[Law & Story] Claims of Unconstitutionality Over the "Restoration of Prosecution’s Investigative Authority" Enforcement Decree Are Excessive

Legal Flaws of the "Geomsuwanbak" Law,
Which Lacked Public Consensus,
Must Be Corrected

Choi Seok-jin, legal affairs specialist reporter.

[The Asia Business Daily - Choi Seokjin, legal affairs specialist reporter] The opposition party is fiercely criticizing the revision of the enforcement decree regarding the prosecution's investigative authority, which is being pushed forward by Minister of Justice Han Donghoon.

Since August 12, the Ministry of Justice has been pre-announcing the revision to the "Regulation on the Scope of Crimes Prosecutors May Initiate Investigations Into" (Presidential Decree), which includes certain election, drug, organized crime, false accusation, and perjury offenses within the scope of crimes that prosecutors can investigate. This so-called "restoration of prosecutorial investigative authority" enforcement decree is currently under legislative notice.

The opposition party has defined this move, which comes ahead of the implementation of the so-called "complete deprivation of prosecutorial investigative authority" law that limits prosecutors' investigative authority to only two major types of crimes, as an "unconstitutional enforcement decree coup that disregards the legislative intent of the National Assembly." They are even discussing the possibility of impeachment or a recommendation for dismissal against Minister Han.

Is the opposition party's claim that this enforcement decree revision exceeds the scope delegated by the law and is therefore unconstitutional actually valid?

The enforcement decree revision under legislative notice reclassifies some crimes that were previously deleted from the scope of prosecutorial investigations-such as public official crimes and certain election offenses-due to the amendment of the Prosecutors’ Office Act, and includes them as corruption or economic crimes that remain after the legal amendment.

This enforcement decree revision was made possible because, when amending the law, the opposition party did not strictly limit the scope of prosecutorial investigations to "major corruption and economic crimes specified by Presidential Decree," but instead used the phrase "major crimes specified by Presidential Decree, etc."

The word "etc." inherently allows for the inclusion of other types of crimes that can be listed in parallel with those previously enumerated. Therefore, at least from a formal perspective, it is difficult to view this enforcement decree as illegal or in violation of the higher law.

Of course, from the opposition party's standpoint, they may argue that this goes against the intent of the Prosecutors’ Office Act amendment. However, at least from a legal perspective, it seems highly unlikely that claims of unconstitutionality or illegality regarding this enforcement decree revision, or a request for impeachment based on this revision, would be accepted by the courts or the Constitutional Court.

The more fundamental issue is whether the so-called "complete deprivation of prosecutorial investigative authority" law, which the opposition party pushed through at the end of the previous administration using tactics such as "fake resignations" and "splitting parliamentary sessions," was truly a desirable legislative change for the nation and the people. Looking further back, it is questionable whether stripping the prosecution of its investigative authority and transferring it to the police under the pretext of prosecution reform was a choice that garnered public consensus.

No matter how many talented individuals join the police force, it is undeniable that prosecutors who have passed the bar exam or the judicial examination possess more specialized knowledge of the law, including criminal law. While it is true that the police have handled far more cases than the prosecution, it is also true that the prosecution has mainly been responsible for more complex cases involving major political figures, conglomerates, and highly sophisticated economic crimes.

Unconditionally stripping the prosecution, which has accumulated investigative expertise over a long period, of its investigative authority and handing it over to the police is a dangerous gamble that puts the lives and property of the people at risk. The results observed over more than a year since the adjustment of investigative powers between the police and prosecution have proven this point.

One of the main justifications for prosecution reform was that the prosecution had failed to maintain political neutrality in certain cases. However, considering how the police investigated and attempted to conceal or downplay the assault case involving a taxi driver by former Vice Minister of Justice Lee Yonggu, who was sentenced to prison the previous day for violating the Act on the Aggravated Punishment of Specific Crimes, it is clear that political neutrality is not an issue unique to the prosecution.

The revised law, which prevents the prosecutor most familiar with the case from deciding whether to indict, is also likely to cause more harm than good.

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