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 could now decide to investigate first and close the case, rather than being ordered what to do by the prosecution.
Of course, the prosecutor’s office reared up in retaliation. The prosecutors trained their guns on pro-Moon figures and officials, while shielding their own rank from investigation. Yoon Suk-yeol, the head prosecutor under the Moon administration, openly clashed with Moon and resigned in 2021. He ran for the 2022 presidential election as the conservative candidate.
As president, Yoon offset most of Moon’s reforms with executive orders. He also packed his Cabinet and influential government posts with fellow prosecutors. Thus began the all too familiar saga of how the prosecution service brazenly protected Yoon and his people from any and all allegations backed by an avalanche of evidence. In the meantime, they persecuted their political rivals with trumped-up charges and distorted evidence.
The Yoon presidency rang the death knell for prosecutorial omnipotence. South Korea saw the extremity of unchecked prosecutorial powers condensed into Yoon. Following Yoon’s impeachment and the June 2025 snap election, Lee Jae-myung became president. The National Assembly passed a law to abolish the prosecution service. As of October, the prosecutor’s office will cease to exist. In its stead, there will be a public prosecution office and a serious crime investigation office.
Accordingly, the National Assembly will soon amend the Criminal Procedure Act (CPA) so that the prosecutors will only indict suspects and represent the state in trials, while the police and legal investigators will conduct investigations. But a fierce debate has arisen over what to do with the prosecutors’ supplementary investigation powers.
The New Controversy
For now, the police conduct investigations first for crimes falling out of the prosecutors’ remit. Still, the prosecutors can carry out supplementary investigations, meaning they can take over the investigation where there are reasons to believe that the police investigation was poor and/or crucial evidence was omitted.
Supplementary investigation is an important tool in the pursuit of justice. Most recently, a high schooler was murdered, but the police covered up evidence of the perpetrator’s motivation: the desire to commit sexual assault. Sexual assault is an aggravating factor in murder cases, leading to lengthier prison terms. The murderer’s father, a police officer, had connections with the investigating police. The latter allowed the father to visit his son’s apartment and destroy his phone and other objects indicating the son’s sexual perversion. The police found cable ties in the son’s car but didn’t enter them into evidence. And they handed the car over to the dad after a cursory look.
The prosecution, in reviewing the police documents, sensed something fishy and exercised their supplementary investigation right. Following CCTV footage analysis and interviews, they uncovered the destruction of evidence. There have been plenty of similar cases, usually involving victims of sex crimes, where the prosecution stepped in to save cases from the police ineptitude and corruption.
The upcoming CPA amendment, however, intends to deprive the prosecutors of supplementary investigation powers. Instead, under the bill prosecutors can merely request the police to conduct another round of investigation. The most crucial shortcoming is that, unless the prosecutors look into the case and investigate themselves, there’s no way of finding out whether the police hid anything. The murder case recently in the headlines laid bare these shortcomings: justice would not have been served without the prosecution’s own investigation.
That kicked up a flurry of due criticism over the bill. Citing the police’s “lapse of judgment and destruction of evidence,” the Korean Bar Association insisted on the need to keep alive supplementary investigation powers “for cases directly related to individual well-being and non-political daily life.”
“Supplementary investigation exists for the public weal. A criminal justice system without it hurts the victims,” the opposition People Power Party (PPP) floor leader said. The PPP spokesperson also said that “supplementary investigation isn’t so much the prosecutors’ prerogative as a safeguard against police excess.”
Even President Lee Jae-myung mentioned in a press conference in January that “there are exceptional instances” where supplementary investigation is needed.
On the other hand, the ruling Democratic Party (DP) holds that their bill, drafted on July 9, contains checks on the police’s investigative process. For instance, the prosecutors could, either by their own volition or upon the claimant’s request, request the police to hand over the case dossier. They could then have the case transferred to a different investigative body. Plus, if the police do not comply with their request for supplementary investigation, the public prosecution office could discipline, replace, or exclude the relevant police from the case.
Still, it fails to address the fundamental concern that the prosecution will find it extremely difficult to figure out what is missing if the police fail to discover or disclose crucial pieces of evidence. Since they cannot investigate by themselves, they would struggle to determine if the information put in front of them even warrants a request for supplementary investigation. Opening a channel through which the prosecutors can hear from the victims and claimants is commendable yet insufficient.
Even within the DP, there’s a schism. On July 14, more than a dozen DP legislators tabled a separate bill introducing exceptional cases allowing for the prosecution’s supplementary investigation, such as those concerning socially and economically vulnerable victims and those where the victims specifically ask for prosecutorial involvement.
By all accounts, something akin to the U.S. prosecutorial system seems necessary. In the United States, the prosecution can carry out supplementary investigation limited to satisfying the following two aspects. First, when there’s a need to fill in the blanks in the police investigation and establish all legal elements of a crime. Second, when there’s a need to confirm the police story. There are special investigation officers for these purposes within the prosecution, as well. Limiting the prosecutorial role to maintaining the propriety of indictment should be logical and sensical enough.
Whichever bill gets passed into law eventually, the CPA is liable to be constantly changed. That has been the case so far. No matter what shape South Korea’s criminal justice system takes on, the timeless caveat is that criminal justice is not just about tweaking the institutional size and powers. It’s about constantly striving for the fairest procedure to access as many truths as possible.
