A revised Criminal Procedure Act that abolishes prosecutors' power to conduct supplementary investigations takes effect in a week. The core of the revision is to separate the investigative and indictment functions of the prosecution service and disperse authority that has been concentrated there. But concerns are surfacing within the ruling party that the shift of investigative power to the police could create gaps in investigations or leave crime victims without adequate protection.
The rationale for scrapping the supplementary investigation power is that the separation of investigation and indictment can only be completed by closing the channel through which prosecutors intervene directly in police investigations. Behind it lies the concern that if prosecutors effectively exercise investigative authority while supplementing police work, past abuses of the prosecution's investigative power could be repeated.
Under the revised law, prosecutors will no longer conduct supplementary investigations themselves but will instead request that the police carry out supplementary or renewed investigations. When necessary to file or sustain an indictment in a case referred to them, prosecutors may ask the police for a supplementary investigation, which the police must in principle complete within one month. If the police decline to refer a case and a prosecutor judges that decision unlawful or improper, the prosecutor may request a renewed investigation. The police must in principle wrap up such an investigation within three months of receiving the request. If the police still do not refer the case after reinvestigating, they must send the related documents and evidence to the prosecutor, who may request another reinvestigation under certain conditions.
The question is whether such control mechanisms alone can sufficiently correct errors in the investigative process. When the police miss key evidence or fail to identify an offense, prosecutors cannot investigate the shortfall themselves but must again ask the police to do so. Even if the police accept a request for reinvestigation, the police remain the actual investigating body, raising doubts about how effectively an initial misjudgment can be corrected.
For those reasons, calls for caution are emerging even within the Democratic Party of Korea, which led the prosecution reform drive. Rep. Hong Ki-won of the Democratic Party argues that safeguards are needed to check the police, who would effectively monopolize investigative authority if the supplementary investigation power is abolished outright, and in particular to correct cases in which powerless victims suffer disadvantages during an investigation. In July, Hong introduced a bill that would exceptionally allow prosecutors to conduct supplementary investigations in crimes against socially vulnerable people, offenses affecting everyday livelihoods, cases involving detention and cases nearing the statute of limitations. The aim, he said, is not to preserve the prosecution's authority but to provide a minimum safeguard for victims.
Amid such concerns, the Democratic Party ultimately decided to abolish the supplementary investigation power itself while putting separate measures in place to protect victims. These include mandatory referral of all cases involving crimes against socially vulnerable people, the right of victims to submit materials, and the right to submit opinions to prosecutors and have them heard. Even within the party, however, questions are being raised about whether such measures can translate into actual protection for victims when there is no means to substantively overturn a police decision.
The follow-up legislation tied to the abolition of the supplementary investigation power recently triggered a clash inside the Democratic Party. At a subcommittee meeting of the National Assembly's Legislation and Judiciary Committee on the 16th, Democratic Party Rep. Kim Nam-hee clashed with Rep. Kim Yong-min and Rep. Park Eun-jung of the Rebuilding Korea Party over whether to grant evidentiary status to video recordings of prosecutors' interviews with sexual violence victims under the age of 19. The revision would create an exception denying evidentiary status to video that prosecutors record while interviewing victims.
Kim Nam-hee's position is that the provision should be reconsidered to protect victims, given how difficult it is for underage victims of sexual violence to appear in court and testify in person. Kim Yong-min and Park, by contrast, emphasized the principles of overhauling the criminal justice system, including the removal of the prosecution's investigative power. In the end, the two walked out just before the vote, breaking up the meeting, and the bill was not passed. Kim Nam-hee later said victim protection and prosecution reform should be treated as separate issues.
The possibility of power concentrating in the police is also a concern. Even if the prosecution's authority is dispersed, concentrating it in another single agency could lead to a different form of abuse, so mutual checks are needed, critics say. President Lee Jae-myung also raised concerns about the police growing too large at a news conference on the 18th, saying, "Power has to be kept in check by other power."
Politicians, however, see little chance of resolving these issues in the week before the revised Criminal Procedure Act takes effect. In practice, that means discussion of partial revisions can begin only after side effects from the new law accumulate. A Democratic Party official said the biggest regret is that the voices of hard-line reformers were overrepresented, leaving the process without sufficient deliberation.
