A local public official who was put on trial on charges of taking bribes has avoided punishment. The Supreme Court found that the prosecutor's investigation and indictment were flawed. The decision was made under the "complete deprivation of prosecutors' investigative authority" ("prosecution investigation complete deprivation") rule that the Moon Jae-in administration promulgated the day before the Yoon Suk-yeol administration was inaugurated.
The Supreme Court's third division (presiding Justice Lee Suk-yeon) said on the 18th that it overturned the lower court ruling that convicted a local public official surnamed Jang, who was indicted on charges including violation of the Act on the Aggravated Punishment of Specific Crimes (bribery), and remanded the case to the Daegu High Court.
◇ Took bribes by arranging fake hiring of children
Jang, who worked as head of the Parks and Greenery Division of the Gumi City government in North Gyeongsang, asked the head of Company A, which supplied hiking trail walking mats and other items, to falsely register Jang's two children as employees in return for helping the company supply goods. Jang was charged with taking 83.57 million won in bribes from the company in the form of the children's salaries from Dec. 2021 to Jan. 2023.
Jang also approached Company B's head in May 2016 while Company B was pushing a project to create a private park in Gumi. At the time, Jang was carrying out a residential complex development project in an area where Jang's spouse and others owned real estate, and asked B to "make me a preferred negotiation candidate for the park creation project, and in return, pay instead the 68 million won design service fee for the development project I am conducting." Jang was charged with taking a 68 million won bribe in this way.
The first-instance court found Jang guilty, sentenced Jang to eight years in prison, fined Jang 200 million won, and ordered the forfeiture of 151.57 million won. Jang's side argued during the trial that because the prosecutor who initiated the investigation also filed the indictment, it violated the Prosecutors' Office Act and the indictment should be dismissed, but the first-instance court did not accept this.
The appellate court dismissed Jang's appeal. The appellate panel also found that the prosecution did not violate the Prosecutors' Office Act during the investigation and indictment.
However, the Supreme Court held, "The lower court should have examined whether the prosecutor's indictment for each crime was lawful, and if it violated the Prosecutors' Office Act, it should have regarded the indictment as void and rendered a dismissal of the indictment."
◇ First and second instances deemed prosecution investigators = judicial police officers… Supreme Court: "assistants to prosecutors' investigations"
Article 4, Paragraph 2 of the Prosecutors' Office Act stipulates, "A prosecutor may not bring an indictment for a crime the prosecutor initiated an investigation into. However, this does not apply to crimes forwarded by judicial police officers."
Earlier, in Dec. 2022, B submitted a criminal complaint against Jang to the Daegu District Prosecutors' Office. A prosecution investigator in the Investigation Division of the Daegu office examined the facts and evidence and forwarded the case to Prosecutor C at the Daegu office. Prosecutor C questioned Jang as a suspect and filed the indictment.
The first-instance court viewed that while prosecution clerks, narcotics investigation clerks, assistant prosecution clerks, and assistant narcotics investigation clerks within the Prosecution Service perform the duties of judicial police officers under prosecutors' direction, prosecution investigators in the Investigation and Inquiry Divisions of the Prosecution Service are judicial police personnel subject to prosecutors' judicial control.
It further held that depending on rank, they directly recognize cases or investigate cases received by the prosecution, and, by preparing a forwarding opinion letter in the name of the prosecution investigator and sending the case record to the head of their institution (chief prosecutor), their forwarding is similar in nature to the forwarding by ordinary judicial police officers (police). Therefore, because crimes forwarded by prosecution investigators are not "crimes for which the prosecutor initiated the investigation," the indictment was deemed lawful.
The appellate panel also said, "Prosecutors are an investigative agency stipulated in Chapter 5 of the Prosecutors' Office Act, and prosecution investigators are a separate investigative agency stipulated in Chapter 6 of the Act," and found the first-instance ruling correct.
However, the Supreme Court said, "The Criminal Procedure Act contains no provisions granting prosecution investigators the general investigative powers recognized for judicial police officers," and added, "Prosecution investigators' investigations should be viewed as merely assisting prosecutors' investigations." It then ruled, "When a prosecution investigator begins investigating a crime, it constitutes 'the prosecutor's own initiation of an investigation.'"
◇ Cabinet meeting postponed to the afternoon to pass the 'complete deprivation of prosecutors' investigative authority' bill
The provision that allowed Jang to avoid punishment was hurriedly passed at the end of the Moon Jae-in administration. As part of what it called "prosecution reform," the Moon Jae-in administration pushed "complete deprivation of prosecutors' investigative authority," but the legislative work had not been done until the final stretch of the term.
Then, after former President Yoon Suk-yeol won the presidential election in Mar. 2022, the Democratic Party of Korea, which was then the ruling party, rushed to amend the Prosecutors' Office Act and the Criminal Procedure Act, the bills for the complete deprivation of prosecutors' investigative authority. The Prosecutors' Office Act reduced the scope of the prosecution's direct investigations to two categories: corruption and economic crimes, and barred prosecutors from indicting crimes they initiated investigations into. The Criminal Procedure Act barred prosecutors from conducting separate-case investigations into cases forwarded by police.
Amid opposition from the People Power Party, which was then the opposition party, the Prosecutors' Office Act passed the National Assembly on Apr. 30, 2022, and the Criminal Procedure Act on May 3, 2023.
Bills that pass the National Assembly are sent to the government, deliberated and decided at a Cabinet meeting, and then promulgated in the official gazette once approved by the president. Cabinet meetings are usually held at 10 a.m. on Tuesdays, and the last Tuesday of the Moon Jae-in administration's term was May 3, 2022. However, because the People Power Party conducted a filibuster (a lawful obstruction of proceedings through unlimited debate), the National Assembly's plenary session was held on the morning of the 3rd. The government waited for the bills that passed the National Assembly to be sent over, and held the Moon Jae-in administration's final Cabinet meeting at 2 p.m. on May 3 to pass the two bills.
However, prosecutors still retained part of their investigative authority afterward. Under the recently revised Criminal Procedure Act, prosecutors' investigative authority will, in principle, be abolished starting in Oct.