With a revised Criminal Procedure Act abolishing prosecutors' investigative powers set to take effect on Oct. 2, concerns are mounting that the public will bear the cost. Police will hold a virtual monopoly on investigations, yet the checks against sloppy handling, manipulation, concealment or downplaying of cases remain inadequate. In an interview at the Seoul Economic Daily headquarters on Sept. 14, Kang Dong-beom, professor emeritus at Ewha Womans University School of Law, said the criminal justice system has fallen into serious dysfunction. Investigations will be delayed, cases will be buried and the quality of investigations will decline, undermining public trust, he warned. Restoring at least the prosecutors' authority to direct investigations would be the most effective alternative, he said. On the recent friction between President Lee Jae-myung and Supreme Court Chief Justice Jo Hee-de over the selection of new Supreme Court justices, Kang said that if the president intervenes in the chief justice's nomination of candidates or in the National Assembly's consent, it would run counter to the separation of powers and invite criticism as unconstitutional. The Constitution stipulates the separation of powers but does not rank the three branches, he said.
Q: The Democratic Party's legislative drive to strip prosecutors of investigative powers was wrapped up with the recent revision of the Criminal Procedure Act.
A: An investigative structure that was parallel and dual-track has been severed. Previously, both prosecutors and police held investigative powers over all crimes. Prosecutors had the authority to direct investigations and to bring charges. Crime victims or complainants could file with whichever of the two agencies was accessible to them. From now on, complaints cannot be filed with prosecutors, who hold only the power to indict. It has become a disconnected structure in which complaints must be filed with whichever body holds investigative authority — the Corruption Investigation Office for High-ranking Officials, the Serious Crimes Investigation Agency or the judicial police, including the National Office of Investigation. For complainants, the complexity of the procedures will mean more cases in which they have to rely on a lawyer. Nationally, since prosecutors — who are investigative specialists — cannot be used for investigations, more judicial police officers must be hired and trained, which inevitably entails opportunity costs and additional expense. Structurally, police still enjoy relatively less independence in their duties and less job security than prosecutors. If that causes investigations to come under political influence, it will erode trust in criminal justice.
Q: Prosecutors' power to conduct supplementary investigations has been abolished and replaced with the power to request them.
A: There is a risk that police will carry out supplementary investigations inadequately even when prosecutors request them. The revised law allows prosecutors, separately from that request power, to verify facts directly, yet bars statements and materials obtained through such fact-checking from being used as evidence at trial. It is hard to understand why the results of fact-checking conducted by a prosecutor cannot be used as evidence. Even when a supplementary investigation is requested, procedures could drag on and case-handling times could lengthen amid "case ping-pong," with investigative authorities passing the buck to one another. If the system takes effect as it now stands, a serious problem will arise: it will become harder to uncover the substantive truth, leaving offenders improperly punished. One alternative is to set up a separate organization devoted solely to supplementary investigations, staffed by investigators with relatively more legal knowledge and investigative experience. Another is to restore at least the authority to direct investigations.
Q: The Prosecution Service is to be abolished, with a new prosecution office taking charge of maintaining indictments.
A: Criminal proceedings run in the order of investigation, trial and execution of sentence. An investigation is the preparatory stage for determining whether there are grounds for a crime and whether to bring and maintain charges. Because the decision to indict is made by assessing investigative findings, I think it is inappropriate for someone who has not investigated to bring charges. Some point to the possibility of confirmation bias on the part of the person investigating. But I question whether it is better to entrust indictment procedures to someone who has no conviction of guilt. Assigning the CIO both to investigate and to indict certain high-ranking officials — including the chief justice, Supreme Court justices and the prosecutor general — and the various special counsel laws bear this out.
Q: How do you assess dispersing investigative powers among the general judicial police, the Serious Crimes Investigation Agency and the CIO?
A: What convenience does it offer the public to designate different bodies to investigate by type of crime? Ordinary crimes go to police, serious crimes to the new investigation agency, and certain crimes by high-ranking officials to the CIO. Not only the general public but also offenders, and even investigative agencies themselves, will be confused about whose case it is. Some cases are clear from the outset as to which offense is at issue, but considering that the substance generally emerges gradually during an investigation, this carries serious problems.
Q: How can independence be secured for the new prosecution office, the investigation agency and the CIO?
A: The law on the Serious Crimes Investigation Agency has the interior minister generally direct and supervise its chief and staff, but limits direction and supervision on specific cases to the chief alone. The prosecution office law likewise has the justice minister generally direct and supervise prosecutors, and limits direction and supervision on specific cases to the prosecutor general alone. The provisions granting direction and supervision over specific cases need to be deleted. In the CIO's case, independence in appointing its head is the shortest path to guaranteeing political independence for its investigations. The CIO law must therefore be revised so that, instead of the four members recommended by National Assembly negotiating blocs, the recommendation committee for the CIO chief appoints or commissions people with no political ties.
Q: There is also strong concern that investigators may defer to the government in power.
A: Personnel decisions on those handling investigations must also be made fairly, by objective standards. For example, it is worth considering raising the share of non-legal members — currently just four of the 11 members of the personnel committee for prosecutors — and strengthening the committee's authority by giving it the power to deliberate on appointments at or above the level of regional prosecution office chief. The investigation agency should also increase the number of outside members on its personnel committee. At present, six of its seven outside members consist of two investigators, one recommended by the justice minister, two by the interior minister and one by the agency chief, making independence hard to guarantee.
Q: Calls for police reform are gaining traction in the wake of cases such as the killing of a high school girl in Gwangju by Jang Yun-gi.
A: The Jang Yun-gi case is a textbook example of police shielding their own in an investigation, and it shows why restoring prosecutors' authority to direct investigations or to conduct supplementary probes is necessary. Police neglect of cases and abuse of investigative powers cannot be left to individual officers' conscience or competence alone. Internal and external systems need to be run separately to provide overlapping controls. As an internal control, one option is to place a body — tentatively called an investigation complaint center — directly under the commissioner at metropolitan and provincial police agencies to receive and handle grievances from those involved in cases. Another is to establish a body composed entirely of outsiders — tentatively, a case review committee — to check whether investigations are being conducted promptly and appropriately. Fundamentally, police reform should move toward separating administrative police from judicial police, independence in personnel decisions, building internal and external control systems, better working conditions, strict rewards and penalties, and rotation of posts above a certain rank.
Q: There is also major controversy over judicial independence.
A: Appointing Supreme Court justices is fundamentally a constitutional matter. Turning a constitutional issue into a political one is neither desirable nor appropriate. Such conflict should be resolved on the basis of democratic principles and constitutional provisions. Article 104, Paragraph 2 of the Constitution provides that Supreme Court justices are appointed by the president, on the nomination of the chief justice and with the consent of the National Assembly. If the president intervenes in the chief justice's nomination or in the Assembly's consent, it would run counter to the separation of powers and invite criticism as unconstitutional.
Q: An expansion of the Supreme Court bench was pushed through by the ruling party.
A: Under the revised Court Organization Act, the number of Supreme Court justices, now 14, will grow by four a year from 2028 through 2030, for a total increase of 12. With appeals to the Supreme Court surging, increasing the number of justices is reasonable, but the scale is excessive. What is more, there are many problems given that criminal trials involving the sitting president, who will appoint these 12, are pending in lower courts. Supreme Court justices rank as ministers, so each additional appointment carries considerable cost. It would be better to save that money and increase the number of lower-court judges, which would ease delays in proceedings and safeguard the public's right to a trial.
Q: What is your view on introducing constitutional appeals against court rulings?
A: Even rulings by the Supreme Court, the highest court under the Constitution, would become subject to review by the Constitutional Court. In effect, the Supreme Court would lose its status as the highest court, raising questions of constitutionality. The Constitutional Court Act contains no procedures for what happens if such an appeal is accepted. Until rules are put in place, courts will end up deciding, and much dispute is bound to arise over questions such as which level of court handles the subsequent trial, whether it proceeds by remand or retrial, and what happens when a sentence has already been carried out under a final ruling. Responsibility for the confusion lies with the National Assembly, which legislated without proper study or debate.
Q: What is the fundamental way to raise public trust in the rule of law and the judiciary?
A: First, the president as well as the legislature and the judiciary must thoroughly abide by democratic principles, the Constitution and the law. As things stand, strict enforcement should take precedence over discretion, even where the law allows discretion. In other words, the law must be applied strictly to the powerful and warmly to those in difficulty. The sharp rise in public distrust of the justice system stems from doubts about the independence and fairness of trials. A social mood is pervasive in which people care less about the truth of a case than about who is hearing it — a judge's career or political leanings. To overcome this, the quorum for National Assembly consent to appointments of Supreme Court justices and Constitutional Court justices needs to be strengthened to a supermajority — approval by two-thirds or more of the lawmakers present — so that the views of minority parties, not just the majority party, are reflected.
◇ He is…
Born in 1957, Kang graduated from Seoul National University College of Law and earned master's and doctoral degrees in law at its graduate school. After teaching at Seokyeong University and the University of Seoul, he served as a professor of law at Ewha Womans University and has been regarded as a leading authority in Korea on criminal law and criminal justice. Among his books, "General Principles of Criminal Law" and "Specific Crimes Under Criminal Law," both co-authored, have been widely used as basic texts in criminal law, familiar to nearly anyone majoring in law. He has served as president of the Korean Association of Criminal Policy and of the Korean Association of Criminal Case Studies. He has also worked as a member of the public defender operation committee at the Seoul Western District Court, a member of the Supreme Prosecutors' Office investigation review committee, an expert and policy member of the Justice Ministry's council on overhauling the accountable investigation system, and chair of the Justice Ministry's inspection committee.
