THE ROLE OF A KOREAN PROSECUTOR

As is generally acknowledged in Korea, the prosecutor governs the entire criminal procedure. He has the right to open an investigation and to stop it. He �is in charge of criminal investigation,’^[235] and the police are under his command.^[236] Save for some misdemeanors which are punishable by fines,^[237] almost every crime has to be reported to the prosecutorial office.^[238] The police and private parties are prohibited from releasing any suspects without the prosecutor’s permission after the criminal incident has been recorded in the police file.^[239] There is not any private prosecution^[240] nor any grand jury indictment.^[241] Only the prosecutors have the right to notify crimes to the trial court, whether it is a bench or jury trial.^[242] Thus, in everyday practice, the pros­ecutor is in the very center of criminal procedure.

He not only handles almost every crime that occurs in Korea, but the pros­ecutor also has the power to decide how to close criminal cases. If he closes a case not involved with any functionaries’ misuse of administrative power,^[243] the only remedy available for criminal victims or harmed parties was the constitutional challenge. That sort of challenge had been so rapidly accumu­lated in the dockets of the Constitutional Tribunal that it was not considered an effective way to control the prosecutor’s power. As a matter of fact, Korean �prosecutors retain full authority for both investigation and prosecution in Korea under a principle of monopoly.’^[244]

The case in Korea is allegedly this:

The prosecutor is supposed to be involved in any stages from the primary investi­gation to the execution of the court’s decision and can be defined as a governmen­tal agent playing the active role in accomplishing the criminaljustice.

If we say that the prosecutors in general have enormous power in the criminal justice system, it is also true in Korea.

However, we need to think about and clarify one thing in order to correctly understand the role of a prosecutor in Korea - that is, whether or not he has the right to make a dossier, transcript, protocol or whatever, and certify it to the trial court. If the answer is in the positive, the Korean prosecutor is not basically different from the examining magistrate proprement dit in France, and our criminal procedure code can be said to be close to the Continental Inquisitorial system. If we say that the Korean prosecutor is just in charge of the investigation and, with the results of that investigation, simply represents the government in the trial, our system will be described as adversarial.

The factor that distinguishes an inquisitorial system from an adversarial one is closely related to the prosecutor’s pretrial examination. The United States’ Supreme Court accordingly pointed out that:

English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers.^[246]

The point is that, in the Continental Inquisitions (or inquisitorial) process, several judicial officers may be involved with the fact-finding process and even certify some facts as evidence to the trial court. The Inquisition system is that �of criminal procedure in which the magistrate investigated, principally by interrogation of the accused; reduced the results of his investigation, including the testimony of the accused, to writing; and transmitted this dossier to the final sentencing court for a judgment which was based upon and effectively controlled by the dossier.’^[247] To understand the Korean prosecutor, we need to locate prosecutors somewhere in the pre-trial process and examine the nature of their job.

III.