Is the 'Gongsucheo' Another Sword or the Completion of Prosecution Reform?

On the morning of the 9th, ahead of the plenary session for the revision of the High-ranking Officials' Crime Investigation Act (공수처) and the Economic 3 Laws, members of the People Power Party were holding a relay overnight sit-in at the National Assembly in Yeouido, Seoul.
[Image source=Yonhap News]

[Asia Economy Reporters Seokjin Choi and Kyunghwan Bae] With the passage of the partial amendment to the Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials (CIO), the CIO is expected to officially launch as early as this year, or at the latest, early next year.

The launch of the CIO, which holds powerful authority to investigate high-ranking officials and their families across the legislative, judicial, and executive branches?including the President, the Speaker of the National Assembly, the Chief Justice of the Supreme Court, and the Prosecutor General?is being hailed by the Blue House and the ruling party as the completion of "prosecutorial reform." However, it is also true that the legal community and opposition parties harbor significant concerns that it could become another weapon wielded by those in power.

"The CIO is a signal flare for prosecutorial reform and a check against corruption"

The background behind the support for the CIO’s launch, even at the expense of nullifying the opposition party’s veto power, lies in the creation of an institution capable of checking the prosecution. This is why the Citizens' Coalition for Economic Justice, which first petitioned for the CIO legislation 24 years ago, stated in a commentary immediately after the amendment’s passage in the National Assembly, "The launch of the CIO marks the starting point of full-fledged prosecutorial reform by checking the prosecution and breaking its exclusive right to prosecute."

The argument that the CIO can serve as a body to check the prosecution has been ongoing since the past. It has been highlighted as an effective mechanism to investigate prosecutorial corruption and thus has been emphasized as one of the prosecutorial reform measures.

Besides dispersing prosecutorial power, there are claims that it is effective in preventing power-related corruption. Since the purpose of establishing the CIO is to operate an investigative body for corruption among high-ranking officials, it is said that overall efficiency in law enforcement will improve nationwide, and it will also help secure the prosecution’s political neutrality and independence.

The fact that power-related corruption by high-ranking officials has not been properly prevented so far also forms the support base for the establishment of the CIO. Proven in cases such as the state affairs manipulation scandal and corruption among prosecutorial executives, the core argument is that an independent CIO free from power influence is absolutely necessary.

Choo Mi-ae, Minister of Justice who will be directly involved in selecting the CIO Chief, also stated regarding the establishment of the CIO, "There is no longer any reason to hesitate." After the amendment passed the National Assembly, Minister Choo asserted, "The outdated principle of the unity of prosecutors, which served as the root of a rigid command system based on domination and obedience, will lose its power." This means that once the CIO launches, it will play a mutual checking role with the prosecution, fostering a culture of raising objections within the organization. She also said that since the prosecution could become a target of the CIO’s investigations, attempts by those in power to use the prosecution will be impossible, and abusive investigative practices such as forced fabrication or targeted investigations can be eradicated.

Moreover, supporters of the CIO reject claims that it is a tool for "opposition party suppression," pointing out that almost all high-ranking officials subject to investigation belong to the government and ruling party. President Moon Jae-in also stated, "The establishment of the CIO is a long-standing aspiration and a promise to the people for a society free of corruption through fearless investigations of power-related corruption involving the President and special associates, and checks and balances among investigative and power agencies."

In particular, President Moon urged for the CIO to launch "at the beginning of the new year." The ruling Democratic Party of Korea, which amended the law after one year to select the CIO Chief, has begun follow-up procedures aiming for a launch within the year. Despite opposition from the People Power Party and the possibility of legal action by opposition-recommended committee members, the ruling party has started the CIO Chief recommendation process, increasing the likelihood of a launch early next year.

At this point, rather than reconsidering the CIO Chief candidate selection process from scratch, the weight is on the President making the final choice from the existing pool of candidates. Since the amendment has passed, the intention is to shorten the period until launch as much as possible to reduce friction. Among the candidates who received the most votes at the previous CIO Chief Candidate Recommendation Committee meeting are lawyer Jeon Hyun-jung and Kim Jin-wook, senior researcher at the Constitutional Court, who are being primarily mentioned in political circles. Minister Choo recommended lawyer Jeon, while the Korean Bar Association recommended Kim.

Supporters of the CIO’s launch are also showing great interest in the first investigation targets. The ruling party expects that once the CIO Chief is selected and the CIO officially launches under the amended law, fearless investigations into power-related corruption and high-ranking official corruption will be conducted. The crimes subject to investigation by the CIO include bribery, abuse of authority, and various corruption and misconduct allegations involving high-ranking officials.

The investigation targets include high-ranking officials of grade 3 or higher and their families. This includes the President, senior officials of the Presidential Secretariat, National Security Office, Presidential Security Service, and National Intelligence Service. For the President, this extends to the spouse and relatives within the fourth degree of kinship. High-ranking officials in the legislative and judicial branches, such as the Speaker of the National Assembly, members of the National Assembly, the Chief Justice, and Supreme Court Justices, are also included, totaling around 7,000 people. Among them, about 2,000 are prosecutors and about 3,000 are judges, making up more than half.

"The key to success is securing 'political neutrality'... unconstitutional elements must be removed"

Despite these expectations for the CIO, the biggest reason for opposition to its launch has been concerns that the CIO could become a "sharp sword" wielded by those in power.

In particular, since the CIO will investigate prosecutors and judges including Supreme Court Justices, there is a real risk that the administration could misuse it as a means to control not only the prosecution but also the judiciary. It is especially likely to be used as a tool to suppress opposition parties.

On the 10th, Joo Ho-young, floor leader of the People Power Party, said at an emergency committee meeting, "The Moon Jae-in and Democratic Party regime’s attempts to destroy the constitutional order of the Republic of Korea and transform it into a totalitarian dictatorship are becoming increasingly intense," even omitting the presidential title when mentioning dictatorship. This can be seen as a statement conscious of the enormous side effects that could arise if the CIO loses political neutrality.

On the 12th, Yoon Young-seok, a People Power Party lawmaker appearing on KBS1’s live late-night debate, also mentioned the CIO’s pitfalls, expressing concerns about "prosecutorial control" and "opposition politician suppression."

In this regard, the ruling party-led abolition of the opposition party’s veto power clause for CIO Chief candidates, which was agreed upon by both ruling and opposition parties to guarantee the CIO’s political neutrality, is a glaring flaw.

The amended CIO Act relaxed the quorum for the CIO Chief Candidate Recommendation Committee’s resolution from "approval by six or more members" to "approval by two-thirds of the total members."

The committee consists of seven members: the Minister of Justice, the Chief of the Court Administration, the President of the Korean Bar Association, two ruling party recommended members, and two opposition party recommended members. This means that even if both opposition-recommended members oppose, the remaining five members can agree to recommend a CIO Chief candidate.

Former People Power Party Supreme Council member Lee Jun-seok recently appeared on a radio program and pointed out, "Just one year ago, the Democratic Party of Korea anticipated that the Justice Party would become a negotiating group under the mixed-member proportional representation system and expected that one of the two opposition-recommended CIO Chief candidate recommendation committee members would be from the Justice Party. They set the quorum at six members, but after creating their own satellite party and preventing the Justice Party from forming a negotiating group, they belatedly amended the law."

During the legislative process, the ruling party appeared to acknowledge the opposition’s veto power to ensure the appointment of a politically neutral CIO Chief, but in reality, the clause was designed with the Justice Party in mind, which they considered an ally. The recent amendment shows that the true intention was to appoint a CIO Chief favored by the ruling party.

On the 10th, Jang Hye-young, a Justice Party lawmaker who abstained from voting against the party line on the CIO Act amendment that nullified the opposition’s veto power, wrote on her Facebook, "Prosecutorial reform for democracy must be carried out in the most democratic way. There is no prosecutorial reform without democracy." She criticized, "The CIO Act amendment that nullifies the opposition’s veto power, which was considered key to guaranteeing the CIO’s independence and neutrality when the law was passed in the 20th National Assembly, violates the democratic principle that the first law-abiding entity should be the legislature."

Furthermore, the ruling party included a clause in the amended law allowing the Speaker of the National Assembly to directly appoint opposition-recommended committee members if the opposition fails to recommend members within a certain period, thoroughly removing the opposition’s means to check the ruling party regarding the CIO.

Another concern is the possibility that not only the CIO Chief but also the investigative prosecutors assigned to the CIO will be appointed in large numbers from pro-government groups such as the Lawyers for a Democratic Society.

According to the amended law, the ruling party can effectively appoint the CIO Chief without opposition interference. If the investigative prosecutors appointed by the CIO Chief, in addition to the CIO Deputy Chief, are filled with lawyers of a particular political inclination, the CIO’s political neutrality will be practically impossible to expect.

The amendment relaxed the qualification requirements for investigative prosecutors from "at least 10 years of lawyer qualification" to "at least 7 years," and completely removed the "at least 5 years of practical experience" requirement. This is widely seen as a measure that opens the door for lawyers from the Minbyun (Lawyers for a Democratic Society) without practical experience as judges or prosecutors to be appointed en masse as investigative prosecutors.

However, Article 8, Paragraph 1 of the CIO Act stipulates that the appointment of investigative prosecutors must go through recommendations by the Personnel Committee under Article 9. According to Article 9, the CIO Personnel Committee consists of seven members including the CIO Chief as chairperson, and like the candidate recommendation committee, the opposition party is to recommend two members.

Therefore, some speculate that if the opposition fails to recommend two personnel committee members, the appointment of investigative prosecutors may become impossible, potentially resulting in a CIO with only the Chief and Deputy Chief but no prosecutors. The ruling party claims this issue can be resolved by amending CIO regulations, but legally, it is impossible to change the content of a superior law like the CIO Act by amending subordinate regulations.

Meanwhile, beyond these problematic provisions in the amended CIO Act that raise doubts about the CIO’s political neutrality, there have been continuous claims that several provisions of the CIO Act are unconstitutional.

Besides the legal system issue that the CIO is not a constitutional body as it lacks constitutional establishment grounds and is not affiliated with the legislative, executive, or judicial branches, there are concerns that it violates the right to equality by distinguishing between cases where only investigation is possible and cases where investigation, prosecution, and public prosecution maintenance are possible (Article 3). It also violates the constitutional principle of personal responsibility and constitutes a prohibited collateral punishment by defining crimes committed by high-ranking officials’ families as high-ranking official crimes subject to CIO investigation (Article 2). Furthermore, including retired high-ranking officials before the law’s enforcement as investigation targets (Article 2) violates the principle of non-retroactivity.

Additionally, provisions such as requiring other investigative agencies (like the prosecution) to comply when the CIO Chief requests transfer of cases (Article 24, Paragraph 1), and mandating immediate notification to the CIO when other investigative agencies become aware of high-ranking official crimes (Article 24, Paragraph 2), have been criticized as unconstitutional for placing the CIO, established by general law, above the Prosecutor General, who is constitutionally responsible for criminal investigation and prosecution.

Former Future United Party lawmaker Kang Seok-jin filed a constitutional complaint against the CIO Act with the Constitutional Court in February, and People Power Party lawmaker Yoo Sang-bum filed a constitutional complaint and injunction application in May. These constitutional lawsuits were filed before the CIO Act’s enforcement, but once the CIO launches and full-scale investigations begin, it is highly likely that investigation targets will actively challenge the CIO’s constitutionality before the Constitutional Court.

Lee Wan-gyu, a special defense attorney for Prosecutor General Yoon Seok-youl’s disciplinary committee, stated in a past media interview, "Once the CIO is established, constitutional lawsuits can be filed even before investigations begin. The most certain constitutional lawsuit will be when the CIO starts investigations. If a search and seizure occurs, immediately file a constitutional lawsuit and apply for a suspension of duties injunction."

Especially with the amended Criminal Procedure Act and Prosecutors’ Office Act, which include adjustments to investigative authority between the police and prosecution, coming into effect next year, confusion among these investigative agencies and the public is expected. Therefore, securing political neutrality and removing unconstitutional elements before the launch of the CIO, another top investigative agency, is clearly the most urgent task.

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