[Stalled Investigations]③ Eliminating Prosecutorial Abuses Could Create a Void in Judicial Oversight... Minimum Safeguards Must Remain

'Supplementary Investigation Authority' Disappearing Would Leave a Void in Judicial Oversight
"Separation of Investigation and Prosecution... Minimum Oversight Mechanisms Must Be Maintained"

The Democratic Party of Korea plans to convene a plenary session of the National Assembly on September 25 and process an amendment to the Government Organization Act. The amendment would transform the Prosecutors' Office into a Prosecution Office dedicated solely to indictments and maintaining prosecutions, and establish a Serious Crimes Investigation Office (Jungsucheong) specializing in investigating major crimes. The party intends to pursue more detailed prosecutorial reform measures through subsequent phased legislation.

According to the legal community on September 3, there remain unresolved differences between the Democratic Party’s Special Committee on Prosecutorial Reform and the Ministry of Justice regarding whether to completely strip the Prosecution Office prosecutors of their supplementary investigation authority, and to which ministry the Serious Crimes Investigation Office should belong. Given the potential for significant changes to the criminal justice system, some voices are emphasizing the need for a meticulously designed system to ensure that measures to prevent abuse of prosecutorial power do not negatively impact the state's crime deterrence function.

If 'Supplementary Investigation Authority' Disappears, Judicial Oversight Will Be Left With a Void

There are concerns that, in the current situation where responsible investigations have disappeared following the adjustment of investigative powers between the police and prosecution, the removal of the prosecution’s direct supplementary investigation authority would create a significant gap in judicial oversight, ultimately harming the public. Both within and outside the legal community, critics argue that this effectively removes any filtering mechanism for the immense power of “investigation,” which is inherently fallible. While the reform aims to eliminate the problems caused by the prosecution holding both the authority to initiate and conclude investigations, it merely shifts this authority in its entirety to the police, resulting in only a change in form.

Park Chanun, a professor at Hanyang University School of Law, stated, “If the prosecution’s supplementary investigation authority is completely stripped, investigations by the prosecution after an objection will become impossible.” He explained, “When a complainant believes there is a problem with the police’s decision to close an investigation without referring the case for prosecution, they file an objection with the prosecution. If the prosecution is unable to conduct any investigation, this creates a situation where nothing can be done.” Professor Park further pointed out, “Even if an objection is filed, the prosecution can only review the police’s investigation records and request a reinvestigation if issues are found. In such cases, even if the police reinvestigate, it is unlikely to be effective. If the police again decide not to refer the case, there are no further remedies.”

The problem is that, in cases where the police decide not to refer a case for prosecution, the prosecution cannot even review the case, effectively ending the matter and blocking victims from recovering damages or seeking redress. Even if victims wish to file an appeal with the prosecution (requesting a higher prosecutor’s office to reconsider a non-indictment decision and order a reinvestigation) or file a motion with the court (asking the high court to order prosecution after a non-indictment decision), the case never reaches the prosecution, depriving them of any opportunity for review by a higher authority. Attorney Yang Hongseok of Lee Gong Law Firm commented, “It already takes two to three years to file a criminal complaint, and most cases end with non-referral, so as a lawyer, it is becoming difficult to recommend criminal complaints at all. Ultimately, victims give up, settle, turn to civil litigation, or even seek private remedies.”

"Separation of Investigation and Prosecution... Minimum Oversight Mechanisms Must Be Maintained"

Experts unanimously agree that even if investigation and prosecution are separated, at least minimum oversight mechanisms must remain. They argue that, with the adjustment of investigative powers having already eliminated the prosecution’s authority to direct investigations and the requirement to refer all cases to the prosecution, the complete removal of supplementary investigation authority would abolish even the last remaining oversight mechanism. The consensus in the legal community is that, since the adjustment of investigative powers, the loss of binding prosecutorial direction has led to widespread cases where effective investigations and punishment are not achieved due to investigative delays.

Experts suggest that the most desirable alternatives for prosecutorial reform are the restoration of mandatory referral of all cases to the prosecution and the limited allowance of supplementary investigation authority. This would prevent cases from being buried at the police stage and clarify responsibility during investigations. Professor Park emphasized, “While the police may be given exclusive authority to conduct investigations, oversight is essential. Therefore, the police should not be granted the authority to conclude investigations. All investigated cases should be referred to the prosecution, which would then determine their appropriateness and whether to file charges.” He added, “For cases referred by the police, prosecutors should be granted limited supplementary investigation authority within the same scope, making the restricted recognition of supplementary investigation authority necessary.”

If supplementary investigation authority is not allowed, some argue that at the very least, measures should be put in place to strengthen the binding force of requests for supplementary investigations. When all investigative authority is given to the police, there must be at least minimal safeguards to prevent cases from being neglected or delayed. Attorney Yang stated, “If it is realistically impossible for the police to accept supplementary investigation authority, then at the very least, when the prosecution requests supplementary or additional investigations, those requests should be binding. There should be legal requirements for the police to report the results of supplementary investigations within one month, with disciplinary action for non-compliance.”