Controversy of pros and cons of the abolition of the prosecution office’s investigative power is fierce. The prosecution office’s investigative power has been under constant discussion in Korean society along with the reform of the Prosecution Office. Then, what does the public opinion in Korea look like? And what system does the prosecution in foreign countries take? Let’s take a look at these together.
Public Opinion in Korea
In March, a political polling company “Realmeter” conducted a survey of 500 people aged 18 or older on the abolition of the prosecution office’s investigation power. The survey was categorized in region, age group, and ideology. According to the statistics, 41.2% were in favor and 49.7% opposed. In detail, 27.0% were very in favor, 14.2% were in favor, 9.2% were not sure, 13.9% were against, and 35.8% were very opposed. As the statistics show, strong negative responses outweigh the strong positive responses. By region, if you look at the results of the capital area, Seoul, there were more opposed with 42.5% in favor and 49.4% in opposition. However, Incheon and Gyeonggi-do had 45.4% in favor and 39.2% in opposition. By age group, most ages were generally in opposition, except for those in their 40s. People in their 20s were generally opposed, with only 36.0% in favor, 43.2% in opposition, and 20.8% not sure. It is important to note that it had the largest number of ‘not sure’ of all age group. Those in their 30s were all more opposed, with 39.7% in favor and 55.7% in opposition, while those in their 40s had more positive respondents with 56.1% in favor and 39.3% in opposition. For those in their 60s and 70s, opposition was dominant with 32.2% vs. 60.5% and 26.2% vs. 59.5% respectively. As you can see through the statistics, opinion rates on the abolition of prosecution office’s investigative power are analogous, and the pros and cons are clearly divided.
Prosecution Systems in Foreign Countries
Overseas Countries Recognizing the Prosecution’s Right to Investigate
The thesis “Comparative Legal Analysis and Criticism of ‘the Allegation that Investigation and Prosecution should be Separated.’”, released in 2017 by Shin Tae-hoon, a chief prosecutor of Changwon District Prosecutors’ Office, Masan branch, analyzed the prosecution-investigation system of all OECD member states. As the result, “It was found that 27 countries among 35 member countries of OECD (approximately 77%) stipulate prosecutors’ authorities to supervise judicial police in the criminal investigation.“ Among the countries, let’s take a look at the cases of Belgium, Austria, and Sweden. In Belgium, the Constitution recognizes the independence of prosecutors’ individual investigations and prosecutions. Since the prosecutors have the obligation and rights to investigate, the prosecutor shall direct the investigation to the judicial police, and the judicial police shall report the investigation process to the prosecutor. In the Austrian Constitution, it states that prosecutors are responsible for investigations and prosecutions; the prosecutor shall direct the investigation procedures, and have the right to decide whether to proceed or to close the investigation. In Sweden, the judicial procedure law stipulates that the police, the security police, or the prosecutor decide whether to open an investigation, the prosecutor’s right to investigate is recognized. In addition, many countries recognize the prosecutor’s investigative power, including Japan, Italy, France, and Mexico.
Overseas Countries Without the Prosecution’s Right to Investigate
According to the aforementioned thesis, eight out of 35 OECD countries, which is approximately 23%, do not grant investigative power to the prosecutor’s office. Among them, let’s take a look at the cases of England, Canada, and Australia. In England, the police have more authority than the prosecution. In the past, English police had the rights of prosecution, investigation, and sustainment of a public prosecution. However, the Crown Prosecution Service (CPS) was established in 1986 to check negative social phenomenon such as a corruption, emerged with the excessive authority exercise of the police. Based on the “Prosecution of Offences Act 1985”, the CPS took charge of prosecution and sustainment of a public prosecution independent from the police. The CPS of England and Wales do not have rights to investigate. Founded in 1974, The Office of Director of Public Prosecutions (DPP) in Ireland also has no right to investigate. It only has rights to prosecute serious crimes. Furthermore, Anglo-American Law countries like Canada and Australia, as well as England, have no investigation rights to the prosecution, and they only have the right to prosecute. In these countries, investigations are conducted by the judicial police, and they have both the rights to investigate and prosecute. These countries have more police power than prosecutors, contrary to the Korean judicial structure so that do not recognize the prosecution’s right to investigate.
Regardless of the recognition or abolition of the prosecution office’s investigative power, it is significant to establish a judicial system that allows people to be protected within the fence of democracy. No one can know what decisions will be made in the future, but let’s pay attention and keep watching the flow together.