A sitting law professor has filed a constitutional complaint with the Constitutional Court, arguing that key provisions of the Public Prosecution Service Act and the Serious Crimes Investigation Agency Act violate the Constitution. Attention is now focused on how the Court will rule ahead of the two laws' scheduled implementation on October 2.
Lee Ho-sun, a professor at Kookmin University's College of Law and former vice president of the Korean Constitutional Law Association, filed the constitutional complaint on Tuesday. The challenge targets Article 4, Paragraph 1 of the Public Prosecution Service Act, which strips prosecutors of all investigative authority, and Article 56, which abolishes their power to direct investigations. It also covers Article 3, Paragraph 1 of the Serious Crimes Investigation Agency Act, which places the agency under the Minister of the Interior and Safety; Article 6, which grants the minister supervisory authority; and Article 43, Paragraph 3, which mandates compliance with case transfer requests.
Lee argues these provisions violate constitutional rights including human dignity and the right to pursue happiness (Article 10), personal liberty and due process (Article 12, Paragraph 1), the right to personal protection under the warrant requirement principle (Article 12, Paragraph 3), and the right to trial as a suspect or crime victim (Article 27, Paragraph 1).
"The criminal justice system is a subject of institutional guarantee under the Constitution," Lee said. "This legislation has destroyed its core domain."
He pointed out that the Constitution specifically stipulates "a prosecutor's request" in its warrant requirement provision and designates the Prosecutor General — alongside the Chairman of the Joint Chiefs of Staff, chiefs of staff of each military branch, and presidents of national universities — as a matter subject to State Council deliberation. The legislation, he argued, violates the essential content of the constitutionally established criminal justice system.
Lee particularly emphasized that the separation of investigation and indictment in practice dismantles the overall system of checks on investigative agencies. He identified six layers of checks that have been neutralized: prosecutors' substantive control over investigations, the dual-control function of the warrant system, the independence of indictment decisions, effective remedies against decisions not to investigate or prosecute, competitive checks among investigative agencies, and integrated oversight responsibility over criminal justice.
"Granting police — which already monopolize information — a de facto monopoly over the initiation and conclusion of investigations, while placing their head under the Minister of the Interior and Safety, who is inevitably a partisan figure, creates an institutional foundation for a police state unprecedented anywhere in the world," Lee said. "The claim that separating investigation and indictment is an international trend is itself a distortion of fact."
He argued that the international trend is to "separate while strengthening checks," not to "separate while dismantling checks."
"Under the Public Prosecution Service Act framework, if investigative agencies refuse to open an investigation, prosecutors have no means to correct this, and crime victims are completely blocked from entering the criminal justice system," Lee said. "This is structurally identical to the scene of commoners weeping and turning away at the gates of government offices 200 years ago."
"These laws will turn the police into an unwanted monster," he added. "The Constitutional Court now stands at a crossroads — whether to position the Republic of Korea as a police state unprecedented in the history of liberal democratic constitutionalism."