Court Examines Prosecution's Separation of Investigation and Indictment Before Ruling on Defendant's Guilt

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Before determining the guilt or innocence of defendants, the court is closely examining whether the prosecution's investigation and indictment procedures have complied with the law. Analysts note that by strictly applying the principle that separates the entities responsible for investigation and prosecution, the court is putting a brake on the prosecution's habitual handling practices.

According to the legal community on April 29, the Seoul Central District Court Criminal Division 5-1 (Presiding Judge So Byungjin) overturned the original verdict and dismissed the indictment in January against Professor A, who had been indicted for violating the Improper Solicitation and Graft Act by allegedly receiving 30 million won from a student in exchange for help winning an art contest. Previously, the first trial court had sentenced Professor A to six months in prison, suspended for one year.

The appellate court found that prosecutor Lee, who filed the indictment, was in effect the "initiating prosecutor," which violated Article 4, Paragraph 2 of the Prosecutors' Office Act. This law, which has been in effect since September 2022, stipulates: "A prosecutor may not file an indictment for a crime for which he or she initiated the investigation." In February 2024, Prosecutor Lee instructed an investigative officer on the specific direction of the investigation regarding the defendants and ordered the case to be sent to the Violent Crimes Investigation Division. Subsequently, Prosecutor Lee received the case, summoned the defendant, prepared an interrogation report, and on August 23 of the same year, filed the indictment.

The prosecution argued that, since the case was transferred after being investigated by an investigative officer, it was an exceptional situation similar to a "case transferred by a judicial police officer." However, the court did not accept this argument. The court pointed out, "An investigative officer in the prosecution is merely an assistant to the prosecutor without independent investigative authority, so their report cannot be considered equivalent to the 'transfer' by a judicial police officer."

There are additional cases in which the court dismissed indictments before assessing guilt or innocence, citing Article 4, Paragraph 2 of the Prosecutors' Office Act. The Suwon District Court dismissed the indictment in August last year against former lawmaker Kang Yongseok, who had been charged with violating the Political Funds Act. Kang was brought to trial for allegedly transferring 550 million won out of campaign donations raised during the 2022 Gyeonggi Province governor election to a company run by his brother-in-law and using it for personal purposes.

This case began with a complaint filed by the Gyeonggi Provincial Election Commission in October 2022. Initially, Prosecutor B handled the case and filed charges for some allegations, leaving the remaining Political Funds Act violations pending, stating, "We will continue the investigation and decide later." After an investigative officer completed the investigation and formally transferred the case, Prosecutor C was reassigned the case in February 2023. Prosecutor C summoned Kang twice, on May 23 and 26, for direct interrogations and subsequently filed an indictment on June 15.

The court determined that Prosecutor C, by conducting face-to-face investigations of Kang and subsequently handling the indictment, violated Article 4, Paragraph 2 of the Prosecutors' Office Act. The prosecution has appealed this decision, and the second trial is currently underway.

In the case of special prosecutor teams, they have the legal authority to conduct both investigations and prosecutions. However, the court is also applying strict standards regarding the "scope of indictment" by special prosecutors. The Seoul High Court recently upheld a ruling dismissing the indictment in the bribery case involving Ministry of Land, Infrastructure and Transport official Kim. Special Prosecutor Min Jungki's team discovered separate bribery charges during the investigation into the Yangpyeong Expressway allegations and filed an indictment. However, the court ruled that these charges were outside the scope of the special prosecutor's authority, as they lacked "reasonable relevance" to the cases subject to investigation under the Special Prosecutor Act.

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