[Interview file] Things to think about before breaking up the prosecution

Substantial debates to split the prosecution in two are in rapid progress.

In addition, Rep. Park Joo-min, who is in charge of the TF team leader in the Prosecution and Reform Special Committee of the Democratic Party, appeared on the radio on the morning of the 16th and announced that he would set up the'Investigation Office'.

As part of the so-called ``prosecution reform'' centered on passports, the prosecution has only obtained the right to request supplementary investigations for police investigations and investigate six crimes (corruption, economy, public officials, election, defense industry, catastrophe) from this year.

However, further from here, the plan is to hand over all the investigative powers remaining in the current prosecution to a new institution called the'Severe Crime Investigation Office'.

In this case, the prosecution will not do any investigation, but will only play a role of prosecuting alleged crimes and attending the trial process to maintain the prosecution.

This plan was reported to the Supreme Council of the Democratic Party, not just one claim by Park Joo-min, and is known to be aiming to pass the bill this year.

It is a step that can be called'speed battle'.

Since it was the ruling party that often expressed a language close to hostility toward the prosecution, it seems that it is not impossible to realize this plan that effectively dismantles the current prosecution.

But before putting this grand scheme into action, there are a few things to think about.

Those who insist that the prosecution should remove the right to investigate, argue that if the prosecution is in charge of both investigation and prosecution, fair investigation is hindered and the possibility of human rights violations is high.

Thesis <Separation of Investigation and Prosecution Functions> by Professor Lee Sung-ki of Sungshin Women's University Law School, who has argued for the separation of investigation and prosecution, is representative.

In this thesis, he said, if the investigation-prosecution function is exercised in one institution, ① it is difficult to objectively examine the investigation, so the possibility of errors increases. ② The responsibility for the investigation becomes unclear, and ③ there is no control device for the investigation of the prosecutor, which leads to prosecution dictatorship. It is pointed out that ④ the lack of mutual checks and controls between organizations increases the likelihood of moral hazard and corruption, and ⑤ increases the likelihood of human rights violations.

It is the opinion that the damage that can be caused by the prosecution with strong investigative power cannot be solved by the check inside the institution, but can only be prevented by taking the investigative power completely and breaking it apart.

However, changing the criminal justice system in such a rapid manner is not limited to'prosecution reform'.

The divergence of investigative agencies into the airborne, serious crime investigation, and national investigative headquarters, and the complete separation of the investigative and the participants in the trial will have a tremendous impact on the entire criminal justice system.

From next year, the prosecution's investigation received from the suspect will not be recognized as evidence in the trial, and the court must take charge of a large part of the truth discovery process that has been conducted during the investigation.

This requires a tremendous amount of additional manpower and resources.

In addition to this, if you want to promote the reorganization of the structure of the current investigation and prosecution into several stages, you should stand a rough estimate of the additional manpower and resources that will go into it.

Professor Jeong Woong-seok, Seokyeong University, who is in charge of the Criminal Procedure Law Association, points out this issue in his thesis <The concept of direct investigation of prosecutors and the relationship between investigation command-On the fictional structure of separation of investigation and prosecution from a comparative point of view>.

In his thesis, Professor Jeong pointed out that "the number of judges in the UK, where the power of investigation and prosecution is scattered across various institutions, and the court's trial stage is important, reaches 30,000, more than 10 times that of Korea."

"When referring to the judicial budget of the United States and the United Kingdom, if we go in the direction of the prosecution reformists centering on the current passport, we will need more than 10 times the judicial budget, including investigative agencies and judicial institutions."

Politicians who claim to make a real law, not a tabletop theory, must calculate how much more national tax will be added to the ideal picture they draw, and talk in detail to the people who will bear the money.

It takes that much time for the people to know and discuss this issue in detail.

However, a series of discussions on the reform of the criminal justice system, which are currently being promoted rapidly, are seriously lacking from the public debate procedure on the'money issue', which is the basis of everything.

In the case of large-scale corruption suspicions against high-ranking masterpieces, fierce battles come and go not only during the investigation stage but also during the trial process. From the defendant's point of view, he protests that the prosecution's powerful authority overly violates human rights, but prosecutors who conduct trials against large law firms and former lawyers are different. When the influential people who appointed the luxury lawyers overturn their statements at the trial or impeach the credibility of the witnesses, it is difficult to deal realistically if the prosecutors who directly participated in the investigation do not participate in the trial. There were often such scenes at the trial of the Gukjeong Nongdan case, which heated the plaza with candles in 2016.

<2017.07.07. Seoul Central District Court Samsung Electronics Vice Chairman Lee Jae-yong during the first trial of

Gukjeong Nongdan

>

▷ Former Vice Minister of Culture, Sports and Tourism Kim Jong-jin: (Support for horseback riding to Jeong Yu-ra) If it doesn't matter, I will continue to apply, but because there is a problem, I will change the horse and support it until this year. Said the boss.

(...)

▶Attorney on Samsung's side: It is difficult to trust the credibility of the statement as witnesses repeatedly overturn or misrepresent their statements during the investigation process. (...) It is also a false statement that the witness said that Choi Soon-sil was introduced through the former secretary-general of Kim Ki-chun.

(...)

▷Prosecutor: When the witness (Former Vice Minister Kim Jong-un) makes the statement at the prosecution, isn't the attorney currently the attorney for Samsung?

Kim Jong-un, then vice minister of the Ministry of Culture, Sports and Tourism Park Geun-hye, made a statement during the prosecution's investigation to the effect that'Samsung Electronics was fully aware of the cost of supporting Jeong Yu-ra's horseback riding. However, during the fierce trial process, Samsung's lawyers constantly attacked the credibility of former Vice Minister Kim Jong-un's statements. It was an attack with the aim of'Former Vice Minister Kim Jong-un made a false statement in order to avoid a request for an arrest warrant at the time' or'If you look closely, the testimony is not correct.' In order to prove the cost of Samsung's'Gukjeong Nongdan bribe', the statement of former Vice Minister Kim Jong-un was the key, so attacking and defending against it during the trial was an issue that could not be withdrawn. An official at the special prosecutor said, "Prosecutors who participated in the investigation at the time also participated in the trial process and were able to respond immediately to the anti-newspaper by the large law firm lawyers," and said, "That is why the full picture of the cost of bribery of Gukjeong Nongdan was accepted in court." In the current passport reorganization plan, in which the investigating agency and the prosecuting agency are completely separated, it is expected that such a close response will not be easy.

Similar scenes often appear in the so-called'Justice Nongdan' case, in which the Supreme Court Chief and high-ranking officials from the court administration made a trial deal with the Blue House of the Park Geun-hye administration.

<2019.3.21. Seoul Central District Court Lim Jong-heon 1st trial trial>

▷Judge: Have you read the warrant for more than an hour in a comfortable atmosphere, and have you read all the search/verification sites and confiscated items?

▶Lim Jong-heon: No. What I was interested in was how the allegations were made, and I saw them saying,'All the others have been dismissed'. At the time, I asked for a memo, so I said no, and I hadn't seen or explained where the confiscated place was, so I understood it as a residence and work space.

(...)

▷ Prosecutor: I read the warrant for an hour in a comfortable atmosphere, asking'Is this the only warrant issued?' and read all about the execution place. (...) After that, I moved to a law firm with an external storage device, but I went there because there was evidence. (...) Former Deputy General Manager Lim continued to participate in the seizure and search scenes, and there was no objection to the seizure in this way, and there were no objections after consultation with the lawyers, and all files seized were related to crime. There were files.

In the midst of a high-level legal battle against whether the USB confiscated from former court administration deputy chief Lim Jong-heon is capable of evidence, trial prosecutors often immediately refute the accused's remarks. Like the scenes mentioned above, experiences in the investigation process are often a source of refutation. In a relatively simple and straightforward case, even a prosecutor who has not participated in the investigation can identify the case through the investigation record and respond to it during the trial process, but in cases with hundreds of thousands of pages of records, the story is different.

No matter how high-ranking they may have been, defendants will always feel that they lack the right to defend in trials where their fate is struck. However, it is true that in these trials against high-ranking masterpieces, long-term trial proceedings and procedural considerations that cannot be imagined in general criminal trials are carried out. Compared to ordinary people who usually go to criminal trials, these former high-ranking officials put on several times thicker armor and shields on the battlefield of trial. A more specific alternative design is needed to prevent the government agency's ability to respond rapidly to massive power-type crimes beyond the reduction of the prosecution's authority.

"When Shakyam comes in, it becomes the Joseon Dynasty of the Joseon Dynasty instead of the Buddha of the Joseon Dynasty. When Confucius enters, it becomes the Joseon Dynasty of Confucius instead of the Confucius. I am trying to become the Joseon Dynasty of caution." This essay by Danjae Shin Chae-ho, who criticized the ideological impermanence of Joseon society under colonial rule, is a useful reference even today.

In our society, where we were unable to create a judicial system on our own and had to bring in something else, we often summon overseas cases and interpret them in a convenient way whenever they undergo institutional change. So is this problem. Those who insist that the investigation and prosecution should be separated say that the'global standard' is the direction in which the prosecution does not exercise the power of investigation. On the other hand, the other side refutes not to mislead the matters arising from differences in legal systems, citing examples of the German prosecutors who initiated the Audi investigation and the French prosecutors who began investigating the presidential candidate.

A comparative legal discussion comparing the legal systems of each country will certainly be meaningful, but it is difficult to stay at the superficial level of'some countries say how they do it'. What kind of process and reason a country chose the system and what implications for our choice should be fully discussed and understood.

In that respect, criticism has been raised that some politicians in the passport claim that the'separation of investigation and prosecution, the UK has an answer' is too fragmentary. Professor Jung Woong-seok, president of the Korean Criminal Procedure Law Association, said, "The British model that ruling party politicians refer to is the model of the 80s." Even in the United Kingdom, where the power of investigation and prosecution were dispersed, the innocence rate for large-scale crimes increased, and there were many cases of ex officio abuse by police agencies. In the meantime, we are promoting reforms in the direction of strengthening the prosecution's investigation and control by introducing the prosecution system.”

Excessive concentration of power, political investigation, and generosity to my family. Until recently, Korean society, which was expressed as a'prosecutor's republic', certainly has a disease caused by the prosecution. Along with this, however, there has been a history in which administrative power scattered across intelligence agencies, military internal organizations, and police has been exercised in an uncontrolled manner and has drowned the lives of innocent people. On the other hand, political powers and chaebol corporations have adhered to committing injustice, but they have also been acquitted at trial.

It is easy and straightforward to argue that'the prosecutors who want to investigate can be moved to an investigation office to check the evil prosecution of the times'. However, looking at the problems that our society has brought historically from multiple perspectives, this propaganda that'if only the prosecution is smashed will solve the problem' feels infinitely light. There are problems that must be faced with the current criminal justice system, but a solution to this must be made by comparing and combining various spectrum measures in detail. It is difficult to follow the method of setting up the standards for inter-agency espionage while launching the air defense agency, and the method of suggesting rudimentary standards such as'bribery of 30 million won or more, fraud or derogation of 500 million won or more' for direct investigation by the prosecution.

The urge to take more time and look more closely may sound like a protest against reform to some. However, reorganization of the criminal justice system, which directly affects individuals, requires more prudence than hitting the stone bridge with a hammer. For those who pursued the experiment, it may be recorded as a memory in an autobiography in the future, but for some common people, it may be the beginning of a nightmare that cannot be awakened.

**References

<The Concept of Prosecutor's Direct Investigation and Relationship with Investigation Command>, Woong-Seok Jung, New Trends in Criminal Law No. 61

<Separation of Investigation and Prosecution Functions

>, Seongki

Lee, Korean Criminal Policy Association 2017 Spring Conference

< Establishment of a separate model for investigation and prosecution in line with global standards and a study on the revision of the Criminal Procedure Act>, Serohak, 2016 National Police Agency Research Service Report

(Photo = Yonhap News)