[E Daily Reporter Baek Ju-ah] The Supreme Court stated that the amendment to the Criminal Procedure Act, which abolishes the prosecution's supplementary investigation power, is a matter of legislative policy, but added that "supplementary measures to prevent side effects must be prepared."
According to People Power Party lawmaker Shin Dong-wook on the 12th, the Supreme Court's Court Administration Office recently submitted a review opinion to the National Assembly on the amendment to the Criminal Procedure Act proposed by Democratic Party lawmaker Kim Yong-min and Justice Party lawmaker Park Eun-jeong.
The amendment completely abolishes the prosecutor's direct investigation power and supplementary investigation power, retaining only the right to request supplementary investigation. It also abolishes the prosecutor's authority to direct investigations for special judicial police officers and restricts the prosecutor's direct warrant requests.
The Court Administration Office said, "This is a matter of adjusting authority between investigative agencies, and the National Assembly should carefully review the pros and cons of the institutional change and various opinions from the public and experts, and make a legislative policy decision after sufficient deliberation and review."
"However," it added, "sufficient supplementary measures need to be prepared to prevent side effects that may arise from the institutional change."
This is the first time the Court Administration Office has expressed a judicial opinion, albeit limited, on the abolition of supplementary investigation power, a key issue in adjusting investigative authority between the prosecution and police.
Regarding the provision to establish a prosecution review committee in each district court to deliberate and decide on the appropriateness of filing a prosecution, the office said, "The appropriateness of filing a prosecution can be adequately controlled after filing through trials, and for non-indictment decisions, through requests for adjudication," indicating the need for further review.
The Court Administration Office explained, "If the court forms and operates a prosecution review committee, it may become difficult for the trial panel to make different decisions from the committee's decisions during trials or adjudication requests, potentially affecting the trial, so sufficient research and careful review are needed before introducing the system."
The office expressed support for introducing conditional detention and release systems during the investigation stage and in-court detention, as well as introducing a pre-examination procedure by a judge for search and seizure warrants.
It stated that conditional release during the investigation stage can contribute to the practical realization of the presumption of innocence, the principle of non-detention investigation, and the principle of trial-centeredness, and overcome the limitation of only having a binary choice between detention and release.
The Court Administration Office said, "It is expected to correct the misconception that 'detention is punishment' and resolve the abnormal situation where the center of criminal justice is focused on the warrant stage, while the actual main trial receives less attention from citizens," adding that "similar systems exist in most advanced countries' legislation."
In particular, it noted that conditions such as electronic device attachment and residence restrictions can be imposed to offset flight concerns, enabling practices that align with the principle of non-detention investigation without hindering investigative efficiency.
Regarding the introduction of pre-examination procedures for search and seizure warrants, the office said, "In written proceedings, if questions arise about the requirements, subject, scope, etc., of search and seizure, there was no way to resolve them or conduct additional review. Introducing pre-examination will secure sufficient review tools and create conditions for judges to make prudent decisions."
It added, "It is also expected to prevent exploratory search and seizure (where investigative agencies conduct searches without specifying specific criminal charges) and encourage careful investigation."
To concerns that it could hinder the speed and confidentiality of investigations, the office responded, "The amendment targets investigative agencies and witnesses requested by investigative agencies for examination, and the examination can be conducted non-publicly. The mere appearance of investigative agencies or witnesses at court is unlikely to significantly impede speed or confidentiality."
It further explained that rather, investigative agencies can explain the necessity of the investigation, potentially saving time spent on rejections and re-requests.
However, the Court Administration Office expressed a cautious review opinion on the provision allowing a suspect to request adjudication for a suspended indictment, citing concerns about "obstruction of efficient allocation of limited judicial resources and doubts about effectiveness."
Currently, suspended indictments are remedied through constitutional complaints. If the court handles this, it would go through "request for adjudication → Supreme Court re-appeal → trial complaint" procedures, and "there is a possibility that the remedy procedure for suspects who received suspended indictments will become longer than the current (constitutional complaint)."
Regarding the provision allowing not only complainants but also informants to request adjudication (currently only complainants can), the office requested a sophisticated legislative alternative, saying, "There is concern that establishing a useless objection procedure for complainants who file civil complaints could cause long-term instability in the status of the accused and increase social dispute costs."
At the same time, the office expressed the position that for certain crimes such as child abuse, domestic violence, and disability abuse, where informants are mandatory reporters, it is necessary to allow them to request adjudication, similar to some election law violations and constitutional order destruction crimes that already allow informants' requests for adjudication.
