Prosecution Office vs. Prosecutors' Office 'Re-referral Case Prosecution Rights' Conflict... Likely to Be Resolved in Court

Kim Jin-wook, Chief of the High-ranking Officials' Crime Investigation Agency (Gong-su-cheo), is discussing with a panel of journalists after delivering a keynote speech on "Democratic Republic and the Rule of Law" at the Gwanhun Forum held at the Press Center in Jung-gu, Seoul, on February 25. Photo by Kim Hyun-min kimhyun81@

[Asia Economy Reporter Choi Seok-jin] As the prosecution indicted Prosecutor Lee Gyu-won, who was involved in the ‘Kim Hak-eui illegal deportation’ case, the conflict between the High-ranking Officials’ Crime Investigation Office (HOCI) and the prosecution over the ‘retransfer case prosecution rights’ has surfaced, and it is expected that a final conclusion will be reached through the court’s interpretation of the HOCI Act.

The conflicting interpretations by the two agencies on whether the HOCI has ‘exclusive prosecution rights over prosecutors’ and ‘the right to retransfer with reserved prosecution rights’ under the HOCI Act will also be subject to the court’s judgment during the trial process.

On the 2nd, a court official stated, “Following the usual procedure, this case will also be assigned to a trial panel and proceed with the trial.”

In the legal community, there is speculation that Prosecutor Lee’s side may argue in court that “the indictment was made by an institution (the prosecution) without prosecution authority.”

Regarding this, Judge A said, “Even in ordinary cases, there are instances where it is reviewed whether the subject of prosecution has the authority to prosecute or whether the subject of investigation has the authority to investigate,” adding, “If the defendant raises the issue in this case, the trial panel will naturally review the matter.”

He continued, “The court has the authority to adjudicate legal disputes,” and “Although the interpretation made in the trial does not have legal effect beyond the case, the trial panel will have the authority to interpret specifically for this case.”

This means that unlike the Constitutional Court’s ruling on the unconstitutionality of laws, the court’s legal interpretation only applies to the specific case at hand. However, since there has been no authoritative interpretation of the HOCI Act yet, the court’s judgment is likely to become the standard for resolving the conflict over authority distribution between the HOCI and the prosecution.

If the court proceeds with the trial of Prosecutor Lee according to the usual procedure, it will be difficult to avoid criticism that HOCI Chief Kim Jin-wook interpreted the HOCI Act excessively.

Earlier, the Suwon District Prosecutors’ Office transferred the case against Prosecutor Lee to the HOCI in accordance with Article 25, Paragraph 2 of the HOCI Act, which states that “if an investigative agency other than the HOCI discovers allegations of high-ranking officials’ crimes by a prosecutor, the head of that investigative agency shall transfer the case to the HOCI.”

However, Chief Kim re-transferred the case back to the Suwon District Prosecutors’ Office, considering the practical circumstances where HOCI prosecutors had not yet been selected.

Article 24, Paragraph 3 of the HOCI Act stipulates that “the chief may transfer a case to another investigative agency if, considering the suspect, victim, content, and scale of the case, it is deemed appropriate for another investigative agency to investigate high-ranking officials’ crimes.”

The problem arose when Chief Kim re-transferred the case to the prosecution with a so-called ‘transfer with reserved prosecution rights,’ stating, “This case is subject to prosecution by the HOCI under Article 3, Paragraph 1, Subparagraph 2 of the HOCI Act, so please send it to the HOCI after the investigation is completed so that the HOCI can decide whether to prosecute.”

Article 3, Paragraph 1, Subparagraph 2 of the HOCI Act is a provision that exceptionally grants the HOCI both investigative and prosecution rights over high-ranking officials’ crimes committed by judges, prosecutors, or police officers of rank superintendent or higher during their tenure.

In response to Chief Kim’s request for retransfer, Lee Jeong-seop, head of the Criminal Division 3 at the Suwon District Prosecutors’ Office and the person responsible for the investigation, countered by calling it a “bizarre and unheard-of logic” and posted detailed legal review content on the prosecution’s internal network.

Chief Kim’s position is that ▲ since the HOCI chief has the authority to transfer cases, it naturally follows that ‘transfer with reserved prosecution rights,’ which transfers only investigative authority while reserving prosecution rights, is also possible. Additionally, ▲ the HOCI Act grants exclusive or at least priority prosecution rights to the HOCI for high-ranking officials’ crimes committed by prosecutors who have been granted prosecution rights.

On the other hand, the prosecution’s stance is that ▲ the subject of transfer is the ‘case,’ not the ‘authority,’ so ‘transfer with reserved prosecution rights’ is not permissible, and once the HOCI retransfers the case, it can no longer be involved in that case. Furthermore, ▲ Article 3, Paragraph 1, Subparagraph 2 of the HOCI Act merely allows an exception to the prosecutor’s exclusive prosecution principle and does not exclude the prosecutor’s prosecution rights or grant exclusive prosecution rights to the HOCI.

Recently, the HOCI held a ‘HOCI Act-related inter-agency working-level meeting’ to explain the HOCI’s position on case transfers to the prosecution and police, but it is reported that no consensus was reached.

Also, the HOCI is preparing a draft of case handling regulations that explicitly stipulate ‘transfer with reserved prosecution rights,’ but the prosecution holds the view that this contradicts the intent of the superior law.

Meanwhile, on the same day, Chief Kim commented on the ‘emperor investigation’ controversy regarding the provision of a chief’s official vehicle when Seoul Central District Prosecutor Lee Seong-yoon came to the HOCI for questioning on a holiday, stating, “It was unavoidable for security reasons,” and “I will be more careful in the future to prevent fairness controversies related to case investigations.”

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