Prosecution Investigation Procedure in South Korea

Introduction

Prosecution investigation procedure in South Korea has undergone fundamental transformation following the 2020 reforms that restructured prosecutorial investigative powers. Historically, prosecutors held investigative primacy — they directed police investigations and conducted direct inquiries into criminal matters. Under the current framework, prosecutors’ direct investigation authority is limited to specific categories, while police have primary investigative responsibility for most offenses. The Supreme Prosecutors’ Office (대검찰청) oversees the prosecution service.

Historical Context

Pre-2020 System

Before the 2020 reform, prosecutors exercised:

• Direction and supervision over police investigations
• Direct investigation powers for all offenses
• Exclusive charging authority (deciding whether to indict)
• Sentencing recommendations in court

The concentration of investigative and prosecutorial power in a single institution was criticized as creating a “prosecutorial kingdom” with insufficient checks.

Post-2020 Framework

The Amendment to the Criminal Procedure Code (2020) and the Establishment of the Corruption Investigation Office for High-ranking Officials (CIO) Act (2020) restructured investigative authority:

• Police investigative primacy: Police now conduct initial investigations for most offenses
• Prosecutorial direct investigation: Limited to corruption crimes, economic crimes, election crimes, major crimes, and crimes by police officers
• Prosecutorial request power: Prosecutors may request police to conduct specific investigations
• Prosecutorial supervision: Limited to ensuring legal compliance; prosecutors no longer direct police investigations

Investigation Procedure

Initiation

Criminal investigations may be initiated by:

• Complaint from victim: Criminal prosecution may require a victim complaint for certain offenses
• Criminal accusation: Any person may report a crime
• Detection by police: Police may discover crimes through patrol, surveillance, or intelligence
• Prosecutorial detection: In cases within their direct authority

Prosecution Investigation

When prosecutors conduct direct investigations:

• Summons: Suspects may be summoned for questioning; refusal may lead to arrest warrant
• Interrogation: Recorded (audio or video for serious crimes); the suspect has the right to counsel
• Search and seizure: Requires a warrant (exceptions for emergency)
• Arrest and detention: Requires judicial warrant

Rights of Suspects During Investigation

• Right to remain silent: Required advisal (Article 244-3)
• Right to counsel: At any stage, including during questioning
• Access to evidence: The suspect has the right to review investigation records after the investigation
• Exculpatory evidence: Prosecutors must disclose evidence favorable to the suspect

Charging Decision

Prosecutorial Discretion

The prosecutor decides whether to indict based on:

• Sufficiency of evidence: Whether there is probable cause to convict
• Public interest: Whether prosecution serves the public good

Types of Dispositions

• Indictment: Filing of formal charges
• Suspension of indictment: Conditional non-prosecution (Article 247)
• Non-indictment: No charges; the prosecutor must notify the complainant

Review of Non-Indictment

Complainants may challenge non-indictment decisions through:

• Prosecutorial Appeals Commission: Internal review within the prosecution
• Constitutional complaint: If the non-indictment violates fundamental rights

Indictment and Trial

Indictment

The prosecutor files a written indictment specifying:

• Facts constituting the offense
• Applicable legal provisions
• Evidence supporting the charges

Trial Participation

The prosecutor:

• Presents the state’s case
• Examines witnesses (direct examination)
• Cross-examines defense witnesses
• Recommends sentencing

Conclusion

South Korean prosecution procedure has evolved from a system of nearly unchecked prosecutorial power to a more balanced framework. The 2020 reforms separated investigation from prosecution in significant respects, though prosecutors retain important roles in direct investigation of specific offenses and overall charging authority. The system continues to balance the need for effective law enforcement with protection of suspect rights.