The Democratic Party, which is pushing for the complete abolition of the prosecution's investigative authority, is urging you not to use the term 'completely deprived of the prosecution's investigation authority'.
Instead, they are demanding to use expressions such as 'normalization of the prosecution' or 'separation of investigation and prosecution'.
Among them, 'separation of investigation and prosecution' can be seen as the core spirit of the amendment to the prosecution-related law proposed by the Democratic Party in the name of all its members.
In an interview with the Ilyo Shimbun on the 15th, Rep. Hwang Un-ha of the Democratic Party, who is a former high-ranking police officer and is leading the 'examination and inspection,' said, "The term itself is an incorrect term and a wrong frame. It's called 'complete separation'."
A key reason for insisting on the separation of 'investigation and prosecution'
What is the rationale for arguing that the complete separation of investigation and prosecution is necessary?
Rep. Hwang Un-ha said in the same interview that the reason for separating investigation and prosecution is to protect human rights.
Rep. Hwang said, "If the person investigating the case has the right to prosecute, there is a high possibility that the evidence of innocence will be discarded and only the evidence of guilt will be forcibly gathered and sent to trial. It has to be separated.”
If the prosecution authority, who has to decide whether to hand over the suspect to trial by looking at the evidence, conducts an investigation, it is easy to fall into a kind of confirmation bias about the results of his or her investigation, so it is difficult to prosecute even when there is no crime or lack of evidence. This means that it is highly likely to happen.
Therefore, it is argued that the person conducting the investigation and the person making the prosecution should be separated, and the police should be in charge of the investigation and the prosecution should be solely responsible for determining whether to prosecute.
In the meantime, many people have expressed their support for this argument.
The Democratic Party argues that former lawmaker Geum Tae-seop and President-elect Yoon Seok-yeol, who are now criticizing the 'check-and-run' bill, have in the past insisted on separation of investigation and prosecution or have expressed their support for the separation of investigation and prosecution.
In fact, it is a persuasive argument that is quite consistent with the reality that the risk of confirmation bias can increase if the person investigating the case even prosecutes.
Still, why are the majority of lawyers explicitly opposing or at least being cautious about the bills that the Democratic Party is promoting as a 'complete separation of investigation and prosecution'?
This is because 'investigation' and 'prosecution's investigation', which the Democratic Party plans to completely abolish now, have different meanings as they are used in the context of the need to separate investigation and prosecution.
This is because some people have gone to extreme arguments to abolish investigations that have a completely different meaning from what many people originally agreed with as the logic of separation of investigation and prosecution has been degenerated into a political slogan and misused.
Concept confusion surrounding 'Investigation' and misuse of slogans
I introduced the logic earlier that if the person prosecuting the prosecution even conducts an investigation, it is impossible to judge the evidence obtained as a result of the investigation, and there is a high risk of falling into the confirmation bias of turning over the unjust person to trial by too blindly trusting the evidence collected by himself.
However, 'investigation' here refers to the act of directly conducting an investigation by the prosecutor who is the right to prosecute from the 'initiation stage of investigation', which means the stage of starting an investigation.
Although it is not an exact expression, it is usually an act called 'direct investigation by the prosecution'.
A representative example of this type of investigation is the 'special investigation', where prosecutors investigate allegations of bribery by politicians or stock price manipulation of capital market giants from the initial stage of the investigation.
However, this 'direct investigation by the prosecution from the beginning of the investigation' is currently limited to only six major crimes.
The six major crimes are bribery of 30 million won or more, violations of the Capital Market Act such as embezzlement or breach of trust of 500 million won or more, crimes against public officials, election crimes, crimes related to the defense industry, and crimes related to major disasters.
If so, what kind of investigative power does the prosecution have for most of the remaining crimes?
Prosecutors cannot exercise their investigative powers at the stage of initiating investigations in all cases except for the 6 serious crimes.
Police (judicial police officers) can exercise their investigative powers at the beginning of an investigation.
The police will conduct an investigation and determine whether the charges are admitted primarily, and if the charges are not acknowledged, the case can be closed (decided not to appeal), and if it is determined that the charges are accepted, send the case to the prosecution will be sent).
[There are a number of complex cases such as the complainant's objection, but here we have summarized the general cases in which the prosecutor exercises the investigative power.]
So, with respect to almost all crimes except for the 6 serious crimes, the prosecution only has secondary supplementary investigative powers. can exercise.
For the purpose of reassessing whether or not charges are really recognized in the case sent by the police, or to check whether there are additional charges or evidence that the police have not yet discovered, only supplementary investigations can be conducted directly after the police investigation is.
This is called a direct supplementary investigation by the prosecution.
Strictly speaking, this is also a direct investigation by the prosecution, but it is not often called a 'direct investigation by the prosecution' because the police take over the investigation first and then the prosecution conducts the investigation in the next step.
The two investigative powers of the prosecution
Therefore, under the current system, there are two types of investigative powers that the prosecution can exercise.
First, the prosecutor's authority to directly investigate the six major crimes from the beginning of the investigation.
You can think of this as the so-called special investigation that is often reported in the media.
Second, in relation to other crimes other than the six serious crimes, after the police complete the investigation and handed over the case to the prosecution, before the prosecution decides whether to prosecute, to determine whether the charges are really acknowledged or whether there is evidence that the police have not yet discovered. It is the right to directly conduct complementary investigations.
It can be seen that most cases of investigation fall into this category.
[Separately, the prosecution also has the authority to 'require' the police to conduct a complementary investigation after receiving a case from the police, instead of directly conducting a complementary investigation.
However, there is no basis for compelling the request for supplementary investigation, and the period within which the police must respond to the request for supplementary investigation is only stipulated in a tacit sense, so it cannot be regarded as an 'authority of investigation'.
'Requesting' a salary and actually receiving a salary are two different things.]
However, 'Investigation' in the context of arguing for the need to separate investigation and prosecution and pointing out that if the prosecution, who has the authority to prosecute, is in charge of the investigation, it may fall into confirmation bias. ' stands for the first kind of investigative power, that is, 'the prosecutor's direct investigation from the beginning of the investigation'.
However, in the overwhelming majority of cases, the prosecutor's second investigative power, namely, 'the right to conduct complementary investigations directly after the police first concludes the investigation and sends the case to the prosecutor's office,' requires separation of investigation and prosecution. It is not the 'Investigation' that those who claim it think.
The prosecutor's direct supplementary investigation after sending to the police is not related to unreasonable investigation or prosecution due to confirmation bias, but rather is closer to the function of checking and checking the unreasonable or insufficient investigation in the first stage of the police investigation. is.
As mentioned briefly before, (except in cases of objection, etc.), the prosecutor takes over the cases that the police decide to be guilty of after the investigation is over.
Even in this case, in order for the confirmation bias of the collected evidence or unreasonable investigation and prosecution to occur, a situation in which the prosecutor feels the burden of prosecuting a case sent by the police saying that the charges are acknowledged must be premised.
However, as we all know in common sense, prosecutors do not feel such a burden when it comes to cases that are investigated and forwarded by the police.
On the contrary, if there is an unreasonable corner in the investigation results passed on by the police, it is highly likely that they will conduct a more meticulously direct supplemental investigation and then point out the police investigation's errors and not prosecute.
Even if the direction of admitting the charges is correct, if the evidence sent by the police alone seems insufficient to receive a conviction in court, a supplementary investigation will be conducted directly to collect additional evidence.
In any case, the direct supplementary investigation by the prosecutor, which is conducted after the police's primary investigation, is unlikely to lead to confirmation bias or unreasonable prosecution.
Rather, it often performs the function of checking the errors in the police's primary investigation once again.
Abolition of supplementary investigative power not related to the necessity of 'separation of investigation and prosecution'?
The problem is that in the name of 'separation of investigation and prosecution', the 'clearance of inspection' or 'abolition of the prosecutor's investigative authority' bill, which the Democratic Party is currently promoting, is the first type of prosecution investigation power with the inherent risk of confirmation bias, as well as most cases of public welfare. That is, it contains content that eliminates all the right to investigate the second kind of prosecution.
Prosecutors after sending the case by the police by deleting the provisions on the general investigative authority of the prosecutor as stipulated in Article 196 of the current Criminal Procedure Act, and replacing the word ‘prosecutor’ in the investigation-related provisions of the Criminal Procedure Act, etc., to ‘judicial police officer’ It is also intended to abolish the right to direct complementary investigations.
(There has also been a controversy here that it violates the Constitution, which stipulates the power of a prosecutor to apply for a warrant by including a clause that allows a prosecutor to request a warrant from the court only if there is an application from a judicial police officer.)
Especially after the police sent a case As mentioned before, the prosecutor's direct supplementary investigation also functions to check the possibility of the police's unreasonable investigation.
It is close to the investigation in a way that is consistent with the purpose of protecting human rights, which is to be achieved through the separation of investigation and prosecution.
Nevertheless, a self-defeating situation has arisen in which, through a bill that seeks to separate investigations and prosecutions, they are trying to remove even the investigative authority of the prosecution, which has such a function.
It can be seen that the logic of 'separation of investigation and prosecution', which not a few people sympathized with, was misused as a political slogan.
A number of lawyers who practice criminal justice procedures, including those who have expressed their support for the separation of investigation and prosecution, have 'closed the examination'
There is one more thing to consider.
It is about the first type of prosecutor's investigative power, in which the necessity of separating investigation and prosecution is recognized, that is, 'the prosecutor's right to investigate from the stage of investigation'.
I explained earlier that in this case, excessive investigation and prosecution, and the risk of human rights violations due to confirmation bias are pointed out.
However, those who point out the dangers also acknowledge that exercising both the investigative and prosecuting powers on the same case is more effective in resolving the case.
Kim Seung-won, a member of the Democratic Party of Korea, who participated in the KBS Late Night Debate on April 16 from a position of strong support for the separation of investigation and prosecution, also made a remark to the effect that it is advantageous to exercise both the investigative and prosecution powers in terms of efficiency.
Nevertheless, they argue that it is right to separate them because of the potential for human rights violations in the pursuit of efficiency.
When a 'combination of investigation and prosecution' is recognized
However, there are certainly crimes in the world that need to be dealt with with an emphasis on efficiency in solving cases.
This means that there are special crimes that need to be dealt with by combining the powers of investigation and prosecution.
This is a claim that even Democrats who advocate for a complete separation of investigation and prosecution admit it in practice.
A representative example is the special prosecutor system, which has been introduced more frequently than in the past since the Democratic Party won the majority in the National Assembly.
All the special prosecutors introduced so far have exercised both the investigative and prosecuting powers without exception.
If it was right to completely separate investigation and prosecution in all case investigations without any exceptions, the National Assembly would have had to pass a law that would constitute two separate agencies, the special investigation team and the special prosecutor team, rather than the current special prosecutor system. will be
However, for special cases that need to be resolved quickly and accurately, the National Assembly continues to introduce a special prosecutor system that combines investigation and prosecution while making laws.
Democrats are more likely to take the lead Even Democrats, who advocate a complete separation of investigation and prosecution, are recognizing the importance of effectively combining investigation and prosecution for special crimes.
(The Airlift Service could also present a similar example.)
After all, in the case of the first type of investigative power that the prosecutor, who has the right to prosecute, can currently exercise, that is, the 'direct investigative power of the prosecutor from the beginning of the investigation', the risk of human rights violations can be seen clearly, but this kind of investigative power will not be completely abolished. It is not possible, and it can be seen that almost everyone is acknowledging that special crimes require investigative power combined with this right of prosecution.
To express the logic when explaining the need for separation of investigation and prosecution, there are cases in which the need for an effective response to crime is relatively greater than the possibility of human rights violations arising from the combination of investigation and prosecution.
The question is how to define the scope of the special cases where this kind of investigative power is required.
The enforcement of the 'Six Serious Crimes' regulations a year ago... What has changed?
However, there is a very recently agreed-upon regulation on this.
As mentioned earlier, according to the law to adjust the investigative authority of the police and prosecutors, which came into effect on January 1 of last year, the prosecutor, who has the authority to prosecute, can exercise the investigative power from the beginning of the investigation only for the six serious crimes.
In other words, it was only over a year ago that the combination of investigative and prosecuting powers (from the beginning of the investigation) was allowed only in the case of 6 serious crimes.
Naturally, it was a regulation promoted and decided by the Moon Jae-in government.
If so, the question is bound to arise: What change of circumstances has occurred between January of last year, when the law stipulating the scope of allowing the combination of investigative powers and prosecution powers (from the beginning of the investigation) to about a year from January last year to the present? Is the Democratic Party insisting on abolishing the direct supplementary investigation right in the post-transmission stage directly related to crimes for public welfare, beyond erasing the agreed tolerance of the six major crimes and abolishing the direct investigation from the beginning of the investigation by the prosecution?
It is very difficult to answer a question like this, even for groups and lawyers who have generally supported the Democratic Party's prosecution reform policy, such as the Lawyers Association for a Democratic Society (Minbyun), to say that at least the speed of the 'examination and overhaul' bill should be at least moderated. Probably because it feels difficult.
'Check-out' is not a global standard
If the answer is not to 'close inspection', how should the prosecution be checked and reformed?
It is very clear that 'check-and-seek' is not a global standard.
What was reported in the media in connection with the investigation of major cases by overseas prosecutors, not to mention the fact that 27 out of 35 OECD countries specify the investigative power of prosecutors in their constitutions or laws, or even the direct testimonies of former U.S. federal prosecutors. Just looking at it, we can clearly see that the claim that the complete abolition of the prosecutor's investigative power is a global standard is not true.
However, examining overseas cases may provide hints for designing a system in which prosecutors and police effectively check each other's exercise of authority.
Investigation personnel is one of the key issues.
In addition to prosecutors, the Korean prosecutor's office has a large-scale working-level investigative manpower (investigator) of nearly 6,000.
This is a rare case in other countries.
In the case of Germany, which is a country in the civil law system like us, and is always mentioned when looking for the roots of our prosecution system, there are very few working-level investigative personnel in the prosecution office.
German prosecutors have investigative powers and have the authority to direct investigations, but in reality, there are very few working-level investigative personnel belonging to the prosecutor's office along with the prosecutors.
How do investigations and prosecutions actually work in Germany?
Most of the practical work related to investigations is performed by judicial police officers, investigative personnel assigned to the police, rather than by the prosecutor's office.
However, since the German prosecutor has the right to lead the investigation, if the police decide that the investigation is wrong, they can exercise the right to direct the investigation.
You can direct the police investigation in any direction you want.
Although it is not a common occurrence in Germany, if necessary, a police officer may be dispatched to the prosecutor to conduct an investigation.
This is because the investigative power is guaranteed by law.
Unlike the German prosecutor's office, the US federal prosecutor's office, which has a very different criminal justice system from ours, has fewer investigative personnel than we do.
It's not like Germany does not have investigative personnel at all, but when it comes to large-scale cases, there is no other choice but to investigate with federal government investigative agencies such as the FBI, state intelligence, or city government-affiliated police officers.
This is because it is difficult to investigate complex and large-scale cases with only the investigative personnel possessed by the prosecution.
Also, the U.S. federal prosecutor does not have the same authority over judicial police officers as the German prosecutor.
However, since it is the prosecutor who ultimately brings the results of the investigation to the court, the testimony of lawyers from the US federal prosecutors is that judicial police officers belonging to other agencies also follow the direction of the investigation led by the prosecutor in most cases.
(You can also check the interview with Kim Jun-hyun, former chief of the New York Southern District Prosecutor's Office, which was broadcast on SBS 8 News on April 15, 2022. ▶ [Exclusive interview] I heard from a former executive of 'The Power to Investigate the U.S. Prosecutor's Office')
Why is the issue of investigative personnel and investigative authority important?
Then, in Korea, the prosecutor's investigative authority is recognized, but investigative personnel are redeployed to the police, which is an agency outside the prosecutor's office, so that the police carry out routine investigations but are subject to the prosecutor's judicial control and monitoring in the process (because the agencies they belong to are different) There is no control through personnel), and when a large-scale incident occurs, it may be possible to think of a way to allow prosecutors and police officers to investigate together.
However, it is pointed out that for this purpose, as in the case of the German prosecutors, it is necessary to take command of the investigation.
It is said that only when there is a binding power of command, prosecutors can judicially control the investigation of judicial police officers in external agencies, and joint investigations can be carried out smoothly.
In other words, it is a plan to remove investigative personnel from the Prosecutor's Office and place them outside, but allow the prosecutor to inspect and control the judicial police officers belonging to other agencies with judicially binding authority to conduct investigations.
Such a plan was actually considered at the beginning of the Moon Jae-in administration, when measures to adjust the investigative power were discussed, but it did not gain the support of the Blue House.
Rep. Cho Eung-cheon, a member of the Democratic Party, also said that he had pursued a similar plan in the past but was not successful.
Separately, in relation to crimes in which prosecutors and investigators need to constantly team up to respond, such as complex financial crimes, it is possible to consider creating a small public prosecutor's office specialized in a specific crime field and assigning investigative personnel at all times. there will be
The French Parque National Financier, which investigated the Airbus rebate case, which was allegedly involved in Korean Air, is such a model.
(France, like us, is classified as a country under the civil law system.)
The real prosecution reform is 'personnel system reform'
So far, how the politicization of the slogan of separation of investigation and prosecution and misuse of the slogan led to the false movement of 'completely abolishing the inspection', and how the mutual relationship between the prosecution and the police in a situation where the 'complete abolition of the prosecution's investigative power' cannot be regarded as a global standard Discussions related to whether it is possible to design a containment structure were introduced.
But to really reform the prosecution, there is another really important task.
It is to prevent the politicization of the prosecution and the politicization of investigations and prosecutions conducted by the prosecution.
This is because, no matter how nicely the investigation-related system is designed, if the prosecution (or the police) exercise their investigative and prosecuting powers while watching the incumbent powers, the various issues that have been controversial in our society so far will inevitably be repeated.
This requires designing the prosecution's personnel system to be largely independent of political power and yet predictable.
Personnel reform is the real prosecution reform.
It is not about giving prosecutors independent control over how they treat themselves.
In the case of other countries such as France and Italy, various personnel systems have been introduced that prevent prosecutors from dictating personnel appointments on their own, while reducing the influence of the ruling powers.
More research and discussion is needed.
(To give a simple example, in Italy prosecutors are in the judiciary, not the executive branch.)
Now is the time when the need for reform of the personnel system to reduce the influence of the incumbent powers is most evident now, as the former prosecutor general is inaugurated.
For the Democratic Party, which will soon become the opposition party, reform of the prosecution's personnel may become an even more urgent task.
Unfortunately, neither the ruling party nor the opposition seem to have any interest in fixing the prosecution's personnel system.
Is it because the ruling party doesn't want to give up the power it currently enjoys, and the opposition party doesn't like to get rid of the power they can enjoy someday?
The fact that the tragedy surrounding the prosecution is repeated like a circus song every time there is a change of government may be due to the intentional indifference of both the opposition and the opposition to the root cause of the politicization of the prosecution.