Even if the police do not prosecute election commission complaint cases, 'objections' cannot be filed... Concerns over a punishment blind spot

'Right to Object by Complainant' Removed After Criminal Procedure Act Enforcement
Many Election Commission Complaints... Prosecution's 'Blind Investigation'
Constitutional Court Reviewing 11 Constitutional Complaints... Confusion Worsened by Investigation Authority Adjustment

As the first general election since the revised Criminal Procedure Act, which prohibits complainants from filing objections when the police decide not to prosecute a reported case, is held, concerns are rising that cases reported by the Election Commission could be buried if the police decide not to forward them to the prosecution.

The second bill among the inspection reform bills, the amendment to the Criminal Procedure Act, passed the plenary session of the National Assembly on May 3, 2022. Photo by Yoon Dong-ju doso7@

According to a comprehensive report by Asia Economy on the 20th, the Democratic Party of Korea passed the amended Criminal Procedure Act and the amended Prosecutors' Office Act in 2022, known as the so-called "Complete Removal of Prosecutorial Investigation Rights" (Geomsu Wanbak). At that time, Article 245-7(1) of the Criminal Procedure Act was amended to allow only crime victims or their legal representatives, i.e., complainants, to file objections against the police's decision not to prosecute, while third-party accusers were prohibited from filing objections.

The 22nd National Assembly election scheduled for next month is the first general election after the adjustment of investigative authority between the prosecution and the police, with the police taking primary responsibility for investigating election-related offenses. Therefore, the police's decisions are expected to have a significant impact on election crime investigations. Additionally, many election crimes are reported by the Election Commission, but even if the police decide not to prosecute after investigation, the Election Commission cannot file objections.

The problem is that the side effects observed during the 2022 presidential, local, and cooperative association elections?held after the investigative authority adjustment?where the police rushed to forward cases nearing the expiration of the statute of limitations to the prosecution, have not been resolved. Now, with the complainants also unable to file objections, there is a risk of a significant gap in election crime investigations.

Although the prosecution can directly investigate election crimes, it can only investigate a very limited number of cases, such as violations of the Political Funds Act and election bribery. Also, under the "Regulations on Mutual Cooperation between Prosecutors and Judicial Police Officers and General Investigation Guidelines" (Investigation Guidelines), prosecutors can request reinvestigation or partial forwarding of cases when the police decide not to prosecute. However, in cases where the statute of limitations is imminent, there is little that can be done.

In this context, the Constitutional Court has received 16 constitutional complaints challenging the provision that prohibits third-party accusers from filing objections, dismissed 5 cases, and referred 11 cases to the full bench for review.

Last March, the Constitutional Court dismissed a jurisdictional dispute related to the Complete Removal of Prosecutorial Investigation Rights law without ruling on the substance of the provision prohibiting third-party accusers from filing objections, citing procedural issues and thus refraining from judging the law itself.

At that time, some justices expressed opinions effectively deeming the provision unconstitutional, stating, "In the realm of crimes involving important national and social legal interests, where institutional accusations or complaints from socially vulnerable victims occur, it is crucial to secure the effectiveness of investigations, but the effectiveness is significantly reduced." However, since then, the Constitutional Court has only conducted hearings for a year without making a decision on constitutionality.

A lawyer A, a former chief prosecutor, said, "The general election carries more weight than local or cooperative association elections, but with the investigative authority adjustment and the Complete Removal of Prosecutorial Investigation Rights law combined, the prosecution is left in the dark regarding investigations," adding, "We can only hope that the police promptly forward cases so that the Election Commission can quickly report and prosecutors can secure time to review the cases."

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