The amendment to the Criminal Procedure Law, which abolishes the prosecution's investigative powers, was approved at a Cabinet meeting the previous day. However, criticism continues to emerge from the legal and academic communities. There are speculations that the amendment will undergo conflict of authority adjudication and constitutional complaints at the Constitutional Court, but legal experts believe the chances of it being upheld are low.
On August 5, Park Chan-woon, a professor at Hanyang University Law School and former chair of the advisory committee for the Prime Minister's Office's Prosecutorial Reform Promotion Team, expressed on Facebook, "The Criminal Procedure Law has been amended despite widespread opposition and concerns. It is difficult to predict how our criminal justice system will navigate the challenging obstacles ahead." Kim Ye-won, a lawyer at the Disability Rights Law Center, also pointed out, "There are many provisions in the amended law that are simply unfeasible."
As criticism of the amendment continues, some in the political and legal circles are raising the possibility of conflict of authority adjudication and constitutional complaints at the Constitutional Court.
The People Power Party has stated it will consider options for conflict of authority adjudication and constitutional complaints. Additionally, Park Young-jin, a research fellow at the Judicial Research and Training Institute, argued on the internal prosecutor network, "The Supreme Prosecutors' Office should file for conflict of authority adjudication regarding the amended Criminal Procedure Law."
A significant point of contention is the removal of the prosecution's right to request warrants. According to the amendment, prosecutors are prohibited from independently requesting arrest, detention, or search warrants and can only submit warrants requested by investigative agencies like the police to the court. In contrast, Articles 12 and 16 of the Constitution stipulate that these warrants should be issued upon the prosecutor's request.
Critics also argue that the provision allowing courts to dismiss charges without substantive judgment in cases of serious violations during investigations or abuse of prosecutorial discretion is arbitrary and vague.
There are analyses suggesting that conflict of authority adjudications and constitutional complaints will be filed by frontline prosecutors and the public regarding the constitutionality of the amendment. Professor Park noted that after the amendment passed the National Assembly on July 31, "Many prosecutors may seek conflict of authority adjudication at the Constitutional Court, while ordinary citizens might file constitutional complaints to contest its constitutionality."
However, while conflict of authority adjudications and constitutional complaints may be directed to the Constitutional Court, the likelihood of them being upheld remains uncertain. A former prosecutor turned lawyer stated in a conversation with Aju Business Daily, "Conflict of authority is within the legislative domain, making it challenging, and while constitutional complaints can be filed on the grounds of infringement of the right to pursue happiness, equality, and the right to a fair trial, it will be difficult to gain recognition for these claims."
The Constitutional Court has previously rejected conflict of authority adjudications and constitutional complaints. Last year, Kim Seong-hoon, a chief prosecutor at the Cheongju District Prosecutors' Office, filed a constitutional complaint against a government organization law amendment aimed at abolishing the prosecution, but the court dismissed it in February, citing a lack of potential infringement on fundamental rights.
The Constitutional Court also dismissed conflict of authority claims made by the Ministry of Justice and the prosecution regarding the 'prosecution's investigative powers' legislation during the Moon Jae-in administration, stating, "Determining the allocation of investigative and prosecutorial powers is a matter for the National Assembly to decide through legislation." The court viewed the prosecutor's right to request warrants not as a direct grant of investigative powers but as a means for a legal expert, the prosecutor, to rationally control the coercive investigations of other investigative agencies.
However, there are expectations that the assessment of this amendment may differ from that of the previous 'prosecution's investigative powers' legislation. The Constitutional Court previously noted that the amendment did not restrict the prosecutor's right to request warrants, while this new amendment eliminates the provision for direct warrant requests by prosecutors, raising concerns about its constitutionality.
* This article has been translated by AI.
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