▲ Prosecution
The Supreme Court has reaffirmed the legal principle that when a prosecution investigator initiates a substantive investigation under a prosecutor's direction, the supervising prosecutor is considered to have initiated the investigation at that point.
Article 4, Paragraph 2 of the Prosecutors' Office Act stipulates that a prosecutor cannot indict a crime for which they themselves initiated the investigation.
This rule was established to separate the investigation authority from the prosecution authority.
The Supreme Court overturned a lower court ruling that had dismissed an indictment, holding that when a different prosecutor who later took over the case filed the direct indictment, it did not violate the principle of separating investigation and prosecution under the Prosecutors' Office Act.
The Supreme Court's First Division (Presiding Justice Ma Yong-ju) overturned the lower court's decision last month, which had dismissed the indictment against a 69-year-old individual surnamed A indicted for violating the Improper Solicitation and Graft Act, and remanded the case to the Seoul Central District Court.
A, formerly a graduate school director of fine arts, was sent to trial alongside B (55) on charges of receiving 30 million won in cash in 2019 from B, a graduate student and disciple.
B also faced charges of violating the Board of Audit and Inspection Act for failing to comply with three requests to appear before the Board of Audit and Inspection without justifiable grounds between May and July 2022.
The Chair of the Board of Audit and Inspection requested an investigation from the Prosecutor General in July 2022, and the case was assigned to the Seoul Central District Prosecutors' Office.
A month later, an investigator at the Seoul Central District Prosecutors' Office initiated the investigation under the direction of Prosecutor C, drawing up reference witness statement protocols and suspect interrogation protocols.
The investigator subsequently received investigative directions from Prosecutors D and E, and after completing a crime recognition report in February 2024, transferred the case to Prosecutor E.
Prosecutor E conducted additional investigations and brought the indictment in August of that year.
The core issue was whether this process violated the principle of separating investigation and prosecution under the Prosecutors' Office Act.
Unlike the first trial, which found the defendants guilty, the second trial dismissed the indictment.
The appellate court determined that Prosecutor E, who received the case transferred from the investigator and conducted supplementary investigations, served as both the investigation-initiating prosecutor and the prosecuting prosecutor, thereby violating the separation principle.
However, the Supreme Court ruled that the prosecutor who initiated the investigation was Prosecutor C, not Prosecutor E. The Supreme Court reaffirmed the legal principle that "initiation of investigation" under Article 4, Paragraph 2 of the Prosecutors' Office Act refers to instances where a prosecutor initiates the initial investigation into a crime and handles the primary investigation.
The court further stated, "Even if a prosecution investigator undertakes an investigation regarding a certain crime, this must be regarded not as the investigator's initiation of an investigation, but as 'a prosecutor's own initiation of an investigation' under the main text of Article 4, Paragraph 2 of the Prosecutors' Office Act."
This is because prosecution investigators merely conduct investigations under a prosecutor's direction, and there are no regulatory grounds granting them the general investigative powers recognized for judicial police officers.
In this case as well, because the prosecution investigator undertook investigative acts such as drafting suspect interrogation protocols under Prosecutor C's direction, it must be deemed a crime for which Prosecutor C initiated the investigation.
Therefore, even though Prosecutor E received the transfer of this crime, conducted additional investigations, and filed the indictment, it was not viewed as bringing an indictment for "a crime for which [the prosecutor] initiated the investigation."
Consequently, the Supreme Court found that the lower court erred in its legal interpretation regarding the application of Article 4, Paragraph 2 of the Prosecutors' Office Act, overturned the lower court judgment, and sent the case back for reconsideration.
Last July, the Supreme Court issued its first clear ruling clarifying that an investigation initiated by a prosecution investigator under a prosecutor's direction also falls under a crime for which a prosecutor has initiated an investigation.
(Photo: Yonhap News)
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