The 'Geomsuwanbak' Bill Passed by the Legislation and Judiciary Committee... A Look at the Amendments to the Prosecutors' Office Act and the Criminal Procedure Act

On the 27th, at the plenary meeting of the Legislation and Judiciary Committee held in the National Assembly, the amendments to the Prosecutors' Office Act and the Criminal Procedure Act were passed by a standing vote of the committee members belonging to the Democratic Party of Korea.

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[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] On the early morning of the 27th, the Democratic Party of Korea unilaterally passed the so-called 'Complete Prosecution Investigation Reform' bills, which include partial amendments to the Prosecutors' Office Act and the Criminal Procedure Act, during the plenary session of the National Assembly's Legislation and Judiciary Committee.

The amendments passed by the Legislation and Judiciary Committee on that day were based on the agreement reached on the 22nd between the Democratic Party and the People Power Party, mediated by National Assembly Speaker Park Byeong-seok, and reflected the committee's adjustment opinions.

Before the agenda adjustment committee meeting the previous day, the ruling and opposition parties repeatedly negotiated through their floor leaders and modified some provisions. However, amid clashes between the two parties, the final coordinated bill was not even submitted to the agenda adjustment committee. Ultimately, the agenda adjustment committee approved the amendments that the Democratic Party had unilaterally passed in the first bill review subcommittee. Subsequently, in the plenary session of the Legislation and Judiciary Committee, despite fierce opposition from People Power Party members, the Democratic Party's amendments were approved by a standing vote solely by the majority Democratic Party members.

The Prosecutors' Office Act amendment approved by the Legislation and Judiciary Committee on that day revised Article 4 (Duties of Prosecutors) Paragraph 1 Subparagraph 1 Item (a), which currently states 'corruption crimes, economic crimes, public official crimes, election crimes, defense business crimes, major disasters, and other important crimes prescribed by Presidential Decree,' to 'corruption crimes and important economic crimes prescribed by Presidential Decree.'

The amended Prosecutors' Office Act, which has been in effect since January last year, limited prosecutors' direct investigation targets to six major crimes in accordance with the adjustment of investigative authority between the police and prosecution. This amendment further restricts the scope to only two categories: corruption crimes and economic crimes.

Notably, the amendment passed by the Legislation and Judiciary Committee changed the phrase '~and other important crimes prescribed by Presidential Decree' to '~among important crimes prescribed by Presidential Decree,' thereby fundamentally blocking any indirect expansion of prosecutors' investigative scope through Presidential Decree revisions (regulations on the scope of crimes for which prosecutors can initiate investigations) after President-elect Yoon Seok-yeol takes office.

Before referral to the agenda adjustment committee, during additional negotiations, the Democratic Party accepted the People Power Party's claim that the phrase was 'not included in the mediation proposal' and revised the phrase back from '~among important crimes prescribed by Presidential Decree' to '~and other important crimes prescribed by Presidential Decree.' However, this adjustment proposal was reportedly not submitted to the agenda adjustment committee.

The amendment sets the enforcement date as 'the day four months after promulgation' in Supplementary Provision Article 1.

However, Supplementary Provision Article 3 includes a transitional provision that grants a grace period until December 31, 2022, for election crimes to be governed by the previous regulations. This was not included in the original agreement but was accepted following a proposal from the Justice Party.

Conscious of criticism that excluding 'election crimes' from prosecutors' direct investigation targets is a 'political shield,' the amendment retains prosecutors' investigative authority over election crimes until the statute of limitations for crimes related to the June 1 local elections expires six months later.

The amendment changes Article 4 (Duties of Prosecutors) Paragraph 1 Subparagraph 1 Item (b) from 'crimes committed by police officers' to 'crimes committed by police officers (including those performing judicial police duties under other laws) and officials belonging to the Corruption Investigation Office for High-ranking Officials (including dispatched officials under the Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials).'

Furthermore, Article 4 Paragraph 1 Subparagraph 1 Item (c), which currently states 'crimes related to crimes under items (a) and (b) and crimes transferred by judicial police officers that are directly related to each respective crime recognized,' was amended to 'crimes related to crimes under items (a) and (b) and crimes transferred by judicial police officers that are directly related to each respective crime recognized (in the case of crimes transferred by judicial police officers, limited to within the scope of the same criminal facts of the relevant case).'

This restricts the scope of crimes prosecutors can directly investigate related to police-transferred cases from 'directly related crimes' to 'within the scope of the same criminal facts.'

Additionally, the amendment moves Article 4 Paragraph 2, which states 'prosecutors, in performing their duties, shall serve the entire public, protect citizens' human rights in accordance with the Constitution and laws, observe due process, maintain political neutrality, and not abuse their given authority,' to Paragraph 4, and newly establishes Paragraphs 2 and 3 of Article 4.

The newly established Article 4 Paragraph 2 states that 'when prosecutors conduct necessary investigations to decide whether to prosecute and maintain prosecution for cases transferred by judicial police officers pursuant to Article 197-3 Paragraph 6, Article 198-2 Paragraph 2, Article 245-5 Subparagraph 1, and Article 245-7 Paragraph 2 of the Criminal Procedure Act, they may investigate only within the scope of the same criminal facts of the relevant case,' further narrowing the scope of prosecutors' investigations.

The newly established Article 4 Paragraph 3 stipulates that 'prosecutors shall not initiate prosecution for crimes they have initiated investigations on', thereby clearly separating investigation and prosecution. However, it includes an exception clause stating 'provided, however, that this shall not apply to crimes transferred by judicial police officers.'

This exception appears to have been made considering concerns about abolishing prosecutors' direct supplementary investigation rights, allowing prosecutors responsible for prosecution to conduct supplementary investigations for police-transferred crimes before prosecution.

The original proposal by the Democratic Party included provisions preventing the investigating prosecutor from participating not only in prosecution initiation but also in prosecution maintenance. However, due to concerns from the Court Administration Office that 'if the investigating prosecutor participates during the criminal trial, the trial could be invalidated,' expressions related to prosecution maintenance were deleted.

The amended Prosecutors' Office Act will take effect four months after promulgation, but the provision on 'separation of investigation and prosecution' in Article 4 Paragraph 3 will apply only to prosecutions initiated after the amended law comes into effect, as stipulated in the supplementary provisions.

Meanwhile, the amendment adds Paragraph 4 to Article 24 (Chief Prosecutor), stating 'The Prosecutor General shall report quarterly to the National Assembly on the organizational structure authorized to initiate investigations into crimes under Article 4 Paragraph 1 Subparagraph 1 Item (a), and the status of prosecutors, officials, and dispatched personnel working in the relevant departments.'

This requires the Prosecutor General to report quarterly to the National Assembly on the status of departments directly investigating corruption and economic crimes, as well as the prosecutors and investigators assigned to those departments.

The original agreement between the ruling and opposition parties included a provision to reduce the current five anti-corruption and violent crime investigation divisions to three. The Democratic Party explained that this clause is intended to enable the National Assembly to monitor whether this is properly implemented.

Meanwhile, the Criminal Procedure Act amendment approved by the Legislation and Judiciary Committee newly adds Paragraph 2 to Article 196 (Investigation by Prosecutors), stating 'prosecutors may investigate within the scope of the same criminal facts for cases transferred by judicial police officers pursuant to Article 197-3 Paragraph 6, Article 198-2 Paragraph 2, Article 245-5 Subparagraph 1, and Article 245-7 Paragraph 2.' This provision, like Article 4 Paragraph 1 Subparagraph 1 Item (c) of the Prosecutors' Office Act, limits prosecutors' investigative scope for police-transferred cases to the 'scope of the same criminal facts.'

Additionally, the amendment newly adds Paragraph 4 to Article 198 (Compliance Requirements), stating 'investigative agencies shall not unreasonably investigate separate cases for the purpose of clarifying criminal charges in ongoing investigations, nor coerce confessions or statements related to unrelated cases by presenting evidence or materials obtained from investigations of other cases.'

This is the most controversial provision in the National Assembly's mediation proposal, which prohibits investigations beyond the unity and identity of crimes, i.e., bans separate investigations. The mediation proposal included provisions allowing investigations within the scope that does not violate the unity and identity of cases for prosecution correction requests (Article 197-3) and complainants' objections (Article 245-7), and this amendment broadly regulates that.

During additional negotiations, the ruling and opposition parties agreed to delete the relevant parts of Article 4 Paragraph 1 Subparagraph 1 Item (c) of the Prosecutors' Office Act, which limits supplementary investigations of police-transferred crimes to 'within the scope of the same criminal facts,' and Paragraph 2 of Article 196 of the Criminal Procedure Act, and to exclude police-transferred cases from the scope of the ban on separate investigations stipulated in Article 198 of the Criminal Procedure Act. However, this was reportedly not submitted to the agenda adjustment committee.

Meanwhile, the prosecution has expressed concerns that although current laws contain several provisions prohibiting separate investigations in principle, if all supplementary investigations are restricted using concepts like 'unity' or 'identity' as in the mediation or amendment proposals, serious problems could arise, such as being unable to indict even if the main perpetrator is identified in police-transferred cases or being unable to indict additional offenses if new victims are identified. They argue that if necessary, it is sufficient to newly establish a declaratory provision banning 'separate investigations' in the amended law.

In fact, the current Article 4 Paragraph 1 Subparagraph 1 Item (c) of the Prosecutors' Office Act stipulates 'crimes directly related to crimes under items (a) and (b) and crimes transferred by judicial police officers,' limiting prosecutors' investigative scope to directly related crimes. Even under the Presidential Decree specifying the scope of crimes for which prosecutors can initiate investigations, Article 3 (Directly Related Crimes), prosecutors' supplementary investigation scope is limited to accomplices or similar crimes of the relevant crime, according to the prosecution's position.

Also, Article 16 Paragraph 2 of the 'Regulations on Mutual Cooperation and General Investigation Rules between Prosecutors and Judicial Police Officers' (Presidential Decree) states that 'prosecutors or judicial police officers shall not initiate investigations of unrelated cases or unreasonably extend investigation periods for the purpose of clarifying criminal charges in ongoing investigations.'

Article 15 Paragraph 1 of the Human Rights Protection Investigation Rules (Ministry of Justice Ordinance) stipulates that 'prosecutors shall not unjustly pressure suspects by investigating unrelated cases for the sole purpose of clarifying criminal charges in ongoing investigations,' and Paragraph 2 of the same article states 'prosecutors shall not unreasonably delay the investigation period of ongoing cases solely to find new criminal charges unrelated to the ongoing investigation.'

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