During the National Assembly’s plenary session on May 3, former President Moon Jae-in officially signed the revised bills of the Prosecutors’ Office Act and the Criminal Procedure Act to remove the prosecution’s right to investigate. Despite the opposition from the People Power Party (PPP), the Democratic Party of Korea (DPK) pushed ahead to make a critical change in the preexisting investigation procedures, forcing the bills on prosecution reform through the final vote. According to Moon, such law enforcement was necessary as “the results of previous prosecution reforms were not enough to clear out the concerns of political neutrality, fairness, and selective justice in the prosecution investigation.”

With the rising cases of prosecutorial corruption, the need to reform or weaken the power of the prosecution has been discussed continuously. As a result, Moon propelled the five-year prosecution reform during his term of office despite systematic opposition and the resignation of the previous Prosecutor General and the current President of South Korea, Yoon Sukyeol. Right before Yoon’s presidential inauguration, however, Moon achieved his plan of prosecution reform by signing the revised bills and creating a dramatic change in power dynamics regarding case investigations. 

An Overview of the Reform

A criminal case originally involved three steps: police investigation, prosecution, and judgment. More specifically, the prosecution monitored the police authority by rectifying flawed police investigations and deciding whether to send these cases to court. However, the prosecution’s authority was seen as controversial due to the prosecutor’s excessive power, which provides them the right to initiate an independent investigation of the six types of crimes. The controversy became a serious concern, especially among the public, with prosecutorial corruption rising above the surface. Given this crisis, reducing the power of the prosecution became the main purpose of the very recent legislative reform. 

The DPK oversaw the reform, directly expressing its stance to completely deprive the prosecution of its authority. However, this was not possible due to the opposition of other policy participants, including the prosecution, the presidential transition committee, and the PPP. As a result, on April 22, member of the National Assembly Park Byeong-seug presented an arbitration plan to minimize disputes over the prosecution reform. Instead of completely depriving the prosecution of its authority, reducing the extent of the prosecution’s intervention and power in an investigation became the key point of the bills. First, the prosecution’s right to investigate was limited to only two types - corruption and economic crimes - out of the current six types of crimes. Second, the prosecution was allowed to carry out supplementary investigations only when the police investigation was considered insufficient. 

However, the preliminary settlement between the conflicting groups was once again miscarried with the PPP deciding to continue the opposition. On April 27, despite the heightened conflict, the DPK, which accounts for more than half of the seats in the National Assembly, pushed the revised bills at the Legislation and Judiciary Committee. After witnessing the bills successfully pass the first threshold of the official legislative reform, the PPP opened a filibuster to prevent it from moving onto the plenary session of the National Assembly. Once again responding to the opposition, the DPK voted on a new bill to end the filibuster by April 28, 12:00 A.M.. As a result, on April 30 and May 3, the approval of the bills was finalized, with the PPP not participating in the vote as a sign of protest. 

Controversy Over Its Legitimacy

The tight argument between the two parties indicates the deepened controversy over the subject matter. As reported by Yonhap News, the PPP requested an adjudication on jurisdiction disputes at the constitutional court to decide the unconstitutionality of the procedures and the content of reform. For example, the arbitrary decision of the DPK renders the bills’ procedural legitimacy questionable. According to Professor Chang Young-Soo (School of Law), a single party cannot make unilateral decisions and must consult with the minor parties and nonpartisan representatives in deciding the bills. If there is no agreement between the parties, a coordination period of a maximum of 90 days must be carried on. However, as Professor Chang explains, “the DPK evaded the law by manipulating the vote for a coordinating committee, which is why the legislative procedure is considered unjust.”  

Most importantly, the necessity and suitability of the bills are in question as the deprivation of the prosecution’s authority may significantly affect public safety. According to Professor Chang, the deprivation of the prosecution’s right to investigate the six major crimes could be justified if the police or the Serious Crime Investigation Office (yet to be established) is better at investigating than the prosecution is. However, the DPK completely overlooked this issue, which is why “the revised bill is being criticized for possibly damaging public safety, as it is difficult to avoid the blind spots of human rights preservation that should be guaranteed through thorough investigation,” according to Professor Chang.

Professor Chang added that “at this moment, police have failed to properly handle the increased workload due to the adjustment of the prosecution and police investigation, and the Serious Crime Investigation Office is not prepared to conduct proper criminal investigations.” Considering these loopholes, the decision to deprive the prosecution’s authority does not properly reflect the public’s criticisms, making it even more difficult to find democratic justification in this legislative reform.

All in all, the issue of depriving the prosecution’s right to investigate was and is still a controversial issue due to the legitimacy of the bills and the possible social impacts of the amendment. As the investigation of a criminal case is directly connected to public safety and social security, the rectification of the bills must be and should have been openly discussed. The cooperation between the prosecution and the police now depends on how organically the investigation and the prosecution can be linked, but for now, it is uncertain whether the police can normally operate investigations with its increased workload.