[Column by Nodong-il] A Preview of a 'World Without the Prosecution Service'

"It is better that ten guilty persons escape than that one innocent suffer." This legal maxim, known as Blackstone's ratio, was systematized by 18th-century British jurist William Blackstone. It underscores the core principles of modern criminal law: the principle of legality, the presumption of innocence, and careful investigation and trial. Critics say it places too much emphasis on the rights of criminals, but it helped replace premodern criminal justice practices such as torture. The principle was established that even if the prosecution service fails to punish the actual culprit because the evidence is insufficient, no innocent person should be made to suffer. Of course, that is not the ideal outcome. The best result would be to catch the culprit and avoid harming the innocent. Missing the culprit and creating an innocent victim is the worst-case scenario.
Recently, there was a report headlined, "In the conflict over investigative powers between the prosecution service and the CIO... BAI official not indicted over '13 billion won bribery allegation.'" An executive at the BAI, identified only as A, was investigated on suspicion of receiving more than 1.58 billion won in bribes since 2013. In November 2023, the CIO sought an arrest warrant for A, but the court rejected it, saying there was not enough direct evidence. The CIO sent the case to the prosecution service without supplementary investigation. The prosecution service asked the CIO to conduct additional investigation, but the CIO refused, saying there was no legal basis. The prosecution service then sought a warrant, but the court dismissed it, saying the prosecutor's authority to conduct further investigation in CIO cases was unclear. Last June, the prosecution service brought only the allegation involving 290 million won in bribes, for which the statute of limitations was nearing expiration, to trial. It was unable to indict the remaining 1.29 billion won bribery allegation.
It is truly absurd. This was not a case of letting a criminal go free in order to prevent an innocent person from being harmed. It is a backlash from the so-called "prosecution reform" that stripped the prosecution service of its investigative powers and led to calls for its dismantling. Although this case involves the CIO and the prosecution service, the same thing could happen at any time in relations between the police and the prosecution service as well. It clearly shows what happens when the prosecution service's right to request supplementary investigation is not institutionally supported and the prosecution service itself has no supplementary investigative authority.
Attorney Jung Soo-kyung, who has served since 2012 as a state-appointed lawyer for child abuse and sexual violence victims at the Seoul Central District Prosecutors' Office, appeared as a witness at the Parliamentary Inspection of the Administration of the Legislation and Judiciary Committee last October. She said, "The issue is how much protection crime victims receive from public authority when they are harmed." She was drawing attention to the prosecution service's role in protecting crime victims. Jung said, "In the past, the police and the prosecution service each protected crime victims with their own umbrella, but after the adjustment of investigative powers, the prosecution service's authority was greatly reduced," and raised concerns. She added that a recent police decision not to send a case to prosecutors was devastating: "The decision said only this: the victim claims she was sexually assaulted, the suspect says he did not do it, and there is no suspicion, so the case will not be sent to prosecutors."
The side effects of prosecution reform have been described in many ways. Repeated rounds of police investigation, requests for supplementary investigation by the prosecution service, and re-investigation by the police have created a kind of "case ping-pong," greatly lengthening case processing times and deepening victims' psychological distress. The heavy workload on the police has also lowered the quality of investigations, with insufficient legal review and perfunctory non-referral decisions. Even when criminal suspicion is clear, cases can end up buried because of "insufficient evidence." Another problem is that when the police decide not to refer a case, victims must directly find evidence or legal errors and file an objection before the prosecution service can review the case. In particular, there are concerns that victims of sexual violence, people with disabilities, and other crime victims may need to hire their own lawyers in order to receive a proper investigation. It is hard not to ask, "Are they saying we should not file a complaint unless we have a lawyer?"
Criminals are missed, and innocent victims of crime are multiplied. That is what a preview of a world without the prosecution service looks like. If the mistakes of "prosecution reform" are not corrected now, the criminal justice process in the Republic of Korea could face the worst possible outcome in the future. This is not a matter of conservatism or progressivism, or of political stance. Security and public order are basic functions of the state. They include the military function of defending territory from external invasion and the policing function of protecting citizens from crime. If the weak crime-response system is left as it is, the country's basic functions will suffer a serious operational failure.
The police should send all investigative materials to the prosecution service, and the system should be redesigned so that the police and the prosecution service can establish a relationship of mutual checks and cooperation through the prosecution service's right to request supplementary investigation and its supplementary investigative authority. Even so, "if you really dislike the prosecution service and do not want it to have even a small investigative power, then you must firmly support the police. You need to back the police so they can conduct high-quality investigations, whether with money or manpower." (Jung Soo-kyung) Politicians should listen to the desperate voices of those who face citizens' suffering every day on the ground. "Before it is too late" is especially important.
dinoh7869@fnnews.com Reporter