“Cases Commenced by Investigators: Direct Prosecution by Supervising Prosecutor Is Unlawful”…Supreme Court’s First Ruling

Supreme Court: "Investigator’s Initiation Constitutes Prosecutor’s Own Commencement"

"Cases Referred by Investigators Must Be Prosecuted by a Different Prosecutor"

Supreme Court Clearly Defines Principle of Separation of Investigation and Pr

Yonhap News Agency

For the first time, the Supreme Court has ruled that even if a prosecution investigator initiates and refers a case for prosecution, it is a violation of the Prosecution Office Act — which establishes the principle of separating investigation and indictment — for the prosecutor who oversaw the investigation to bring charges directly. The court clarified that the investigation commenced by an investigator, as long as it is under the prosecutor’s supervision, should be considered as the prosecutor’s own initiation of investigation.

According to the legal community on August 18, the Supreme Court (Presiding Justice Lee Sukyeon) overturned a lower court's guilty verdict and remanded the case of a local government official, who was indicted on charges including violations of the Act on the Aggravated Punishment of Specific Crimes (bribery) and the Act on Concealment of Criminal Proceeds, back to the Daegu High Court.

The core issue in this case was the interpretation of Article 4, Paragraph 2 of the amended Prosecution Office Act in 2022, which stipulates, "A prosecutor shall not bring charges regarding a crime that they themselves have initiated the investigation for." In particular, the question was whether an investigation launched by a prosecution investigator, under the direction of a prosecutor, could be regarded as being initiated by the prosecutor themself.

The official in question was accused of demanding that 68 million won in design service fees for his own development project be paid by Mr. A, a private park development project stakeholder, in May 2016 in exchange for facilitating Mr. A’s selection as the preferred negotiation partner. Following Mr. A's accusation, a prosecution investigator conducted the investigation under another prosecutor’s supervision and referred the case. The prosecutor subsequently indicted the official in December 2024.

The controversy arose from additional, merged charges brought directly by the prosecutor. While investigating the crime, the prosecution investigator, under the supervision of the prosecutor, newly uncovered that the official had listed suppliers as fake employees and collected approximately 83.5 million won in wages between December 2021 and January 2023. The investigator referred these newly discovered offenses to the prosecutor who then brought charges directly.

The lower courts in the first and second instances ruled that "the term 'prosecutor' in Article 4, Paragraph 2 of the Prosecution Office Act does not include 'prosecution investigator'," and therefore found the prosecutor’s indictment valid, returning a guilty verdict. However, the Supreme Court differed. The justices found, "Because the investigator began the investigation under the prosecutor’s direction, this qualifies as a crime for which the prosecutor themselves initiated the investigation. Thus, the prosecutor’s direct indictment is invalid because it violates the Prosecution Office Act, and the lower court should have dismissed the indictment according to Article 327, Subparagraph 2 of the Criminal Procedure Act." The court emphasized, "A prosecution investigator only assists with an investigation under a prosecutor’s direction and is not an independent entity authorized to initiate investigations. An investigation launched by a prosecution investigator under a prosecutor's direction is, in effect, the prosecutor’s own initiation of investigation."

Furthermore, the justices noted, "Even when a prosecution investigator finishes the investigation and refers it to the prosecutor, this simply means the prosecutor's own investigation is ongoing, and it cannot be considered as 'a crime referred by a judicial police officer'—an exception specifically allowed under Article 4, Paragraph 2 of the Prosecution Office Act." In principle, this means that a prosecutor other than the one who directed the investigation should have brought the indictment.

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