The 'Prosecutor's Complete Control' Case Sent to the Constitutional Court for Jurisdictional Dispute... The Key Issue Is the Constitutional Interpretation of the 'Prosecutor's Warrant Application Right'

Constitution Article 12(3) "Clause Based on Prosecutor's Investigation Authority" vs "Prosecutor's Judicial Control Regulation on Warrants"
Constitutional Court States "Even if Lawmakers' Deliberation and Voting Rights Are Recognized as Violated, the Enacted Law's Effect Remains Separate"

Constitutional Court, Jaedong, Jongno-gu, Seoul.
[Photo by Yonhap News]

[Asia Economy Choi Seok-jin, Legal Affairs Specialist Reporter] As the final validity of the ‘Complete Prosecution Investigation Ban’ bill (amendments to the Prosecutors' Office Act and the Criminal Procedure Act), which the Democratic Party of Korea is pushing through, is expected to be decided through a constitutional dispute adjudication by the Constitutional Court, analysis suggests that the interpretation of the constitutional provision on prosecutors’ ‘warrant application rights’ will be crucial.

The issue is whether the relevant provision should be interpreted as the Constitution recognizing prosecutors’ authority for compulsory investigation, or simply as stipulating prosecutors’ judicial control authority over warrants issued by investigative agencies.

According to the legal community on the 2nd, the Supreme Prosecutors' Office is reviewing a plan to form a constitutional court task force within the Ministry of Justice after President-elect Yoon Seok-yeol’s inauguration and to file a constitutional dispute adjudication with the Constitutional Court.

The prosecution’s position is that Articles 12(3) and 16 of the Constitution specify ‘prosecutors’ as the applicants for arrest, detention, seizure, search, and residential search warrants, respectively, and that the National Assembly’s legislative act abolishing prosecutors’ investigative authority infringes upon prosecutors’ constitutional rights. Their logic is that warrant applications are inherently premised on investigations.

At the time of the Constitution’s enactment, the warrant applicant was the ‘investigative agency,’ which changed to ‘prosecutor’ in the 5th constitutional amendment after the April 19 Revolution, and was explicitly stated as ‘prosecutor’ from the 7th amendment onward. The prosecution argues this reflects the legislature’s determination to prevent human rights violations through police warrant applications.

However, interpretations are divided even within academia. Professor Kim Seon-taek of Korea University Law School said, “Historically, the clause monopolizing warrant application rights to prosecutors was inserted into the Constitution after the May 16 coup to monopolize compulsory investigative authority to prosecutors, which is true. But the basic principle of legal interpretation is to look at the wording first, and just by looking at the constitutional text, there is room to interpret it as recognizing prosecutors’ authority to control investigative agencies’ warrant applications.”

Ultimately, since applications for arrest or search warrants are inherently premised on investigations, if the Constitution is interpreted as recognizing prosecutors’ investigative authority, then enacting laws that prohibit prosecutors from conducting investigations would be unconstitutional as the prosecution claims. Conversely, if the constitutional warrant provision is interpreted as a clause intended to prevent other investigative agencies such as the police from directly applying for warrants to the court and to subject them to prosecutorial control, then unless prosecutors’ warrant application rights are completely abolished, it would be difficult to deem it unconstitutional.

A constitutional dispute adjudication is a system where the Constitutional Court resolves disputes over the existence or scope of authority between state agencies or local governments.

The Constitutional Court views the provisions in the Constitutional Court Act that allow state agencies such as the National Assembly, government, and judiciary to file constitutional dispute adjudications as exemplary clauses, and holds that other subordinate agencies may also file such adjudications.

However, to file a constitutional dispute adjudication, certain requirements must be met: ▲the entity must be a state agency established by the Constitution ▲it must have been granted independent authority by the Constitution and laws ▲there must be no other agency or method to resolve the dispute outside of constitutional adjudication.

The prosecution is expected to decide whether the subject of the constitutional dispute adjudication will be the prosecutors who have exercised investigative authority, the Prosecutor General, or the Minister of Justice who has general supervisory authority over prosecutors and investigative command authority over the Prosecutor General.

Meanwhile, the People Power Party filed an injunction request with the Constitutional Court at the end of last month asking to prohibit the Speaker of the National Assembly from submitting the Prosecutors' Office Act and Criminal Procedure Act amendments to the plenary session until the constitutional dispute adjudication decision is made, and has also filed a constitutional dispute adjudication citing infringement of opposition lawmakers’ rights to deliberation and voting.

This appears to challenge procedural defects such as forcing out lawmaker Min Hyung-bae, assigning him to the Judiciary Committee’s agenda coordination committee to neutralize it, blocking the opposition’s filibuster through ‘splitting the session,’ and submitting a different bill to the Judiciary Committee plenary session than the amendment discussed with the opposition.

However, the problem is that even if the Constitutional Court recognizes such rights violations, the bill passed by the plenary session does not automatically become invalid.

Article 66(2) of the Constitutional Court Act stipulates that the Constitutional Court, when ruling on a constitutional dispute adjudication, may cancel or confirm the invalidity of the respondent’s disposition that caused the rights infringement. Therefore, if the Constitutional Court accepts the constitutional dispute adjudication claiming that the National Assembly infringed opposition lawmakers’ rights during the passage of the amended Prosecutors' Office Act, it is possible for the Court to also rule that the National Assembly’s resolution procedure itself is invalid.

However, the Constitutional Court has so far refrained from making such rulings in cases where the National Assembly’s legislative procedures were challenged in constitutional dispute adjudications.

In 1997, in the ‘irregular bill processing case’ involving the forced passage of the National Security Planning Agency Act, Labor Union Act, and Labor Standards Act, the Court recognized that opposition lawmakers’ rights to deliberate and vote on bills were infringed due to improper notification of the plenary session date. However, the Court ruled that “even if some lawmakers’ rights were infringed in relation to legislation, unless it clearly violates constitutional provisions on legislative procedures, the proclamation of the bill’s passage should not be considered invalid,” thus upholding the validity of the passed laws.

Ultimately, the law’s validity can only be nullified if the Constitutional Court accepts the prosecution’s constitutional dispute adjudication and recognizes the unconstitutionality of the amended law that restricts or abolishes prosecutors’ investigative authority.

Opinions also differ on whether individual prosecutors can file constitutional complaints against the amended law citing infringement of fundamental rights such as freedom of occupation. One view holds that prosecutors, as subjects of public authority, lack standing to file constitutional complaints, while the opposing view argues that prosecutors, as citizens, can exercise certain fundamental rights.

However, there is a prevailing view that if complainants who suffer damage due to the deletion of the police’s right to appeal non-prosecution decisions in the amended Criminal Procedure Act file constitutional complaints citing violation of equality rights, the relevant provision of the Criminal Procedure Act may be ruled unconstitutional. Nonetheless, this is unlikely to significantly affect the overall validity of the amended law, especially regarding the abolition of prosecutors’ investigative authority.

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