With the so-called "prosecution reform law" that passed just before the end of the Moon Jae-in administration's term, prosecutors can no longer indict crimes for which they themselves initiated investigations. It had been unclear when to deem the "start of investigation" if a case investigated by a prosecution investigator was handed over to another prosecutor, who then investigated and indicted it, but the Supreme Court ruled that when a prosecution investigator investigated, that point is the "start of investigation."
According to legal sources on the 9th, the Supreme Court's First Division (presiding Justice Ma Yong-ju) on Aug. 13 overturned the lower court's dismissal of indictment in the case of a person surnamed Cha, 69, and a person surnamed Kim, 55, who were charged with violating the Improper Solicitation and Graft Act, and sent the case back to the Seoul Central District Court.
Cha served as a professor at a university in the capital area and retired upon reaching the mandatory retirement age in 2022. According to prosecutors, Cha received 30 million won in 2019 from a graduate student, Kim, who took Cha's course. The first trial sentenced Cha to one year in prison and Kim to eight months. The appeals court, however, dismissed the indictment, finding that the investigation process violated the Prosecutors' Office Act.
This case began when the Board of Audit and Inspection requested an investigation from the prosecution in July 2022. A prosecution investigator affiliated with the Seoul Central District Prosecutors' Office, identified as A, commenced an investigation in August that year under the direction of prosecutor B. The case then went under the direction of prosecutor C and was transferred to prosecutor D in Feb. 2024. After additional investigation, prosecutor D indicted them in August that year.
Article 4(2) of the Prosecutors' Office Act stipulates: "A public prosecutor shall not institute a public prosecution for a crime for which the prosecutor has initiated an investigation. Provided, That this shall not apply to a crime sent by a judicial police officer."
During the trial, the sides for Cha and Kim argued that the investigation in this case was initiated by prosecutor D and is void because it violated the Prosecutors' Office Act. Prosecutors countered that "this case was sent by a judicial police officer (a prosecution investigator), and prosecutor D received the case and, after a supplementary investigation, filed the indictment," so it was not unlawful.
The appeals court found it unlawful, saying, "The prosecutor who initiated the investigation in this case is prosecutor D." It added, "An employee of the Prosecution Service who performs the duties of a judicial police officer is not an independent investigative主体 but merely an assistant to the prosecutor's investigation under the prosecutor's direction," and "is not in an independent position to 'transfer' a case."
The Supreme Court, by contrast, found that prosecutor D's indictment was lawful and valid. The court said, "A prosecution investigator's investigation merely assists a prosecutor's investigation," and ruled, "Even if a prosecution investigator commenced an investigation into a crime, this should be regarded not as the investigator's initiation of investigation but as 'the prosecutor's own initiation of investigation.'" Because prosecutor B initiated the investigation in this case, it held, prosecutor D could indict.
Earlier, on July 9, the Supreme Court reached the same conclusion in a case involving a local public official indicted on charges including violating the Act on the Aggravated Punishment of Specific Crimes (bribery). Prosecutors then argued that a prosecution investigator under the direction of prosecutor E initiated the investigation, and because prosecutor E received the case and indicted it, there was no violation of the Prosecutors' Office Act. The reasoning was that a prosecution investigator's role is similar to that of a judicial police officer. The Supreme Court, however, found that prosecutor E initiated the investigation in that case and ruled that the indictment must be dismissed.
Article 4(2) of the Prosecutors' Office Act, whose interpretation has diverged, passed the National Assembly at the end of the Moon Jae-in administration and was promulgated at the final Cabinet meeting. At the time, after former President Yoon Suk-yeol won the presidential election, the Democratic Party of Korea rushed to pass the "complete deprivation of prosecution investigative authority" bill, known as "prosecution investigation power complete deprivation."