A bill to amend the Criminal Procedure Act that completely eliminates investigative powers granted to prosecutors passed the National Assembly's plenary session on the 31st. As a result, there are concerns that the prosecution's specialized investigative capabilities in the economy, finance, fair trade, and narcotics fields, built over more than 70 years, will vanish like evaporating water.
The National Assembly held a plenary session that day and passed the Criminal Procedure Act amendment led by the Democratic Party of Korea. The bill was introduced the previous day, and the People Power Party conducted a filibuster (a lawful obstruction of proceedings through unlimited debate) in opposition to its passage, but the Democratic Party ended it with a vote in just one day. Once the amendment is promulgated, it will take effect Oct. 2, when the Prosecution Service is abolished and the Public Prosecution Office is launched.
The Democratic Party of Korea deleted Article 196 of the Criminal Procedure Act, which had stipulated prosecutors' direct investigative power, including case initiation, and prosecutors' supplementary investigation authority over cases sent by the police. As a result, prosecutors will decide whether to indict by reading the written records of cases forwarded by the police and others, and if they determine the investigation is insufficient, they will only be able to request supplementary investigation from the police.
The legal community worries that the investigative know-how accumulated by the prosecution may disappear rather than transfer to other agencies. In complex economic cases, analyzing the flow of funds and vast accounting data requires extensive investigative experience and expertise. From the investigation stage, prosecutors have reviewed both the evidence and legal theories needed to prove guilt at trial, raising the completeness of investigations.
A representative case is the case involving Bang Si-hyuk, chair of HYBE. The police have dragged on for more than a year an investigation into Bang's alleged fraudulent transactions worth about 190 billion won. They sought an arrest warrant for Bang twice, but prosecutors rejected both after requesting supplementary investigation, saying the evidence and the need for detention were not sufficiently established.
Lee Seong-il, a professor at Konkuk University Law School, said, "The more complex a case is, the more crucial it is not only to have the capacity to establish the facts so that guilt is recognized at trial, but also to subsume the confirmed facts into the elements of the crime as a matter of legal theory," adding, "Prosecutors have so far handled the latter role, but if prosecutors' supplementary investigation function disappears, their capacity for legal review will also vanish."
A Director General-level prosecutor at a district prosecutors' office in the Seoul metropolitan area who has mainly handled economic cases also said, "In economic cases, even a small flaw in the process of collecting evidence or a single gap in applying legal theory can lead to a failure to secure a conviction," adding, "It will become more difficult to prove guilt against defendants who retain large law firms at great expense."
The joint prosecution-police investigation headquarters (joint investigation unit) also appears to face a crossroads of survival. Multiple such units are currently investigating the alleged shortage of ballot papers in the June 3 local elections, collusion between religious groups and authorities, narcotics, voice phishing, the deadly crowd crush in the nightlife district of Itaewon, fact-finding, and illegal pharmaceutical crimes.
The joint investigation unit is structured around prosecutors, with police and special judicial police officers dispatched to investigate. Going forward, it will be difficult to maintain the current system in which prosecutors direct and coordinate investigations and combine the investigative capabilities of each agency.
A prosecutor dispatched to a joint investigation unit said, "In recent years, criminal organizations have operated in a cell structure, making it difficult for individual agencies to grasp the entire distribution network or the higher-ups if they investigate only cases within their own jurisdiction," adding, "If the nationwide information-aggregating and investigating joint investigation unit is dismantled, the information and investigative know-how accumulated so far could scatter again."
The Ministry of Justice and the Supreme Prosecutors' Office conveyed to the National Assembly their view that prosecutors' investigative powers should be recognized at least for the joint investigation units, but it was reportedly not accepted.
Whether the Serious Crimes Investigation Agency (SCIA), which will launch Oct. 2, can carry on this expertise is uncertain. The SCIA launch task force plans to actively recruit prosecutors to transplant the prosecution's investigative experience. But the legal community says there is a lack of incentives to lead prosecutors to move to the SCIA. Under current law, prosecutors are in the category of specialized civil servants, but if they move to the SCIA, they are incorporated as general civil servants under an external agency of the Ministry of the Interior and Safety. Their rank is also likely to be downgraded from level 3 at initial appointment to level 4 or 5.
Professor Lee Seong-il said, "If only prosecution investigators move to the SCIA without prosecutors, it will inevitably raise a fundamental question about how it differs from existing police investigative bodies."