[Actually] Overseas cases of 'examination complete' are different... in fact?

“Separation of investigative and prosecuting agencies is a long-standing problem in the Republic of Korea and is a global trend.”

- Democratic Party floor leader Park Hong-geun, remarks at the floor plan meeting, on the 19th

- Power of the People, floor leader Kwon Seong-dong and four party floor leaders meeting, on the 19th

On the same day, the words came out of the mouths of the floor leaders of both parties.

In a situation where the opposition and opposition parties continue to fight over the separation of the prosecution's investigation and prosecution powers, the so-called 'complete inspection', foreign prosecutors have different opinions about whether or not they have investigative powers.

As viewers will know if you search for articles, there are many fact-check articles about overseas cases.

This has been going on since 2019, when the controversy over prosecutorial reform arose.

In the last month, only dozens of overseas case articles are searched.

Nevertheless, in the political arena, the opposite argument is poured out.

In foreign countries, the prosecution has or does not have investigative powers.

In the midst of the 'fact controversy', the SBS Fact-Eun team confirmed the goal of trying to get as close to the fact as possible somehow.

We looked at the original texts of legislation in major countries and the results of official research.

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Democratic Party floor leader Park Hong-geun (left) and People's Power floor leader Kwon Seong-dong.

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The most cited study in fact-check articles in the media is the 2017 Prosecutor Shin Tae-hoon's thesis, <Comparative Legal Analysis and Criticism of the So-called Separation of Investigation and Prosecution Theory>.

The thesis said, "(At the time) 28 countries, about 80% of the OECD member countries, stipulate the binding authority of prosecutors to conduct investigations on the judicial police through constitutions or laws, and 27 countries (about 77%) It is confirmed that the law specifically stipulates the investigative power of the prosecutor.”

If you check the original texts of each country's legal texts, it is true that the prosecutor's authority to investigate is clearly stated.

Below are examples from Japan and Germany.

<Article 191 of the Criminal Procedure Code of Japan>

Prosecutors may investigate crimes on their own when they deem it

necessary

.

§161 ① …

…

von allen Behorden Auskunft zu verlangen und Ermittlungen jeder Art entweder selbst vorzunehmen oder durch die Behorden und Beamten des Polizeidienstes vornehmen zu lassen, soweit nicht andere gesetzliche Vorschriften.

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On the 21st, the Legislative and Judiciary Committee of the National Assembly discussed the submission of the Prosecution's Investigation and Indictment Separation Bill to the Agenda Mediation Committee.

These examples give strength to the claim of the people's power.

However, this will be a matter of principle, and the issue will be how much the prosecutors 'substantially' exercise their investigative powers.

Opinions differ on this point.

Even if the prosecution has the legal authority to investigate, there is an objection that it is rare to exercise it.

This is the basis of the 'global trend' that the Democratic Party calls.

Prosecutor Shin Tae-hoon, who was cited as the previous case, also mentioned in his thesis the case of Germany, where the prosecution's investigation authority is specified by law, and there is a sentence saying, "The difference between the two countries is that the Korean prosecution conducts more direct investigations than the German prosecution."

Then again, a rebuttal comes out with a specific case.

The Japanese case in which the prosecution directly investigates large-scale cases involving politicians or large corporations; the Swedish case in which the prosecution exercised investigative power in case of a serious crime or the victim was under the age of 18; etc are summoned.

All cases are direct investigations by the prosecution.

The reaction comes again.

This is a rebuttal that the above case is not common.

Then again, we also agree that prosecution investigations are practically rare.

Prosecutor Shin also added, "The police in Korea also independently investigates and transmits more than 95% of cases."

Even with the same overseas case, I get entangled according to the way people look, so I don't know if the controversy over overseas cases has been repeated like a treadmill.

However, the issue that is being discussed again here is the issue of the personnel of prosecutors and investigators.

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The fact that there are a lot of investigative personnel in the prosecution can be institutional evidence that there are many direct investigations.

It was not easy to find specific investigative personnel for each country.

However, I was able to confirm several studies to the effect that the Korean prosecutors have a large number of investigative personnel.

As the main focus is on the maintenance of public prosecutions with state or county district prosecutors or federal prosecutors, most of them only conduct brief pre-interviews with witnesses prior to trial and rarely conduct investigations to collect evidence. .

For this reason, most prosecutors do not operate prosecutors, and most of them are made up of staff who support the administrative work of the prosecution.

- Jo, Kwang-Hoon (2021), A plan to enhance the role of prosecutors in the revised criminal justice system, Criminal Proceedings Theory and Practice, Vol. 13, No. 1, 123~169

Of course, there was a rebuttal in a specific case.

Foreign prosecutors often have investigative officers.

The same study also explains anomalies.

In the case of the Los Angeles County District Attorney's Office, the largest in the United States, there are about 260 investigators under the Bureau of Investigation...

The Harris County District Attorney's Office in Texas, the Bronx County District Attorney's Office in New York State, the Manhattan District Attorney's Office, and the Brooklyn District Attorney's Office have also established special crime investigation departments and dispatched prosecutors to carry out judicial enforcement tasks.

- Jo, Kwang-Hoon (2021), A plan to enhance the role of prosecutors in the revised criminal justice system, Criminal Proceedings Theory and Practice, Vol. 13, No. 1, 123~169

Case to case must be dealt with case by case.

In Germany and France, there are few investigative officers, and prosecutors are mainly engaged in administrative work.

However, there is another context here that differs from ours.

In France and Germany, prosecutors exercise a fairly strong command of the investigation.

In the countries of the Continental Law system, prosecutors have firm command and command over the judicial police, and the concept of separation between the administrative police and the judicial police is clear. A legal and factual tradition of obedience is established.

As a result, countries in the continental law system such as France and Germany do not have prosecutor investigators as judicial police agencies directly under the prosecution, so there are no restrictions on the investigation activities of prosecutors.

- Kim Tae-seong (2019), A Study on the Improvement of the Prosecutor's Investigation System in accordance with the Changes in the Investigation Environment, Korea University Graduate School of Public Administration

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On the 19th, Prosecutor General Kim Oh-su said, "We can discuss the possibility of reviving the investigation command and removing the prosecution's investigative power."

In other words, as long as the prosecution has firm command of the investigation, it is possible to conduct investigations through the police without a separate investigative officer.

In the investigative culture of Germany and France, the issue of the staff of prosecutors means there is no reason to be an issue.

In the end, it implies that the problem of the prosecutor's investigative staff can be linked to the problem of the prosecutor's 'investigation command'.

In January 2020, the National Assembly plenary session passed a bill to adjust the investigative powers, which effectively abolished the prosecutor's authority to lead investigations.

At that time, the conciliation plan contained contents such as granting the police the right to terminate the first investigation.

In the United States, there are so many different prosecution systems in each state that it is difficult to compare them equally.

Kim Jun-hyun, a former acting chief of the New York Southern District Prosecutors' Office, said this.

SBS Correspondent Kim Jong-won from New York interviewed me.

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"It's not like taking command (the police). It's working together. We discuss. If there is a disagreement, then we follow the prosecutor's instructions. Because once a case arises, the court prosecutes the case and goes to trial. Because the person who goes and does the work is the prosecutor..."

- Attorney Kim Jun-hyun (former acting chief of New York Southern District Prosecutors' Office) SBS8 News interview, last 15th

Of course, this presupposes a mutually beneficial relationship between the prosecution and the police.

Although the paper presented above expressed 'submission', it seems that the relationship between the two bureaucracies is not as tight as ours.

For this reason, there was no need to be as sensitive as we are to the issue of the prosecution's investigative authority.

institutions and culture

We have a history of speculative conflicts in the past.

It is our cultural context.

There are also analyzes that go back to the liberation space.

The U.S. Military Government, established after the defeat of Japan, initially tried to introduce an American-style criminal justice system that separates the investigation and prosecution agencies into Korea as in Japan.

However, unlike the case of Japan, as a newly independent country, the viewpoint of the rapid recovery of the criminal prosecution function is highlighted, and the direction of system operation is changed.

- Jeon Tae-hee (2011), History of Discussion on the Investigation Structure of Prosecutors and Prosecutors and Prospects of the Special Committee on Judicial System Reform, National Assembly Legislative Investigation Agency, Issues and Points No. 258

In the case of the Yeosu and Suncheon incidents in 1948, a prosecutor who was trying to investigate a police officer who had been accused of killing a civilian was arrested by the police on charges of left wing and was immediately shot to death, which clearly shows how serious the conflict between the police and police was at that time.

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The military regime gave power to the prosecution in general, and the reaction of the police was not easy.

There is also a perspective that analyzes the case of sexual torture in Bucheon and the torture and death of Park Jong-cheol in the context of the police and police conflict.

Conflicts between police and police after democratization were also an extension of that, and it can be seen that these days, they are intricately intertwined with the logic of the camp.

In the end, the system appears differently depending on the investigation culture of each country, and it is difficult to see that there is a universal 'rules' of what is right.

It implies that the issue of separation of prosecution and investigation powers can be applied differently depending on 'practice' and 'culture'.

The criminal justice system or judicial police system of major countries in the world differs according to each country's political, cultural and historical background, and it is unreasonable to defend or evaluate the institutional feasibility of a specific country without a sufficient understanding of it.

Therefore, in order to understand each country's system of prosecutors and investigators, it is necessary to first understand the changes in each criminal justice system and judicial police system.

- Kim Tae-seong (2019), A Study on the Improvement of the Prosecutor's Investigation System in accordance with the Changes in the Investigation Environment, Korea University Graduate School of Public Administration

There are many overseas cases that are beneficial to each person, and it means that they can be easily used as an argument by 'extracting' them according to their position.

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In the words of Park Hong-geun, floor leader of the Democratic Party of Korea, "Separation of investigative and prosecution agencies is a long-standing task in Korea and a global trend," the SBS Fact-Eun team said, "The US federal prosecutors, as well as 24 OECD countries, including Germany and France, have the power to investigate the prosecution." I confirmed the words of the floor leader Kwon Seong-dong.

If we have to look at it, it is difficult to measure the silliness because there are many different layers.

Both statements are judged as 'half fact'.

However, in this case, the judgment does not seem to be important.

Investigative practices inevitably differ according to cultural contexts.

In fact, the reason why we study overseas cases must be the process of obtaining policy validity through universality, the SBS faction team concludes that there is no need to be too engrossed in overseas cases in which policies differ depending on the cultural gap of the community.