[In-Depth Review] The Algorithm of the Complete Prosecution Ban and the Amendment of the Patent Attorney Act

April is a cruel month.

Just like a line from T.S. Eliot's poem "The Waste Land," the entire nation of South Korea was completely divided over the pros and cons of the "complete removal of prosecution's investigative authority" (Geomsu Wanbak) throughout April. The purpose of the Geomsu Wanbak bill was to completely strip the prosecution of its investigative authority, which had become excessively concentrated, and transfer it to the police. The prosecution system in South Korea, formed during the Japanese colonial period, concentrated a great deal of power, including investigation, prosecution, and even some judicial powers represented by summary orders. Because of this, the need for reform had long been discussed. In fact, since last year, there had been legislative reforms corresponding to the first adjustment of investigative authority between the prosecution and police, which significantly reduced the prosecution's investigative powers. The current Geomsu Wanbak bill was justified as completing the unfinished prosecution reform legislation previously implemented.

However, after the first adjustment of investigative authority between the prosecution and police, the criminal justice practice was filled with problems caused by institutional flaws that made it difficult to properly coordinate the cries of crime victims who were not properly investigated or compensated, as well as the subtle discord between the prosecution and police. In fact, a survey conducted by the Korean Bar Association targeting lawyers showed that 73% of lawyers experienced issues such as investigation delays after the first adjustment of investigative authority between the prosecution and police.

It was time to discuss supplementing the problems of the existing reforms rather than starting a new, unprepared reform. Solutions in terms of systems or budgets to improve and support the investigative capabilities of the police, to whom investigative authority was suddenly transferred, needed to be discussed. A system that would allow the prosecution and police to maintain a cooperative relationship in investigations had to be seriously devised. However, in April, the government and ruling party ignored all these reasonable objections, demonized the prosecution itself, and incited the public by insisting that investigative authority must be transferred unconditionally. Amid this, they did not forget to include politically advantageous provisions such as the possibility of burying election crimes after only 180 days of the statute of limitations and abolishing the right to appeal against accusations from civic groups that had been a burden.

The Korean Bar Association tried to raise awareness of these legislative problems and prevent hasty legislation through a filibuster involving lawyers and citizens, but the massive ruling party with nearly 180 seats used relentless tactics such as strategic party defections and splitting sessions to push the legislation through.

Following this, the Industrial and Energy Committee subcommittee resolved and passed an amendment to the Patent Attorney Act that effectively transfers the litigation representation rights, which are fundamental to lawyers' qualifications, to patent attorneys, who are in a similar legal profession. Within about a week, the full Industrial and Energy Committee also passed the bill. The justification for this legislation was that it was necessary to reduce excessive legal fees for the scientific and technological sectors and venture companies, but its logic closely resembles that of Geomsu Wanbak, and it is clear that the outcome will be similar.

Even though patent litigation ultimately falls under civil litigation, if litigation representation rights are first transferred to patent attorneys who have never studied or been evaluated on civil enforcement laws such as provisional injunctions or the calculation of damages, which inevitably accompany patent litigation, the damage will ultimately be borne by the public. Yet, just as the prosecution was demonized, lawyers are being demonized to push this legislation through.

Those pushing for the amendments to Geomsu Wanbak and the Patent Attorney Act are trying to induce catharsis among their supporters and increase their approval ratings by dismantling professions that have long held legally guaranteed authority to maintain expertise. We call this kind of thinking algorithm in politics populism or totalitarian thinking.

However, this populism or totalitarian thinking, which may provide momentary relief, ultimately causes great social confusion and makes the weakest members of society suffer the most. The time is approaching when all intellectuals who have remained silent must unite to create a world governed by laws and systems against those who seek to exercise exceptional power based on temporary popularity.

Sangsoo Park, Vice President of the Korean Bar Association