With the June 3 local elections concluded, discussions on revising the Criminal Procedure Act are showing signs of getting on track. Yet inside and outside the legal community, concerns are growing that the Major Crimes Investigation Agency (MCIA) and the Public Prosecution Agency may not be established on schedule. The reason is that determining whether to retain or abolish prosecutors' supplementary investigation authority, a key issue in building the new criminal and judicial system, could be sidelined and left adrift amid political matters. The concern is that if the Criminal Procedure Act revision covering the fate of supplementary investigation authority is delayed, decisions on the MCIA and Public Prosecution Agency staffing quotas, as well as budget preparation and organizational structuring, could be delayed in succession.
According to the legal community on Saturday, the Prosecution Reform Task Force under the Office of the Prime Minister plans to unveil a draft amendment to the Criminal Procedure Act this month. The core issue is whether to retain or abolish supplementary investigation authority. Discussions within the task force are reportedly underway not only on whether to grant or abolish prosecutors' supplementary investigation authority, but also on alternatives such as granting supplementary inquiry authority. Also under discussion is a plan to revive the full-transfer system, which would require all cases investigated by primary investigative agencies such as the police to be referred to prosecutors. Prosecutors have submitted to the task force their view that if the police or the newly created MCIA do not refer cases they decline to forward to prosecutors, this effectively means the primary investigative agency decides whether to indict, which runs counter to the purpose of separating investigation and prosecution.
This amounts to reaching an important gateway, such as the Criminal Procedure Act revision, for introducing the new criminal and judicial system. But inside and outside the legal community, concern outweighs anticipation. With less than four months remaining until the abolition of the Prosecutors' Office, a "rapid-fire" decision could trigger various side effects such as burying cases and delaying investigations. Moreover, there are no few voices worried that if the Criminal Procedure Act revision—including the fate of supplementary investigation authority, a key task for launching the MCIA and Public Prosecution Agency—is delayed, the launch of the new criminal and judicial system could falter. The chain of "Criminal Procedure Act revision → MCIA and Public Prosecution Agency staffing decisions → budget allocation → organizational structuring" could be successively delayed, making disruptions inevitable in the launch of the new criminal and judicial system this October.
A legal community figure familiar with prosecution affairs pointed out, "The basis for the budget is the personnel who will work at each investigative agency, that is, labor costs, but currently not even the staffing quotas for the MCIA and Public Prosecution Agency have been determined." He added, "The Ministry of Justice and the Ministry of the Interior and Safety must submit the MCIA and Public Prosecution Agency budget proposals to the National Assembly by September at the latest, but I understand the work (to prepare the budget proposals) is still not being done properly." Because the staffing quotas have not been set, basic budget proposals such as labor costs have not been prepared, he said. He continued, "They are trying to first spend MCIA and Public Prosecution Agency launch costs by receiving them from the government's reserve funds, but it is known that approval (from the Ministry of Economy and Finance) is not being granted because the staffing quotas and organization are still not determined." He added, "Even after deciding on the building where the MCIA headquarters and Seoul office will move in, they have not even been able to conclude a basic contract." This is an analysis that the launch of the new criminal and judicial system is being delayed in succession as the Criminal Procedure Act revision work, including the fate of supplementary investigation authority, falls behind. On top of this, while the June 3 local elections have ended, the fact that political matters remain scattered—such as the second-half reorganization of the 22nd National Assembly and the Democratic Party of Korea's national convention—is cited as a factor amplifying the worried voices. Even if the task force produces a draft Criminal Procedure Act revision, more time could be required before it clears the National Assembly. Some have even raised the point that "the MCIA and Public Prosecution Agency will launch in October, but they may be unable to perform their roles because legal and institutional arrangements have not been properly made." The argument is that it could take a long time for the new criminal and judicial system to make a soft landing, due to side effects arising from various trials and errors.
A figure with prosecution experience who requested anonymity said, "What I worry about most is that it could become an empty cart that makes only noise—that is, it could end up like the current Corruption Investigation Office for High-ranking Officials (CIO)." He said, "The CIO did launch, but it cannot perform its role due to manpower shortages and legal and institutional deficiencies, and I have many worries about whether we will follow in those footsteps." He continued, "There is only a big picture, but a proper organizational structure determining which areas the MCIA and Public Prosecution Agency will handle has still not been decided." He added, "In the case of regional offices (of the MCIA and Public Prosecution Agency), large-scale personnel must be dispatched in the form of an advance team ahead of the launch to set up internal systems and prepare offices, but discussions have not even begun." If the first button is fastened wrong, the prosecution reform that prioritizes the separation of investigation and prosecution could remain a flawed precedent like the CIO, and the harm from various side effects could be passed on entirely to the public.
The first test raised is the investigation into violations of the Public Official Election Act related to the June 3 local elections. The statute of limitations for election crimes is six months from election day. Investigations must be completed and referred to trial by early December. However, in this process, the Prosecutors' Office will be abolished in October. The Public Prosecution Agency Act contains a proviso of "90 days" stating that "Public Prosecution Agency prosecutors may conduct investigations" even after the abolition of the Prosecutors' Office, but there is no small anxiety about possible confusion. According to the Public Prosecution Agency Act, for cases among those a prosecutor has begun investigating where the statute of limitations is imminent or where it is unavoidable in light of the nature of the case, the Public Prosecution Agency, public prosecution agencies at each level, and branch offices may continue to perform their duties as prescribed by presidential decree. However, that period extends only to 90 days after the law takes effect. Cases that have not been concluded must be transferred to the competent investigative agency as prescribed by presidential decree. Even after the abolition of the Prosecutors' Office, Public Prosecution Agency prosecutors can continue investigations for reasons such as an imminent statute of limitations, but because personnel may move to the MCIA and Public Prosecution Agency during the investigation process, some in the legal community have raised concerns about possible investigation confusion and delays.
