Concerns are rising in the legal community over a comprehensive amendment to the Criminal Procedure Law proposed by lawmakers from the ruling Democratic Party and its allies. Critics argue that the amendments contain "poison pill provisions" that would restrict prosecutors' constitutional rights to request warrants and indictments. The proposed changes go beyond eliminating prosecutors' direct and supplementary investigation powers, suggesting limits on the scope of warrant requests and allowing ordinary citizens to decide on indictments in significant cases, which could undermine the foundation of the criminal justice system.
On July 1, legal sources reported that 12 lawmakers, including Kim Yong-min from the Democratic Party and Park Eun-jung from the Justice Reform Party, jointly proposed the amendment on June 26. The proposal aims to revise 106 out of the current 493 provisions in the law.
The key aspect of the amendment is the abolition of prosecutors' direct and supplementary investigation powers, centralizing investigative authority with judicial police officers. Additionally, it seeks to limit the scope of prosecutors' warrant requests and establish an indictment review board, which would significantly alter the indictment process.
One of the most concerning elements for legal experts is the restriction on prosecutors' warrant request authority, which is seen as a critical power during investigations.
The amendment stipulates that prosecutors can only request warrants based on applications made by judicial police officers. Currently, the law allows for both direct requests by prosecutors and those initiated by police officers. However, the proposed changes effectively subordinate the exercise of warrant requests to police discretion.
This has raised alarms about potential conflicts with constitutional authority.
The Constitutional Court ruled in 2023 that while prosecutors' investigative powers are statutory, their authority to request warrants is constitutional. Legal experts suggest that limiting this constitutional right through legislation could lead to judicial review for unconstitutionality.
The Ministry of Justice has also expressed concerns during discussions within the Prosecutorial Reform Committee, indicating that restricting the constitutional right of prosecutors to request warrants through legislation could be unconstitutional.
A senior prosecutor from the Seoul Eastern District Prosecutors' Office noted, "Legislation that effectively limits prosecutors' warrant request authority could conflict with the constitutional principle of warrant protection."
The establishment of the indictment review board is another major point of contention.
The amendment proposes the creation of an indictment review board in each district court, composed of nine ordinary citizens, to review and decide on prosecutors' decisions to indict or not. If the board decides that an indictment is necessary, a lawyer designated by the court would file the indictment. Conversely, if the board votes for non-indictment, the prosecutor would be barred from re-indicting the same case unless new significant evidence emerges.
Legal professionals are concerned that granting ordinary citizens the authority to decide on indictments, which requires sophisticated legal judgment, poses a dangerous experiment that could disrupt the criminal justice system.
Yang Hong-seok, a lawyer who served as an advisor to the Prosecutorial Reform Committee, stated, "Indictments require specialized judgment regarding evidence and law, and it is unrealistic to expect ordinary citizens to fulfill this role. The outcome could be swayed by the manner in which the information is presented or the atmosphere surrounding the deliberation."
The provision allowing courts to dismiss indictments in cases of "serious illegal investigations" has also sparked controversy.
While the amendment mandates that courts dismiss cases where serious illegal investigations are recognized, it fails to define the criteria for what constitutes a serious illegal investigation.
Legal experts warn that unclear standards could lead to repeated assessments of legality, potentially delaying trials for extended periods.
A lawyer in Seocho-dong remarked, "We must first determine whether an investigation was illegal before we can assess whether to dismiss an indictment. This could lead to practical issues where the main trial is stalled for years."
This amendment is seen as the starting point for discussions on the final phase of criminal justice reform. Previously, the government reviewed the existence of supplementary investigation powers through the Prosecutorial Reform Committee but decided not to submit a separate government proposal, opting to respect parliamentary discussions. Legislative discussions are expected to proceed primarily through the National Assembly's Legislative and Judiciary Committee.
The ruling coalition aims to separate investigation and indictment powers and reduce prosecutorial authority to establish a fair and accountable criminal justice system.
The legal community anticipates that the limitations on prosecutors' constitutional warrant request authority, the introduction of the indictment review board, and the provision for dismissing indictments due to serious illegal investigations will be key issues during the bill's review. Given the potential impact on the entire criminal justice system, there are calls for thorough legal scrutiny and public discourse before any changes are enacted.
* This article has been translated by AI.
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