As the Ministry of Justice proceeds with a legislative notice of the prosecution office's organization plan through the 9th, criticism continues within the ruling bloc that "investigative functions remain in the prosecution office." They argue that because prosecution investigators, a digital forensics unit, and a division dedicated to cases from the Serious Crimes Investigation Agency will remain within the prosecution office, it could become a pathway for reviving prosecutors' investigative authority.
In legal circles, a counterargument has emerged: "Direct investigative authority has already been abolished, so is it right to eliminate even the functions necessary for filing and maintaining indictments?"
◇Ruling bloc says "investigative functions remain in the prosecution office… concern over revival of investigative powers"
According to legal sources on the 9th, former Democratic Party of Korea leader Jung Chung-rae said on Facebook the previous day regarding the prosecution office organization plan unveiled on the 4th that it "did not completely erase the investigative shadow of the prosecution office, leaving room for the misunderstanding that 'if push comes to shove, prosecutors' investigative authority could be revived at any time.'"
He took issue with the fact that more than 70% of prosecutorial investigator personnel will remain in the prosecution office and that the National Digital Forensic Center (NDFC) will be maintained. He argued that transferring the functions of the abolished Scientific Investigation Department of the Supreme Prosecutors' Office to a forensic planning office, and establishing "serious crimes divisions" dedicated to joint investigations with the Serious Crimes Investigation Agency in frontline prosecution offices, could also become "channels for investigative involvement."
Democratic Party lawmaker Kim Yong-min, who led the Criminal Procedure Act amendment, also held a press conference the previous day and said that the serious crimes divisions to be set up at the main prosecution office and local prosecution offices could, in effect, become organizations that engage in investigations. Seo Young-kyo, the Democratic Party lawmaker who chairs the National Assembly Legislation and Judiciary Committee, also said the committee would review the prosecution office organization plan and make revisions and supplements.
◇Legal circles say "even without investigating, you need to see the evidence to indict and go to trial"
In legal circles, a counterargument has emerged that simply leaving investigators or forensic functions in the prosecution office does not immediately amount to "retaining investigative authority."
They say the work handled by prosecutorial investigators has included not only direct and supplementary investigations, but also warrant review, review of police transfer and non-transfer records, support for indictment and non-indictment decisions, recovery of criminal proceeds, and other tasks the prosecution office must continue to handle.
The Ministry of Justice also said in an explanatory material on the 6th that the investigators remaining in the prosecution office are "personnel necessary for maintaining indictments and handling cases." The ministry's position is that, if anything, to substantively maintain indictments after the abolition of direct investigative authority, at least 281 more prosecutors are needed than at present.
Legal sources explain that the serious crimes divisions are not organizations to participate in the Serious Crimes Investigation Agency's investigations, but rather to take exclusive charge of indictments and trials for cases the agency transfers. The agency, which launches next month, is slated to establish five joint investigation divisions for finance, virtual assets, voice phishing, narcotics, and national fiscal crimes. It is also reported that, within the agency's preparation task force, there was a desire to have counterpart dedicated units in the prosecution office for swift case processing.
There is also criticism that digital forensic functions are unrelated to investigative interference. That is because prosecutors must examine digital evidence such as seized mobile phones and computers to decide whether to indict and to contest the admissibility and substance of the evidence during trial.
A senior official at the Supreme Prosecutors' Office said, "You need to analyze the evidence to judge whether additional investigation is needed and whether a case can be indicted." The National Digital Forensic as a Service (NDFaaS) is also, under current law, to be operated by criminal justice agencies, so the prosecution office, which handles the receipt, management, and disposal of digital evidence, needs related functions.
◇"Need functions to cooperate with special judicial police… appeals and appellate trials would be weakened if regional prosecution offices are downsized"
Controversy also continues over the Special Judicial Police Cooperation Division to be set up in the prosecution office. With the amended Criminal Procedure Act taking effect next month, prosecutors' investigative command authority over special judicial police will disappear, but legal circles question whether it is right to also abolish functions such as legal education and procedural cooperation.
A lawyer who previously served as a division chief prosecutor said, "Recently, courts have often declined to recognize evidentiary admissibility due to procedural violations in the evidence collection process," adding, "Special judicial police have high expertise in their respective fields, but many are not legal experts, so education and cooperation systems are needed to uphold due process."
There are also objections to downsizing the regional prosecution offices that will replace the high prosecutors' offices. The regional offices will handle review of appeals against non-indictment decisions and respond to appellate trials at high courts.
The issue, they say, is that eliminating the criminal divisions that handle appeals could weaken the function of having a higher body reexamine frontline prosecution offices' non-indictment decisions. If even the trial divisions are removed and frontline offices are made to handle appellate responses, there could be physical inefficiencies. The Seoul High Court and the Chuncheon District Prosecutors' Office are about 104 kilometers apart, and the Gwangju High Court and the Jeju District Prosecutors' Office are about 237 kilometers apart.
A legal community official said, "Separating investigation and indictment does not mean eliminating all functions necessary for filing and maintaining indictments, such as reviewing evidence and cooperating with investigative agencies," adding, "It is necessary to design the organization by distinguishing between direct investigative functions and the inherent duties of a prosecuting body."