Sunwoo, Young (Senior prosecutor),
Republic of Korea
As the public demand for clear and fair policy-making of government is increasing, prosecutors in Korea, overloaded with criminal cases, are confronting people's eager demand of equal justice, fair decision and protection of human rights. The press also observes closely and often criticizes prosecution in the hope of impartial and fair decision of prosecutors in investigation, disposition and execution of sentence.
Like many other nations in the world, Korea is experiencing information revolution and globalization. The information-intensive society is creating even more difficulties for prosecutors due to increase and complexity of information. As transportation and communication are rapidly growing, various new types of crime are emerging such as illegal immigration and drug trafficking. In order to combat these kinds of crime, prosecutors should make themselves quite familiar with international transaction, multi-national business, foreign language and neighboring states. To sum up, prosecutors in Korea are facing change and reform a month ahead of new millennium.
In the Criminal Procedure Code, prosecutor is defined as a main body of investigation. Besides, in the Public Prosecutors’ Office Act, it is also stipulated that prosecutor is in charge of investigation, prosecution, supervision of sentence execution, and etc..
Now 1,059 prosecutors are working across the nation, supported by a staff of 6,340 as a whole. Last year 1,852,792 criminal cases were handled by prosecutors in Korea.
Investigating prosecutor is gathering information on complex crime such as corruption and financial fraud, and is interrogating the suspect and other persons related to the crime. Investigating prosecutor is also dealing with criminal cases transferred from the police, taking a new statement from the suspect.
As for the case disposition, prosecutor is endowed with discretionary power. The rate of suspension of prosecution is 12% in 1998 and especially 40% of young offenders under 20 are suspended from prosecution.
Besides, prosecutor plays an active role in international cooperation on criminal matters including mutual assistance and extradition according to the provisions of the related laws.
1) A Principal in Investigation
As a body of investigation, prosecutor takes the initiative and directs the police on criminal booking, case transfer to prosecutor, police arrest and detention, and application of law. The status of prosecutor as a principal in investigation is stated in the Criminal Procedure Code. According to the code the police are assisting prosecutors in investigation.
Recently, in order to investigate independently of prosecutor, the police have tried to amend the Criminal Procedure Code, but their efforts have failed for lack of confidence from the public.
Major crimes directly dealt with by investigating prosecutor are as follows: corruption, financial fraud, organized violence, and drug-related crime. While the Central Investigation Department in the Supreme Public Prosecutors’ Office is the head office for cleaning-up of corruption and financial fraud, two divisions in the Supreme Public Prosecutors’ Office direct prosecutors to crack down on organized violence and drug-related crime across the nation.
2) Investigation of Organized Violence, Drug- related Crime, and Corruption
At present, in general, organized crime is not serious in view of the organization's entity, its activities, and gravity of crime. But 'Organized Violence', though less severe than organized crime, always attracts much attention in the sphere of investigating authority. Organized violence is committed by violence group called 'Pa' in Korean. In general two or three Korean letters are added in front of Pa, for example 'Young-Ho Pa'. According to official source, at present, 647 key figures from 117 Pas are said to be active in organized violence. As a result of 8 consecutive special orders for controlling organized violence in recent four years, prosecution across the nation has completed arrest of 416 offenders / detention of 310 in 1998, and arrest of 471 / detention of 238 this year.
In order to crackdown Pa's activities, prosecutors have put every effort into successful execution of arrest and detention of ringleader and effective attack on the money resources supporting group's activities.
Some foreigners may be linked with Korean violence organization. They are suspected to be a member of foreign crime organizations. Their entry into and departure from Korea is monitored by prosecutors. For the information and mutual assistance, prosecutors are seeking every possible collaboration from the foreign authorities concerned.
The Korean prosecution set up a powerful system of expert investigation for the purpose of thorough crackdown on drugs in 1989. The number of drug-related criminals caught in the crackdown between 1989 and 1998 is 52,431. Methamphetamine was involved in 26,061 cases. In May 1999, the prosecution prepared 「National Drug Control Strategy」 for a systematic, long-term countermeasure against drug problem. The strategy consists of four major goals : 1) Cut-off of illicit drug-supply, 2) Drastic reduction in drug demand, 3) Establishing framework for nation-wide cooperation, and 4) Enhancing international cooperation.
It is also important to cope properly with corruption in government as well as business circles. Considering that continuous socio-economic development is largely dependent on this countermeasure, prosecution is relied upon to serve as exclusive investigating agency of corruption. In this context, prosecutors have to develop a strong sense of responsibility for the realization of nation-wide wishes for clean society.
As specialization of prosecution service on corruption, organized violence, drug has been sufficiently achieved, it is necessary to make effort toward the specialization of manpower and practice in newer types of crime such as high-tech crime and more sophisticated environmental crime.
3) Problem of Fairness
As political power is changing, newly-elected president has emphasized the importance of cleaning-up of corruption on a national scale. Opposition party members who had once belonged to ruling party were more likely to be involved in administrative / legislative policy-making while they were in power. In this regard, it is also more likely that crime-related information has been related with them to a greater extent. Though many political arguments from them often have no grounds, some people tend to sympathize with them.
There still remains a tendency for the press to produce a somewhat speculative report on prosecutor's work of investigation and disposition. It seems that the tendency has resulted partly from commercialism and also partly from excessive competitions among the press. As the speculative reports continue to appear, the problem of distortion of fact and distrust of prosecution would remain unsolved. Prosecution has to get over the biased view and to solve the problem with the press in order to restore the confidence of people.
1) Discretionary Power of Prosecutor
The criminal justice system in Korea may be to much extent similar to that of Germany, but prosecutor of Korea has discretionary power in the case disposition in a wider range than German prosecutor as stipulated in the Criminal Procedure Code. While the power should be exercised judicially, fair and proper use of power always attracts keen attention throughout the nation and legal circles. Prosecutor decides independently but makes strenuous efforts to maintain its consistency of practice in the whole office. Investigation is initiated either by complaints of the victims or by information collected by prosecutor. After completion of investigation, prosecutor has to make decision on whether to indict or not. Every victim who made complaints can appeal against the non-indictment by prosecutor. Once the appeal is filed, the decision is reviewed by higher prosecutors' office and finally by the Constitutional Court. For some kinds of crime, appeal is allowed to go through the court and the court then can revoke the decision of non-indictment. In such a case, prosecuting attorney is appointed among practicing lawyers as provided in the Criminal Procedure Code.
If prosecutor decides to make prosecution, application of the law which is adequate for the crimes committed and presentation of opinion about proper sentence for the offenders are made in conformity to national practice and related laws. Of course, rules and regulations to provide guidelines to enhance fairness and consistency of approach are also considered in prosecutor's decision-making.
2) Suspension of Prosecution
As mentioned above, the prosecution may be suspended by prosecutor. For the young offenders, who commit crimes of violence, traffic and theft, the suspension of prosecution is widely adopted in almost 40% of cases every year. It is stipulated in the Juvenile Act that imprisonment of juveniles should be used as a last resort. For rehabilitation of juveniles, prosecutor exercises power of discretion in conformity to the spirit of the Act considering the personality and background of the young offenders. With regard to violent offences including assault, blackmail and threat, every 30 of 100 violent offences tend to be suspended from prosecution.
3) Restriction on Discretionary Power
In these days, it is asserted that the discretion should be exercised in a more restricted way. Some scholars of criminal jurisprudence suggest that the decision not to prosecute should be reviewed by the court in a wider range of crime than now. As the court review of prosecutor's decision is burdensome to the prosecution, a deliberate study may be necessary to examine this issue in more in-depth..
The President's Commission for Judicial Reform, newly set up this year, recommends the amendment of related laws, whereby the non-institution of prosecution on public official's crime should be reviewed by the court. In addition, in some cases, the decision not to prosecute is more severely criticized by the campaign of private organizations such as 'Lawyer's Association towards democratization', 'Justice Watch' than ever.
But, since it is more desirable that prosecutors perform their duty with citizen's understanding and support, prosecutor is advised to practice in much closer relation with the public for the restoration of confidence in the society.
The offences are tried usually in three ways : 1) regular trial which is held with hearing, 2) summary trial for minor offence mainly sentenced to fine, 3) police court for extra minor offence, i.e., breach of peace like littering or public nuisance.
As a lot of cases are handled by each bench in regular trial held generally fortnightly, it often takes several months for a bench to give a decision in each case. It is provided in the Special Act for Speedy Litigation(1981) that judgement should be pronounced within six months from the day of prosecution in the district court and within four months each from the receipt of record in the appellate court and the Supreme Court. One survey on speedy trial in custody(1998) reveals that the rate of decision within a time limit is 97% in district court(bench of three judges), 96% in district court(bench of single judge), 84% in appellate court(High Court), and 84.5% in appellate court(district court). This survey also shows that problems with speedy trial matter little now in criminal justice.
The concentrated hearing, which enables judge to pronounce a judgement on that day, is not yet introduced in the criminal procedure in Korea except for the cases related to the Special Act on Punishment of Specific Violent Crimes (1990).
6. INTERNATIONAL COOPERATION BETWEEN ACPF MEMBER STATES
1) Law and Practice of Mutual Assistance
In the Ministry of Justice, one division of prosecution bureau deals with international cooperation in criminal matters. This division has joined in the legislation and practice of international cooperation. As for legislation, the Mutual Assistance in Criminal Matters Act is legislated in 1991, the Extradition Act in 1988.
In the Mutual Assistance Act the scope of application is as follows : 1) locating persons and things, 2) providing documents and files, 3) effecting service of judicial documents, 4) taking evidence, 5) executing searches and seizures, 6) providing evidentiary items, and 7) taking statements from persons.
The requests, once received, are transferred to the Ministry of Justice. The chief officer dealing with international cooperation in the prosecution bureau sends the requests to the appropriate prosecutors' office. In the Seoul Public Prosecutors' Office, one department is designated to take exclusive charge of mutual assistance.
In addition, the Extradition Act is providing the principles of reciprocity and non-extradition of political offenders in observance of the U.N. Model Code. The requests received through the diplomatic channel are transferred to the Ministry of Justice and executed in the same way as the mutual assistance in accordance with the Act. For fear of escape, prosecutor can arrest the offenders by warrant issued by the judge. After review of requests judge grants / refuses the extradition. If extradition is granted the Justice Minister issues paper of extradition, whereby prosecutor orders the prison authority to convey the offenders to the authority of requesting states.
Korea signed the treaties of mutual assistance with nine countries and extradition treaties with twelve countries. Since then, for mutual assistance, Korea has made 129 requests and received 163 requests up to the present. The number of requests of extradition during the same period is three from foreign states, twenty-two to foreign counties.
In 1997 major assistance cases were as follows : homicide(the United States), bribery(Japan), immigration(Japan), illegal fishery(New Zealand), fraud(Lithuania), and tax-evasion(Russia). These cases of foreign states were handled with the assistance of Korean prosecutors, while Korean prosecutors successfully conducted the investigation, supported by French authority(capital flight) and the United States prosecution (attempt of homicide).
It is also suggested that the stipulation of transfer of prisoner, transfer of proceedings and execution of foreign sentences should be discussed in the Mutual Assistance Act as European countries do.
As procedure of requests for assistance and extradition is rather complicated on the one hand and prosecutors deal with a lot of cases on the other hand, there is a tendency that prosecutor is reluctant to follow these procedures in investigation and disposition. Therefore, it may be necessary to devise simpler procedure of requests for mutual assistance to reduce the time required.
2) Suggestions for International Cooperation
Legal attaches are stationed in Korean Embassy in the United States (since 1993) and Japan, and Korean Representative in New York and Geneva. They are selected among prosecutors by the Ministry of Justice. Among many Asian states, only in Japan, Korean legal attache is residing in Embassy in Tokyo. It may be worth while to discuss the possibility of exchanging prosecutors between the ACPF member states. Through the exchange the enhancement of mutual understanding, exchange of information and other various forms of collaboration in crime prevention and criminal justice in the region may be achieved. Between Korea and Japan, for example, exchange program has already been implemented and prosecutors are pursuing the study of prosecution service and criminal justice of host country. Besides, Prosecutor Generals of Korea and China agreed this year on collaboration such as reciprocal visit for conference, training, research, exchange of publication, information, and data .
It seems desirable that Asian prosecutors join to exchange data, information, and publication, share experiences, discuss mutual interests, and draft Asian model code in the area of crime prevention and criminal justice. For that purpose, an international association of prosecutors in the ACPF member states needs to be considered. The establishment of the association could be a major contribution towards international cooperation in criminal matters and eventually crime-free world, the goal of the ACPF and the United Nations.