Will Prosecutors Be Disciplined for Opposing Orders? Bill States "Objections Allowed Against Unjust Directives"

"Calls for Revision of the PSO Act" Raised by Some Lawmakers
Actual Provisions Differ from Their Claims

Some lawmakers within the Democratic Party of Korea are arguing for revisions to the government’s bills on establishing the Serious Crimes Investigation Office (SCIO) and the Prosecution Service Office (PSO), claiming that if enacted, these laws would actually strengthen prosecutorial power. We examine the basis and facts behind their arguments.

Choo Mi-ae, Chairwoman of the National Assembly's Legislation and Judiciary Committee, is starting the full committee meeting at the National Assembly on the 11th. The committee plans to process more than 20 bills including the Special Act on Investment in the United States. Photo by Yonhap News

1. Provisions on Supervision and Direction by Superiors in the PSO Act

Choo Mi-ae (14th Class of the Judicial Research and Training Institute), Chairwoman of the Legislation and Judiciary Committee, demanded the removal of a provision, arguing that prosecutors could be disciplined for opposing orders from their superiors, thereby maintaining the hierarchical culture within the prosecution. However, the PSO Act stipulates only “supervision and direction,” not “obedience,” and explicitly includes the right to raise objections to superior orders and prohibits any disadvantage for doing so.

2. “Delegation and Succession of Prosecutorial Duties” Clause

Chairwoman Choo cited the investigations into the Ulsan mayoral election and the Wolseong Nuclear Power Plant case as examples of targeted investigations resulting from abuse of this clause, claiming that both cases resulted in acquittals. However, in the Ulsan mayoral election case, the acquittal was related to the usual transfer of the case to Seoul, where most involved parties resided. The Wolseong Nuclear Power Plant case is still in the first trial and has not resulted in an acquittal. The investigation was conducted by the Daejeon District Prosecutors’ Office, which has jurisdiction over the Ministry of Trade, Industry and Energy, where the suspects were employed; the delegation and transfer of duties clause was not applied in this case.

3. Retention of the Title “Prosecutor General”

Chairwoman Choo and others argued that continuing to call the head of the PSO the “Prosecutor General” would perpetuate the tradition of prosecutorial unity centered on the Prosecutor General. They proposed renaming the position to “Director of the Prosecution Service Office,” while adding a revision stating, “shall be deemed the Prosecutor General.” However, this creates an abnormal structure where the constitutionally mandated Prosecutor General and the statutory PSO Director exist separately, raising the risk of unconstitutionally altering constitutional norms with legislation. The government’s proposal aligns the head of the PSO with the constitutionally defined Prosecutor General, and specifically defines this role in the PSO Act, thus limiting the scope of the Prosecutor General’s authority of supervision and direction.

4. Whether the PSO is a Quasi-Judicial Agency

Assemblyman Kim Yongmin (35th Class) argues that the PSO should be defined as an administrative, not a quasi-judicial, agency, and advocates for deleting provisions related to job security, organizational structure, and staff. However, the Constitutional Court has stated that the prosecution’s work is closely related to trials, giving it a quasi-judicial character (93HunBa45). If the scope of duties and organizational structure of the PSO, which can restrict fundamental rights through indictments and warrant applications, are not defined by law, there is a risk of evading democratic oversight by the National Assembly.

5. Notification Obligation of the Serious Crimes Investigation Office (SCIO)

Assemblyman Kim claims that this provision would allow the prosecution to secure investigative authority indirectly. However, under the government’s proposal, the SCIO notifies the PSO only of the main facts of a crime via the criminal justice information system, so PSO prosecutors have no opportunity to exercise investigative powers. The duties of PSO prosecutors no longer include criminal investigations or initiating investigations, leaving no legal basis for exercising investigative authority.

Reporter Woo Bin, The Law Times

Reporter Kim Jihyun, The Law Times

※This article is based on content supplied by Law Times.

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