Abolishing Prosecutors’ Investigative Powers, Yet Launching Another Special Counsel... What About Seconded Prosecutors?

[Financial News] An amendment to the Criminal Procedure Act of the Republic of Korea that would abolish prosecutors’ investigative powers and a special counsel bill targeting the National Election Commission (NEC) over the shortage of ballots are both set to be introduced at the National Assembly plenary session on the 30th. The legal community is questioning whether it makes sense to launch a special counsel, which exercises both investigative and prosecutorial powers, while stripping prosecutors of their investigative authority.
According to the legal community on the 29th, the ruling and opposition parties are sharply divided over the Criminal Procedure Act amendment, but they are aligned on introducing a special counsel.
Critics in the legal community say the two bills are inconsistent with each other. Under the special counsel bill proposed by Han Byung-do of the Democratic Party of Korea (DPK), the special counsel must complete the investigation within 90 days after a 20-day preparation period. If the team begins work at the end of next month, the actual investigation would not get underway in earnest until mid-September. That means most of the investigation period would fall after Oct. 2, when prosecutors’ investigative powers are set to disappear.
Seconded prosecutors are seen as a particular problem. Although a special prosecutor is appointed under a separate law and holds an exceptional status, seconded prosecutors join the special counsel team while still retaining their status as prosecutors.
“A prosecutor who could not investigate while on their original team can suddenly investigate the moment they move to the special counsel team,” said a senior prosecution official. “Soon we will see the absurd situation where some prosecutors can investigate and others cannot.”
The number of prosecutors to be seconded to the NEC special counsel is also significant. The DPK bill sets the special counsel team size at one special prosecutor, five deputy special prosecutors, and 30 seconded prosecutors. That stands in contrast to the comprehensive special counsel team led by Kwon Chang-young, which has a quota of 15 seconded prosecutors and an actual workforce below that level.
This is not the first time the special counsel system has been criticized as a blind spot in discussions over prosecution reform. Earlier, the comprehensive special counsel team asked the National Assembly to extend the investigation period by 30 days and expand the quota for seconded prosecutors. It also requested that special investigators with law licenses be allowed to handle trial maintenance, a duty that is normally the prosecutor’s exclusive authority under the Criminal Procedure Act of the Republic of Korea. Even then, critics argued that it made no sense to say investigations and prosecutions would be separated while giving prosecutorial authority to investigators.
Still, some argue that the structure of the special counsel law does not create a legal problem. “In a special counsel team, it is correct to view no one other than the special prosecutor as holding prosecutor status,” said a lawyer who previously worked as a prosecutor. “Seconded prosecutors are prosecutors within the special counsel system, but they are also not prosecutors in that structure, so there is no legal or logical problem.”

[email protected] Kim Dong-gyu Reporter