The bill that the Democratic Party pushed forward at the National Assembly in April 2022 was brought to the plenary session through a three-stage transition process.
Below is a brief summary of the content of the bill at each stage.
Three-step evolutionary history of the 'examination and overhaul' bill
[Step 1]
The main contents of the bill first proposed by the Democratic Party are as follows.
1. The prosecution's current right to initiate investigations into six major crimes is completely deprived.
2, the prosecution's right to request a warrant is limited to exercise only when requested by a judicial police officer.
3. The prosecution's supplementary investigation (secondary investigation) on cases sent by judicial police officers will be completely abolished.
[Step 2]
While criticism from all walks of life was pouring in on the bill originally proposed, the Democratic Party and the People's Power floor leader reached an agreement on the 'examination and complete arbitration plan' with the mediation of National Assembly Speaker Park Byeong-seok.
The key contents of the bill made by the Democratic Party in consideration of the arbitration bill are as follows.
[Restriction on the right to request an arrest warrant for prosecutors is excluded at all]
1. The right to initiate investigations on 4 of the 6 serious crimes currently held by the prosecution will be immediately abolished, and only the right to investigate economic crimes and corruption crimes ( hold for the time being).
2. A prosecutor's supplementary investigation into a case sent by a judicial police officer can only be carried out to the extent that it maintains the sameness with the crime sent by the police.
3. An objection to the judicial police officer's decision not to appeal can only be made by the complainant who is the victim who has directly submitted the complaint, and the victim or the complainant's right to object is deprived.
* Decision not to appeal: A decision to close the case as it is without forwarding the case to the prosecution because the police judge that there are no charges.
However, under the current system, if there is an objection from the complainant, etc., even if the police decide not to send the case, the case is automatically sent to the prosecution.
[Phase 3]
As problems continue to be pointed out even in the second stage, the Democratic Party finally makes a third adjustment bill and presents it to the plenary session.
The amendment to the Prosecutor's Office Act, passed by the National Assembly three days ago, is half of the third set of Inspection and Overhaul Bills made by the Democratic Party.
The other half, the amendment to the Criminal Procedure Act, is also about to pass the National Assembly.
1. The right to initiate investigations on four of the six major crimes currently held by the prosecution will be deprived, and only the investigative powers for economic crimes and corruption crimes will be maintained (for the time being).
[Same as step 2]
2. The prosecutor's supplementary investigation of a case sent by a judicial police officer can be carried out without any restrictions as now, if the police have sent the case as an opinion of indictment. If the case is automatically forwarded to the prosecutor's office, supplementary investigation can be conducted only to the extent that it does not impair the identity of the case investigated by the police.
3. An objection to the judicial police officer's decision not to appeal can be made by the complainant and other victims, but the complainant's right to object is deprived.
The Democratic Party's Maginot Line, Reduces the Authority to Appeal
If you look at how the Democratic Party took a step back after proposing the oversight bill, you can clearly see what the Democratic Party was trying to keep up to the end.
① Block the initiation of the prosecution’s investigation into crimes of abuse of power and violation of the Election Act, and ② reduce the authority to raise objections to police investigations.
In particular, in the case of cases forwarded by the police with the opinion of indictment, while withdrawing to lift the restrictions on supplementary investigation, if the police decide not to appeal, the requirements for supplementary investigation restrictions were fulfilled until the end for cases sent to the prosecution after appeals. It becomes clearer when considering the fact that the provision of the right to object other than the complainant was pointed out, and the deprivation of the complainant's right to object was carried out to the end while the provision of the law was amended.
The reduction of the appeal-related procedures and authority was the last line the Democratic Party was trying to protect in the oversight bill.
But what on earth is the reason why the reduction in the authority to file an objection became the last line of defense that the Democratic Party has defended?
In fact, it is difficult to understand how the restrictions on supplementary investigations on cases sent by the police and the deprivation of the complainant's right to object were introduced into the Inspection and Dismissal Act in the first place.
Abolition or reduction of the prosecution's initiation of investigation was originally the goal of those who were pushing for a complete inspection, so there is no substitute for the initiation function of serious crime investigations such as the Heavy Crimes Agency, and there is no police investigation control device such as investigation command. , it is not logically incomprehensible for the reduction of the right to initiate investigations to be included in the bill, if the inappropriateness of the urgent push before the new president takes office is not discussed.
However, few people expected that limiting the supplementary investigation, which is a secondary additional investigation carried out by the prosecution after the police investigation, or abolishing the process of appealing against the police's decision not to appeal, would go into the Inspection and Complete Bill in the first place. .
This is because it has not been a controversial issue in the past as it relates to dispersing or controlling the powers of the prosecution.
As pointed out by lawyers who act on behalf of the socially underprivileged, such as Kim Ye-won, a lawyer at the Disabled Persons Rights Law Center, it is a provision that prevents the proper handling of 'people's livelihood cases' related to the socially underprivileged and the lives of the people in general.
(The recent mention of 'special case investigation' as a pretext for limiting the prosecution's complementary investigation was pointed out in connection with the prosecution's initiation of investigation, not a concept that has been a problem in relation to the supplementary investigation.)
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Sudden reduction in the right to objection included… Placement with conviction
Moreover, the reduction of the right to object goes against the usual beliefs of lawyers who supported the Democratic Party.
In the case of a crime that harms the public interest of society as a whole, rather than an individual's private interest, the accuser raises objection to the police investigation result, since only someone's accusation is the beginning of a case, unless the investigative agency recognizes it on its own. It is not appropriate to reduce the authority to do so.
Even Democratic Party lawmaker Kim Nam-guk, in the subcommittee on the bill reviewing the overhaul bill, said, "In litigation that violates the public interest, such as environmental litigation, it is difficult to identify the victim, and there are cases where civil society organizations make accusations on behalf of the victims. There is a problem that the right to legitimate objection is limited.”
In addition, the reduction of the right to objection is a policy that runs counter to the 'full-scale application for finance', which has long been emphasized as a key agenda for prosecutorial reform by pro-democratic legal groups such as the Lawyers for a Democratic Society (Minbyun) and the Judicial Monitoring Center of the Solidarity for Participation. .
The application for adjudication is a system in which the complainant or the accuser applies once more to the court to decide whether or not the prosecution is right or wrong.
Minbyun and the Solidarity for Participation have argued that it is more important to control the prosecutor's right to not prosecute, which allows the case to be buried without going through a trial, than the right to prosecute, which is controlled through a trial, and insisted that the full-scale application for financial aid is a key agenda for prosecutorial reform.
Currently, unlike the accuser, the accuser can only file a financial application for the prosecution's non-prosecution disposition related to some charges, such as abuse of power or illegal arrest. .
However, the deprivation of the accuser's right to object, which the Democratic Party kept until the end, taking it as a marginal line for the censorship and completion bill, is a provision that further reduces the opportunity of the accuser's financial application.
In order to file a financial application, there must first be a disposition of non-prosecution by the prosecutor.
However, when the Inspection and Obstruction Act is implemented, if the police decide not to appeal, the accuser cannot raise an objection, so the investigation process will be closed at the police level before even going near the financial application.
Rather than receiving the court's judgment through the application for reconciliation, even the opportunity to receive the judge's judgment at the previous stage is blocked.
As a flow chart, it looks like this:
[Current system]
accusation of the accuser → decision not to be sent to the police → accuser’s objection → automatic case transfer to the prosecutor’s office → non-prosecution indictment → request for reconciliation of the accuser → court judgment
[System after enforcement of the Inspection and Obstruction Act]
Accusation of the accuser → Decision not to file with the police: The case is closed because the accuser cannot raise an objection.
What is the real reason that the reduction of the right to objection became the marginal line?
Nevertheless, what should be the reason why the Democratic Party made concessions to the end of the provisions that generally reduce the powers related to objections, such as the deprivation of the complainant's right to object and the restriction on the prosecution's supplementary investigation of the case raised by the complainant?
Among the four serious crimes that made it impossible for the prosecution to start an investigation through the Democratic Party's final bill, it can be considered in relation to abuse of power (official crimes) and violations of the election law.
The crime that the Democratic Party, which came to power in 2017, was most actively mentioned and applied in the process of leading the 'cleaning of corruption' was the abuse of power.
Abuse of power was the core crime that appeared in the blacklist case of former President Park Geun-hye and former chief of staff Kim Ki-chun, the illegal inspection case of former chief of civil affairs Woo Byung-woo, the manipulation of public opinion by the National Intelligence Service and the security service, and the judicial Nongdan case.
Abuse of power was also the name of the crime applied to the Ministry of Environment's blacklist case, which was the first time since the Democratic Party took power that the prosecution investigated allegations of systematic intervention by the Blue House.
It is a fact that seems self-evident to not only Democratic Party officials familiar with the application of the abuse of power, but also to third parties that if suspicions related to the Moon Jae-in administration arise after the change of government after May 9, the first crime to be considered will be abuse of power. it was
However, if the Inspection and Obstruction Bill passes the National Assembly, the prosecution will not be able to directly launch an investigation even if it detects the abuse of power or even receives a report.
Only the police can exercise the right to initiate an investigation into this allegation.
In addition, in most cases, abuse of power is a crime for which the victim is not easily identified or the victim cannot directly file a complaint, and the profit (legal interest) damaged by the crime is not the private interest of a specific victim but the public interest of society as a whole.
In most cases, an investigation can only begin with an accusation.
Most of the famous abuses of power mentioned above were also investigated by accusations.
But what if the police decide that there is no charge in the case of abuse of power and decide not to appeal?
In the previous system, when the complainant raises an objection, the case is automatically transferred to the prosecution, leading to the prosecution's further investigation.
If the police decide not to appeal, the prosecution will establish a structure that has no control over the abuse of power.
Therefore, the effect of the two-majino line of the bill to deprive the prosecution of the abuse of power to initiate investigation and the right to object to the accuser is clear: delaying the prosecution's investigation into the abuse of power after the police investigation, and the police When it comes to making a transfer decision, the prosecution will have no control over it.
If this is the case, can it be considered as an explanation for why the reduction in the authority to file objections became the Democratic Party's last line?
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Rack List, Ulsan Election Intervention, Impact on Seongnam FC Incident
If it seems vague to predict the events that are expected in the future, let's take a look at how the censorship bill will affect the events that are already in progress.
Let's start with the Ministry of Industry blacklist case.
The name of the crime applied to the blacklist case of the Ministry of Industry, which the prosecution is currently investigating, is also abuse of power.
Once the Inspection and Obstruction Act is implemented, the prosecution investigation into the ongoing Ministry of Industry blacklist case may be transferred to the police, although it will depend on the timing of the implementation of the law.
Even if the prosecution can finish the first investigation into the blacklist case by the Ministry of Industry, the problem remains.
In the case of the Ministry of Environment blacklist case, which was investigated and prosecuted by the prosecution before the blacklist case by the Ministry of Industry and the Supreme Court was confirmed, suspicions of superiority still remain.
If it is confirmed that the incumbent minister and the chief of staff of the Blue House have intervened unfairly in the personnel affairs of public institutions, it is difficult to interpret this as a personal deviation between the two people, so it is natural to raise suspicions about the involvement of superiors.
However, since the prosecution is prohibited from starting an investigation into the abuse of power, after the enforcement of the Inspection Complete Act, even if additional complaints about the Ministry of Environment's blacklist case or the Ministry of Industry's blacklist case are submitted, the combined bidding will take charge of the investigation.
In this regard, if the police forward the case with an opinion of indictment, the prosecution may conduct additional investigations.
A similar structure will be developed not only for abuse of power but also for election crimes.
Election crimes are not only one of the serious crimes in which the prosecution's right to initiate investigations is deprived, but also because it is a case in which the investigation begins with someone's accusation.
Of course, delaying or blocking the prosecution's investigation into election crimes is not bad not only for the Democratic Party but also for the People's Power politicians.
However, if we look at the case that the Democratic Party responded most sensitively among the cases investigated by the prosecution recently, the case where the trial is currently in progress and the case where the suspicion of interference from higher levels is constantly raised like the case on the blacklist of the Ministry of Environment, the prosecution investigation into election crimes started It is possible to estimate the impact of the repeal of the right and the deprivation of the complainant's right to object.
It is a case of suspicion of interference with the Blue House in the Ulsan mayoral election.
It was also the event that led to the sudden announcement of the policy of the indictment of the former Justice Minister Choo Mi-ae, a former Democratic Party leader.
The indictment in this case contains allegations that seven organizations directly organized by the Blue House intervened to help the election of Ulsan Mayor Song Cheol-ho.
Several high-ranking officials at the Blue House Secretariat level or higher have also been directly indicted, including former civil affairs secretary Baek Won-woo, former political affairs chief Han Byung-do, and former national affairs affairs chief Lee Jin-seok.
Im Jong-seok, former chief of staff, and others were not prosecuted, and all the charged public officials are claiming their innocence.
However, the alleged interference with the Blue House in the Ulsan mayoral election is basically a case of alleged violation of the election law.
(Many of the defendants are also charged with abuse of power.) Although the statute of limitations for the election law is six months, several people involved have already been prosecuted, so if additional charges are made, an investigation into the election law allegations may be conducted.
However, as with the abuse of power, the police will have no choice but to start the investigation into this case even if additional clues are discovered or accusations are made in the future.
The same is true even if there is a clue during the trial process.
If the police decide not to appeal, the case is completely closed without going to the prosecution.
Finally, let's review the controversial Seongnam FC case just before the presidential election.
The police who received the accusation decided not to file the case, but the case was automatically forwarded to the prosecution due to the complainant's objection. After that, the prosecution's investigation team at the Seongnam Branch tried to directly conduct a complementary investigation. It is a case that the police are looking into again because they did not conduct a supplementary investigation and requested the police to investigate.
It is difficult to predict what additional investigation results the police will make in this case.
However, no matter what the results of the investigation by the police are, the subsequent supplementary investigation by the prosecution can only be carried out to the extent that it does not impair the identity of the case investigated by the police.
This means that the prosecution can conduct additional investigations only within the scope of the police investigation.
The Seongnam FC case was decided not to be sent by the police, but it was automatically sent to the prosecution according to the objection.
Is it a coincidence that harming the public interest and protecting the interests of some politicians coincide?
Nevertheless, it cannot be said definitively as to the exact reason why the reduction in the authority to appeal has become the marginal line of the Democratic Party's oversight bill.
What is clear is that the deprivation of the complainant's right to object and the limitation of the scope of supplementary investigation for the cases sent after the objection will be a huge blow to the socially disadvantaged and will be a factor in concealing the truth in many cases related to people's livelihood.
And it is the fact that it will never work against the people of the Democratic Party in relation to the events that are expected to follow, as well as the events that are currently going on.
In the end, the public will judge whether it is a coincidence that the damage to the interests of the entire nation, including the socially weak, and the protection of the interests of some politicians overlapped.
(Photo = Yonhap News)