Recently, as some ruling party lawmakers have pushed forward with the Severe Crime Investigation Office (complete deprivation of the prosecution's right to investigate), the issue of'separation of investigation and prosecution' has become controversial again.
Particularly, some of the major criminal investigation agencies pointed out that some of the opponents supported the'separation of investigation and prosecution' in the past, or the establishment of a separate investigation office from the prosecution. It is argued that it is synonymous with'complete deprivation of the prosecution's right of investigation' or the same method as discussed now.
However, this seems to be a misunderstanding that occurred while defining the meaning of the expression'separation between investigation and prosecution' in their own way, or a claim that omits the premise of'separation between investigation and prosecution'.
This point becomes more evident when we look at how prosecutors are exercising their power of investigation in the United States, where so-called'investigation/prosecution separatists' consider the separation of investigation and prosecution as a representative country.
There are several types of prosecutors in the United States.
Since the United States has a dual administrative-judicial system consisting of federal and state governments, federal and state laws, the federal government has a US Attorney dealing with federal law, and each state has a state law (State law). There is a State Attorney in charge of the Law.
In this article, we will mainly look at the federal prosecutors belonging to the central government (federal government), just like the Korean prosecutors.
There are 94 federal prosecutors' offices across the United States, the chief of which is the federal prosecutor.
It can be seen that it is similar to the prosecutors at each district prosecutor's office in Korea.
Unlike state prosecutors, federal prosecutors are all appointed officials appointed by the president.
There is only one federal prosecutor at each federal prosecutor's office, but the Assistant United States Attorney (AUSA), who works for the federal prosecutor's office, is also commonly referred to as a'prosecutor'.
It is not necessarily an exact comparison, but the'Prosecutor's Office' can be viewed as roughly a similar location to the Korean Pyeong Prosecutor's Office.
● Will US prosecutors not (directly) investigate?
So, isn't the federal prosecutor in the United States not investigating directly, as some argue?
Looking at the explanation on the homepage of the Federal Attorney's Office under the U.S. Department of Justice, the claim that "the U.S. prosecutor does not investigate" may seem valid.
The Federal Attorney General's Office website FAQ corner (Is the Offices of United States Attorneys Frequently Asked Questions) - The Federal Prosecutor's Office criminal "investigation" does the? -Does the US Attorney's Office investigate crimes? Investigation is usually conducted by the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), Customs and Border Protection (CBP), IRS, Postal Service, and Immigration and Customs Enforcement (ICE). It is done by law enforcement. We (=Federal Attorney's Office) often receive cases from state and local agencies. The Federal Attorney's Office works with these agencies to provide direction and legal advice on federal criminal investigations. Investigations are generally conducted by federal law enforcement agencies such as the Federal Bureau of Investigation, Drug Enforcement Administration, Customs and Border Protection, Internal Revenue Service, Postal Service, Immigration and Customs Enforcement, and others. We also frequently take cases from state and local agencies. The US Attorneys' Offices work with those agencies to provide direction and legal counsel in federal criminal investigations. |
In the FAQ section of the US Federal Attorney's Office, there seems to be a lot of interest in the direct investigation of the prosecutors in the US as there is a question,'Does the Federal Attorney's Office conduct a criminal (direct) investigation?'
And in answer to this question, if you read the passage that the U.S. Federal Attorney General says that it is "normally" conducted by other law enforcement agencies, such as the FBI, rather than by the Federal Attorney's Office, then the U.S. prosecutor does not (directly) investigate, and does not conduct an investigation by a judicial police agency like the FBI. It can feel like the'investigation' and the federal prosecution's'prosecution' are separate.
However, without mentioning [The New York Times] or [THE WALL STREET JOURNAL], the American drama [Billions], which is based on the direct investigation of the US federal prosecutor's office on financial crimes, ] Even in the same influential media, reports are often reported that US federal prosecutors are investigating themselves.
With a simple search, you can find articles that a federal prosecutor in New York is investigating Trump's closest aide, or that federal prosecutors are investigating the memoirs of former White House National Security Adviser John Bolton, who released information about the North Korean nuclear negotiations. can.
(The article in The New York Times that President Trump and the Attorney General attempted to dismiss a federal prosecutor investigating the president's aide, and the federal prosecutor's resistance was in the process of a great conflict, feels very familiar to us for some reason.)
[The entourage of playing "investigation" by federal prosecutors (US Attorney) This took place place the conflict is causing a crisis] - Attorney General William bars in Manhattan federal prosecutor (US attoney) attempted to wave only the Geoff Burr, Berman It is refusing to withdraw. June 19, 2020 / The independence of law enforcement and law enforcement's independence by the New York Times ' highest-ranking federal prosecutor, who has investigated President Trump's closest aides, refused to withdraw after Attorney General William P. Bar attempted to dismiss Saturday. It creates an unusual deadlock between the president's purging of public officials deemed disloyal. [Clash Over US Attorney Who Investigated Trump Associates Sets Off Crisis] -Attorney General William Barr tried to fire the US attorney in Manhattan, Geoffrey Berman, but he is refusing to leave. June 19, 2020 / The New York Times The top federal prosecutor in Manhattan, who has investigated President Trump's closest associates, was refusing to leave his position on Saturday after Attorney General William P. Barr tried to fire him, setting up an extraordinary standoff over the independence of law enforcement and the president's purge of officials he views as disloyal. |
[Department of Justice Begins Criminal Investigation of Bolton's Book .] September 15, 2020 / Wall Street Journal federal prosecutors filed a grand jury subphoena to John Bolton's publisher and copyright agent on Monday. By issuing a response, officials familiar with the matter said that Mr. Bolton has begun a criminal investigation into whether he mishandled classified information . [Justice Department Begins Criminal Probe Over Bolton Book] Sept. 15, 2020 / THE WALL STREET JOURNAL Federal prosecutors issued grand jury subpoenas to former national security adviser John Bolton's publisher and literary agent on Monday, according to people familiar with the matter, launching a criminal investigation into whether Mr. Bolton mishandled classified information. |
● A former prosecutor who filled 40% of his memoirs with "investigation" stories If
you put together the answers to the FAQ section of the US Federal Attorney's Office's homepage and articles from the leading US media, the US federal prosecutor "normally" does not directly investigate, but In this case, it can be said that the investigation is done directly.
In particular, in the case of high-ranking public officials, large-scale financial and terrorist incidents, which are notable in the media, federal prosecutors often participate in the investigation process directly.
Frit Barara, a federal prosecutor at the Federal Prosecutors' Office of the Southern District of New York, USA, published a memoir in 2019 [How Justice Is Realized? DOING JUSTICE].
Each section of this book is organized in the order of "Part 1, Investigation-Part 2, Prosecution-Part 3, Trial-Part 4, Punishment" according to the progress of the criminal justice process, based on the Korean version. Over 40% of the text is concentrated in the "Part 1. Investigation" part.
It can be seen that at least 40% of his prosecutor's life, at least, that deserves mention in his memoirs, was in the'investigation' domain.
(Page 164 out of 393 pages in the Korean version is the'Investigation' part.)
However, there are also significant differences between the direct investigation by the US prosecutor and the Korean prosecutor.
First of all, in the case of a US federal prosecutor, when investigating a serious case directly, it is rare that the prosecutor's office is investigating only its own personnel.
In most cases, investigations are conducted through collaboration with the Federal Bureau of Investigation (FBI) or the Drug Enforcement Agency (DEA), and in particular, when compulsory dispositions such as seizure search or arrest of a suspect are carried out, the cooperation of the FBI or local police is sometimes supported. a lot.
In the case of serious incidents such as terrorist incidents or major fiscal corruption incidents, members of the federal prosecutor and other federal investigative agencies under the Ministry of Justice, such as the FBI, form a task force (TF) to conduct investigations as a team.
In this respect, it is different from the investigation of the Korean prosecutors' office, where only prosecutors and investigators belonging to the prosecutor's office are conducting their own investigations.
The legal subject of the investigation or the subject controlling the investigation is also different.
In practice, it is true that in the case of serious crimes, the US federal prosecutor is in charge of the investigation.
However, strictly legally speaking, in the case of serious federal crimes, the subject of compulsory investigations can be seen as the Grand Jury, a jury of citizens.
Although mentioned in the [Wall Street Journal] article cited above, the prosecutor must issue a subpoena to the subject of investigation through a grand jury to secure compulsory evidence. In the case of a serious crime, the prosecutor also submits a prosecution to the grand jury. It proceeds with the procedure of submitting an Indictment to the court in the name of the grand jury after approval of an opinion.
In practice, it can be seen that the prosecutor conducts the investigation directly, but in the legal sense, it is a structure in which the Grand Jury proceeds the investigation.
In other words, it can be viewed as a structure in which a grand jury composed of citizens controls the investigation of the prosecutors.
● Concept of investigation different from Korea…
There is no'review perfect'.
The investigation procedure of the US prosecutor is different from the investigation procedure of a prosecutor in the continental law system like Korea, where the prosecutor must complete the compulsory investigation before filing a prosecution, and the prosecutor must directly prosecute based on the evidence collected before the trial.
In Korea, the process from investigation to prosecution is an unseparated, continuous process before the trial, and it is a structure in which the prosecutor, a legal expert, judicially controls the investigation process.
In the United States, on the other hand, (forced) investigations and prosecutions are handled by a grand jury of citizens.
In practice, the police officer or prosecutor in charge of the investigation can be viewed as a form controlled by the grand jury.
Applying the frame of'separation of investigation and prosecution', it is difficult to express that in both cases, investigation and prosecution are separated in a strict legal sense.
There is no room for it to be considered that the prosecution is complete (complete deprivation of the prosecution's authority to investigate).
Nevertheless, why is it said that investigations and prosecutions are separate in the United States, and that American prosecutors do not directly investigate?
This is because different people use the rhetoric of'separation between investigation and prosecution' in different meanings.
The ``separation of prosecution and prosecution,'' as some members of the ruling party who are currently pursuing the Severe Crime Investigation Office, prevent prosecutors from directly investigating the prosecutor's own investigation through complete deprivation of the prosecution's right to investigate. No, it refers to a structure in which judicial police officers such as the Severe Crime Investigation Office judge only whether to prosecute the case sent after the investigation is completed.
If this is'separation between investigation and prosecution', then the United States can be seen as a country in which investigation and prosecution are not separated at all.
Not only the United States, but also Germany and France have the power of investigation and command of the prosecution, so it can be seen that the separation between investigation and prosecution has not been achieved.
(Based on 46 member states of the European Council, there are only five countries, including Finland, Ireland, Malta, Wales, and Northern Ireland.)
On the other hand, ordinary investigations are conducted except for unusually significant cases. The United States is a country where investigation and prosecution are separated if the structure in which the judicial police officer, not the prosecutor, is in charge and most of the investigation personnel are assigned to the judicial police agency is'separation of investigation and prosecution'.
By this criterion, Germany and France can also be viewed as separate countries for investigation and prosecution.
Continental jury countries such as Germany and France maintain the function of judicial control over investigations through the investigation command of prosecutors, while most of the investigations are carried out by the judicial police, and the United States, which is an Anglo-American jury, consists of citizens. It can be expressed as performing the function of judicial control over the investigation.
In either case, it does not omit prosecutors or civil judicial control over the investigation process.
● Bronze-Imong Surrounding'Separation of Investigation and Prosecution'
Recently, those who are promoting the
Severe
Crime Investigation Office in Korea say that oppositionists in the past agreed on the'separation of investigation and prosecution', but now they are changing their words. Attacking.
However, this seems to have happened because the two sides give different meanings to the separation of investigation and prosecution, as noted earlier.
The'separation of investigation and prosecution' that some of the ruling party opposes the legislation promoted in the past is difficult to regard as a serious crime investigation office that does not receive the prosecutor's investigational command or complete prosecution (complete deprivation of the prosecution's right to investigate).
Like the United States, the Severe Crime Investigation Office is based on the premise that most of the investigative officers are assigned to the judicial police agencies, while maintaining the direct investigation function of the prosecutor to cooperate in case of serious crimes, or to strengthen the investigational control of the judicial police like the prosecutors in Germany or France. It's close to what claimed the establishment.
As the Korean prosecution's direct investigation into political matters was too quantitative and qualitative, it was argued that the prosecution should be reformed through ``separation of investigation and prosecution,'' instead of creating an exceptional institution such as an airlift, as some ruling party lawmakers now argue. It didn't mean'complete prosecution (complete deprivation of the prosecution's right to investigate)', or a serious crime investigation office that did not receive the prosecutor's investigational command.
The prosecution reform is not a game in which doctrinal disputes are covered over who more thoroughly carries out the rhetoric of'separation between investigation and prosecution'.
Whether it is the prosecution or the police, the right of investigation and prosecution are more tightly controlled so that the basic rights of citizens can be restricted only when absolutely necessary, while effectively condemning corruption of power or crimes that threaten the safety of citizens, and even those without money or influence It is the task of creating an effective criminal justice process so that justice can be sought through the exercise of authority by state agencies.
A little more than a month after the launch of the High-ranking Public Officials Crime Investigation Office (Airborne Office), which granted the right to investigate and prosecute the crimes of the prosecutors and judges at a time, abolished the prosecutor's investigation and command of the police and requested only limited supplementary investigations. Just two months after the new criminal procedure law was implemented, it is questionable whether it can be seen as a reform in the correct meaning to push for a bill that changes the country's criminal justice system from the root.
Even if there is a desperate need to introduce the Severe Crime Investigation Office right away, the current Severe Criminal Investigation Agency bill, which implements'complete inspection (complete deprivation of the prosecution's power of investigation)' but does not presuppose the prosecutor's investigation command It is difficult to say that it is the same as the plan to establish an investigation office that many people supported as a'separation between investigation and prosecution'.
It has already been shown a number of times that even a law that is criticized by most common-sense people, both progressive and conservative, can be passed with the power of 180 seats.
However, it should also be borne in mind that if the precedent is to change the laws that form the basis of the judicial system too easily and too often, when the'other side' takes power, it can change the criminal justice system again too simply and too arbitrarily. Will do.
The biggest damage in this process will be ordinary citizens who have no choice but to rely on the state to seek justice through the tattered criminal justice process.
[Reference]
1. Offices of the United States Attorneys Frequently Asked Questions
2. [New York Times] article dealing with the dismissal of a federal prosecutor who investigated President Trump's aide
3. Former John Bolton National Security [The Wall Street Journal] article on the investigation of the federal prosecutor's office on the aide's memoirs