seon-taek of Korea University Law School pointed out, "This Geomsu Wanbak bill seems problematic from the separation of powers perspective," adding, "Both prosecutorial authority and investigative authority belong to the executive branch, but how can changing laws without any consultation with the executive branch, which is responsible for enforcement, work?"

He continued, "This matter is more suitable for government and legislature to negotiate and find a reasonable solution rather than the judiciary deciding. Even if the case goes to the Constitutional Court, it is likely that the Court will suspend the law's effect until government and legislature reach an agreement rather than issuing a final ruling."

Failed Moon Jae-in Government's 'Prosecutorial Reform'... Hoping No More Missteps

The Moon Jae-in administration prioritized prosecutorial reform from the beginning of its term and pushed it through.

Investigative authority between prosecutors and police was adjusted, significantly reducing the crimes prosecutors could investigate, and the supervisory authority over police was abolished. Meanwhile, the police, who previously had to transfer all cases to prosecutors for legal judgment after investigation, gained the authority to conclude cases independently.

Democratic Party explained that prosecutors would still handle investigations of serious crimes requiring high expertise, and prosecutors could supplement police investigations if they were inadequate.

However, just over a year after the law's enforcement, the Democratic Party now proposes abolishing prosecutors' investigative authority over the six major crimes and their supplementary investigative authority.

Has crime decreased so much in the meantime that prosecutors' investigative authority is no longer necessary?

Various statistics confirm that investigations of complaints and accusations have noticeably slowed since the adjustment of investigative authority between prosecutors and police. Lawyers representing victims at the front lines of investigations are extremely dissatisfied.

The police's handling of socially significant cases such as the 'Vice Minister Lee Yong-gu's taxi driver assault' and the 'LH real estate speculation' cases raises doubts about whether all investigations should be entrusted to the police.

The Corruption Investigation Office for High-ranking Officials (CIO), which has failed to prosecute properly even after a year since its launch and has only caused controversies such as 'Lee Sung-yoon's imperial escort,' 'illegal searches and seizures,' and 'indiscriminate communication data requests,' has become a 'Yoon Seok-youl investigation office,' making further discussion unnecessary.

Rather, the biased personnel appointments by former Ministers of Justice Choo Mi-ae and Park Beom-gye, not the system, obstructed prosecutorial reform.

Recent public opinion polls on Geomsu Wanbak show that more than half of the public oppose it. Not only the legal and academic communities but also civil groups like the People's Solidarity for Participatory Democracy and the Lawyers for a Democratic Society, which actively supported Moon Jae-in's prosecutorial reform, oppose it. It is hard to find support outside the Democratic Party for this issue.

Han Sang-hee, co-representative of the People's Solidarity for Participatory Democracy, who has strongly advocated prosecutorial reform, recently appeared on the radio current affairs program 'Joo Jin-woo Live' and said, "It is too sudden. It's like a doctor cutting open a patient's abdomen first because there is a tumor inside and then checking it later."

This shows how sudden and absurd the Democratic Party's proposed Geomsu Wanbak bill is.

The Democratic Party claims to separate investigation and prosecution, but this is far from practical investigation work.

Investigation is not an end in itself but merely a preliminary step for prosecution. Prosecution means bringing criminals to trial to be convicted by the court.

Currently, the prosecution has a separate trial department responsible for maintaining prosecutions, but the prosecutor who conducted the investigation understands the case best and knows the defendant best.

Why would the chief prosecutor who led the investigation in major cases such as the state manipulation scandal or Samsung Group cases not participate directly in court to maintain prosecution? Because the prosecutor who directly interrogated the suspect and observed their responses has the highest understanding of the case.

Regarding the Geomsu Wanbak bill, the legal community says, "It's like telling a doctor not to examine the patient directly but to prescribe treatment based only on the nurse's report of the patient's conversation."

Of course, the police's investigative capacity has noticeably improved compared to before, with more senior officers from the Korean National Police University and more police officers qualified as lawyers.

However, it is undeniable that prosecutors generally have superiority in legal expertise and human rights protection. Prosecutors are appointed after passing the judicial examination and completing the Judicial Research and Training Institute or, currently, after completing law school and passing the bar exam, undergoing the same process as judges. The Criminal Procedure Act's wording about warrants?"judicial police officers apply to prosecutors, who request judges for detention warrants"?reflects this background.

It is questionable whether sufficient consultation was conducted before suddenly enacting a law telling prosecutors who have developed expertise over several years to more than 20 years in investigation to 'stop investigating and only prosecute,' and whether there was consideration of side effects and efforts to prepare alternatives while changing the criminal justice system framework maintained for over 70 years.

On the 15th, the day the Democratic Party proposed the Geomsu Wanbak Law, Han Dong-hoon, nominee for Minister of Justice, said, "Ultimately, if this bill passes, only powerless citizens will suffer, and powerful criminals will effectively commit crimes without punishment institutionally."

He also targeted the Democratic Party, saying, "Only criminals should fear a properly functioning prosecution. The public will be very curious about what happened over the past five years to cause such an unjust midnight escape."

Except for the Democratic Party, most citizens oppose the Geomsu Wanbak Law, and if passed in the National Assembly, it is obvious that great confusion will ensue. However, realistically, there is no way to restrain the majority party's rampage in the National Assembly, which is a sad reality.