[Fact Check] Do Only Prosecutors Have the Right to Prosecute in Democratic Countries?

Moon Mooil Criticizes Prosecution Monopoly
In the US, Grand Juries Decide on Indictments
In Japan, the Prosecution Review Commission Serves as a Check

"There is frequent talk about the monopoly on prosecution, but this is not unique to our country; it is the same in every country around the world."

"In democratic countries, those who initiate investigations are not allowed to prosecute, and those who make prosecution decisions are not allowed to initiate investigations. ... Trials begin with the prosecutor. A trial only begins if the prosecutor files charges."

Moon Mooil, who served as the first Prosecutor General under the Moon Jaein administration (61, 18th class of the Judicial Research and Training Institute), made these remarks in a recent media interview. During his tenure as Prosecutor General, he opposed the establishment of the Corruption Investigation Office for High-ranking Officials (CIO), arguing that prosecution was the exclusive domain of the prosecution.

Currently, the prosecution in South Korea effectively holds a monopoly on the right to prosecute. Although the Corruption Investigation Office for High-ranking Officials (CIO), which was launched in January last year while President-elect Yoon Sukyeol was serving as Prosecutor General, has taken over some investigative and prosecutorial powers regarding high-ranking officials, under the CIO Act, the CIO can directly prosecute only judges, prosecutors, or police officers of Senior Superintendent rank or higher. The prosecution still exercises the vast majority of prosecutorial authority.

The Prosecution Investigation Deliberation Committee, which was established during Prosecutor General Moon's tenure in 2018 to check the abuse of prosecutorial authority, also has clear limitations. The committee, composed of 15 external experts such as law professors and attorneys, reviews investigations into cases that have drawn public suspicion or significant social interest, and can recommend the suspension of investigations, prosecution, or non-prosecution, but its recommendations are not legally binding.

In other democratic countries, there are mandatory checks on prosecutorial authority, with the right to prosecute shared with citizens.

In the United States, a grand jury system is in place. A panel of 16 to 23 randomly selected jurors decides whether to indict a suspect. Prosecutors are given the opportunity to explain to the grand jury why charges should be brought, but the grand jury's decision is legally binding and must be followed.

Japan also shares prosecutorial authority with citizens. Since 1948, Japan has operated the Prosecution Review Commission, which assesses the appropriateness of a prosecutor's decision not to indict. However, because the commission's decisions were not legally binding and prosecutors often ignored them, the system was criticized as a waste of time and resources. In response, the Japanese parliament amended the law in 2009 to introduce a system where the commission's decisions to indict are legally binding.

What about countries that are not democracies? In North Korea, the Central Prosecutor's Office fulfills the role of the prosecution. However, it is believed that the Supreme People's Assembly effectively makes all decisions regarding investigation and prosecution. Although the Supreme People's Assembly is an institution with legislative authority, it intervenes in all decision-making processes beyond its scope. In other words, the further a country is from democracy, the more concentrated its powers become.

Jung Wan, a professor at Kyung Hee University Law School, stated, "In the past, the prosecution and prosecutors wielded unchecked power, and although investigative powers have been separated, the situation remains the same today." He added, "Only by dividing not just the right to prosecute, but various other powers as well, can the prosecution become truly democratic."

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