There is ongoing discussion that, in order to ensure the effectiveness of prosecution reform, it is reasonable to separate the organizations responsible for investigation and prosecution, a so-called “organizational separation.” In response to concerns that the role of prosecutors in overseeing investigations?such as requesting supplementary investigations?would disappear if the Prosecution Service were abolished, some argue that “mandatory” cooperation between investigative and prosecutorial agencies must be a prerequisite.
The Seoul Bar Association (President Cho Soonyul), together with the Korean Association of Comparative Criminal Law (President Choi Hojin), the Korea Legal Policy Research Institute (President Oh Younggeun), and the Korea University Law Research Institute (President Lee Joowon), held an academic conference titled “Issues in Criminal Justice System Reform: Separation of Investigation and Prosecution” at the Bar Association Hall in Seocho-dong, Seoul, on August 1.
Oh Byungdoo, a professor at Hongik University School of Law and a presenter at the conference, assessed the so-called “four major prosecution reform bills” promoted by the Democratic Party as “organizational separation” that goes beyond the “functional separation” implemented during the previous Moon Jae-in administration. The four major prosecution reform bills include the abolition of the Prosecution Service, the establishment of a new Public Prosecution Office, the creation of a Major Crimes Investigation Agency under the Ministry of the Interior and Safety, and the establishment of a National Investigation Commission that would oversee the investigative powers of the Corruption Investigation Office for High-ranking Officials, the Major Crimes Investigation Agency, and the National Police Agency’s National Investigation Headquarters.
Professor Oh argued that even if the organizations are separated, “there is no need to unconditionally exclude prosecutors’ investigative powers unless there are special circumstances.” He stated that the issue is simply a matter of which function?investigation or prosecution?should be given more weight, and that there is no reason to limit the new Public Prosecution Office strictly to prosecution functions.
However, he emphasized that “dual investigations,” in which prosecutors go beyond requesting supplementary investigations and directly conduct police investigations as in the past, should not be allowed. Professor Oh pointed out, “The reason for diversifying investigative agencies such as the Corruption Investigation Office for High-ranking Officials, the Major Crimes Investigation Agency, and the National Police Agency is to enhance efficiency and expertise, not to have suspects investigated repeatedly by multiple agencies.”
Lim Hyunkyung, a reporter from the Legal Times who participated in the discussion, noted that if the Public Prosecution Office decides whether to indict solely based on reviewing records, it may be difficult to correct deficiencies in the initial investigation. She introduced a case in which the Seoul Central District Prosecutors’ Office directly interviewed a suspect with an intellectual disability who had been referred by the police, and subsequently discovered that the person was actually a victim.
In response, Professor Oh Byungdoo stated, “If prosecutors conduct supplementary investigations on their own even after the organizations are separated, that is actually desirable.” He explained, “Rather than separating investigation and prosecution only in form, it is necessary to maintain flexibility in functions within an appropriate scope.”
The “duty of cooperation” between the Public Prosecution Office and investigative agencies was also discussed. Kim Myongi, a professor at the National Police University’s Department of Law and a New York State attorney, suggested that Korea should refer to the UK’s experience, where the tradition of separating investigation and prosecution is well established. According to Professor Kim, in the 1990s, the UK’s Crown Prosecution Service also demanded investigative command authority. Prosecutors complained that their requests for additional investigations were often ignored or rejected by the police.
The Royal Commission on Criminal Justice (the Runciman Commission) concluded that if prosecutors (the prosecution office) direct investigations, police accountability becomes blurred. The commission determined that responsibility for investigations should remain with the police, while prosecutors should only advise on evidence required for trial. It also noted that legal experts are not necessarily more skilled at investigations, and that investigative command may conflict with the core role of evaluating investigation results.
Professor Kim proposed a “joint execution plan” as an alternative. Under this plan, prosecutors would not simply send unilateral requests to investigative agencies; instead, they would agree with the police on what evidence is needed and why, and document this agreement. This document could be created not only when prosecutors decide on indictment or supplement an already indicted case, but also during the investigation itself, thereby improving overall efficiency.
Professor Kim argued that “if a Public Prosecution Office is established, the possibility of dispatching prosecutors to investigative agencies to share case information and provide legal advice should also be discussed.” He emphasized, “Cooperation between agencies at every stage of criminal procedure is not optional but mandatory,” and stated, “If organizations are to be separated, above all, smooth cooperation must be ensured.”
Park Seongdong, Legal Times Reporter
※This article is based on content supplied by Law Times.
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