수사권조정 및 고위공직자범죄수사처 설치 법안의 평가 -비즈니스범죄 등을 수사하는 전문수사청 설치를 위한 제안-

Abstract

Recently, the government and Democratic Party, with helps of other minor parties, were trying to pass the new fast-track bill under the name of so-called "The Reform of the Prosecutors’ Office". It is about a revision of investigative authority between the police and the public prosecutor and establishing a new office to investigate the high-ranking public officials' corruptions. However, since the opposite parties have been firmly against the fast track itself and such a topic has not been publically discussed enough, this article will provide an in-depth discussion on the meaning and the problem of this new bill. The new reform means this: First, a revision of investigative authority between the police and the public prosecutor. This frees the police from taking prosecutor’s orders about investigation prior to sending the case to the prosecutors’ office, lets the police self-conclude the case before it reaches prosecutors’ office, weakens a probative force of prosecutor's interrogation report so that it can be easily rejected if the defendant claims it has been fabricated, and restricts the targets of the prosecutor's direct investigation to only few crimes. Second, establishing new office to investigate the high-ranking public officials' corruptions. This creates a new neutral investigative office which will investigate corruptions like bribery, dereliction of duties, abuse of authority, of public officials like congressmen, judges, prosecutors, or police chiefs. The office will be free from any other state organs and is designed to become a completely independent authority. As of criticisms, majority of opinions are against the first proposal, for it is needed for prosecutors to hold their investigative power in order to guarantee a proper investigation and to prevent possible violations of human rights on the investigation procedure. For the second proposal, although some approves this considering that it is hard to expect an impartial investigation from prosecutors when it is about highly political matters, others still show concerns that this will rather create a new uncontested political power. Bestowing the police a new power to pre-conclude the case as well as an investigative authority, means giving them a power to decide not to prosecute. This ultimately violates prosecutor's own power to decide whether to prosecute or not. Furthermore, the bill states that the early concluded cases can be sent to prosecutors only if there are objections from accusers, or victims, but since cases concerning the violation of national or social benefits don't have anyone to object, the case has no other proper ways to be further investigated. Even if the prosecutor orders a reinvestigation, police can simply reinvestigate and conclude it again, so it will be much harder to expect a thorough investigation. The bill weakening the probative power of prosecutor's interrogation report, doesn't fit current Korea's legal system which lacks Anglo-American legal systems like Plea Bargaining, Obstruction of Justice, False Statements which helps finding a substantial truth or facilitates the trial process. If the bill passes, the court will be overloaded with cases, will be delayed, and will be harder to make right decisions. Few disappointing incidents with some political prosecutors were not because of innate problems of investigation system, but were because of them failing to keep neutral political stance on few important political cases. On contrary, in many ordinary cases, people rather often request the prosecutors to do the investigation by themselves. It shows that people put more faith on prosecutors than the police. Majority of opinions also points out that the real problem of the prosecutors’ office is it not completely being politically neutral. On the contrary, the new bill is not at all related to insuring its political neutrality, but rather undermines an impartiality or protection of the human rights of the police investigation process. the newly proposed investigative office will consist mainly of members recommended by the ruling party, so is still not free from the political strings. Furthermore, the new office can investigate on the other investigative offices, the court officials, and this contains a danger of being misused as a way to threaten an opposing party or to take control over the court. If there are other ways to guarantee a political neutrality of the prosecutors’ office, there is no need to pass such a dangerous bill, but there has been no specific discussions on such matter. I think revamping prosecutor's promoting system could be one answer. To guarantee a political neutrality, old customs on the promotion to the prosecutor general or to other positions, should be cut off. Furthermore, the minister's right of nomination should be handed over to the prosecutor general. Department of Justice should rather focus on it's role as a supervisor of the prosecutors’ office, or administration of judicial affairs such as immigrations. Creating new investigative office, should only be considered as a last resort. Nowadays, crimes are becoming more and more specialized, globalized, and more related to businesses due to complex economy, international trades, and developments of new technologies. To prepare for this, many developed countries tend to create new investigative offices specializing in business crimes. Likewise, we should rather focus on creating new investigative office specializing in business crimes, not wasting our efforts on this new bill's proposal which not only could be politically misused but also only narrowly targets high-ranking officials. Especially, since the government is trying to minimize the prosecutors’ right to investigate by themselves, it would be better to create an independent investigative office under the Department of Justice, specializing in crimes such as the breach of duties, embezzlement, finance/security/tax frauds, illegal monopolies, international crimes such as money laundry, drugs, terrors. This new office can also investigate on high-ranking public officials' corruptions as well, which will be a great alternative solution for the new bill's proposal.