THE RULING Democratic Party (DP), now replaced by the newly elected Yoon administration, managed to accomplish its last task at its final cabinet meeting on May 3: promulgating two bills on prosecution reform. The legislation is aimed at reducing the Korean Prosecution Service’s (KPS) power of investigation[1]. The journey toward prosecution reform has not been an easy one due to endless controversies and strong opposition from the People Power Party (PPP) ever since the bills were first proposed. While many praise the long-awaited prosecution reform as an undeniable achievement, it continues to be a burning issue.

The history of prosecution reform

   Geom-soo-wan-bak, or prosecution reform, is an abbreviated term for “complete deprivation of the prosecutorial investigative right.” According to standard procedure, the police conducts primary investigations before handing cases over to the KPS, who charge criminals and transfer them to the justice department. The role of the KPS is to rectify possible errors in initial police investigations and decide whether a case should be sent to trial or not[2]. In this way, prosecutors hold not only the right of prosecution, but also investigative power. Hence, the police and the KPS have long been in a deadlock over their authority in criminal investigations.

   Accordingly, prosecution reform has been a persistent agenda in Korean politics due to the KPS’s excessive power and lack of neutrality in investigations. Prosecution reform movements trace back to the Roh Tae-woo administration in 1991, when the KPS was denounced as a “slave” to political power[3]. In 1994, the KPS displayed a lack of neutrality when investigating one of the Roh administration’s biggest corruption scandals: the preferential sale of housing sites in Suseo-dong. Former President Roh was involved in the scandal, but the KPS did not investigate these accusations, raising allegations about bias towards the executive power[4]. Over time, proponents of prosecution reform began advocating for the diffusion of prosecutorial authority; however, the actions taken never led to drastic outcomes[3].

The Moon administration’s initiative

   The Moon Jae-in administration inherited past governments’ ambitious promise to achieve prosecution reform. According to an opinion poll conducted by Hankook Research in 2017, during the earlier days of the Moon administration, 31% of the 1,000 respondents believed that the “new” government’s most urgent task was prosecution reform[5]. Responding to such national sentiments, President Moon appointed Cho Kuk as Minister of Justice in 2019 in order to enforce reform; however, the “Cho Kuk Gate” scandal brought these ambitions back to square one[6]. Still, the Moon administration persevered and revised the Criminal Procedure Act and the Prosecutors’ Office Act in January, 2020[1]. The bills gave the police more investigative authority, such as closing probes without prosecutorial approval[1]. Most importantly, prosecutors could no longer command police probes and could only investigate six particular types of major crimes: corruption, economic crimes, violation of laws governing public servants, election law violations, crimes of procurement projects, and large-scale accidents involving high casualties[1]. In December, 2020, the National Assembly passed the Establishment and Operation of the Corruption Investigation Office (CIO) for High-ranking Officials Act, which was the crux of the Moon administration’s plan to contain the prosecution’s excessive authority[1]. The CIO officially launched in January, 2021[6], breaking the previous standard of the KPS monopolizing the authority of indictment.

   The ruling DP’s final goal was to completely deprive the KPS of its investigative power and limit its capabilities to solely making charges. The Moon administration sped up the reform process before then President-elect Yoon took office because he was a public prosecutor who continuously expressed strong opposition to prosecution reform. As president, he could have easily vetoed the bill once it reached his desk.

   On April 15, the DP proposed to make final amendments to the Prosecutors’ Office Act and the Criminal Procedure Act in order to strip the KPS of any form of investigative authority[1]. National Assembly Speaker Park Byeong-seug came up with a compromise proposal to address the PPP’s concerns, which limited the KPS’s investigative authority to two types of crimes—corruption and economic crimes—rather than completely diminishing it[1]. The PPP initially agreed to the plan but suddenly pulled out of the compromise, which rendered the agreement void. This did not stop the DP from continuing what it had started. Utilizing the DP’s majority seat in the National Assembly, it unilaterally passed two bills on prosecution reform—the Prosecutors’ Office Act and the Criminal Procedure Act—through a parliamentary committee on April 27[1]. Finally, Moon promulgated the two controversial bills in his final cabinet meeting, separating the KPS’s authority of indictment and investigation[5]. The final, revised law will take effect starting September this year.

An unresolved dispute?

   The dispute over prosecution reform seemingly ended with the revised versions of the Prosecutors’ Office Act and the Criminal Procedure Act. However, concerns remain in terms of the reform’s genuine alignment with public opinion, which is to solve the fundamental problem of keeping a balance of power between the prosecution and the police. The PPP and President Yoon’s presidential transition committee have suggested pursuing a referendum on the controversial bills, which, according to the National Election Commission (NEC), turned out to be impossible due to a Constitutional Court precedent[7]. Furthermore, a recent opinion poll conducted by Gallup Korea revealed that 47% of 1,000 respondents considered the recent legislation on geom-soo-wan-bak wrong, while only 36% said that it was right[1].

   The reason why the passing of geom-soo-wan-bak is still embroiled in controversies despite the historically high demands for prosecution reform is because of its skewed main focus. Some experts point out that depriving the KPS of its investigative power cannot be the core basis of prosecution reform. Han Sang-hie (Prof., Konkuk Univeristy Law School) stated, “In the entire process of prosecution reform, the government has been completely focused on weakening the power of the KPS without defining the proper objectives or the values it seeks[5].” He further stated that while the problematic aspects of the KPS lie in its top-down structure and investigative power, the reform movement focused mostly on the latter issue[5]. Han claimed that genuine prosecution reform can only be achieved by transforming the prosecutorial organization before deliberating on how to contain the police’s strengthened authority[5]. 

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   The fundamental goal of prosecution reform is to secure objectivity and fairness of investigation in order to maintain a well-functioning Korean society without political corruption or abuse of power. However, given that President Yoon appointed public prosecutor Han Dong-hoon, one of his closest confidants[5], as the new Justice Minister, the political war on investigative authority remains unresolved. Han has been publicly slating the prosecution reform, saying that he will look for ways to minimize any negative impacts it might have[1]. Citizens should keep paying attention to the issue and make sure that prosecution reform aligns with their interests of justice and transparency.

[1] Yonhap News

[2] Korean Prosecution Service (KPS)

[3] Kyunghyang Shinmun

[4] The Chosun Ilbo

[5] Hankyoreh

[6] Korea JoongAng Daily

[7] KBS World