[Policy Pulse]On The Establishment Of The Serious Crimes Investigation Office And The Public Prosecution Office

On April 23, 2013, the Central Investigation Department of the Supreme Prosecutors' Office, which had been at the center of the Republic of Korea's anti-corruption investigations for 32 years, took down its nameplate and disappeared into history. At that time, I was the head of the "Task Force for the Reorganization of the Supreme Prosecutors' Office Special Investigation System," which was in charge of abolishing the Central Investigation Department and designing a new special investigation body within the prosecution. I issued a personal statement of reflection, saying, "We failed to recognize that, behind the lofty pride of the Central Investigation Department prosecutors, public distrust was growing significantly."

Thirteen years have passed since then, and the prosecution has failed to learn a lesson from the abolition of the Central Investigation Department. It has ended up in a situation where even its very existence is being denied and its name is disappearing. The failure to recognize the reason for the prosecution's existence and to devote itself wholeheartedly to earning the trust of the people has resulted in consequences that are unbearably heavy. It is deeply regrettable.

The Government Organization Act abolishing the Prosecutors' Office has been enacted, and heated discussions are underway on the bills for the Serious Crimes Investigation Office Act and the Public Prosecution Office Act, which separate investigative powers from prosecutorial powers. Arguments are erupting that "because the prosecution has conducted investigations on the premise of indictment, investigation and indictment must be separated," along with controversy over the supplementary investigation authority of the Public Prosecution Office. I am taken aback, wondering whether public anger toward the prosecution has really reached this level. Perhaps the prosecution has been perceived not as a representative of the public interest, but as a partisan political actor.

Nevertheless, when we are redesigning investigative powers and prosecutorial powers, which can restrict personal liberty and property rights, we must not forget that the impact on the people and the institutional stability of the system are values that cannot be overlooked, beyond political anger and partisan interests.

First of all, it would be problematic if the state's capacity to investigate and address corruption were to be reduced. Some people think that investigative capacity will automatically arise if we simply create an investigative agency and fill it with personnel. However, just as in the past a prosecutor in the prosecution service was recognized as being able to make correct independent decisions only after 5 to 6 years of experience, it is essential to have a lengthy process of learning and training about investigations, people, and social phenomena through thorough education from senior prosecutors and seasoned investigators.

In particular, the areas under the jurisdiction of the Serious Crimes Investigation Office, such as corruption crimes, economic crimes, public officials' crimes, and election crimes, are not fields in which one can build expertise overnight and immediately conduct investigations. The fact that people dislike the prosecution does not justify antagonizing and failing to make use of the many prosecutors who, regardless of political cases, have built professional investigative capabilities in each field and have taken care of livelihood-related cases.

In addition, investigative agencies must be designed to effectively protect the rights and interests of the people. The criminal law revisions known as the "complete deprivation of the prosecution's investigative powers" under the Moon Jae-in administration caused many side effects. The allocation of responsibility between the prosecution and the police became unclear, case processing was endlessly delayed, and acquittals became frequent in indicted cases. The people fell into despair and anxiety over the judicial process.

Investigative powers and prosecutorial powers are intended to protect the people from crime and to restore victims. The supplementary investigation authority of the Public Prosecution Office should not be viewed solely as a violation of the principle of separating investigation and indictment, or merely as an attempt to resurrect the prosecution. When we consider detention cases with statutory time limits for court processing or cases close to the statute of limitations, it is clearly a matter of efficiency.

Finally, we must block the possibility of abuse of authority by investigative agencies and firmly guarantee political neutrality. What is important in investigations is the source and motive of the investigative lead. Biased investigative tips handed down in a top-down manner from political forces, and the flood of complaints and accusations indiscriminately raised before and after political events such as elections, are a heavy burden and pressure on oversight agencies. What enables these agencies to withstand such burden and pressure is the establishment of clear handling standards for political investigative leads that contaminate oversight agencies. This can be considered the starting point for preventing political bias and the abuse of authority.

Once, the Central Investigation Department, which was said to be powerful enough to "make even a flying bird fall," was abolished, and now the Prosecutors' Office has taken down its signboard. Likewise, no investigative agency remains eternally pure and righteous. If the Public Prosecution Office and the Serious Crimes Investigation Office prove incompetent in protecting the people and become politically biased so that they fail to earn public trust, they may face the same fate in the future. Investigative agencies, always remember death (memento mori)!

Lee Dongyeol, Managing Partner at Law Firm Lobacks (former Chief Prosecutor of the Seoul Western District Prosecutors' Office)