Professor Hoseon Lee Files Constitutional Complaint Against Public Prosecution Service and SCIS Acts: "Core Provisions Unconstitutional"

A current law professor who previously served as vice president of the Korean Constitutional Law Association has filed a constitutional complaint with the Constitutional Court, arguing that key provisions of the Prosecution Office Act and the Act on the Organization and Operation of the Serious Crimes Investigation Office (Serious Crimes Investigation Office Act) violate the Constitution.

Attention is focused on whether, before the two laws come into effect in October, the Constitutional Court will issue a ruling on the constitutionality of the Prosecution Office Act, which excludes prosecutors from conducting criminal investigations, and the Serious Crimes Investigation Office Act, which places the Serious Crimes Investigation Office under the jurisdiction of the Minister of the Interior and Safety.

Hosun Lee, Professor, Department of Law, Kookmin University. Kookmin University website

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On April 6, Hosun Lee, Professor at the College of Law, Kookmin University (31st bar exam), filed a constitutional complaint with the Constitutional Court, claiming that Article 4(1) of the Prosecution Office Act (complete deprivation of prosecutors' investigative authority), Article 56 (abolition of investigative command authority), Article 3(1) of the Serious Crimes Investigation Office Act (placement under the Minister of the Interior and Safety), the main text of Article 6 (direction and supervision by the Minister of the Interior and Safety), Article 2(2) (excessively broad investigative jurisdiction), and Article 43(3) (obligation to accept transfer requests) infringe upon citizens' fundamental rights and the essential content of the institutional guarantees regarding the criminal justice system under the Constitution.

In filing the complaint, Professor Lee argued that these provisions violate the following: ▲ human dignity, value, and the right to pursue happiness (Article 10 of the Constitution); ▲ freedom of the person and the principle of due process (Article 12(1)); ▲ the right to personal liberty based on the warrant system (Article 12(3)); ▲ the right to request trial as a suspect (Article 27(1)); and ▲ the right to request trial as a victim (Article 27(1)).

Professor Lee further pointed out that these provisions undermine the essential content of the criminal justice system as guaranteed by the Constitution, which separately specifies 'prosecutor's application' in the context of the warrant system (Article 12(3)) and defines the Prosecutor General, alongside the Chairman of the Joint Chiefs of Staff, the Chiefs of Staff of each military branch, and the presidents of national universities, as a matter for deliberation by the State Council (Article 89, Clause 16).

He stated, "These provisions make clear the constitutional intent that the framers of the Constitution sought to guarantee the core structure of the criminal justice system at the constitutional level, not leaving it to the discretion of the legislature. In other words, the 'prosecutor' is not simply a position under administrative organization law, but an institutional entity incorporated by the Constitution as a structural element of the criminal justice system."

Professor Lee pointed out that these legislative provisions are a typical case of 'gradual hollowing out,' where multiple legislative measures, each appearing constitutional in isolation, accumulate over time or simultaneously, resulting in the essential areas of the system being effectively stripped of substance.

He explained, "The process, from the reduction of investigative command authority in 2020 (first stage), the limitation of the scope of initiation of investigations in 2022 (second stage), to the abolition of the Prosecution Service Act and the enactment of the Prosecution Office Act and Serious Crimes Investigation Office Act in 2026 (third stage), follows the path of gradual hollowing out. Even if each stage of legislation was individually constitutional, the final stage may be unconstitutional."

Constitutional Court, Jaedong, Jongno-gu, Seoul. Photo by Yonhap News Agency

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Professor Lee also emphasized that the core area of the criminal justice system guaranteed by the Constitution institutionally includes a structure in which the stages of investigation, prosecution, and trial are handled by multiple agencies, each of which can substantively review and correct the actions of the other-namely, 'multi-layered separation and checks.' He argued that these provisions infringe on the essential content of the criminal justice system as guaranteed by the Constitution, specifically: ▲ legal oversight over investigations; ▲ dual oversight in requesting warrants; ▲ independence in prosecutorial decisions; ▲ effective remedies against non-prosecution; and ▲ competitive oversight among investigative agencies.

Professor Lee asserted, "The so-called 'separation of investigation and prosecution' advocated by these two laws is, in reality, the total dismantling of checks on investigative agencies. Undoubtedly, the current Prosecution Office Act and Serious Crimes Investigation Office Act will create a 'monster' police force that even the police themselves do not want. This monster will eventually devour not only the politicians who created it, but also the judiciary, the media, and even the public who stood by as onlookers."

He continued, "By effectively granting the police-who already monopolize information-exclusive authority to initiate and conclude investigations, and placing its chief under the Minister of the Interior and Safety, who is inevitably a political figure, this structure establishes an unprecedented institutional foundation for a police state. The claim that 'separation of investigation and prosecution is an international trend' is a distortion of the facts; the real trend is to 'separate but strengthen checks,' not to 'separate while dismantling checks.'"

Professor Lee presented several reasons why the Constitutional Court must rule on the constitutionality before the Prosecution Office Act and Serious Crimes Investigation Office Act take effect on October 2: ▲ it would provide lawmakers with an opportunity for self-correction; ▲ it could prevent irreparable institutional confusion after the laws' implementation; and ▲ it would block infringements on fundamental rights before they become a reality.

He added, "The core issue of unconstitutionality is not the 'separation' of investigation and prosecution itself, but the dismantling of 'checks.' If the National Assembly supplements the law to restore the substance of checks, it would be possible to achieve both the legislative purpose and the preservation of the core areas of the criminal justice system."

On the 20th of last month, the Prosecution Office Act passed the plenary session of the National Assembly. Photo by Yonhap News

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Regarding the requirements for filing a constitutional complaint, Professor Lee argued, "When these legal provisions take effect on October 2, they will directly infringe on the petitioner's constitutional rights, including the right to a fair trial, and, since no intermediary actions such as enforcement measures are required, the requirements of personal relevance, directness, and presentness for a constitutional complaint are fully satisfied according to previous Constitutional Court precedents and legal principles."

Professor Lee contended that the legal provisions in question would undermine the principle of prosecutorial discretion in criminal procedure law and dismantle the prosecutor's function as a protector of human rights.

He stated, "For a prosecutor unable to independently verify the results of investigations, the only remaining option is a mechanical decision-prosecuting if evidence sent by the investigative agency is sufficient, or not prosecuting if it is insufficient. This is not prosecutorial discretion but, in reality, a system of mandatory prosecution subordinated to the investigative agency's judgment."

He continued, "Then should we amend the criminal procedure law to adopt a system of mandatory prosecution? The answer is no. Under mandatory prosecution, if there is sufficient suspicion, prosecution is obligatory; therefore, it becomes even more necessary for prosecutors to directly secure and verify the evidence forming the basis of prosecution."

Finally, Professor Lee urged the Constitutional Court to make a prompt and responsible decision, stating, "The Constitutional Court now stands at a crossroads: whether to establish the Republic of Korea as a police state unprecedented in the history of liberal democracy."

Professor Lee, who passed the 31st bar exam in 1989 and is a licensed attorney, has served as President of the National Association of Law School Professors and Vice President of the Korean Constitutional Law Association, and is currently teaching at the Department of Law and the Graduate School of Legal Studies (Constitutional Legislative Studies) at Kookmin University.

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