If prosecution investigators first looked into a case under the direction of one prosecutor, a successor prosecutor may conduct further inquiries and file charges without violating the principle separating investigation from indictment, the Supreme Court has ruled.
The first division of the Supreme Court, with Justice Ma Yong-joo as presiding judge, overturned a lower court decision that had dismissed charges against two defendants identified as A and B, who had been indicted on charges including violating the Improper Solicitation and Graft Act, legal sources said on the 9th. The case was sent back to the Seoul Central District Court.
A, a professor at the college of fine arts at a university identified as C, was indicted on charges of receiving 30 million won in cash in September 2019, while serving as dean of the graduate school of fine arts, from B, a graduate student enrolled in one of his classes. At the time, prosecution investigators launched the inquiry under the direction of one prosecutor, and another prosecutor who later took over the case indicted A and B after additional investigation.
At issue was whether the actions of the prosecutor who filed charges after conducting further investigation violated Article 4, Paragraph 2 of the Prosecutors' Office Act. That provision bars a prosecutor from filing charges in a crime whose investigation the prosecutor personally initiated.
The first and second trials reached opposite conclusions. The trial court found no problem with the indictment and convicted both defendants. The court rejected the argument that the 30 million won was legitimate compensation for private tutoring, saying it could not be regarded as a lawful private transaction. It sentenced A to one year in prison, suspended for two years, and ordered the forfeiture of 30 million won. B received an eight-month prison term, suspended for two years.
The appeals court, by contrast, dismissed the charges, finding that the principle separating investigation from indictment had been violated. The appellate court cited grounds including that prosecution investigators are assistants to prosecutors rather than independent investigative authorities. It held that the point at which the prosecutor who later took over the case directly questioned the defendants should be treated as the start of the investigation into this crime. On that basis, it concluded that the prosecutor had handled both the initiation of the investigation and the indictment.
The Supreme Court took a different view. It found that the lower court had misinterpreted the legal principles governing the application of Article 4, Paragraph 2 of the Prosecutors' Office Act. The Supreme Court held that the investigation had already begun when prosecution investigators, acting under a prosecutor's direction, undertook substantive and specific steps such as questioning witnesses and interrogating the defendants. It therefore identified the prosecutor who directed those investigators as the one who initiated the investigation.
"The investigative authority that handled the initial investigation into this crime must be regarded as the prosecutor who directed the prosecution investigators," the Supreme Court said. "Even if another prosecutor conducted additional investigation and filed charges, this does not amount to a prosecutor filing charges in a crime whose investigation the prosecutor personally initiated, as stipulated in the Prosecutors' Office Act."
