[Viewpoint]Help victims, but restrain prosecutors

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[Viewpoint]Help victims, but restrain prosecutors

Last week, the Legislation and Judiciary Committee of the National Assembly agreed on a drastic revision of the criminal procedure laws, including the introduction of a jury system, full expansion of the right to review a prosecutor’s decision not to indict and an emphasis on court-oriented trials. If the law is revised in the proposed manner, it would mean a remarkable change in legal history.
The proposal includes a full expansion of the right to review a prosecutor’s decision not to indict.
The court can reexamine a prosecution’s decision not to take action in a case at the request of the party who does not agree to the prosecutor’s decision, and make its own decision whether to indict.
Under the existing laws, a request for a review of a prosecutor’s decision can be done only for certain crimes, such as an assault by an investigator, a brutality case or abuse of power.
Under the revision, it would apply to all crimes.
The expansion of the request to review would be a strong action toward checking a prosecutors’ decision not to indict.
Citizens are likely to support the change.
The request-to-review system originates from the compulsory indictment process in Germany, where the system applies to all crimes.
However, the German compulsory indictment process adopts the prosecution by the court, and a prosecutor must indict when the investigation concludes that the accusation is valid.
Korea’s criminal laws are based on prosecution by convenience. The prosecutor has no obligation to bring forth an indictment, and the court does not have grounds to force indictments on all cases.
In Japan, which also follows prosecution by convenience, the criminal procedure law strictly restricts the sorts of crimes in which a request for ruling can be applied.
In Korea, criminal lawsuits are more common than in any country in the world.
We have 170 times more legal proceedings than Japan in proportion to the population.
In Korea, there are 400,000 criminal lawsuits every year, and actual indictments occur in only 21 percent of them.
In other words, about 80 percent of the accused are acquitted. While there might be cases where the prosecutor’s decision not to indict is not appropriate, such cases are very rare as only 19 of the 1,209 constitutional petitions to review prosecutor’s decision were accepted.
Thus the expansion could make the position of the accused even more tenuous.
When there is a conflict over an estate that should be handled as a civil case, the plaintiff can try to pressure the accused by bringing forth a criminal complaint against him or her.
Most of the innocently accused, which make up 80 percent of the complaint cases, become criminal suspects.
On top of being investigated by authorities, they are examined by the court, causing more trouble and affliction to them.
There should be a consideration on how to protect the accused from the possibility of such an infringement on their human rights.
Moreover, the excessive complaints and requests for rulings will lead to an increase in the workload for the courts, which consequently adds to legal costs which are paid with taxpayers’ money.
According to the proposed revision of the law, constitutional petitions opposing a prosecutor’s decision not to indict can be transferred from the constitutional court to the high regional court.
The high regional courts examine at least 1,200 requests a year. The accused also have to pay their lawyer.
In addition to the positive effect it has on limiting the prosecution’s power to drop the indictment by the revision of the law, the proposal should also take into consideration the added workload that it will put on the court and the consequent increases in national legal and prosecutorial costs.
The revision plan is basically agreeable.
However, instead of expanding the scope, we should also consider letting citizens participate in the appeals of prosecutors.
Also, if we could expand it, the estate-related crimes, which are civil cases that can become criminal, i.e. the crimes defined by the Criminal Law chapters 37 and 41, can be excluded from the system.
If the estate-related crimes are excluded, the review cases are likely to decrease by 50 to 60 percent, and control over the non-indictment of those cases can be handled through constitutional petitions.
It is expected that the National Assembly will accomplish judicial reform by passing an ideal bill that accommodates Korean circumstances.
Let’s hope it attains the dual goals of helping the victims and controlling the prosecution’s power at the same time.


*The writer is a professor of law at Ewha Womans University. Translation by the JoongAng Daily staff.

by Lee Jae-sang

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