Prosecutorial Reform Advisory Committee Calls for Restoration of Full Transfer System, Citing Concerns Over Control Gaps in Non-Transferred Cases

Statement Issued on Revision of the Criminal Procedure Act

Emphasis on Need for Post-Hoc Control Over Non-Transferred Cases

Concerns Raised Over Self-Justification by Investigative Agencies

Key Issue Emerges in Criminal Procedure Act Amendment Debate

The Advisory Committee of the Prosecutorial Reform Task Force under the Office for Government Policy Coordination has expressed the opinion that the "full transfer" system should be reinstated during the process of revising the Criminal Procedure Act. The committee argued that if the system is designed to restrict or abolish the prosecutor's authority to conduct supplementary investigations directly, there needs to be a control mechanism in place that allows for post-hoc review of cases not forwarded by primary investigative agencies such as the police.

Supreme Prosecutors' Office, Seocho-gu, Seoul. Photo by Yonhap News Agency

According to the legal community on June 9, the Advisory Committee of the Prosecutorial Reform Task Force issued a statement on the "Direction for Revising the Criminal Procedure Act" on this day, stating that "the principle of separating investigation and indictment is based on checks and balances" and emphasizing the necessity of restoring the full transfer system.

The full transfer system refers to a practice in which all cases investigated by primary investigative agencies, such as the police, are handed over to the prosecution, regardless of whether charges are found. Prior to the adjustment of investigative authority between the police and prosecution in 2021, the police were required to transfer all investigated cases to the prosecution. However, after the adjustment, the police gained the authority to close cases on their own if they determined there was no evidence of a crime.

The advisory committee stated, "The full transfer system is the minimum safeguard to secure a structure of judicial oversight between investigative and prosecutorial agencies," and pointed out that the current non-transfer system has structural problems. The committee noted, "Under the current non-transfer system, where full transfer is excluded, cases are effectively closed if the police, who initiate and conduct the investigation, decide there are no charges," and added, "This allows investigative agencies to ultimately justify their own investigation results."

The committee continued, "There is a high likelihood of confirmation bias or self-justification in the process where investigative agencies determine the presence or absence of charges and close cases," and added, "This contradicts the original intent of the principle of separating investigation and indictment, which is to ensure mutual checks by separating investigative and prosecutorial functions."

The committee especially warned that if the prosecutor's authority to conduct supplementary investigations is restricted, the lack of control over non-transferred cases could become even more severe. If prosecutors cannot investigate directly and cannot even review whether the investigative agency's conclusions were appropriate, it becomes institutionally difficult to detect the concealment of cases, inadequate investigations, or unlawful investigations by investigative agencies.

The committee stated, "If prosecutors cannot investigate directly and cannot even conduct a post-hoc review of the investigative agency's conclusions, it is tantamount to institutionally prohibiting the exposure of case concealment, inadequate investigations, or unlawful investigations by investigative agencies."

The committee also emphasized that the non-transfer structure could disadvantage victims and socially vulnerable groups. Since victims or complainants must file objections or undergo additional procedures to contest a non-transfer decision, the burden may fall on those lacking legal knowledge or financial resources.

The advisory committee stated, "Socially vulnerable individuals who lack legal knowledge or financial resources may fail to respond appropriately to non-transfer decisions and thereby lose opportunities for remedy," adding, "The criminal justice system should not be designed in such a way that the socially disadvantaged are pushed out of the remedy mechanism."

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