[Exclusive] SCIA's Transfer Authority Exceeds Prosecution... Decision Expected by Month-End

Standards for SCIA Director’s Discretionary Transfer Requests Remain Unclear
Seriousness, Fairness, and Statute of Limitations Should Be Considered
New Agency May Eclipse Prosecution Despite Promises of Reform

The police have raised concerns that the powers granted to the proposed Serious Crimes Investigation Agency (SCIA), which is set to take over the prosecution’s investigative functions, are excessively broad, and are now demanding more detailed regulations. Unlike in the past, when the police and prosecution would compete for jurisdiction over the same case based on who secured custody first, under the current framework, the SCIA chief's requests for transfers or notifications must be followed without objection. There is now only one month left to establish checks and balances on the SCIA’s authority, which could override the judgments of other investigative agencies.

An official from the SCIA Establishment Support Team told The Asia Business Daily on July 8, "We plan to complete the drafting of the enforcement decree by the end of this month, or at the latest by early August." The official added, "There is validity to the opinions from the National Police Agency and other organizations, but we may or may not be able to accommodate all of them," and emphasized, "The final decision rests with the Minister of the Interior and Safety."

The SCIA holds greater power than the prosecution... The original purpose of reform is being diluted

ChatGPT generated image.

The National Police Agency has proposed, as an alternative to the current draft enforcement decree with its limited exceptions for mandatory notification of recognized crimes to the SCIA, a system based on laws that define aggravated punishment requirements, such as the Act on the Aggravated Punishment of Specific Economic Crimes and the Act on the Aggravated Punishment of Specific Crimes. The agency also maintains that voice phishing crimes should be entirely excluded from the notification requirement, arguing that the SCIA should be integrated into the current inter-agency response system—the Joint Response Team for Telecommunications Financial Fraud—rather than duplicating its efforts.

Additionally, it has been confirmed that, during recent working-level discussions with the SCIA Establishment Support Team and the Prosecution Reform Task Force of the Office for Government Policy Coordination, the National Police Agency expressed dissent regarding the SCIA chief’s authority to request the transfer of cases from other agencies.

Article 43, Paragraph 3 of the SCIA Act, which will be enforced in October, states that if the SCIA requests a transfer of a case that overlaps with investigations being conducted by another agency, the request must be honored unless there is a justifiable reason to refuse. There is, however, no clear standard for the chief's discretionary judgment of what is "appropriate." Article 12, Paragraph 1 of the draft enforcement decree provides only limited exceptions, such as when there is no investigative benefit or when the agency lacks jurisdiction.

Currently, each investigative agency determines whether a case is duplicative by examining if the basic facts are the same. The prosecution cannot demand transfers from the police at its own discretion. In case of overlapping jurisdiction, the Criminal Procedure Act and investigation guidelines apply. If the police apply for a warrant before the prosecutor does, they may continue the investigation into the charges listed. Even when a determination of factual identity is required, the procedure is to request "mutual review," not for the police to be obligated to notify the prosecution or other agencies.

If this issue is not resolved before the SCIA launches, the agency would have investigative powers exceeding those of the prosecution. This would result in a new concentration of authority in a single agency, rather than achieving the intended separation of investigation and indictment functions.

A lawyer with a police background commented, "Since the scope of the SCIA’s investigations will inevitably overlap with the police, a mechanism for adjustment is necessary, but the discretionary powers of the SCIA chief are overly broad. If the structure requires the other agency to comply as a rule, then the standards for judgment and grounds for refusal must be clearly stipulated in the law."

Police: "SCIA chief’s discretionary powers require clear standards"

According to the "Review Opinion of the National Police Agency on the Draft Enforcement Decree of the SCIA Act," obtained through the office of Assemblyman Seo Beom-su of the People Power Party, the National Police Agency has proposed the inclusion of new considerations in the enforcement decree for cases where the SCIA chief requests the transfer of a case from another investigative agency. Specifically, the agency believes the following should be stipulated as considerations: ▲ the progress and duration of the investigation ▲ the seriousness of the case ▲ whether there are any concerns about the fairness of the investigation ▲ whether the statute of limitations is about to expire.

The police maintain that transferring cases to the SCIA in situations that could delay investigations or provoke controversy over fairness is inappropriate. Transferring a case that has already progressed significantly offers no practical benefit, and transferring a case when the statute of limitations is imminent could result in the case being abandoned without indictment.

The National Police Agency is also demanding more specificity regarding the notification requirements that arise at the request of the SCIA chief, not just in case transfers. Article 12, Paragraph 2 of the draft enforcement decree stipulates that even if a case is excluded from notification under Paragraph 1, the SCIA may still request notification if deemed necessary considering the nature of the case and its social impact, and that such requests must be complied with.

This provision could be interpreted to mean that the SCIA chief can request notification for cases outside the agency’s six major crime categories, simply based on their own judgment of necessity. Unlike the Corruption Investigation Office for High-ranking Officials, which has explicit "priority investigative authority," there is no legal basis requiring other agencies to comply with the SCIA’s broad notification requests.

The Ministry of the Interior and Safety is also aware of the issue of overlapping jurisdiction among investigative agencies and is continuing working-level consultations to coordinate differing views. An official from the SCIA Establishment Support Team stated, "There are overlapping investigations among agencies," adding, "Since the SCIA cannot handle everything, the scope of each agency’s responsibilities must be carefully delineated."

This content was produced with the assistance of AI translation services.