Enforcement Decree of 'Geomsuwonbok' Passed at Cabinet Meeting... Partial Restoration of Prosecutors' Investigation Authority

Opposition Party Criticizes "Extra-Constitutional Enforcement Decree Coup Ignoring the Legislative Intent of the National Assembly"
Supreme Court States "Literal Interpretation Faithful to the Legal Text is the Top Priority in Legal Interpretation"

Minister of Justice Han Dong-hoon. / Photo by Hyunmin Kim kimhyun81@

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] On the 7th, three days before the enforcement of the so-called 'Geomsu Wanbak' (Complete Removal of Prosecutors' Investigation Rights) law, which drastically reduced the scope of crimes prosecutors can initiate investigations into to two major crimes, the amendment to the 'Regulations on the Scope of Crimes Prosecutors Can Initiate Investigations Into' (Presidential Decree), known as the 'Geomsu Wonbok' (Restoration of Prosecutors' Investigation Rights) enforcement decree, passed the Cabinet meeting.

This enforcement decree amendment went through a 17-day legislative notice period from the 11th to the 29th of last month and was approved at the vice-ministerial meeting on the 1st.

Article 4, Paragraph 1, Subparagraph 1(a) of the amended Prosecutors' Office Act, passed by the Democratic Party at the end of the Moon Jae-in administration despite criticism of 'disguised party withdrawal' and 'illegal substitution,' revised the scope of crimes prosecutors can initiate investigations into from the existing 'corruption crimes, economic crimes, public official crimes, election crimes, defense industry crimes, major disasters, and other important crimes prescribed by Presidential Decree' to 'corruption crimes, economic crimes, and other important crimes prescribed by Presidential Decree', significantly reducing the prosecution's investigative authority. It also included the separation of investigation and prosecution, stipulating that prosecutors cannot prosecute crimes they initiated investigations into unless those crimes were referred by judicial police officers.

The enforcement decree amendment passed at the Cabinet meeting on this day reclassified some crimes previously categorized as public official crimes and election crimes, which were deleted from the scope of crimes prosecutors can initiate investigations into by the amended Prosecutors' Office Act, into corruption crimes or economic crimes that remain after the law amendment.

Crimes previously classified as public official crimes, such as 'abuse of authority' and 'forgery of official documents,' or election crimes such as 'bribery and inducement' and 'donation acts,' were reclassified as types of corruption crimes that prosecutors can initiate investigations into even after the enforcement of the Geomsu Wanbak law. Crimes related to drug distribution, organized crime for economic crimes such as violent organizations, corporate-type gangs, and voice phishing, were included as 'economic crimes,' and false accusation and perjury were included as 'crimes disrupting judicial order,' all within the scope of crimes prosecutors can initiate investigations into.

This enforcement decree amendment was possible because the opposition party, when amending the law, did not limit the scope of crimes prosecutors can initiate investigations into to 'important crimes prescribed by Presidential Decree among corruption crimes and economic crimes' in a restrictive enumeration manner but rather listed them illustratively as 'corruption crimes, economic crimes, and other important crimes prescribed by Presidential Decree.'

If the amended Prosecutors' Office Act had defined the scope of crimes prosecutors can initiate investigations into as 'important crimes prescribed by Presidential Decree among corruption crimes and economic crimes,' including crimes previously classified as public official crimes, election crimes, defense industry crimes, and major disasters that were deleted from the law in the enforcement decree would have been considered beyond the scope of delegation by law, raising constitutional or legal issues. However, since the amended law itself stipulates '~etc.,' it means that crimes belonging to other categories that can be listed in parallel with corruption crimes or economic crimes can also be included in the scope of crimes prosecutors can initiate investigations into by the enforcement decree.

Moreover, the Ministry of Justice stated that in revising this enforcement decree, it did not include crime types that disappeared from the Prosecutors' Office Act but reclassified crimes previously categorized differently into the two crime types remaining in the amended Prosecutors' Office Act and included them in the enforcement decree. This appears to be a measure to avoid criticism that the enforcement decree amendment contradicts the purpose of the law amendment.

The opposition party has labeled this enforcement decree amendment, promoted by Justice Minister Han Dong-hoon, as an 'extra-constitutional enforcement decree coup ignoring the legislative intent of the National Assembly,' even mentioning impeachment or dismissal recommendations against Minister Han. However, the legal community's consensus is that it is difficult to see the amended enforcement decree as exceeding the delegation scope of the superior amended Prosecutors' Office Act.

There are various methods of interpreting laws, including literal interpretation, which adheres closely to the wording, and logical interpretation (teleological or systematic interpretation), which considers the legislative intent. However, literal interpretation based on the text of the law should be given the highest priority.

Our Supreme Court has also stated, "In short, the goal of legal interpretation should be to find concrete validity within the scope that does not undermine legal stability. In that process, the principle is to interpret as faithfully as possible to the ordinary meaning of the words used in the law, and furthermore, by additionally employing systematic and logical interpretation methods that consider the legislative intent and purpose, the history of enactment and amendment, harmony with the entire legal order, and relationships with other laws, a reasonable interpretation that meets the demands of legal interpretation should be made."

Additionally, the Supreme Court has clarified that "if the wording of the law itself is composed of relatively clear concepts, in principle, no other interpretation methods need to be used or they must be limited, and even if one tries to interpret the terms used in a law differently from their ordinary meaning by emphasizing the legislative intent and purpose of that law and regulation, one cannot ignore the systematic relationship with other provisions within the law and other laws or the harmony with the entire legal system, so there must be certain limits to such interpretation." This clearly establishes that literal interpretation of the law's wording is the foremost method of legal interpretation before considering interpretations based on the purpose of the law amendment.

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