OECD Also Worried About 'Geomsu Wanbak'... "Going Against Global Trends"

[Image source=Yonhap News]

[Asia Economy Reporter Kim Hyung-min] The issue of 'Geomsu Wanbak (Complete Removal of Prosecutorial Investigation Rights)' is no longer a problem unique to South Korea. The world is also watching whether the National Assembly will pass the bill. The Organisation for Economic Co-operation and Development (OECD), which consists of advanced countries worldwide, has sent a letter expressing concerns directly to South Korea.

According to the legal community on the 28th, Drago Kos, Chair of the OECD's Working Group on Bribery (WGB), expressed concerns to the Ministry of Justice on the 22nd, stating, "We express concern over your country's legislative moves to amend the Prosecutors' Office Act and the Criminal Procedure Act," and added, "The compromise should never weaken South Korea's capabilities in anti-corruption and the investigation and prosecution of foreign bribery crimes."

Academia takes the OECD's letter seriously and points out that Geomsu Wanbak should be reconsidered earnestly. Jeong Woong-seok, President of the Korean Criminal Procedure Law Association (Professor at Seokyeong University Law School), said in a phone interview with this paper, "The gist of the OECD's letter is that we are going against the global trend."

Looking at the status of prosecutorial investigation rights in major OECD countries, one can immediately understand the reason for sending the letter. According to Jeong's study titled 'Research on National Criminal Justice Systems and Investigation Structures' and various materials, among the 38 OECD member countries, prosecutors in 29 countries including Germany, France, and Japan (excluding Colombia and Costa Rica which joined in 2020) hold both investigation and prosecution rights. The current trend is rather to strengthen the prosecutors' investigative authority to bring criminals to trial.

Germany stipulates that "prosecutors may conduct all types of investigations themselves or have police agencies or police officers carry them out (Criminal Procedure Act Article 161)," and France states that "prosecutors may carry out or have carried out all necessary measures for the investigation and prosecution of crimes (Criminal Procedure Act Article 41)." Japan also provides that "prosecutors may investigate crimes themselves when deemed necessary (Criminal Procedure Act Article 191)," and Switzerland allows that "prosecutors may directly investigate if there is reasonable suspicion of a crime based on police reports, complaints, or their own findings (Criminal Procedure Act Article 309)." All these continental law countries, which our law follows, show a strong tendency in this regard. On the other hand, common law countries such as the United States and the United Kingdom, which emphasize unwritten law, do not regulate prosecutors' powers through specific provisions. However, the United States guarantees active investigative authority over major crimes by stating in the Federal Prosecutor's Manual that "the powers, discretion, and responsibilities of federal prosecutors related to criminal matters apply without limitation to the investigation of crimes suspected or charged against the United States."

Jeong said, "The global perspective is basically that the police belong to the executive branch responsible for maintaining public order, while prosecutors belong to the judiciary and conduct investigations," adding, "The structure guarantees prosecutorial investigations, but judicial police officers support when investigative manpower is insufficient." The strict separation of roles between police and prosecutors, who belong to different branches under the separation of powers, is the global trend, and our Geomsu Wanbak goes against this trend.

There are also many criticisms that Geomsu Wanbak resembles the Chinese Public Security Bureau. Many experts, including Kim Woong, a member of the People Power Party, and other political figures, have argued this. The academic community generally agrees with this claim, which has been raised since the adjustment of investigative rights between the police and prosecution. The Chinese Public Security Bureau has the authority to conclude investigations on most criminal cases and has a much broader investigative scope compared to prosecutors who only handle official duty crimes, which resembles parts of the Geomsu Wanbak bill. However, Chinese Criminal Procedure Law Articles 85 and 132 guarantee that prosecutors can actively participate in the Public Security Bureau's investigative activities and act as legal supervisory bodies, which is a difference. The Central District Prosecutors' Office pointed this out during a mediation proposal briefing on the 26th.

The international community's concerns about the Geomsu Wanbak bill may grow further. On the 19th, the Supreme Prosecutors' Office requested the International Association of Prosecutors (IAP) to review the bill abolishing prosecutorial investigative rights and to issue a statement, and is awaiting a response. Separately, the IAP will hold official events such as webinars on investigative issues including cybercrime response next month. There is a possibility that opinions from foreign prosecutors regarding our Geomsu Wanbak bill will be expressed at these events.

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