[Choi Seokjin's Law & Biz] Separation of Prosecutors' Investigation and Indictment Powers Risks Missing the Golden Time in Everyday Crime Investigations

The Democratic Party Launches "Special Committee for Normalization of the Prosecution" on August 6
Chair Min Hyungbae Vows "Passage Before Chuseok"
Concerns Over National Investigation Commission's Interference with Investigative Independence
"Thorough Review and Broad Social Consensus Needed Before Proceeding"

The likelihood of the four prosecution reform bills proposed by the Democratic Party of Korea?the Abolition of the Prosecutors' Office Act, the Public Prosecution Office Act, the Serious Crimes Investigation Agency Act, and the National Investigation Commission Act?passing the National Assembly before Chuseok has increased.

On August 6, the Democratic Party launched the "Special Committee for Normalization of the Prosecution in Accordance with Popular Sovereignty." Based on the reform plan prepared by the party's internal prosecution reform task force, the party plans to abolish the Prosecutors' Office and establish the Serious Crimes Investigation Agency and the Public Prosecution Office, thereby completely separating investigation and prosecution functions.

Since the Prosecutors' Office Act was first enacted in 1948, the prosecution faces the risk of abolition after 77 years. The lights are on late at night at the Supreme Prosecutors' Office building in Seocho-dong, Seoul. Photo by Yonhap News

Min Hyungbae, the Democratic Party lawmaker who chairs the special committee, announced that the final versions of the four bills?including the National Investigation Commission bill, which had been omitted from the National Policy Planning Committee's report?would be officially introduced as party bills by the end of this month or early September, with the goal of passing them before Chuseok.

The Pitfall of Misinformation and Statistics

The core of this reform is to prohibit prosecutors from conducting any investigations and to assign them exclusively to indictment and maintenance of prosecution?in other words, the complete separation of investigation and prosecution. The Democratic Party and supporting academics argue that such a separation is essential to prevent abuse of investigative powers by prosecutors.

They also claim that this is a legislative trend confirmed by statistics from various advanced countries and that it reflects the will of the people. President Lee Jaemyung stated, "There seems to be no disagreement that the problem lies in the same entity holding both investigative and prosecutorial powers."

But is this claim actually true? Let's first examine foreign legislative examples. According to a review report by the National Assembly Legislation and Judiciary Committee, as of 2017, 27 out of 35 OECD member countries (about 77%) explicitly stipulated prosecutorial investigative powers in their constitutions or laws. As of last year, 34 out of 38 OECD member countries (about 90%) recognized investigative powers for prosecutors.

It is true that recent opinion polls show more respondents in favor of separating investigation and prosecution. In a Realmeter poll in June, 55.9% of respondents supported the separation, and in a Korea Research poll last month, 58% were in favor. However, in both surveys, opposition was overwhelmingly high among conservatives, and results varied completely depending on party affiliation and region of residence. Votes were split more by political orientation than by the content of the proposed system changes.

Concerns Inside and Outside the Prosecution

Despite the existential crisis facing the organization, prosecutors have not publicly protested due to various circumstances, but several posts expressing concern about the reform bills have appeared on internal prosecution message boards. The post with the most supportive comments was written by Hwang Byungjoo, Chief Prosecutor of the Daejeon High Prosecutors' Office.

Hwang served as Director of the Criminal Affairs Department at the Supreme Prosecutors' Office from June 2022 to September 2023, overseeing criminal investigations nationwide. Among the comments, some have asked Im Eunjeong, Chief Prosecutor of the Seoul Eastern District Prosecutors' Office and a longtime advocate of prosecution reform, to read Hwang's post at the National Policy Committee or at public hearings.

Last month, Jeong Hwancheol, Senior Expert Advisor of the National Assembly Legislation and Judiciary Committee, submitted a 122-page review report on the four bills to the National Assembly. In the report, Jeong pointed out the need to review whether separating prosecutors' investigative powers would undermine their constitutionally mandated authority to request warrants, and whether changing the title "Prosecutor General," which is explicitly stipulated in the Constitution, to "Chief Public Prosecutor" in the lower-level Public Prosecution Office Act would be unconstitutional.

He also noted that completely excluding investigative authority from public prosecutors could create systemic inconsistencies when compared with military prosecutors, Corruption Investigation Office prosecutors, and special prosecutors, all of whom hold both investigative and prosecutorial powers.

He further cited issues such as investigation delays, police officers avoiding investigative departments, and the underperformance of the Corruption Investigation Office following two rounds of investigative authority adjustments between the police and prosecution promoted by the Democratic Party. He stated, "A comprehensive analysis and evaluation should precede any reform, including whether the redistribution of investigative powers and checks and balances have been achieved as intended, whether new agencies such as the Corruption Investigation Office and the National Investigation Headquarters have been stably established, and how the handling of cases, investigative capabilities, and workloads have changed at each investigative agency after the adjustments."

He added, "It is necessary to thoroughly discuss the impact on the state's investigative capacity and ability to respond to crimes such as corruption and economic crimes, as well as on the prompt protection of citizens' rights, given that the prosecution may not be able to fully utilize the investigative capacity and know-how it has accumulated over many years in these areas."

The Supreme Court (Court Administration Office) has not issued an official position, but in response to an inquiry from lawmaker Joo Jinwoo of the People Power Party last month, stated, "Since these bills would fundamentally change the existing criminal justice system, sufficient social consensus and practical review of the impact of institutional changes should precede any legislative action. It is desirable that a careful legislative process be pursued, fully reflecting the various concerns raised at public hearings and in the review reports by the Legislation and Judiciary Committee's senior expert advisors."

Back in 2022, when the complete separation of investigation and prosecution was being discussed, Kim Hyeongdu, then Director of the Court Administration Office, expressed concern, saying, "If a prosecutor who has been involved in an investigation assists with prosecution or trial, the defendant's side could claim the trial itself is invalid."

Public hearing on prosecution reform bills held on the 25th of last month in the National Assembly Judiciary Committee meeting room. Photo by Seokjin Choi, Law&Biz Specialist

Undermining 95% of Public Safety Investigations to Solve 5% of Corruption Cases

In his post, Chief Prosecutor Hwang pointed out that solutions intended for corruption investigations?which account for, at most, 5% of the prosecution's investigative work?are being inappropriately applied to public safety crimes, which make up about 95% of their caseload.

Of the prosecution's investigative work, 95% involves requests for supplementary investigations, requests for reinvestigation, and direct supplementary investigations in cases referred or not referred by the police. The remaining 5% are corruption, securities, and drug crimes that the prosecution investigates directly. Hwang argued that it is misguided to apply solutions for political neutrality and abuse of power issues in corruption investigations to the entirely different field of public safety crime investigations.

He stated, "In the latter case, it is preferable for the police and prosecution to maintain a highly functional and close relationship, rather than being separated or serving as checks on each other. Dividing prosecutorial authority and splitting powers between agencies is not a solution for public safety crime investigations; in fact, it may be counterproductive."

Hwang also addressed the issue of investigation delays, saying, "The travel time of the KTX from Busan to Seoul can vary by up to 57 minutes depending on the number of stops. If the National Investigation Commission is established, it will create an additional 'stop' between the prosecution and police, making it impossible to predict how much more investigations and case processing will be delayed."

The National Investigation Commission's Negative Effects Will Be Significant

At two public hearings held by the National Assembly Legislation and Judiciary Committee and at a seminar organized by the criminal law academic community ahead of the bills' passage, numerous concerns were raised.

Lee Changhyeon, a professor at Hankuk University of Foreign Studies Law School, expressed concern that "due to the increased investigative burden and unclear allocation of responsibility, no investigative agency will actively pursue investigations, leading to repeated situations where crimes are concealed."

Regarding the National Investigation Commission, he said, "Although it is being established as a control tower to coordinate confusion caused by the proliferation of investigative agencies, given its vast scope of responsibilities, it is likely to result in greater negative effects, such as undermining the independence of investigative agencies and causing delays, rather than positive outcomes."

Mo Seongjun, a professor at the Judicial Research and Training Institute (and High Court Judge), stated, "After the complete separation of investigative and prosecutorial powers, it will be difficult to properly investigate organized fraud, and the likelihood of subsequent trials proceeding smoothly will be significantly reduced."

Yang Hongseok, managing partner at Lawfirm Igong and former member of the Prosecution Future Committee and the Supreme Court Judicial Development Committee, pointed out, "In the case of the police, prosecution, and Corruption Investigation Office, presidential or government involvement in specific investigations is institutionally limited. However, the National Investigation Commission would not only allow indirect but also 'direct' and 'constant' involvement in specific investigations. This would undermine the independence of individual investigative agencies and run counter to the independence and fairness of specific investigations."

On the 1st, a joint academic conference on the separation of investigation and prosecution in criminal law was held at the Seoul Bar Association Building in Seocho-dong, Seoul. The conference was co-hosted by the Korean Society of Comparative Criminal Law, Korea University Law Research Institute, Seoul Bar Association, and Korea Legislation Research Institute. Choi Seokjin, Law & Biz Specialist

The Complete Abolition of Prosecutors' Investigative Powers Is a Deterioration

The majority of legal professionals opposing the Democratic Party's "separation of investigation and prosecution" bills believe that "the person most familiar with a case through direct investigation should be the one to decide whether to prosecute." They argue that, as seen in major cases such as the state corruption scandal during the Moon Jaein administration, it is evidence of the inseparable relationship between investigation, prosecution, and maintenance of prosecution that the investigative prosecutor has always appeared in court to maintain the indictment in important cases.

While the negative effects of previous prosecution reforms have yet to be resolved, critics argue that pushing for the rapid abolition of the Prosecutors' Office without countermeasures for the clearly foreseeable side effects?including the weakening of the state's ability to respond to crime, excessive expansion and lack of oversight of police powers, political interference in investigations through the National Investigation Commission, increased investigation delays, and higher costs for citizens?amounts to a deterioration of the system.

In the process of completely overhauling the criminal justice system that has been maintained for 70 years, the most important standard should be "whether it benefits the people."

Chief Prosecutor Hwang's point resonates: "Constructive discussion to improve the scope of direct investigations by the prosecution is necessary, but the process should not involve undermining the system out of hostility toward the prosecution. We are talking about the fundamental institutions of society. This is not something that can be experimented with at the expense of the people."