Discussion and Alternatives on the Legislative Proposal for the Separation of Investigation and Prosecution

Recently, a group of lawmakers from the Democratic Party proposed the so-called “Four Major Prosecutorial Reform Bills,” which aim to abolish the Prosecutors’ Office and completely separate the functions of investigation and prosecution. This study first examines the key contents of the proposed bills : the Abolition of the Prosecutors’ Office Act, the Establishment and Operation of the Public Prosecution Office Act, the Establishment and Operation of the Serious Crimes Investigation Office Act, and the Establishment and Operation of the National Investigation Commission Act. Next, the paper highlights concerns that these bills are being pushed forward hastily under the Lee Jae-myung administration without a thorough evaluation of the achievements and shortcomings of the two rounds of prosecutorial reforms carried out during the Moon Jae-in administration. In particular, while the theoretical feasibility of separating investigation and prosecution may be acknowledged, it is argued that such a separation is extremely difficult—if not impossible—in practice. Rapid institutional changes may lead to the proliferation of investigative bodies and severe procedural confusion. Furthermore, although the establishment of the National Investigation Commission appears necessary in light of the reduced role of the prosecution and the creation of new investigative agencies, the Commission’s vast responsibilities and concentrated powers may undermine the independence of investigations and reduce procedural efficiency. This study also emphasizes that revisions must be accompanied by corresponding amendments to related laws, such as the Criminal Procedure Act. In light of the ruling party’s majority in the National Assembly, the paper argues that while respecting the policy direction of separating investigation and prosecution, it is also necessary to ensure the proper functioning of the criminal justice system. Since the Constitution grants prosecutors the authority to request warrants, it is impossible to abolish the prosecutorial function of the Prosecutors’ Office altogether. Therefore, the name of the Prosecutors’ Office should be maintained, with prosecutors retaining supervisory authority over investigations. This supervisory authority would include the power to request the initiation of investigations, require supplementary investigations from the police, directly conduct supplementary or related case investigations when necessary, and investigate crimes committed by other investigative bodies. In addition, the National Investigation Headquarters should oversee the functions of the Serious Crimes Investigation Office, while institutions such as the Corruption Investigation Office for High-ranking Officials (CIO), special prosecutors, and inspectors general should be actively utilized. In the long term, the establishment of specialized investigative bodies in specific fields may also be considered. Finally, this study emphasizes that prosecutorial reform should not aim merely at depriving prosecutors of investigative powers or restricting their authority. Rather, its true goal should be to restore fair and efficient investigative functions in order to protect and serve the people. To achieve this, the participation and efforts of not only politicians in the National Assembly but also a broader range of stakeholders are required.