The relationship between the police and the prosecution was one of the reforms every new regime tried to make but was never accomplished until the strong determination by President Roh Moo-hyun brought about discussion of independent investigation of the police in September 2004. The Advisory Commission on Readjusting the Scope of the Investigative Authority was established in February 2005 with civil experts from the academy, the law, the press, and the civil rights groups to reflect public opinion. A heated discussion on readjusting the scope of the investigative authority did not derive a consensus on the central agenda which clearly could establish the police-prosecution relationship.
Under the current law the judicial police have a role to simply support and assist prosecutors (Article 196 of Criminal Procedure Act and Article 53 of Public Prosecutor's Office Act) and the prosecution has the power of criminal investigations (Article 195 of Criminal Procedure Act), even though the police process 97 percent of annual criminal cases. Crime investigation, of course, is one of the jobs of police officials (Article 3 of Police Act, Article 2.1 of Police Office -Regulation and Article 2.2 of the Code of the Judicial Police Practice) and police officials exercise the authority to initiate investigation to independently indict and investigate crimes in practice. However, the police do not have the power to finish the crime investigations by themselves and have to transfer every case to the prosecution once their investigation is over (Article 54 of the Code of the Judicial Police Practice). The police are not granted of the legal status that fits their actual role, and merely act as an assistant to the prosecution who has the power of crime investigations, even though they process most of the criminal cases.
The current Criminal Procedure was enacted to end the cruel inquisitorial criminal procedure applied under the Japanese colonial rule and to establish an independent criminal procedure that emphasizes human rights protection. In order to reform the criminal procedures violating human rights, the American criminal procedure system, where the police take charge of investigation and the prosecution focuses on providing evidence in the trial process, was transplanted. This resulted in the partial realization of the police-prosecution relationship of the United States and the United Kingdom, but the prosecution held the initiative during the transitional period when the legislative system was not fully established.
The investigation system reform should not be reviewed from the standpoint of the qualification of the police or the equal distribution of the investigative power, but from the viewpoint of how to protect human rights by reasonably improving the system with the purpose of establishing an effective investigation system with human rights protections.
It is imperative to remember that unchecked power is very dangerous and leads to violations of the public's human rights. The issue is not limited to efficiency in investigation or readjusting the scope of administrative powers. It is connected directly to the basic rights of every citizen. Therefore, it must be thoroughly examined based on all the ideologies pursued by the Criminal Procedure Act including securing human rights during the criminal procedure and the direction of the future Korean proceeding system. The rights of suspects are not protected under the current investigation system. Less than 1% of detainees have the legal assistance from the lawyers in the process of interrogation. Most citizens cannot afford the high lawyer fees. This impedes legal assistance from lawyers from the early stage of investigation, and suggests the direction in which the governmental agencies should be organized.
Two important principles are applied during an investigation; actual truth revelation and human rights protection. Maximum convenience for the persons related to the criminal case is called for. The investigative authority of the police should adjust to the change of the relationship between the prosecution and the judicial police officials from strict obedience to mutual cooperation for criminal justice rationalization and protection of citizens' basic rights.
The judicial participation system of citizens improves the trial system. How the government operates can be recognized only through actual participation in it. Citizens can find faults of professional judges, lawyers, and prosecutors, and correct them by participating in trials. The key forms of the judicial participation system of citizens, schwurgericht or scheffgericht, can relieve the burden of judges through citizens' participation in the finding or determining facts, change Evidence Law, and encourage the judicial procedure to be centered on the trial process. Eventually, the purposes of the police and prosecution must be changed so that the prosecutors take charge of prosecution while the police officers play the role of investigators.
This study proposes reform on the investigation structure to establish the desirable police and prosecution roles and their interaction while protecting human rights. Past discussions revealed the clear need for adjustment of the power of crime investigations between the police and the prosecution, but this study suggests a changing model for the police-prosecution relationship through recognizing that the trial process is changing.