Since President Moon Jae-in took office in 2017, his government and ruling party have pushed forward a series of reform measures to weaken the prosecution’s power. As the first prosecution reform, the Corruption Investigation Office for High-ranking Officials (CIO) started its operation in February, and the investigative powers of the prosecution and the police were also adjusted. The second prosecution reform, which is currently under discussion, aims to purge investigative powers from the Office of the Prosecution. Lawmakers of the ruling Democratic Party proposed a bill on Feb 8th to establish an agency for investigating serious felonies. The prosecution is currently left with powers to investigate six types of serious crimes. The new investigation agency will deprive the prosecution’s remain investigative power and leave it only with the power to prosecute. The issue has sharply divided the public. Some expect that separating the power of investigation and prosecution can prevent prosecutorial abuses of power and protect human rights. On the other hand, some criticize that the separation will weaken the nation’s investigative capabilities. Should the prosecution's investigative powers be taken away? Let's take a look at the arguments of both sides and think about it.
Korea’s prosecution office has the overarching authority both to investigate and indict, superseding the roles of other investigative agencies such as the police. In that regard, the prosecution office has long been criticized for its excessive monopolization of the criminal justice system. The first prosecution reform transferred the prosecution office’s power to investigate high-ranking officials to the CIO and granted the police the primary authority to investigate. However, the prosecution office still has investigative power, which is one of the nation’s greatest powers. Unless the investigation and prosecution are completely separated, the prosecution office’s abuse of power will continue. The monopoly of power that does not fit the principles of democracy ultimately damages the people. Therefore, the prosecution office’s investigative authority should be taken away.
First, the prosecution office's investigative power goes against democracy, including the principle of division of powers. In advanced, democratic countries, the principle of division of power is regarded as a major premise for the operation of state institutions. However, Korea’s criminal justice system, which allows the prosecution office to have the power to investigate and indict, runs counter to this principle. As a result, the prosecution office 's abuses of power, such as excessive investigations and the handling of such, continues to be revealed. This criminal justice system is extraordinary compared to other countries. In the U.S., the police take charge of the investigation and a prosecutor takes charge of the prosecution, and unlike Korea, the police also have a right to request a warrant directly. Japan also separates the investigation and prosecution except in some exceptional circumstances. In Germany, the prosecution monopolizes the power to indict and investigate like in Korea. Unlike Korea, however, German prosecutors do not have investigators in their room. So the actual investigation is done by the juridical police. Meanwhile, due to the power of investigation, the prosecution office’s investigative authority goes against the democratic principle that “unelected power should be controlled by elected power.” Both the Ministry of Justice (MOJ) and the Prosecution Office are administrative agencies belonging to the government. The MOJ, made up of state-elected public officials, has authority over the Prosecution Office, which consists of prosecutors who are unelected public officials in special service, and the MOJ has the authority to direct and supervise the prosecution. However, to ensure the independence of the investigation, the MOJ cannot directly supervise prosecutors. “The core of the rule of law is that unelected power is controlled by elected power. But it is hard to control the prosecution as it monopolizes the power to investigate and indict. That’s why people are afraid of the prosecution,” said former Justice Minister Cho Kuk.
Second, separating the investigation power from prosecution can guarantee the people’s right to stand a fair trial by blocking the investigation prosecutor’s prejudgment of guilt. As a representative of the public interest, the prosecutor shall be responsible for properly determining whether to indict according to the results of the investigation. Therefore, prosecutors should judge whether to indict or not from an objective and neutral perspective while maintaining a certain distance from the investigative agency. However, the current system in which prosecutors have the investigation power is not free from the presupposition of guilt that is easy for investigators to have. “Everyone has a cognitive bias. The investigator is obsessed with evidence of guilt because of his confirmation bias and the presumption of innocence under the Constitution is compromised,” explained Lee Sung-ki, a professor of law at Sungshin Women's University in his 2017 paper. Also, according to Kim Choong-nam, a professor of Police Administration at Kwandong University, the conviction rate of cases serves as an important criterion for current prosecution personnel. These factors can turn the prosecution's investigation into an ‘investigation to prove guilt’ rather than an ‘investigation to discover truth.’ In the process, the prosecutor may ask the suspect for a confession by force, which violates the people's right to stand a fair trial. Therefore, we should ensure a fair trial and the people's rights by making the prosecution focus only on prosecution.
Third, taking away the investigative powers from the prosecution office can increase the efficiency of criminal trials. Following the first prosecution reform, the police have the primary authority to investigate common crimes. However, the prosecution office can still directly investigate major serious crimes, and it can monitor and control the police’s investigation by requesting them for supplementary investigation. Such dual investigations by police and prosecutors result in huge social costs. Double manpower and budget are wasted due to the same prosecution investigation being conducted after the police investigation is completed. In the process, the suspects may experience difficulties in daily life or have psychological problems, etc. According to a study by the Korea Association of Comparative Criminal Law, the double investigation results in an unnecessary cost of from 50 to 150 billion won per year. The abolition of the prosecution office’s investigative power is also efficient in that it resolves the prosecution office’s overwork. “Prosecutors can neglect their primary duties of filing indictments and proceeding with trials as they directly exercise all of their wide-ranging powers,” said Kim Yong-min, a member of the National Assembly's Legislation and Judiciary Committee. Therefore, separating the investigation authority from the prosecutor can increase the efficiency of their work as limited prosecution office personnel focus only on the indictment. In addition, it can reduce the cost and time spent on trials as the dual investigations will disappear.
The prosecution office's monopoly on investigation and prosecution has long been taken for granted in Korea. However, we should no longer take this for granted. “The constitution and the criminal law created after the liberation from Japan say that the prosecution office’s investigative power is a temporary measure. There were many attempts to normalize it, but it has taken 70 years,” said Yang Ji-yeol, a lawyer who appeared on MBC News on February 26th. We are aware of the concerns of the prosecution office on the separation of investigation and prosecution. The path we have not started can be frightening. However, what is old and familiar is not always right or desirable. It is no longer possible to turn a blind eye to the problems caused by the prosecution office's monopoly of power. We should carry out this important task promptly.