Once the amendment to the Criminal Procedure Act, which passed the National Assembly's plenary session, is promulgated, prosecutors' investigative authority will be fully abolished starting in Oct. However, prosecutors seconded to a special counsel team will still be able to conduct direct investigations, including searches and seizures and suspect interrogations.
Prosecutors seconded to the "National Election Commission special counsel team" set to launch soon are a prime example. Even after the Prosecution Service is abolished and they are reassigned under the Public Prosecution Office, prosecutors seconded to the NEC special counsel will exercise investigative authority under the previous Criminal Procedure Act.
In effect, while investigative authority is not recognized for ordinary prosecutors, the same authority remains for prosecutors seconded to a special counsel handling a specific case.
In legal circles, debate is rising over the coherence of the system, along with expectations that defendants indicted through future special counsel investigations could challenge seconded prosecutors' investigative qualifications or evidence collection procedures in court. On the other hand, some counter that a special counsel is a separate, temporary investigative body established by law, and because the seconded prosecutors' authority is specified by law, the legal issues should not be significant.
◇ Seconded special counsel prosecutors conduct direct investigations under the previous Criminal Procedure Act
According to legal sources on the 4th, the amendment to the Criminal Procedure Act that passed the National Assembly on the 31st includes, in its supplementary provisions Article 14, the same investigative authority as before for the special counsel, assistant special counsels, and prosecutors seconded to the special counsel. Starting in Oct., ordinary prosecutors will be barred from conducting any investigations, including supplementary investigations, but prosecutors seconded to the special counsel will be able to continue investigating.
The NEC special counsel act that passed the National Assembly on the 30th also contains a transitional clause to the same effect. The NEC special counsel was introduced to determine the facts behind the ballot paper shortage that occurred during the June 3 local elections.
Supplementary provisions Article 5 of the NEC special counsel act allows seconded prosecutors to investigate under the pre-amendment Criminal Procedure Act and the Prosecutors' Office Act. It also requires that the evidentiary weight of records and documents prepared by seconded prosecutors be assessed under the previous Criminal Procedure Act. Transitional provisions on prosecutorial status were also established so that, even after the Prosecution Service is abolished, they can continue working on the special counsel team during their secondment.
Excluding the special counsel, the NEC special counsel team will include up to five assistant special counsels, 70 special investigators, up to 20 seconded prosecutors, and up to 70 seconded public officials other than the seconded prosecutors. The preparation period is up to 20 days, and the basic investigation period is 90 days. The investigation period can be extended twice by 30 days each, making the total activity period up to 170 days.
At launch, prosecutors seconded to the special counsel team will hold investigative authority as members of the Prosecution Service. About a month into the secondment, however, the Prosecution Service will be abolished and their status will change to prosecutors under the Public Prosecution Office without investigative authority. Even so, while seconded to the special counsel, they can continue exercising investigative authority under the supplementary provisions of the Criminal Procedure Act and the special counsel act.
◇ "Possibility of disputes over investigative qualifications and evidence procedures in court"
The National Assembly created a legal basis for seconded prosecutors' investigative authority by setting separate exceptions in the Criminal Procedure Act and the NEC special counsel act.
However, criticism has emerged that it is contradictory to the legislative intent to establish a principle denying investigative authority to ordinary prosecutors while granting the same preexisting authority intact to seconded prosecutors handling specific cases.
Lee Chang-hyeon, a professor at Hankuk University of Foreign Studies School of Law, said, "The Constitution, the Criminal Procedure Act, and the Public Prosecution Office Act have lost consistency, opening the door to varied interpretations," and noted, "Confusion could follow, such as a defendant arguing in court that they were investigated by a prosecutor without investigative authority."
He added, however, that because the amendment to the special counsel act also passed the National Assembly, investigations by seconded prosecutors could be permitted under the principle that a special law takes precedence.
There is also a counterargument that a special counsel is not readily comparable to the ordinary prosecution under the same standards. That is because a special counsel is a temporary investigative body whose targets, duration, and manpower are limited by law.
Kim Jae-yoon, a professor at Konkuk University School of Law, said, "A special counsel is an exceptional system in which the scope of targets and the period of activity are limited by law," adding, "Because the founding purpose and scope of authority differ between ordinary prosecutors and prosecutors seconded to a special counsel, it is hard to say policy coherence is lacking solely because investigative authority was granted to seconded prosecutors."
There is a possibility that a defendant indicted following a special counsel investigation will challenge, during trial, a seconded prosecutor's investigative authority or evidence collection procedures. However, some say it is unlikely that the entire special counsel investigation or all evidence would be invalidated solely because a seconded prosecutor conducted the investigation. That is because the legal basis for investigative authority is specified in the Criminal Procedure Act and the NEC special counsel act.