Prosecutors Lose Investigative Powers in Landmark South Korean Legal Reform

South Korea's National Assembly has passed a landmark bill fundamentally overhauling the nation's 72-year-old criminal justice system by abolishing prosecutors' investigative powers. The reform, approved by a significant majority, aims to shift the balance of power in criminal investigations and prosecutions.

Under the new legislation, prosecutors will be barred from initiating investigations in any form. Following the abolition of the Prosecutor's Office on October 2, a new prosecution agency will handle indictments and case maintenance. Meanwhile, a newly established Major Crimes Investigation Agency will specialize in investigating corruption, economic crimes, and other significant offenses. This restructuring marks the most substantial revision to the Criminal Procedure Act since its enactment in 1954.

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There are many things to amend, from a minimum of 136 to a maximum of 190.

The transition, however, is expected to be complex, requiring months to align related laws and regulations and redefine roles among investigative bodies. The Democratic Party, a key proponent of the reform, is working to amend up to 190 related laws and lower-level decrees to reflect the changes. Concerns linger about potential legal inconsistencies and the practical implications of the reform, particularly regarding the process for extending detention periods.

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The prosecutor can request an extension of the detention period, but cannot investigate. This is inconsistent with the legal system.

Critics point to potential contradictions within the revised law. For instance, while prosecutors can conduct limited fact-finding for indictment decisions, any evidence gathered in this process may not be admissible in court. This could lead to delays in case processing and potential human rights concerns, especially in sex offense cases, as victims might need to provide testimony again to the police. Furthermore, the provision allowing prosecutors to request detention extensions, even without direct investigative authority, has drawn criticism for potentially clashing with constitutional provisions that grant prosecutors the right to directly request arrest warrants.

The reform also raises concerns about the potential for inadequate investigations by the police, particularly in cases initiated by law enforcement rather than through complaints. Victims may face significant financial and time burdens if they need to hire private lawyers to pursue appeals in such cases, disproportionately affecting vulnerable individuals. The full implementation and integration of these changes are anticipated to take at least six months, with ongoing efforts to ensure a smooth and legally sound transition.

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The provision that limits the prosecutor's right to request an arrest warrant only 'upon the police's application' itself has grounds for being unconstitutional.