Prosecutors seethe as supplementary investigation powers near abolition — but see no way to fight back

By Choi Eui-jong, The Herald Business

The debate over prosecutors' supplementary investigation powers appears to be entering its final stage after Prime Minister Kim Min-seok declared their abolition the government's basic position on prosecution reform. Inside the prosecution service, criticism is mounting that the issue is being weaponized as a political tool, with little regard for the sweeping changes it would bring to the criminal justice system. Yet with the ruling party holding a commanding majority in the National Assembly and legislation now in lawmakers' hands, prosecutors see no clear way to reverse course, and frustration is deepening.

According to legal circles on Saturday, Seoul High Prosecutors' Office prosecutor Gong Bong-suk posted on social media on June 25, referencing Prime Minister Kim's briefing on prosecution reform. "Surely the prime minister did not so easily abandon the government's legislative position just to avoid falling behind in the race for party leadership," she wrote.

At the June 25 briefing, Kim said the fundamental principle of prosecution reform is the separation of investigation and indictment. "It is the core principle of reform to more rationally redefine prosecutorial authority and more robustly protect the basic rights of citizens," he said, adding that the government had "finalized the abolition of supplementary investigation powers as its basic position, taking into account the wide range of opinions it discussed and heard."

He added that the government had submitted a first-round reform package in accordance with an agreement, and that while watching the process unfold, it had judged it desirable to advance the timeline for the second-round package beyond the original party-government agreement — seeking to push it through in May — but had delayed it at the party's request. He said the government had also concluded it was not appropriate to submit a separate government bill for National Assembly deliberation.

Kim is among the names being floated as a potential candidate for the Democratic Party of Korea's leadership at the party convention in August, alongside former party leaders Jung Chung-rae and Song Young-gil. Some observers suggest Kim may have held the briefing and raised the abolition of supplementary investigation powers partly to counter Jung, who has been calling for their immediate abolition.

The prosecution reform task force under the Office for Government Policy Coordination had formed an advisory committee and invested considerable effort in drafting reform proposals. But Kim's briefing appears to have locked in the abolition of prosecutors' supplementary investigation powers while effectively handing the matter to the National Assembly. Responding to this, prosecutor Gong wrote on social media: "What was all the preparation until now, all the fierce debate, for?"

The advisory committee had already raised concerns early on about the direction hardening toward abolition. On June 9, it issued a statement expressing concern that amendments to the Code of Criminal Procedure related to supplementary investigation powers could be finalized without adequately reflecting the committee's questions and views, and without complementary measures being put in place.

"Prosecutors currently perform review, supplementation, and oversight functions with respect to the results of primary investigations by judicial police officers, and ensure the legality and appropriateness of investigations through command and supervision of special judicial police," the committee said. "If these functions are to be abolished or curtailed, effective measures must be prepared in tandem to address the gaps that would arise."

Within the prosecution service, there is visible discomfort at seeing such a sweeping transformation of the criminal justice system reduced to fodder for political contests such as the party convention. "They are posting about abolishing supplementary investigation powers out of nowhere on social media," one prosecution official said. "It seems like no consideration is being given to the problems that would arise from changing the system."

The compensatory measures proposed alongside the abolition of supplementary investigation powers each have their own shortcomings. One option under discussion is granting investigative inquiry powers in place of supplementary investigation. Because this falls under the concept of administrative inquiry, however, inquiry records would struggle to be admitted as evidence in court after charges are filed. The measure would also lose its effectiveness if parties to a case declined to cooperate.

There are also questions about the limits of full-case transfer — under which police and the Serious Crime Investigation Agency would hand over all cases after completing primary investigations. The 2021 adjustment of investigative authority between prosecutors and police gave police the power to decide not to transfer cases. Even with full-case transfer, concerns remain that without supplementary investigation powers, simply requesting supplementary investigation would lead to delays in case processing.

Even if the right to request supplementary investigation is preserved, critics say the system still needs to be overhauled. Under the current Code of Criminal Procedure, prosecutors may request supplementary investigation from judicial police officers when necessary for deciding whether to bring charges or to maintain a prosecution. But there are longstanding complaints that such requests rarely change outcomes and tend to cause delays.

The prosecution service is expected to continue making its voice heard as the National Assembly-led process of amending the Code of Criminal Procedure moves forward. But with no clear means of changing the reality it faces, the institution is left with little more than deepening anxiety.

"The prosecution has consistently expressed its position that supplementary investigation powers and related authorities are necessary for it to faithfully carry out its core role of protecting human rights and victims," a Supreme Prosecutors' Office official said.

"Going forward, we will continue to express and convey the same position, and do our utmost to ensure that the restructuring of the prosecution system proceeds in a direction that benefits the public," the official added.