🚨 Separation of Investigation and Prosecution: Reforming Korea's Legal System

Today Korean Social News | 2025.06.07

📌 Government Pushes to Limit Prosecutor Powers…Separation Plan Speeds Up

💬 Since President Lee Jae-myung took office, laws to reduce prosecutor powers are moving fast through parliament. Three special prosecutor laws and amendments to prosecutor discipline laws have passed the National Assembly. This has caused worry inside the prosecutor's office about major staff changes and reorganization. The push to separate investigation and prosecution powers is gaining speed, and the prosecutor's office faces big changes. The plan would move investigation powers from prosecutors to police or new agencies, while prosecutors would focus only on bringing cases to court.

Summary

• Separation of investigation and prosecution means dividing powers that prosecutors currently control alone.
• Police or separate agencies would handle investigations, while prosecutors handle court cases, creating checks and balances.
• The goal is to reform the 70-year-old system where prosecutors had too much power and create a more democratic legal system.

1️⃣ Definition

Separation of investigation and prosecution means dividing the investigation and prosecution powers that prosecutors currently monopolize so different agencies handle each part. Simply put, it means having different agencies handle investigating crimes and taking cases to court.

This reform aims to spread out concentrated power and create checks and balances for fairer justice.

💡 Why is this important?

• It prevents prosecutors from having too much power and creates democratic checks and balances.
• Investigation and prosecution agencies can check each other, making the system more fair and transparent.
• It better protects people's basic rights and human rights.
• It builds an advanced legal system that meets international standards.

2️⃣ Background and Need for Separation

📕 Problems with Current Prosecutor Powers

• Korean prosecutors have uniquely strong powers compared to other countries. Their main powers include:

  • Power to start investigations: Prosecutors can begin investigating cases on their own
  • Power to direct investigations: Prosecutors can control and direct police investigations
  • Power to end investigations: Prosecutors decide when all investigations are finished
  • Exclusive prosecution rights: Only prosecutors can take cases to court
  • Warrant request rights: Prosecutors can request arrest warrants and search warrants

• These concentrated powers create problems. Main issues include:

  • Prosecutors control everything from investigation to prosecution, becoming an unchecked "fourth branch of government."
  • Prosecutors create cases themselves (investigation) and take them to court themselves (prosecution), making self-checking impossible.
  • In politically sensitive cases, prosecutors can make biased decisions about investigation and prosecution.
  • The system puts organizational interests before people's rights.

📕 Historical Background

• The need for separation has been discussed for a long time. Historical background includes:

  • In 1954, when creating criminal procedure law, Prosecutor General Han Gwang-man said "It's legally proper to let police handle investigations and give prosecutors only prosecution rights."
  • But due to distrust of police from Japanese colonial times and political situations, prosecutors got investigation powers too.
  • During military rule, prosecutors became tools of the government and were used to suppress democracy.
  • Even after democratization, the prosecutor power monopoly continued and caused various problems.

• Korea's system is very unusual internationally. International comparison shows:

  • Among 35 OECD countries, Korea is the only one that gives all investigation powers to prosecutors.
  • In Germany and France, prosecutors don't have their own investigation staff and only control police investigations.
  • In the US, federal prosecutors investigate major crimes but the FBI handles the actual work.
  • Japan only has special investigation units in three cities: Tokyo, Osaka, and Nagoya.

Main Problems with Current System

1. Power concentration: Prosecutors monopolize both investigation and prosecution with no checks
2. Political neutrality damage: Biased investigation and prosecution possible in politically sensitive cases
3. Human rights concerns: Strong powers with insufficient control mechanisms lead to rights violations
4. Lack of transparency: Investigation and prosecution happen only inside prosecutor offices
5. Below international standards: Insufficient power distribution and checking systems compared to advanced countries

3️⃣ Main Content and Direction of Separation

✅ Separation Plan and New System

• Plans to transfer investigation powers are becoming concrete. Main plans include:

  • Give primary investigation powers to police and completely eliminate prosecutors' pre-referral investigation direction powers.
  • Limit prosecutors' direct investigation powers to only major crimes (corruption, economic crimes, election crimes, etc.).
  • Eventually completely separate investigation powers from prosecutors and transfer them to separate investigation agencies.
  • Create new agencies like "Major Crime Investigation Agency" or "Special Investigation Agency" for major crime investigations.

• Prosecutors will continue handling prosecution. Their new role includes:

  • Prosecutors decide whether to prosecute cases sent by investigation agencies.
  • Handle court proceedings for prosecuted cases.
  • Can request additional investigation if the investigation agency's work is insufficient.
  • Transform prosecutor offices into "prosecution offices" that specialize only in prosecution.

✅ Building Mutual Check Systems

• A checking system between investigation and prosecution agencies will be created. The checking methods include:

  • Investigation agencies must do thorough investigations to pass the prosecution agency's strict review.
  • Prosecution agencies objectively evaluate investigation results and independently decide whether to prosecute.
  • If investigation agencies do poor investigations, prosecution agencies can request improvements or decide not to prosecute.
  • If prosecution agencies arbitrarily decide not to prosecute, investigation agencies can raise concerns through a system.

• Protection of people's rights will be strengthened. Protection methods include:

  • Separating investigation and prosecution prevents one agency from making all decisions alone.
  • Prosecution agencies can check human rights violations during investigation.
  • The prosecution process becomes more transparent and fair.
  • Citizens' reports and complaints can be handled more fairly.

4️⃣ Current Status and Issues

✅ Government and Parliament Actions

• Laws for investigation-prosecution separation are being actively pushed. Current status includes:

  • The Democratic Party officially adopted "complete removal of prosecutor investigation powers" as party policy.
  • A prosecution office law has been proposed to reorganize prosecutor offices into prosecution-only agencies.
  • Plans are being considered to transfer prosecutors' direct investigation powers for six major crimes to separate agencies.
  • Related law amendments are being reviewed in the National Assembly's Judiciary Committee.

• Different political positions are in conflict. Main positions include:

  • Ruling party: Claims this reform is necessary for democratic control and checks on prosecutor power.
  • Opposition party: Opposes, saying it's politically motivated prosecutor weakening that will hurt crime investigation.
  • Justice Party: Says prosecutor reform is needed but careful consideration of methods and timing is required.
  • Prosecutors: Acknowledge need for reform within the organization but express concerns about rapid changes.

✅ Major Issues and Concerns

• There are concerns about police power becoming too big. Main concerns include:

  • As investigation powers transfer largely to police, there may be insufficient checking mechanisms for police.
  • There are concerns that police political neutrality and expertise measures are insufficient.
  • Institutional improvements are needed to ensure transparency and accountability within police.
  • Plans to strengthen civil society's role in checking police should also be prepared.

• Worries about investigation expertise and efficiency are also raised. Main issues include:

  • Concerns about lack of expertise in investigating complex economic crimes or high-level official corruption.
  • Building information sharing and cooperation systems between investigation agencies is an important task.
  • There's potential for confusion due to investigation gaps or unclear responsibility.
  • Securing personnel and budget for new investigation agencies must also be resolved.

Major Tasks for Investigation-Prosecution Separation

1. Police checking system: Need to strengthen checking mechanisms for police when investigation powers transfer
2. Securing expertise: Building professional personnel and systems for investigating complex cases
3. Inter-agency cooperation: Establishing smooth cooperation systems between investigation and prosecution agencies
4. Public trust: Securing public trust and support for the new system
5. Gradual implementation: Plans to minimize side effects from rapid changes

5️⃣ Related Terms

🔎 Investigation Powers

• Investigation powers are the authority to investigate suspected crimes.
• Investigation powers refer to the authority to investigate, collect evidence, and find criminals when there are crime suspicions. Simply put, it's "the power to dig into cases."
• Specific contents of investigation powers include: First, investigation initiation power to start case investigations. Second, investigation direction power to direct other agencies' investigations. Third, warrant request power to request warrants for arrest or search and seizure from courts. Fourth, suspect investigation power to call and investigate suspects.
• Currently in Korea, both prosecutors and police have investigation powers, but prosecutors can direct police investigations, so prosecutors effectively monopolize investigation powers. Investigation-prosecution separation aims to change this monopoly structure.

🔎 Prosecution Powers

• Prosecution powers are the authority to request trials from courts.
• Prosecution powers refer to the authority to request courts to try people suspected of crimes. Simply put, it's "the power to start trials." Korea adopts "prosecution monopoly" where only prosecutors can prosecute.
• Main characteristics of prosecution powers include: First, only prosecutors can prosecute - no other agencies or individuals can directly prosecute. Second, prosecutors have prosecution discretion to freely decide whether to prosecute. Third, for prosecuted cases, they have the duty to maintain prosecution and prove guilt in court.
• Even after investigation-prosecution separation, prosecutors will still monopolize prosecution powers. However, since other agencies will investigate and prosecutors will only decide whether to prosecute based on results, the fairness and objectivity of prosecution is expected to improve compared to now.

🔎 Complete Removal of Prosecutor Investigation Powers

• This is short for "complete removal of prosecutor investigation powers."
• This refers to a reform plan to remove all investigation powers prosecutors have and leave them only with prosecution powers. It's the strongest reform plan that fundamentally limits prosecutors' current powerful authority.
• Specific contents include: First, abolish all direct investigation powers of prosecutors. Second, completely eliminate prosecutors' power to direct police investigations. Third, prosecutors would only handle prosecution and trial maintenance. Fourth, existing investigation work would be handled by police or newly created investigation agencies.
• This is the most complete form of investigation-prosecution separation. Supporters argue it's necessary for democratic control of prosecutor power, while opponents worry about weakened investigation expertise and reduced crime response capabilities. It's currently a core policy the ruling party is officially pursuing.

6️⃣ Frequently Asked Questions (FAQ)

Q: Won't criminals escape more easily if investigation and prosecution are separated?

A: This is one of the most common concerns about investigation-prosecution separation. But if properly implemented, crime response could actually become more effective. Investigation agencies will have to do more thorough and accurate investigations to pass prosecution agencies' strict reviews. Also, prosecution agencies will objectively evaluate investigation results and only prosecute cases with sufficient evidence, which could increase conviction rates in court. However, this requires ensuring investigation agencies' expertise and smooth inter-agency cooperation. In fact, other countries with separated investigation and prosecution effectively handle crime response, and mutual checking creates more fair and accurate investigation and prosecution. The key is good system design and sufficient preparation time before implementation.

Q: Won't police become another powerful agency if they get investigation powers?

A: This is a very important point. If investigation powers transfer to check prosecutor power but police become another huge power agency, it's not a fundamental solution to the problem. Therefore, checking systems for police must also be strengthened along with investigation-prosecution separation. Specifically, this includes substantially strengthening police committee authority, expanding civil society's police monitoring role, and strengthening transparency and accountability within police. Also, plans to distribute investigation powers among multiple agencies to prevent any single agency's monopoly should be considered. For example, general crimes could be handled by police while major crimes are handled by separate investigation agencies, further subdividing power distribution. Most importantly, continuous efforts are needed to ensure police political neutrality and improve expertise. The ultimate goal is to prevent any agency from having absolute power without checks.