Abolition of Supplementary Investigations and the 'Privatization of the Prosecution'

Let us conduct a thought experiment.

Suppose there is a need to send an official document externally. The authority to approve the document lies with A. However, the authority to draft the document lies with B. Once B drafts the document and sends it to A, A reviews the content and decides whether to approve it. If approved, the document is sent externally; if not, it is not sent.
In this regard, we can assume two scenarios.

The first scenario is when A cannot directly revise or supplement the draft document written by B. Before deciding whether to approve it, A can "request" B to revise and supplement the content. However, A cannot directly modify the content of the document to decide whether to send it.

The second scenario is when A can directly revise or supplement the draft document written by B. A can still "request" B to revise and supplement the document, but A can also directly revise and supplement the content to align with their own intentions and then send it.

In which of these two scenarios is A more likely to send the document? The likelihood is higher in the second scenario. The reason is simple: in a situation where one does not have the authority to make final revisions and supplements to the content, taking "responsibility" becomes a burden.

If the document is sent externally, the "responsibility" for its content ultimately lies with A, the approver. However, in the first scenario, A must bear responsibility for a document that they could not directly revise or supplement in its final form. In contrast, in the second scenario, A takes responsibility for a document that they themselves have directly revised and supplemented.

In the first scenario, A would decide to send the document only if the draft sent by B—or resubmitted by B after several revision requests—perfectly aligns with A's intentions. In the second scenario, however, even if the document sent by B is of lower quality, A is highly likely to directly revise and supplement it to fit their intentions and then send it.

This thought experiment was created by me to explain the relationship between a prosecutor's decision on whether to indict and supplementary investigations. Here, A corresponds to the "prosecutor" and B corresponds to the "police (judicial police officer)." A's decision on whether to send the document corresponds to the prosecutor's "decision on whether to indict," and B's drafting of the document corresponds to the police's "investigation." Whether A can directly revise and supplement the draft sent by B corresponds to whether the prosecutor (A), who holds the indictment power, can directly conduct a supplementary investigation on the investigation results (draft document) forwarded by the police (B).

Through this, we can predict what changes will occur in a prosecutor's decision on whether to indict if they are no longer able to directly conduct supplementary investigations. Prosecutors are in a position where they must take responsibility in court for cases they decide to indict. (If they decide not to indict, they do not need to go to court and take responsibility.) Therefore, prosecutors will likely become cautious about indicting in cases where they cannot directly conduct supplementary investigations (revisions and supplements). This is because they would have to take responsibility in court for content that they did not investigate from the beginning and could not directly revise or supplement in its final form—even if they could request supplements. Unless the investigation results forwarded by the judicial police officer are so clear that they would lead to a guilty verdict in court without any major revisions, prosecutors are highly likely to decide not to indict.
Of course, even if prosecutors cannot directly revise and supplement (conduct supplementary investigations on) the investigation results forwarded by the police, they can still "request" supplementary investigations from the police to improve the completeness of the investigation. However, it is obvious in which scenario it would be easier to make an indictment decision: when one can directly make final revisions and supplements (supplementary investigation), or when one can only request revisions and supplements (request for supplementary investigation) without any guarantee that the police will supplement it as intended. This means that if prosecutors' authority to conduct supplementary investigations disappears, the non-indictment rate will rise. (Even if the non-indictment rate does not rise, the time taken to indict will increase significantly because requests for supplementary investigations will have to be repeated until the completeness of the investigation is sufficient for indictment.)

A higher non-indictment rate means that even if a crime occurs, the likelihood of the criminal (perpetrator) being indicted and punished will decrease. In particular, the non-indictment rate is expected to rise for crimes where wrongdoing is clear but establishing a legal case is difficult, or where the legal elements are relatively abstract, requiring the intervention of legal experts. This includes fraud, voice phishing, cryptocurrency crimes, stock price Distorted (manipulation), bribery, and violations of the Political Funds Act.

After the abolition of the prosecution's authority to conduct supplementary investigations, one could imagine a scenario where prosecutors lower their standards for deciding whether to indict, prosecuting cases based on investigation results that would not have been indicted in the past. In this case, the non-indictment rate itself might not drop. However, if prosecutors lower their standards to indict, the rate of acquittals in court will ultimately rise. Even if the non-indictment rate does not drop, it would be meaningless. Furthermore, since a higher acquittal rate means prosecutors must take responsibility, it is unlikely that prosecutors would lower their standards for indictment in the first place.
The ones who will suffer are the crime victims. This is because even for cases that would have been relatively easily indicted if the police's investigation results had been revised and supplemented through a prosecutor's supplementary investigation, the likelihood of a non-indictment decision will increase after the abolition of supplementary investigations. The delay in criminal case proceedings, which has already become serious since the 2021 adjustment of investigative powers, will also worsen.

It is not that there is absolutely no way to respond. One way is for crime victims to hire a lawyer to perform the function previously carried out by prosecutors before the abolition of supplementary investigation powers—namely, revising and supplementing investigation results from a legal expert's perspective. While prosecutors have previously been responsible for the post-processing work (supplementary investigation) of improving the completeness of investigation results so they can secure a guilty verdict in court, the abolition of prosecutors' supplementary investigation powers means that victims must directly hire legal experts to collect additional evidence or improve the completeness of the legal arguments. While this may not be as efficient as the indicting prosecutor directly revising and supplementing, it would be a way to slightly increase the likelihood of indictment.
Therefore, the abolition of prosecutors' supplementary investigation powers can be seen as a form of "privatization of the prosecution." Of course, even if supplementary investigation powers are abolished, functions such as deciding whether to indict and conducting trials in court will remain, so not all functions of the prosecution will be privatized. However, it is highly likely that a phenomenon will emerge where one of the core functions previously performed by prosecutors in relation to investigative procedures (supplementary investigation) becomes privatized.

This is because even if the law is revised to abolish prosecutors' supplementary investigation powers, the demand for the function that prosecutors have performed through supplementary investigations will not disappear. It is similar to how passing a law prohibiting the installation of air conditioners in public institutions would not eliminate the demand (need) of public institution users who want to use air conditioning in the middle of summer.

If a function (supplementary investigation) previously performed by a legal expert employed by the state (a prosecutor) is abolished through a legal revision, individuals will pay to hire a legal expert (a lawyer) to meet their need for that function. This is the "privatization of the prosecution's (core functions)" through the abolition of supplementary investigations.
The problem is that not all crime victims have the financial capacity to hire a competent lawyer. Of course, even when prosecutors conducted supplementary investigations, there were cases where victims hired lawyers. However, if prosecutors' supplementary investigations are abolished, the lawyer hired by the victim will have to take over the function (supplementary investigation) previously performed by prosecutors. The gap between crime victims who can afford to hire a lawyer and those who cannot will widen further, and the likelihood of indictment for cases involving victims with insufficient financial capacity will decrease even more.

This situation, which will unfold after the abolition of prosecutors' supplementary investigations, shares similarities with what happens in countries where the health insurance system is highly privatized. In some countries with privatized health insurance systems, people who lack financial means often hesitate to go to the hospital. Even if something happens that would have prompted them to visit a hospital without much hesitation in South Korea, many people treat themselves unless it poses an immediate, serious threat to their health.


If some of the core functions of the prosecution are privatized due to the abolition of supplementary investigation powers, a similar situation could occur in South Korea's criminal case processing. Swindlers with the money to hire major law firms may escape, while victims who cannot afford legal fees may give up and avoid visiting investigative agencies altogether—just like people in certain countries who do not visit hospitals unless they are severely ill because they fear medical costs.

When core public services that must be managed by the state are privatized, the socially vulnerable always suffer the most. While not all privatization is bad, the privatization of a core function like supplementary investigation is something that will compound the suffering of the socially vulnerable.

As some people say, the country will not collapse even if prosecutors' supplementary investigation powers are abolished. Even among so-called developed nations, there are countries where many citizens hesitate to go to the hospital due to fear of medical costs, and places where urban public safety is so unstable that it is difficult to go out after 10 p.m. Even in those countries, people adapt and live their lives.

However, forcing through a policy that inflicts pain on the socially vulnerable cannot be justified simply because the country will not collapse. Just as a policy that makes it difficult for the economically disadvantaged to go to the hospital should not be pursued, even if it does not immediately cause the country to collapse.

There is a reason why almost all expert groups engaged in criminal justice practice, regardless of their political inclinations, oppose the abolition of prosecutors' supplementary investigations. I hope that more cautious and responsible discussions will take place during the process of amending the Criminal Procedure Act.
※ Please note: This article was translated by AI and may contain errors.