France’s authorized reform in 1808 laid down the cornerstone of contemporary prosecution. It effected separation of powers for its felony justice system, compartmentalizing investigation, prosecution, and trial to be dealt with by totally different events. Placing any of the 2 components inside one hand had nearly inevitably led to judicial prejudice and abuse of energy. Most of Europe quickly adopted the French mannequin. And immediately, developed liberal democracies hew to this authorized sanctity and follow.
South Korea, nevertheless, is an exception. Its prosecution is extremely centralized with a monopoly on investigation and prosecution – a mannequin extra generally present in autocracies. The prosecutors additionally train coercive powers reserved for the police in different nations. They’ve used their distended authorized capabilities to drag strings behind South Korean politics.
For individuals they not want to see in public, they dig up filth first with the belief they should be responsible of one thing, nevertheless trivial. For the really responsible ones they wish to maintain indebted to them, they withhold indictment. (This “discretionary indictment” is even their statutory proper.) Not surprisingly, the prosecutor’s workplace has been synonymous with corruption, the place investigations will be swept underneath the rug or unleashed upon political nemeses.
The Prosecution’s Checkered Historical past
South Korean historical past, checkered with colonial occupation and dictatorship, explains how the prosecutor’s workplace has turn into so formidable. In 1912, two years after Japan’s official annexation of Korea, the Japanese Authorities-Common of Korea declared colonial felony regulation. It gave colonial prosecutors unbridled rights to conduct obligatory investigation, i.e. search and seizure, arrest, detention and interrogation. Within the metropole, the Japanese prosecutors couldn’t train this a lot energy, however in Korea it was perfect for controlling the restive colonial populace. A well-liked criticism circulating within the Nineteen Twenties was that colonial prosecutors would “spherical up 100 simply to catch seven suspects.” They did it as a result of they might, and this follow instilled concern and mutual suspicion.
The colonial prosecutors noticed their standing skyrocket in 1941. The Japanese Empire had turn into far-flung; it wanted to mobilize and dedicate all its assets to pacifying the colonial populations and churning out ever extra conflict materiel for additional territorial enlargement. In March of that yr, eight months earlier than Japan’s shock strike of Pearl Harbor in December, the Authorities-Common decreed the Nationwide Safety Act and amended the 1925 Peace Preservation Regulation. The police now needed to function underneath the prosecutors’ direct order for instances partaking these statutes.
Within the wake of Korea’s liberation from Japan in 1945, discourse was rife on the right way to construct a brand new Korean felony justice system freed from colonial vestiges, notably the prosecutors’ limitless investigative powers. Throughout the USA’ army authorities of South Korea, from 1945 till 1948, Washington tried to take care of a felony justice system the place the prosecution and the police shared investigative duties. Nonetheless, the police have been totally uncooperative, intent on skirting the prosecution in any respect prices. Police brutality on the streets was the norm, as was torture within the title of ferreting out communist components.
The prosecutors waged a profitable PR marketing campaign, portray themselves as extra applicable for shielding the general public from each the police’s abuse of energy and communism. For this, they insisted on the appropriate to conduct direct felony investigations and command the police in investigations. The prosecutor’s workplace was established concurrently with the start of the Republic of Korea in 1948. The Prosecution Service Act 1949 conferred on the prosecutors what they’d been clamoring for.
Just a few years later, the Felony Process Act 1954 solidified the prosecution’s supremacy over the police – and the remainder, for that matter – by, as an illustration, stationing police forces inside the prosecutor’s workplace on the prosecutors’ beck and name and empowering the prosecutors to manage the applying by the police for arrest warrants. This framework persists to today.
When army dictatorship started in 1961, the prosecutors took a again seat as the federal government relied on the intelligence service and army safety. Nonetheless, beefing up the prosecution service supplied the strongmen with a veneer of legality. With the central investigation unit and the Supreme Prosecutor’s Workplace, the federal government rendered investigation a top-down motion. The federal government administered the bar exams and skilled the prosecutors itself, successfully making them strictly authorized bureaucrats, versus impartial authorized professionals.
By 1987 when South Korea’s democracy began, it was expedient to depart the prosecutors alone for 2 main causes. First, many prosecutors had turn into politicians, and so they converted to necessary authorities jobs. As their background as a prosecutor acted as a political defend, there was no must weaken the prosecutor’s workplace.
Second, any individual needed to fill the facility vacuum left by the army and intelligence service. As dictatorship lifted and South Korea maintained a centralized sturdy presidency, the prosecution service turned an excellent institutional arm of statecraft and governance.
The Lengthy Path Towards Reform
The prosecutors turned much more untouchable all through the twenty first century. In 2004, as an illustration, former President Roh Moo-hyun tried to abolish the central investigation unit inside the Supreme Prosecutor’s Workplace. “I might fairly lower my throat,” the pinnacle prosecutor on the time infamously scoffed.
For one more occasion in 2005, because the justice ministry clashed with the prosecutor’s workplace, the prosecutors huddled across the head prosecutor calling him “our father.” The prosecutors’ collective ire was sufficient to squash any try at reform. As soon as Roh’s presidential time period ended, they grilled him and his household with hours and days of degrading interrogation, resulting in his suicide in 2009.
Within the 2010s, they ignored allegations implicating conservative presidents. It was their schtick, incomes the president’s favors to protect their powers. However when former President Park Geun-hye was impeached in 2017 for corruption and Moon Jae-in was elected president, the prosecution service wanted to reverse course to remain within the new president’s good graces. The prosecutors thrashed Park and her predecessor, charging them with decades-long jail sentences. No prosecutorial reform might be broached when their thorough investigations have been uncovering truths each day.
From 2019 to 2021, nevertheless, the Moon administration succeeded in reforming the prosecution, albeit to a restricted diploma. The Corruption Investigation Workplace was legislated into existence to research and indict high-ranking officers. The vary of crimes the prosecutors might examine was additionally shortened. In the meantime, the police might now determine to research first and shut the case, fairly than being ordered what to do by the prosecution.
In fact, the prosecutor’s workplace reared up in retaliation. The prosecutors skilled their weapons on pro-Moon figures and officers, whereas shielding their very own rank from investigation. Yoon Suk-yeol, the pinnacle prosecutor underneath the Moon administration, overtly clashed with Moon and resigned in 2021. He ran for the 2022 presidential election because the conservative candidate.
As president, Yoon offset most of Moon’s reforms with government orders. He additionally packed his Cupboard and influential authorities posts with fellow prosecutors. Thus started the all too acquainted saga of how the prosecution service overtly protected Yoon and his individuals from any and all allegations backed by an avalanche of proof. Within the meantime, they persecuted their political rivals with trumped-up expenses and distorted proof.
The Yoon presidency rang the dying knell for prosecutorial omnipotence. South Korea noticed the extremity of unchecked prosecutorial powers condensed into Yoon. Following Yoon’s impeachment and the June 2025 snap election, Lee Jae-myung turned president. The Nationwide Meeting handed a regulation to abolish the prosecution service. As of October, the prosecutor’s workplace will stop to exist. In its stead, there shall be a public prosecution workplace and a severe crime investigation workplace.
Accordingly, the Nationwide Meeting will quickly amend the Felony Process Act (CPA) in order that the prosecutors will solely indict suspects and signify the state in trials, whereas the police and authorized investigators will conduct investigations. However a fierce debate has arisen over what to do with the prosecutors’ supplementary investigation powers.
The New Controversy
For now, the police conduct investigations first for crimes falling out of the prosecutors’ remit. Nonetheless, the prosecutors can perform supplementary investigations, that means they’ll take over the investigation the place there are causes to consider that the police investigation was poor and/or essential proof was omitted.
Supplementary investigation is a vital instrument within the pursuit of justice. Most just lately, a excessive schooler was murdered, however the police lined up proof of the perpetrator’s motivation: the need to commit sexual assault. Sexual assault is an aggravating consider homicide instances, resulting in lengthier jail phrases. The assassin’s father, a police officer, had connections with the investigating police. The latter allowed the daddy to go to his son’s house and destroy his telephone and different objects indicating the son’s sexual perversion. The police discovered cable ties within the son’s automotive however didn’t enter them into proof. And so they handed the automotive over to the dad after a cursory look.
The prosecution, in reviewing the police paperwork, sensed one thing fishy and exercised their supplementary investigation proper. Following CCTV footage evaluation and interviews, they uncovered the destruction of proof. There have been loads of comparable instances, normally involving victims of intercourse crimes, the place the prosecution stepped in to save lots of instances from the police ineptitude and corruption.
The upcoming CPA modification, nevertheless, intends to deprive the prosecutors of supplementary investigation powers. As a substitute, underneath the invoice prosecutors can merely request the police to conduct one other spherical of investigation. Probably the most essential shortcoming is that, except the prosecutors look into the case and examine themselves, there’s no means of discovering out whether or not the police hid something. The homicide case just lately within the headlines laid naked these shortcomings: justice wouldn’t have been served with out the prosecution’s personal investigation.
That kicked up a flurry of due criticism over the invoice. Citing the police’s “lapse of judgment and destruction of proof,” the Korean Bar Affiliation insisted on the necessity to maintain alive supplementary investigation powers “for instances immediately associated to particular person well-being and non-political day by day life.”
“Supplementary investigation exists for the general public weal. A felony justice system with out it hurts the victims,” the opposition Individuals Energy Occasion (PPP) flooring chief stated. The PPP spokesperson additionally stated that “supplementary investigation isn’t a lot the prosecutors’ prerogative as a safeguard in opposition to police extra.”
Even President Lee Jae-myung talked about in a press convention in January that “there are distinctive situations” the place supplementary investigation is required.
However, the ruling Democratic Occasion (DP) holds that their invoice, drafted on July 9, incorporates checks on the police’s investigative course of. As an illustration, the prosecutors might, both by their very own volition or upon the claimant’s request, request the police at hand over the case file. They might then have the case transferred to a distinct investigative physique. Plus, if the police don’t adjust to their request for supplementary investigation, the general public prosecution workplace might self-discipline, change, or exclude the related police from the case.
Nonetheless, it fails to handle the basic concern that the prosecution will discover it extraordinarily tough to determine what’s lacking if the police fail to find or disclose essential items of proof. Since they can not examine by themselves, they might wrestle to find out if the data put in entrance of them even warrants a request for supplementary investigation. Opening a channel by which the prosecutors can hear from the victims and claimants is commendable but inadequate.
Even inside the DP, there’s a schism. On July 14, greater than a dozen DP legislators tabled a separate invoice introducing distinctive instances permitting for the prosecution’s supplementary investigation, similar to these regarding socially and economically weak victims and people the place the victims particularly ask for prosecutorial involvement.
By all accounts, one thing akin to the U.S. prosecutorial system appears needed. In the USA, the prosecution can perform supplementary investigation restricted to satisfying the next two points. First, when there’s a must fill within the blanks within the police investigation and set up all authorized components of a criminal offense. Second, when there’s a necessity to verify the police story. There are particular investigation officers for these functions inside the prosecution, as properly. Limiting the prosecutorial position to sustaining the propriety of indictment ought to be logical and sensical sufficient.
Whichever invoice will get handed into regulation finally, the CPA is liable to be consistently modified. That has been the case up to now. It doesn’t matter what form South Korea’s felony justice system takes on, the timeless caveat is that felony justice is not only about tweaking the institutional measurement and powers. It’s about consistently striving for the fairest process to entry as many truths as attainable.
