[Examining the Complete Prosecution Reform①] Four Months of an Angry Prosecution... Why Politics, Government, and Business Circles Are Watching Closely

Major Investigations Remaining on Daejang-dong and Ministry of Industry Blacklists
Prosecutors Expected to Prove Presence Through Investigation Results
Prosecutor Personnel Changes After Minister's Inauguration Draw Attention

Seoul Central District Prosecutors' Office, Seocho-dong, Seoul. / Photo by Choi Seok-jin

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] Although President Yoon Seok-yeol, a former Prosecutor General, has taken office, the prosecution is now facing its greatest crisis of having its investigative authority, exercised for over 70 years, taken away.

Due to the prosecution reforms carried out during the five years of the Moon Jae-in administration, the prosecution lost its investigative command over the police and was limited to investigating only six major crimes. With the revised Prosecutors' Office Act coming into effect in four months, the scope of crimes subject to prosecution investigation will be further reduced to two categories.

Moreover, the Democratic Party insists that this is only a temporary measure and is determined to establish the Serious Crime Investigation Agency (Jungsucheong), which would transfer the prosecution's remaining investigative authority, turning the prosecution into an agency solely responsible for prosecution, a move known as ‘Geomsu Wanbak’ (complete removal of prosecution's investigative authority).

With only four months left until the law is enforced, the prosecution faces a dual challenge: to prepare countermeasures against the opposition party's push for ‘Geomsu Wanbak’ and to prove its ‘presence’ through impactful investigations of politically sensitive major cases.

‘Geomsu Wanbak’ Law Enforcement Difficult to Block

The Prosecutors' Office Act, forcibly passed by the Democratic Party, reduces the prosecution's investigative targets to two types of crimes: corruption and economic crimes, and separates investigation and prosecution so that prosecutors cannot prosecute crimes they have investigated. Additionally, the revised Criminal Procedure Act drastically limits the scope of supplementary investigations by prosecutors using the ‘identity of the case’ criterion and removes the complainant's right to appeal police non-prosecution decisions.

The ruling party has already filed a constitutional dispute trial with the Constitutional Court, requesting a suspension of the law's effect, citing infringement of the ‘right to review and vote on bills.’ The Supreme Prosecutors' Office is also considering filing a constitutional lawsuit by the Minister of Justice, Prosecutor General, or prosecutors, but the likelihood of the Constitutional Court halting the effect of the revised law is low.

This is because the Constitutional Court has previously stated that even if the infringement of lawmakers' rights to review and vote is recognized in cases involving ‘rush legislation,’ it does not invalidate the effect of laws already passed.

It is also unclear whether the prosecution has the standing to file a constitutional lawsuit such as a dispute trial or constitutional complaint, and opinions differ on whether the constitutional provisions regarding prosecutors' warrant applications can be interpreted as recognizing investigative authority. Above all, the Constitutional Court is unlikely to suspend or invalidate the effect of the revised law, which was passed by the National Assembly despite controversy over legislative authority infringement.

Ultimately, what the Ministry of Justice or prosecution can do now is limited to amending presidential decrees such as the ‘Regulations on the Scope of Crimes for Prosecutors' Investigation Initiation’ or the ‘Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Guidelines’ to supplement the shortcomings of the revised law, but this must be done within the framework of higher laws, presenting a fundamental limitation.

Prosecution Must Prove Its Presence Through Investigation Results

In this situation, the prosecution is likely to focus its efforts on major case investigations during the remaining four months before the law takes effect to produce visible results. As Minister of Justice nominee Han Dong-hoon said, “The past three years were the most political and biased period in the history of the prosecution, and investigations into power were not conducted,” the prosecution has recently failed to achieve significant investigative results while being cautious of political circles.

Currently, the prosecution is investigating major cases such as the alleged preferential treatment in the Daejang-dong development involving former Gyeonggi Governor Lee Jae-myung (Seoul Central District Prosecutors' Office), the Seongnam FC sponsorship fund allegations (Seongnam Branch), the Ministry of Industry blacklist case (Seoul Eastern District Prosecutors' Office), and the Samsung Group's alleged unfair support of Samsung Welstory (Seoul Central District Prosecutors' Office). Former President Moon Jae-in was also reported to the Daejeon District Prosecutors' Office on the day after his retirement for abuse of power by civic groups opposing the ‘nuclear phase-out policy.’

This is why political circles, including both ruling and opposition parties, as well as government agencies, the business community, and labor and civic groups, are closely watching the prosecution's actions in the early days of the Yoon Seok-yeol administration.

The fact that Minister of Justice nominee Han, who is likely to be appointed regardless of the confirmation hearing results, and the soon-to-be-appointed Prosecutor General share the same stance on ‘Geomsu Wanbak’ offers the prosecution some hope for a turnaround.

Unlike the previous administration, where the Ministry of Justice and the Supreme Prosecutors' Office, as well as the Minister of Justice and Prosecutor General, maintained an extreme adversarial relationship, conditions are now set for the prosecution to investigate allegations based on principles without hesitation.

Before that, the urgent task is to reorganize the divided organization through prosecution personnel appointments.

Once Minister Han is appointed and the Prosecutor General selection is finalized, a large-scale personnel reshuffle seems inevitable. Skilled prosecutors who were sidelined during the Moon Jae-in administration due to the ‘line-up’ style appointments by Ministers Choo Mi-ae and Park Beom-gye may be placed in key investigative leadership positions instead of pro-government prosecutors who occupied important posts. How to dispel potential new controversies over biased appointments during this process will be a challenge for nominee Han.

Once the personnel reshuffle is completed and the system is reorganized, the prosecution's investigations into major cases are expected to proceed more swiftly than ever.