An amendment to the Criminal Procedure Act to abolish prosecutors' investigative authority passed the National Assembly's plenary session on the 31st, led by the Democratic Party of Korea. Once the bill is promulgated at a Cabinet meeting, prosecutors will, in principle, be unable to conduct direct investigations starting Oct. 2.
Whether prosecutors would retain or lose supplementary investigation authority after the abolition of the Prosecution Service remained undecided until recently. A prosecution reform task force under the Prime Minister's Office discussed the issue but reached no conclusion and did not prepare a government proposal for the Criminal Procedure Act. When it wrapped up its activities last month, the task force's advisory committee said supplementary investigation authority for prosecutors should be maintained.
However, as the Democratic Party's national convention on Aug. 17 approached and amendment of the Criminal Procedure Act emerged as a key issue, the move to abolish prosecutors' supplementary investigation authority solidified. Kim Min-seok, a candidate for party leader and former prime minister, said on the 25th of last month during his tenure, "We finalized the abolition of supplementary investigation authority as the government's basic position." The Democratic Party of Korea introduced the Criminal Procedure Act amendment bill on the 9th of this month, and it was placed on the plenary session agenda the day before.
Because the bill was hurriedly prepared and passed within a month, critics say it contains many loopholes that prevent police and prosecutors from functioning properly.
◇ A prosecutor may hear from those involved in a case, but cannot use it as evidence in court
Under the Criminal Procedure Act amendment, even if evidence is insufficient when a prosecutor reviews records after the police refer a case, the prosecutor cannot conduct a direct search and seizure or collect additional evidence. The prosecutor may request supplementary investigation from the police, and if the results remain inadequate, must designate another investigative agency.
The amendment allows prosecutors to conduct "fact-checking," in which they hear opinions from people involved in a case and receive materials. However, the statements and materials obtained cannot be used as evidence in court. The National Court Administration pointed out that the boundary between this procedure and voluntary investigations or seizure of voluntarily submitted items is unclear. If the scope is narrowed, it is unlikely to serve as a means of securing evidence, and if used for indictment and maintaining prosecution, it effectively blurs the line with investigations.
◇ "Repeated inadequate compliance and re-requests"… Evidence outside the record may be unknowable
Under the amendment, when the police receive a supplementary investigation request from a prosecutor, they must in principle complete it within one month. The Democratic Party of Korea included this rule as a device to prevent inadequate or delayed investigations following the abolition of prosecutors' supplementary investigation authority. However, there are concerns that investigations will instead become more inadequate.
Attorney Yang Hong-seok of Law Firm Igong said, "Even now, many cases fail to meet the current three-month deadline (for police to process supplementary investigations), and cutting it to one month will only institutionalize inadequate compliance," adding, "It institutionalizes a structure in which inadequate compliance, requests for re-supplementary investigation, repeated inadequate compliance, and renewed requests repeat."
Park Jae-pyeong, a Chungbuk National University law school professor who served seven years as a prosecutor, said, "Advance checks or repeated requests alone cannot fundamentally resolve case ping-pong," adding, "Without direct supplementary investigation, there is a greater possibility that investigations will be further prolonged."
Attorney Kim Ye-won of the Disability Rights Law Center said, "This amendment removes the 'authority to directly correct' and creates multiple steps for 'asking another agency again,'" adding, "But requests, consultations, and transfers do not secure evidence." Kim said, "Time is of the essence in criminal cases, yet procedures have multiplied and actual investigations are more likely to be delayed."
A supplementary investigation request can be made only when a prosecutor, while reading the records sent by the police, finds deficiencies. The National Assembly Legislation and Judiciary Committee's chief expert member pointed out that if prosecutors rely on the records and evidence transferred by an investigative agency, it is difficult to grasp evidence that was omitted or facts not recorded in the file at all. If something outside the record was omitted in the investigation, it is even hard to specify what to request as a supplement.
Sixty-two criminal law professors nationwide also said in a statement the previous day that "supplementary investigation requests alone cannot effectively control police investigations."
◇ Even if there are signs of abuse, if police judge it as simple assault, full-case referral is not allowed
The Democratic Party of Korea decided to push to revise the law so that seven categories of crimes—child abuse, domestic violence, sex crimes, sex crimes against children, stalking, abuse of persons with disabilities, and elder abuse—are fully referred to the Public Prosecution Office, with a dedicated unit of the Serious Crimes Investigation Office handling supplementary investigations.
However, even if there are signs that a person with disabilities, a child, or an older adult has been abused, if the police judge it as simple assault, fraud, or embezzlement, it is excluded from full-case referral. There are concerns the case could be buried. In the Jang Yun-gi case, when the police first referred it to the prosecution, they applied the general murder charge, but after the prosecution's supplementary investigation, the charge was changed to "rape, etc., and murder."
There are also concerns that protection for victims with disabilities, children, and older adults will be weakened. They often have difficulty explaining the damage, understanding reasons for non-referral, and filing objections. While agencies are switched and reinvestigations are requested, closed-circuit (CC) TV footage may be erased and witnesses' memories may fade.
Crimes not listed, such as economic crimes, medical crimes, and industrial accidents, are also unlikely to receive the same protections. If victims of economic crimes lack the financial means to gather evidence themselves, their cases can stall at the initial investigation stage.
Prosecutors' investigative command over special judicial police officers in labor, food, finance, and construction will also change to a relationship of cooperation, guidance, and advice. Professor Park said investigative gaps could widen in local governments and administrative agencies with underdeveloped specialized investigation systems. Attorney Yang said, "For special judicial police, we should be more worried about them not investigating than investigating actively."
◇ "Warrant-request authority is hollowed out"… Constitutional controversy inevitable
Some argue that the Criminal Procedure Act amendment is unconstitutional. Cha Jin-a, a Korea University law school professor, said, "If only the authority to request warrants remains for prosecutors without investigative authority, the substantive meaning of warrant-request authority is completely hollowed out." The argument is that Articles 12 and 16 of the Constitution, which require judges to issue warrants upon a prosecutor's application, presuppose prosecutors' investigative authority.
Earlier, the Constitutional Court ruled in 2023 that prosecutors' investigative authority is not a constitutional power with respect to the Prosecutors' Office Act and the Criminal Procedure Act, which reduced prosecutorial investigative powers under the Moon Jae-in administration. However, four of the nine justices dissented, saying prosecutors are a constitutional institution that exercises both the right to institute prosecution and investigative authority. As the latest Criminal Procedure Act amendment completely abolishes investigative authority five years after the "reduction of prosecutors' investigative authority," constitutional controversy is expected to continue.