Prosecution reform should start in the National Assembly, not with Cho Kuk

Last Saturday, a candlelight protest calling for prosecutorial reform was held in Seocho. It was the first large-scale candlelight protest in 30 months since the candlelight rally commemorating the March 2017 ruling to impeach former President Park Geun-hye. Although there is controversy over the actual number of participants, it is nonetheless clear that the event was significant as a large-scale act of political participation involving tens of thousands of people or more.

Even so, evaluations of the protest are divided. Although tens of thousands of citizens ostensibly called for “prosecutorial reform,” there is also doubt as to whether, beneath the surface, the protest was really expressing support for Justice Minister Cho Kuk or for President Moon Jae-in. In fact, on the day of the protest, demonstrators shouted slogans such as “Protect Cho Kuk” and displayed President Moon Jae-in’s face, actions that cast doubt on the protest’s true message.

This is fundamentally based on the view that Minister Cho is “the right person for prosecutorial reform.” If one believes that Minister Cho is the very person capable of carrying out prosecutorial reform well, then one comes to think that protecting him is necessary for the sake of prosecutorial reform. Some even treat voices opposing Minister Cho as equivalent to voices opposing prosecutorial reform. It may be described as a kind of psychological tendency to regard Minister Cho as a heroic leader.

However, prosecutorial reform cannot be achieved by protecting a single minister. At present, there is broad consensus in our country across both the ruling and opposition parties on the need for prosecutorial reform. And this consensus seems to begin from the recognition that the prosecution’s powers are excessive. For example, there are problems such as prosecutors, who monopolize the power to indict, also exerting influence over investigations, or prosecutors, who should remain within the sphere of criminal law, encroaching on the sphere of civil law.

These are all problems that must be resolved through the establishment of proper institutions. For example, the issue of the prosecution’s investigative authority stems from what is prescribed by the current Criminal Procedure Act, so a legal amendment like Japan’s Criminal Procedure Act, which limits the prosecution’s investigative powers to only when necessary,1) could be effective. To check the prosecution’s power to indict, policy objectives could also be achieved by establishing an ex post control mechanism like Japan’s Prosecution Review Commission,2) so that the prosecution does not monopolize indictment authority.

The prosecution’s encroachment on the sphere of civil law is likewise due to the inadequacy of civil mediation and arbitration systems. For example, when a problem of personal monetary debt default arises in Korea, it is extremely common for a creditor to file a criminal fraud complaint against the debtor. As a result, fraud and property crime cases account for one-third of all criminal cases in Korea. By contrast, in the United States, where most monetary disputes are resolved in advance through various civil mediation and arbitration systems, this figure is only 8 percent. Because institutions are sufficiently well established, individuals do not rely on the force of criminal punishment, and prosecutors likewise do not intrude into the sphere of civil law.

In the end, the task of prosecutorial reform lies not in the hands of the Minister of Justice but in those of the legislature. The legal system must be restructured so that the prosecution’s power to indict can be checked and its investigative powers adjusted, and civil institutions must be established to mediate disputes between private parties. Of course, given the characteristics of Korea’s presidential system, the executive branch can also introduce bills, but this is merely for administrative convenience. In matters of legislation, our Constitution clearly declares that the National Assembly is to play the leading role.

Yet the recent conduct of the National Assembly has been disappointing. The Democratic Party of Korea has continued to express the message that protecting Minister Cho is the way to complete prosecutorial reform, while the Liberty Korea Party has done nothing more than voice opposition to Minister Cho and has failed to present its own blueprint for prosecutorial reform. However much opinions may differ over the intensity of reform, neither side is properly reflecting public sentiment, which shares both distrust of the prosecution and recognition of the need for reform.

The crime of adultery, which had been criticized for allowing criminal punishment—something that should be a last resort—to intrude into the realm of morality, was abolished in 2015 through a Constitutional Court ruling of unconstitutionality. But the fact that, even up to that point, no legislative discussion had taken place in the legislature over the adultery law is disappointing. It raises the suspicion that perhaps the National Assembly has so far merely used the issue of prosecutorial reform for political purposes. Even now, I hope the National Assembly will show genuine sincerity on prosecutorial reform.

1) Article 195 of Korea’s Criminal Procedure Act explicitly states, “When a prosecutor believes that there is suspicion of an offense, the prosecutor shall investigate the offender, the facts of the offense, and the evidence.” By contrast, Article 191(1) of Japan’s Criminal Procedure Act provides, “A public prosecutor may investigate a crime on his/her own initiative when he/she deems it necessary.”

2) Japan’s Prosecution Review Commission is composed of citizens and examines whether a prosecutor’s decision not to indict is justified. Unlike Korea’s Prosecutorial Citizen Committee, it has legal binding force and can compel a prosecutor to bring an indictment.

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Original title: 검찰개혁은 조국이 아닌 국회에서 시작되어야 한다

Author: Jae-min Park

Date: 2019-10-01

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=free_opinion&pn=17&idx=21927