South Korea's prosecutors office to close as criminal justice system undergoes historic overhaul

The prosecution reform pushed by the ruling camp since the Lee Jae Myung government took office will ultimately result in the abolition of the Prosecution Service. Founded in 1948, the agency will be dissolved after 78 years, with a new Serious Crime Investigation Agency and a Public Prosecution Service set to launch separately under the principle of separating investigation from indictment. Key questions — including the scope of prosecutors' supplementary investigation powers at the new agencies — remain unresolved, keeping the debate over prosecution reform alive. Concerns have also been raised about potential blind spots in criminal justice procedures once the Prosecution Service is gone.

According to legal circles Monday, the bills establishing the Serious Crime Investigation Agency and the Public Prosecution Service passed the National Assembly plenary session in March, with both agencies set to launch in October — the former under the Ministry of Interior and Safety and the latter under the Ministry of Justice. The Prosecution Service will thus close its doors roughly a year after the Lee Jae Myung government took office. The abolition and the creation of the two successor agencies were driven by the ruling Democratic Party of Korea and the government. Under the new criminal justice system, prosecutors' duties will shift from criminal investigation and matters necessary for filing and maintaining charges — as defined under the current Prosecution Service Act — to matters necessary for filing and maintaining charges only, as defined under the new Public Prosecution Service Act. However, because the Constitution contains the phrase "warrants issued by a judge upon the request of a prosecutor," the duty to handle matters necessary for warrant requests has been retained.

Legal observers expect some initial confusion as the unprecedented new criminal justice system takes effect. Citizens will immediately face the question of whether to file complaints or accusations with police or with the Serious Crime Investigation Agency. The agency's investigative jurisdiction covers six categories of crime: corruption, economic crimes, defense procurement, narcotics, insurrection and foreign exchange offenses, and cybercrime. Police handle the vast majority of offenses, raising the prospect of inter-agency competition over high-profile cases.

Many details of the new criminal procedures remain unsettled. When the Serious Crime Investigation Agency or police conclude that a suspect has a case to answer and refer the matter to the Public Prosecution Service, the prosecution agency will decide whether to indict. The sticking point is what happens when an investigative agency decides not to refer a case — concluding there are insufficient grounds — but further or additional investigation is nonetheless needed.

Article 197-2 of the current Code of Criminal Procedure allows prosecutors to demand supplementary investigation from judicial police officers when necessary for deciding whether to indict a referred case or maintain a prosecution, and when necessary for deciding whether to request a warrant applied for by a judicial police officer. Article 245-8 of the same code also allows prosecutors to request in writing that a judicial police officer reinvestigate a case when the officer's decision not to refer it is found to be unlawful or improper.

The ruling camp argues that prosecutors should be stripped not only of the power to conduct supplementary investigations directly but also of the power to demand supplementary investigation from police and other agencies. Legal circles, however, warn that eliminating prosecutors' opportunity to review a case after an investigative agency decides not to refer it could foreclose any chance of uncovering the substantive truth.

Some voices are also calling for the revival of the "full-case referral" system, which was abolished following the 2021 adjustment of investigative powers between prosecutors and police. Under that system, the primary investigative agency would forward all cases it investigated to the Public Prosecution Service. Proponents argue that this would honor the principle of separating investigation from prosecution, allowing the Public Prosecution Service to review all investigative decisions and correct any errors. Concerns about an excessive workload for the Public Prosecution Service have also been raised, however.

By Choi Eui-jong