Autumn, Heated Controversy Over "Judicial Vacuum" in Separation of Investigation and Prosecution Prosecutors

Continuity Issues in Investigation and Trial
Concerns Raised in Legal and Prosecutorial Circles
"Intent to Obstruct Regime Investigation" Claims
Choo Cites Common Law Examples as Background
Legal Scholars Urge Consideration of Side Effects

[Image source=Yonhap News]

[Asia Economy Reporters Kim Hyung-min and Song Seung-yoon] Justice Minister Choo Mi-ae's announcement to pursue a plan to separate the prosecution's investigative and prosecutorial powers has sparked heated debate within the legal community. Those expressing negative opinions about this plan are concerned about a 'judicial vacuum,' and there are differing interpretations regarding the overseas judicial system examples cited by Minister Choo.

On the 12th, voices of concern immediately arose within the prosecution. Fundamental doubts predominated about whether it is possible to distinguish investigation and prosecution under the current investigative system. In particular, prosecution officials unanimously agreed that separating investigation and prosecution would make it difficult to maintain the continuity of cases moving from investigation to trial. This would create a so-called 'judicial vacuum' between investigation and trial. There are also voices pointing out the prosecution's intention to obstruct investigations into the government. For example, in the case of the Blue House election interference allegations, Prosecutor General Yoon Seok-youl and Seoul Central District Prosecutor Lee Sung-yoon clashed over the decision to prosecute. If the investigation and prosecution entities are separated, a separate prosecution team could decide not to prosecute without the Prosecutor General's instructions.

The day before, Minister Choo held a press conference and stated that she would consider institutional reforms to separate the entities responsible for investigation and prosecution within the prosecution. This was a new card to weaken the prosecution following personnel appointments and organizational restructuring. The intention is to prevent unilateral decisions or errors by investigative prosecutors by appointing separate prosecutors for investigation and for reviewing investigation results and handling prosecution. Minister Choo explained, "When the prosecution directly investigates and prosecutes important cases, there is a risk that neutrality and objectivity may be compromised, so internal control mechanisms are necessary."

Currently, the prosecution has checks such as the Expert Investigation Advisory Panel, the Prosecution Investigation Deliberation Committee, and the Red Team, which partially delegate decisions on whether to prosecute to external parties. However, Minister Choo believes that only by separating investigation and prosecution can horizontal internal control within the prosecution be possible. She cited the Japanese prosecution system, which operates a similar system, as an example. She also emphasized that compared to Japan, South Korea has a considerably high acquittal rate after prosecution. The aim is to suppress indiscriminate prosecution and ensure that only cases worthy of prosecution are prosecuted.

Within the legal community, there are also calls to consider global trends and directions. The background behind Minister Choo's push for separation of investigation and prosecution includes examples from advanced Anglo-American legal systems, which she has reportedly mentioned several times. In the United States, for instance, the Federal Bureau of Investigation (FBI) investigates cases, and U.S. federal prosecutors handle prosecution. However, due to the vast territory and other characteristics, prosecutors in local district attorney offices in each state can both investigate and prosecute. Even in these cases, prosecutors can only conduct indirect investigations through the police. In the United Kingdom, prosecutors belonging to the Crown Prosecution Service handle only prosecution, while the police have full authority over investigations, resulting in an even stricter separation than in the U.S.

However, advanced civil law countries, which are the foundation of our legal system, do not completely separate prosecutorial and investigative powers. France, which first established the prosecution system, allows judges in courts to conduct investigations and decide on prosecution. The prosecution holds the rights to request the initiation of investigations and to maintain public prosecution. Courts and prosecution cooperate in investigation, prosecution, and trial, maintaining continuity between investigation and trial. In Germany, police mainly conduct investigations and the prosecution handles prosecution, but legally, the prosecution can conduct both investigation and prosecution due to concerns about police abuse of investigative powers. According to domestic and foreign legal scholars, Germany currently avoids complete separation of investigation and prosecution and related authorities are discussing strengthening the prosecution's investigative powers. This issue of distributing investigative and prosecutorial powers is regarded as a representative case showing that there is no definitive answer yet.

Regarding this, a prosecution official said, "It is stable for any academic field to consistently follow one legal system and institution," adding, "The government tends to forcibly follow the Anglo-American legal system, but it is necessary to closely examine the side effects that may arise from this."

This content was produced with the assistance of AI translation services.