Abolition of Supplementary Investigation and 'Privatization of the Prosecution'

Let us conduct a thought experiment.

Suppose there is a task that requires sending an official document externally. The authority to approve the document lies with A. However, the authority to draft the content of the document lies with B. When 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 A decides not to approve it, the document 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 "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 the 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 of the document, 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 have personally revised and supplemented in its final form.

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


I created the above thought experiment to explain the relationship between a prosecutor's decision on whether to indict and a supplementary investigation. 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 document sent by B corresponds to whether the prosecutor (A), who holds the indictment authority, can directly conduct a supplementary investigation on the investigation results (draft document) referred 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. A prosecutor is in a position to bear responsibility in court for cases they decide to indict. (If they make a non-indictment decision, they do not need to go to court and bear responsibility.) Therefore, prosecutors will likely take a cautious stance on indicting cases where they cannot directly conduct supplementary investigations (revisions and supplements). This is because they must bear 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 referred by the judicial police officer are so clear that a guilty verdict in court is guaranteed without any significant revision, the prosecutor is highly likely to decide on non-indictment.

Of course, even if prosecutors cannot directly revise and supplement (conduct supplementary investigations on) the investigation results referred by the police, they can still "request" supplementary investigations from the police to improve the completeness of the investigation. However, it is obvious which scenario makes it easier to decide on indictment: the case where they can directly make the final revisions and supplements (supplementary investigation), or the case where they can only request revisions and supplements (request for supplementary investigation) with no guarantee that the police will supplement it according to their intentions. This means that if the prosecutor's authority to conduct supplementary investigations disappears, the non-indictment rate will rise. (Even if the non-indictment rate does not increase, the time required to reach an indictment will significantly increase because prosecutors will have to repeatedly request supplementary investigations until the completeness of the investigation is sufficient for indictment.)

An increase in the 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 bad deeds are obvious but legally difficult to construct as a crime, or where the elements of the crime are relatively abstract, requiring the intervention of legal experts. These include fraud, voice phishing, cryptocurrency crimes, stock price manipulation, bribery, and violations of the Political Funds Act.

After the abolition of the prosecution's supplementary investigation authority, one might consider 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 prosecutors must bear responsibility if the acquittal rate rises, it is unlikely that they would lower the 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 the prosecutor's supplementary investigation, the likelihood of non-indictment 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 no way to respond at all. There is a way for crime victims to hire a lawyer to perform the function previously carried out by prosecutors before the abolition of their supplementary investigation authority—namely, revising and supplementing investigation results from a legal expert's perspective. Until now, prosecutors have been in charge of the post-production work (supplementary investigation) to improve the completeness of investigation results so that they can secure a guilty verdict in court. However, if the prosecutor's supplementary investigation authority is abolished, it means that victims must directly hire legal experts to collect additional evidence or improve the completeness of the legal construction. While this may not be as efficient as the prosecutor, who holds the indictment authority, directly revising and supplementing the case, it will be a way to slightly increase the likelihood of indictment.

Therefore, the abolition of the prosecutor's supplementary investigation authority can be seen as a form of "privatization of the prosecution." Of course, even if the supplementary investigation authority is 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 one of the core functions previously performed by prosecutors in relation to investigative procedures (supplementary investigation) will undergo privatization.

This is because even if the law is amended to abolish the prosecutor's supplementary investigation authority, the demand for the function previously performed by prosecutors through supplementary investigations will not disappear. It is just like how passing a law that bans the installation of air conditioners in public institutions would not make the demand (need) of public institution users to use air conditioners in the middle of summer disappear.

If the function (supplementary investigation) previously performed by a legal expert employed by the state (a prosecutor) is abolished through a legal amendment, 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 function)" through the abolition of the prosecution's supplementary investigation.

The problem is that not all crime victims have the financial capacity to hire a competent lawyer. Of course, even when prosecutors performed supplementary investigations, there were cases where victims hired lawyers. However, if the prosecutor's supplementary investigation is abolished, the lawyer hired by the victim must also take charge of the function (supplementary investigation) previously performed by the prosecutor. 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 means will decrease even more.

The situation that will unfold after the abolition of the prosecutor's supplementary investigation shares similarities with what happens in countries with highly privatized healthcare systems. In some countries where the healthcare system is privatized, people with limited financial means often hesitate to go to the hospital. Even if something happens that would make them visit a hospital without much hesitation in South Korea, many people treat themselves unless there is an immediate and serious threat to their health.


If some of the core functions of the prosecution are privatized due to the abolition of the supplementary investigation authority, a similar situation could occur in South Korea's criminal case processing. Swindlers who have the money to hire large law firms will escape, while victims who cannot afford legal costs may give up entirely without even visiting investigative agencies. Just like people in some countries who do not visit hospitals unless they are seriously ill because they are afraid of medical costs.

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


As some people say, even if the prosecutor's supplementary investigation authority is abolished, the country will not collapse. Even among so-called developed nations, there are countries where many citizens are reluctant to go to the hospital because they are afraid of medical costs, and places where urban security is so unstable that it is difficult to go out after 10 p.m. Even in those countries, people adapt and live on.

However, the fact that the country will not collapse cannot justify pushing through policies that will inflict pain on the socially vulnerable. Just as we should not promote policies that make it difficult for the economically disadvantaged to go to the hospital, even if it does not immediately cause the country to collapse.

There is a reason why almost all expert groups engaged in criminal practice oppose the abolition of prosecutors' supplementary investigations, regardless of their political inclinations. 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.