The Koreas | Politics | East Asia

South Korea’s Biggest Criminal Justice Reform

Controversy is raging over how – and how much – to shave the prosecutors’ inordinate powers.

France’s legal reform in 1808 laid down the cornerstone of modern prosecution. It effected separation of powers for its criminal justice system, compartmentalizing investigation, prosecution, and trial to be handled by different parties. Putting any of the two elements within one hand had almost inevitably led to judicial prejudice and abuse of power. Most of Europe soon followed the French model. And today, developed liberal democracies hew to this legal sanctity and practice.

South Korea, however, is an exception. Its prosecution is highly centralized with a monopoly on investigation and prosecution – a model more commonly found in autocracies. The prosecutors also exercise coercive powers reserved for the police in other countries. They have used their distended legal capabilities to pull strings behind South Korean politics. 

For people they no longer wish to see in public, they dig up dirt first with the assumption they must be guilty of something, however trivial. For the actually guilty ones they want to keep indebted to them, they withhold indictment. (This “discretionary indictment” is even their statutory right.) Not surprisingly, the prosecutor’s office has been synonymous with corruption, where investigations can be swept under the rug or unleashed upon political nemeses.

The Prosecution’s Checkered History

South Korean history, checkered with colonial occupation and dictatorship, explains how the prosecutor’s office has become so formidable. In 1912, two years after Japan’s official annexation of Korea, the Japanese Government-General of Korea declared colonial criminal law. It gave colonial prosecutors unbridled rights to conduct compulsory investigation, i.e. search and seizure, arrest, detention and interrogation. In the metropole, the Japanese prosecutors could not exercise this much power, but in Korea it was ideal for controlling the restive colonial populace. A popular criticism circulating in the 1920s was that colonial prosecutors would “round up a hundred just to catch seven suspects.” They did it because they could, and this practice instilled fear and mutual suspicion. 

The colonial prosecutors saw their status skyrocket in 1941. The Japanese Empire had become far-flung; it needed to mobilize and devote all its resources to pacifying the colonial populations and churning out ever more war materiel for further territorial expansion. In March of that year, eight months before Japan’s surprise strike of Pearl Harbor in December, the Government-General decreed the National Security Act and amended the 1925 Peace Preservation Law. The police now had to operate under the prosecutors’ direct order for cases engaging these statutes. 

In the wake of Korea’s liberation from Japan in 1945, discourse was rife on how to build a new Korean criminal justice system free of colonial vestiges, particularly the prosecutors’ unlimited investigative powers. During the United States’ military government of South Korea, from 1945 until 1948, Washington tried to maintain a criminal justice system where the prosecution and the police shared investigative duties. However, the police were thoroughly uncooperative, intent on skirting the prosecution at all costs. Police brutality on the streets was the norm, as was torture in the name of ferreting out communist elements.

The prosecutors waged a successful PR campaign, painting themselves as more appropriate for protecting the public from both the police’s abuse of power and communism. For this, they insisted on the right to conduct direct criminal investigations and command the police in investigations. The prosecutor’s office was established simultaneously with the birth of the Republic of Korea in 1948. The Prosecution Service Act 1949 conferred on the prosecutors what they had been clamoring for. 

A few years later, the Criminal Procedure Act 1954 solidified the prosecution’s supremacy over the police – and the rest, for that matter – by, for instance, stationing police forces within the prosecutor’s office at the prosecutors’ beck and call and empowering the prosecutors to control the application by the police for arrest warrants. This framework persists to this day.

When military dictatorship began in 1961, the prosecutors took a back seat as the government relied on the intelligence service and military security. Still, beefing up the prosecution service provided the strongmen with a veneer of legality. With the central investigation unit and the Supreme Prosecutor’s Office, the government rendered investigation a top-down action. The government administered the bar exams and trained the prosecutors itself, effectively making them strictly legal bureaucrats, as opposed to neutral legal professionals. 

By 1987 when South Korea’s democracy started, it was expedient to leave the prosecutors alone for two major reasons. First, many prosecutors had become politicians, and they switched over to important government jobs. As their background as a prosecutor acted as a political shield, there was no need to weaken the prosecutor’s office. 

Second, somebody had to fill the power vacuum left by the military and intelligence service. As dictatorship lifted and South Korea maintained a centralized strong presidency, the prosecution service became an ideal institutional arm of statecraft and governance.

The Long Path Toward Reform

The prosecutors became even more untouchable throughout the 21st century. In 2004, for instance, former President Roh Moo-hyun tried to abolish the central investigation unit within the Supreme Prosecutor’s Office. “I would rather cut my throat,” the head prosecutor at the time infamously scoffed. 

For another instance in 2005, as the justice ministry clashed with the prosecutor’s office, the prosecutors huddled around the head prosecutor calling him “our father.” The prosecutors’ collective ire was enough to squash any attempt at reform. Once Roh’s presidential term ended, they grilled him and his family with hours and days of degrading interrogation, leading to his suicide in 2009. 

In the 2010s, they overlooked allegations implicating conservative presidents. It was their schtick, earning the president’s favors to preserve their powers. But when former President Park Geun-hye was impeached in 2017 for corruption and Moon Jae-in was elected president, the prosecution service needed to reverse course to stay in the new president’s good graces. The prosecutors thrashed Park and her predecessor, charging them with decades-long prison sentences. No prosecutorial reform could be broached when their thorough investigations were uncovering truths on a daily basis. 

From 2019 to 2021, however, the Moon administration succeeded in reforming the prosecution, albeit to a limited degree. The Corruption Investigation Office was legislated into existence to investigate and indict high-ranking officials. The range of crimes the prosecutors could investigate was also shortened. Meanwhile, the police........

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