Criminal Justice System Overhaul D-1... Full of Flaws in 'Investigation-Prosecution Separation'

Prosecutors' Office Act Amendment, Only Prosecutors Prosecute... Investigating Prosecutors Allowed 'Direct Trial Participation'
Legal Community: "A Patchwork Bill... Ineffective and Will Only Increase Practical Inconvenience"

On the 28th, a wreath condemning the passage of the separation of prosecution's investigation and indictment authority (Geomsuwanbak) was placed in front of the National Assembly. Photo by Yoon Dong-ju doso7@

[Asia Economy Reporter Heo Kyung-jun] The amendment to the Prosecutors' Office Act, one of the so-called 'complete prosecution investigation separation bills,' is expected to pass the National Assembly plenary session on the 30th. The Democratic Party of Korea plans to finalize the complete prosecution investigation separation bill by the plenary session on the 3rd of next month. The plan is to vote on the amendment to the Prosecutors' Office Act at the plenary session on the 30th, then vote on the Criminal Procedure Act on the 3rd of next month, and have it passed at the Cabinet meeting on the same day.

On the 29th, concerns arose inside and outside the legal community that if the amendment to the Prosecutors' Office Act currently submitted to the plenary session passes as is, a major transformation of South Korea's criminal justice system will occur. Since the amended law is set to be enforced four months after promulgation without any supplementary measures for the rapid changes in the criminal justice system, significant confusion is expected.

The most serious issue in the amendment to the Prosecutors' Office Act proposed by the Democratic Party is the separation of investigative prosecutors and prosecuting prosecutors. According to the revised bill, prosecutors cannot prosecute cases they have investigated themselves. In this case, the prosecuting prosecutor would have to rely solely on records to judge the case, which could lead to problems such as inadequate prosecution.

The prosecution argues that separating investigation and prosecution is practically difficult. The investigative authority of prosecutors is an inseparable premise for deciding whether to prosecute, and investigation cannot be essentially separated from the prosecutor who determines whether to prosecute.

Also, it is unclear how far the scope of investigative prosecutors extends among the prosecution leadership, such as chief prosecutors and deputy chief prosecutors. If the amendment to the Prosecutors' Office Act passes, there could be a difficult situation where separate legal interpretations are needed to assign prosecution to prosecutors who did not participate in the investigation.

Deputy Chief Prosecutor A said, "After the adjustment of investigative authority, frontline prosecutors often wasted time debating whether investigations should be conducted by the prosecution or sent to the police," adding, "Separating investigative and prosecuting prosecutors will only cause more confusion."

The Democratic Party claims that separating investigation and prosecution can secure 'investigative fairness.' They argue that investigative prosecutors are prohibited from prosecuting to prevent confirmation bias.

However, the legal community's consensus is that it is practically impossible to ensure investigative fairness by separating investigation and prosecution when the institution heads or middle managers who supervise both investigative and prosecuting prosecutors are in the same situation. Additionally, there is criticism that the bill does not include provisions to separate investigative and prosecuting prosecutors for special prosecutors or Public Officials Corruption Investigation Unit prosecutors, raising doubts about whether the legal amendment is truly aimed at promoting investigative fairness.

The legal community criticizes the amendment as a 'patchwork bill.' Since only investigative and prosecuting prosecutors are separated and there is no provision preventing investigative prosecutors from directly participating in trials, questions arise about the effectiveness of the separation. Uniformly separating only investigative and prosecuting prosecutors is seen as increasing practical inconvenience.

Prosecutor B said, "It would be absurd if investigative prosecutors only hand over prosecution to other prosecutors but still participate in trials," and questioned, "Is there even one benefit to separating investigative and prosecuting prosecutors?"

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