[In-Depth Review] Not ‘Geomsu Wanbak’ but ‘Pigowanbak’… The Paradox of Prosecution Reform

Lee Chung-yoon, Attorney at Law, Haeyul Law Firm (Public Relations Director of the Korean Criminal Procedure Law Association).

The debate over ‘Geomsu Wanbak’ is intense. It refers to completely stripping the prosecution of its investigative authority within the criminal justice system. If ‘Geomsu Wanbak’ is actually implemented, paradoxically, it is highly likely to result in ‘Pigowanbak,’ which effectively deprives victims of their right to file complaints and accusations.

The main points are twofold. First, to abolish supplementary investigations, and second, to eliminate the prosecution’s direct investigative authority over major crimes.

The former is stipulated in the Criminal Procedure Act and Article 59 of the Investigation Guidelines, a presidential decree. Prosecutors must request supplementary investigations from the police unless the case transferred from the police is incomplete and requires direct supplementary investigation by the prosecution.

The latter is set forth in Article 4 of the Prosecutors’ Office Act, which grants the prosecution direct investigative authority over six major crimes, including corruption and economic crimes. The plan is to amend these two laws to completely strip the prosecution of its investigative authority.

Since the adjustment of investigative authority between the prosecution and police, a large-scale paradigm shift has already occurred in criminal practice. The only weapon available to victims harmed by crimes is to file complaints with investigative agencies. Cases with clear evidence and straightforward legal issues sometimes see prompt police investigation results, but such cases were resolved quickly even before the adjustment of investigative authority.

Complex cases do not progress at police stations. While victims’ hearts burn with anxiety, the police continue to review the cases. Complainants’ statements are delayed for over half a year, and even after a year following suspect investigations, results remain elusive. There are even numerous cases transferred multiple times between police stations. The damage has grown uncontrollably, and discovering the substantive truth has become remote. Will legislators compensate for the public’s losses?

If supplementary investigations are abolished, there will likely be more cases where the prosecution dismisses charges due to insufficient evidence in cases sent by the police with a recommendation for indictment. Cases that could lead to prosecution with just a bit more investigation will be dismissed because of ‘Geomsu Wanbak.’ The police will have to consider reinvestigation, and the burden of investigation delays and reinvestigation will fall entirely on the victims and suspects.

Alternatively, the prosecution will have to indict based solely on the police’s investigation. Due to ‘Geomsu Wanbak,’ suspects or their lawyers will lose the opportunity to actively defend themselves at the prosecution stage and obtain non-prosecution decisions. Ultimately, the right to be investigated through due process derived from the constitutional presumption of innocence will be violated. This is unconstitutional.

Non-prosecution decisions are even more serious. Aggrieved victims can request a review and have the case transferred to the prosecution by law. However, the prosecution receiving the case cannot conduct direct investigations nor request supplementary investigations from the police. How likely is it that the police, who already decided not to prosecute, will reconsider and transfer the case with a recommendation for indictment? Ultimately, the police’s non-prosecution decision ends the matter, leaving no place for citizens to appeal their rights. ‘Pigowanbak’ is by no means an exaggeration.

Major crimes are not only difficult for the police to review legally from the outset but also politically burdensome. Prosecutors bear an objective duty as representatives of public interest, and the Prosecutors’ Office Act mandates political neutrality as a duty of prosecutors. In contrast, the police are entirely subordinated to the Ministry of the Interior and Safety, and individuals are much more easily exposed to political pressure. Their legal expertise necessary for investigations is also inferior to that of prosecutors.

‘Geomsu Wanbak’ through reckless legislation will certainly backfire as ‘Pigowanbak,’ driving a nail into the hearts of the people.

Lee Chung-yoon, Attorney at Law, Haeyul Law Firm

(Public Relations Director, Korean Criminal Procedure Law Association)

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