The latest amendments to Korea’s Criminal Procedure Code (the “CPC”) and the Prosecutors’ Office Act (the “POA”), intended (among others) to limit the prosecution’s power to conduct investigations directly, was passed by the National Assembly on May 9, 2022 and is scheduled to come into effect on September 10, 2022. Some of the key amendments, as well as the answers to some frequently asked questions (FAQ) on such amendments, are provided below.
I. Key Amendments
A. Reduction of the scope of crimes for which the prosecution may initiate investigations
The current POA limits the crimes for which the prosecution may directly initiate investigations to the following six types of crimes: “corruption crimes”, “economic crimes”, “crimes of public officials”, “election crimes”, “defense industry crimes”, and “catastrophes”. Under the new amendments, the prosecution’s power to directly initiate investigations is further restricted to just two types of crimes – “corruption crimes” and “economic crimes”. That said, the amendments provide for a transitional period for “election crimes” until December 31, 2022, after which the statute of limitations for crimes relating to Korea’s regional elections held on June 1, 2022 would lapse (Article 3 of the Addenda to POA).
B. Exclusion of the accuser from the scope of persons able to file an objection to the senior judicial police officer’s decision not to transfer the case to the prosecution
The current CPC provides that, in the event a senior judicial police officer decides not to transfer a case to the prosecution, the “complainants, accusers, victims, or their representatives” may file an objection with the head of the police station to which the senior judicial police officer belongs (Article 245-7(1) of the CPC). The amended CPC removes the “accuser” from the scope of persons able to file such an objection. As such, only the “complainants, victims, or their representatives” may file such an objection under the new CPC.
C. Reduction of the scope of supplemental investigations by the prosecution
The CPC currently in effect provides that the prosecution may conduct supplemental investigations in certain circumstances such as where the case was transferred because violation of due process during inspection of place of detention is suspected or because the complainant has filed an objection. The new amendments add the requirement that such supplemental investigations must not only be directly related with the case but also be limited in scope to the extent that such investigations do not deviate from the essence of such case (Article 196(2) of the amended CPC). However, the prosecution’s power to conduct investigations for cases transferred following a recommendation for indictment is not subject to such restrictions and, as long as the investigation is directly related to the case, the prosecution may initiate supplemental investigations. Furthermore, the amendments also (i) prohibit the prosecutor who initiated the investigation of a crime from filing an indictment on that crime, (ii) require the Prosecutor General to report to the National Assembly every quarter the current status of the divisions that have the authority to conduct investigations directly, and (iii) prohibit conducting investigations that deviate from the essence of the case.
Q1) For which corruption and economic crimes may the prosecution directly initiate investigations?
According to the Regulation on the Scope of Crimes that the Prosecutors can Initiate Investigations and the Enforcement Rule on the same, the prosecution may initiate direct investigations for the following crimes. That said, as the Regulation and the Enforcement Rule are promulgated by Presidential Decree and Ministry of Justice Ordinance that may be amended without being put to a vote in the National Assembly, the scope below may be modified again in the future.
Q2) Does the prosecution hold exclusive investigative powers over corruption and economic crimes involving KRW 500 million or more?
No. Just because the prosecution may directly initiate investigation of certain crimes does not mean that the police’s investigative power over such crimes are restricted. Nonetheless, it is likely that the prosecution would be more actively involved in conducting direct investigations in such matters in order to maintain their investigative powers and to strengthen their expertise over such matters. For instance, the prosecution may look to establish a policy of directly investigating all corruption and economic crimes where criminal complaint or accusation is submitted to the prosecution.
Q3) What are some of the effects of the excluding the accuser from the scope of persons able to file an objection?
As the accuser can no longer file an objection to the police’s decision not to transfer the case to the prosecution, in case of such a decision the case would then be closed at the police level under the new amendments. For instance, if the tax offices were to file an accusation for violation of the Punishment of Tax Offenses Act or if the Financial Supervisory Services were to file an accusation for violation of the relevant laws, they would not be able to raise an objection if the police decide not to transfer the case to the prosecution. The same is also true for violations of administrative regulations such as the Building Act, the Farmland Act, and the Mountainous Districts Management Act, for which the heads of local governments may file an accusation. There have been some debates as to the constitutionality of this provision and it is possible it would be subject to a review by the Constitutional Court.
Q4) Are the accusers barred from filing an appeal or an application for adjudication?
As the new amendments provide that the cases that have been initiated by filing an accusation will be closed if the police decide not to transfer it to the prosecution, in principle the accuser cannot lodge an appeal or make an application for adjudication. That said, if the police decide not to transfer a case to the prosecution the police must send that record to the prosecution, and the prosecution may request for a reinvestigation within 90 days if the police’s decision not to transfer the case is either unlawful or unfair. The accuser may be able to seek relief through this procedure.