Ministry of Legislation Issues "Lawful" Opinion on Enforcement Decree Amendment for 'Restoration of Prosecution Investigation Authority'

Iwan-gyu, Chief of the Legislation Office Photo by Yonhap News

[Asia Economy Reporter Kim Daehyun] The Ministry of Government Legislation expressed its opinion that the amendment to the "Regulations on the Scope of Crimes for Prosecutors' Investigation Initiation," which was approved at the Cabinet meeting, is a "lawful revision of the enforcement decree that does not exceed the scope of legal delegation."

On the 8th, the Ministry of Government Legislation revealed the grounds for judging that the so-called 'Geomsuwonbok' (restoration of the prosecution's investigative authority) amendment is lawful in a press release.

The current Prosecutors' Office Act defines major crimes that prosecutors can directly initiate investigations into as "major crimes such as corruption crimes, economic crimes, public official crimes, election crimes, defense industry crimes, large-scale disasters, etc., as prescribed by Presidential Decree." However, under the amended Prosecutors' Office Act, which will take effect from the 10th, this has been changed to "major crimes such as corruption crimes, economic crimes, etc., as prescribed by Presidential Decree."

The amendment to the enforcement decree, which passed the Cabinet meeting the day before, reclassifies and clearly defines the scope of corruption crimes and economic crimes according to their nature, significantly expanding the scope that prosecutors can investigate. Crimes that undermine judicial order are also grouped as "major crimes" under the Prosecutors' Office Act, allowing prosecutors to directly investigate them.

The Ministry of Government Legislation explained, "Reclassifying and redefining crime types deleted from the law according to their nature is possible considering the delegation method of the Prosecutors' Office Act," and "The law does not provide specific criteria for what constitutes 'major crimes' in the delegated provision 'major crimes as prescribed by Presidential Decree' under the Prosecutors' Office Act." It also pointed out, "'Corruption crimes' and 'economic crimes' are broad terms, so it is not possible to predict what constitutes major crimes based solely on the legal provisions." The specific scope and detailed items inevitably must be determined by Presidential Decree.

The Ministry of Government Legislation stated that defining "major crimes" following "etc." in "major crimes such as corruption crimes, economic crimes, etc., as prescribed by Presidential Decree" in the enforcement decree was done "within the scope of legal delegation according to the National Assembly's decision to maintain the phrase 'etc.'," and "During discussions on the amendment to the Prosecutors' Office Act, there were opinions to delete 'etc. major crimes' or to revise it to 'major crimes,' but ultimately the original wording was maintained," "This wording reflects the final intention of the National Assembly," and it is judged that additional items with normative value equivalent or similar to corruption crimes, economic crimes, and "major crimes" can be added under 'etc. major crimes.'

The Ministry of Government Legislation also judged that deleting the provision on "crimes directly related" without legal delegation as a legislative policy is "lawful." In the amendment, the provision on "crimes directly related," which limited the scope of investigations that prosecutors could initiate regarding crimes recognized in connection with existing cases without legal delegation, was deleted.

It added, "There is no definition of 'direct relevance' in the law, nor is there a delegation provision allowing it to be prescribed by Presidential Decree, but the current enforcement decree excessively restricts its content," and "The concept of 'direct relevance' should be established in the future through precedents and other means."

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