WHO IS THE KOREAN PROSECUTOR?

Next, I would like to compare the Korean prosecutor with various types of judicial officers. They have different names and assignments. To compare them with the Korean prosecutor will help develop a clearer idea of who he is.

1. Korean Prosecutor v. American Prosecutor

Some argue that �the Korean prosecutors do not view their judicial role or function as subordinate to that of judge’^[250] and that �this mentality is... incom­patible with the adversarial system, which the Korean legal system presup­poses.’^[251] Many commentators actively ascertain that Korea has an adversarial criminal procedure.^[252] In some aspects, they have reasonable ground to insist that.^[253] However, it is a different thing to say that the Korean prosecutors are supposed to do the same work as the American counterpart, just because Korea and the United States are both employing the so-called adversarial criminal system. In reality, the two countries’ prosecutors are not of the same kind. The American prosecutors seem rather bizarre in terms of police-prosecutor rela­tions, and this is evident from simply comparing them with the FrenchZKorean colleagues. The following description is about the difference between two groups of prosecutors face-to-face over the Atlantic:

The French prosecutor must be kept informed, at an early stage, of the existence and progress of the investigation. This permits the prosecutor to have more input into the direction and methods of investigation. If the offense is one that will probably not be prosecuted, the police may avoid wasting time and unnecessarily bothering the suspect, his or her associates, and witnesses. If the police are using questionable investigatory methods, the prosecutor may be able to intervene in time to protect both the rights of citizens and the admissibility of the evidence.^[254] In contrast to this �integrated’ model, the police and prosecutorial functions in the United States seem to reflect a strict �division of labor’ theory.

If we are able to designate the French criminal procedure model as an �inte­grated’ one, Korea has the same system as France. To understand the prosecu­tor’s role in Korea, all we have to do is just to replace the word �French’ with �Korean’ in the above sentences. The Korean prosecutor works with the police under the �integrated’ model. There is no theory of �divison of labor,’ as far as we are concerned with pre-trial activity. However, a difference from the French scenario is that there is no direct path from the police station to the judge in Korea.^[256] Save some minor offenses,^[257] all the results of criminal inves­tigations are to be gathered in the prosecutorial office. There it is decided whether or not to take the case to the court. In that sense, Korea has a far more integrated model than France.

That being so, the fact that two nations, such as Korea and the United States, both basically have an adversarial criminal system does not say much about the similarity of the prosecutors’ work in the two nations. As is gener­ally taught in the Judicial Research Training Institute,^[258] from the comparative point of view, the Korean prosecutor is rather an adherent to the French procureur de la Republique.

Prosecutors are historical products of the Continental criminal procedure governed by the Nation. The position of the prosecutor is very close to the so-called procureur du roi in the fourteenth century. Nonetheless the procureur du roi at that time was nothing more than an officer who was in charge of governmental lawsuits for procuring fines and forfeits. In 1808, the Napoleonean Criminal Instruction Code (le Code d’Instruction Criminelle) changed the name to the procureur de la republique, and this was imported through Germany and Japan to our country.^[259]

2.

To understand the nature of the French prosecutorial work, we have to juxta­pose the prosecutor with the examining magistrate, and �[o]ne of the most distinctive institutions of French criminal procedure is that of the examining magistrate.’^[260] Without saying anything about small crimes and infractions, every serious crime should not directly reach the trial court. Two sorts of magistrates are supposed to handle the cases before a trial.

Ces magistrats dont la situation est differente se differentient surtoutpar leurs fonc- tions. Le juge qui n’a pas le droit de poursuivre, ne peut se saisir lui-meme d’une affaire penale. De son cote, le [procureur de la Republique] qui a seulement le droit de poursuivre, n’a pas en principe le pouvoir d’effectuer des actes d’instruction. [These magistrates whose positions are different are supposed to do different jobs. The investigating judge, who does not have the right to accuse, cannot take charge of any criminal case for himself. On the other hand, the public prosecutor who exclusively has the right to accuse cannot effectuate the acts of pre-trial examina- tion].3⁴

The examining magistrate, called juge d’instruction in France, has been invented �for more direct and efficient judicial control over both police and prosecutorial discretion at the investigatory and charging stages’^{[261] [262] and �combines the functions of police, prosecutor, investigating grand jury.’[263] Certainly, �the French today make relatively little use of this procedure [of the examining magistrate].’[264] Nevertheless, the basic structure of pre-trial investi­gation remains undisturbed. There is on the one hand the procureur de la republique who �receives complaints and denunciations and decides how to deal with them,’[265] and �institutes or causes to be taken any step necessary for the discovery and prosecution of violations of criminal law’.[266] Judicial police operations are carried out under the direction of the district prosecutor.[267] On the other hand, there is an investigating judge who has the right to interrogation.[268]}

The same is basically true in Korea. There is a prosecutor who commands and directs the investigation.

In case persons who are deemed likely to know facts that are indispensable for the investigation of crimes refuse to appear or make statements under the preceding Article, public prosecutors may request judges to interrogate them as witnesses only before the date of the first public trial day.^[270]

All proceedings, which include �attachment, investigation, verification, exam­ination of witness, or expert opinion,’^[271] are called pre-trial examination or simply instruction in French.

Les actes d’instruction. Ce sont les actes qui ont pour but la recherche et la reunion des preuves de l’infraction, qu’ils soient accomplis par les juridictions d’instruction ou meme par des officiers de la police judiciaire. [Acts of examination. They are the acts which are means of searching or gathering the evidence of crime, and which are accomplished by the examining magistrate or even by the judicial police offi­cers (OJP)].^[272]

It is very important to figure out whether or not the Korean prosecutor has the right of examination. As is shown above, and as opposed to the examining magistrate, the French prosecutor does not have the right to do that. Neither does the Korean prosecutor. In other words, the initiative in the first step of criminal procedure is not in the hands of prosecutors but in those of the exam­ining magistrate. In a certain sense, prosecutors and district judges or examin­ing magistrates are cooperators, and the basic structure of the pre-trial investigation in Korea or France consists of those two top positions.

The result is that everything said or declared in the presence of the district judge can be qualified as evidence, but what is said to the prosecutor has to pass some sort of evidentiary rule, such as the hearsay rule, in Korea. That is the crucial difference between the roles of prosecutors and those of district judges. Article 311 makes this point clear by stating that:

Any protocol which contains statements made by the defendant or persons other than the defendant at a preparatory hearing or during public trial, and results of inspection of evidence by courts or judges may be used as evidence. The same shall apply to a protocol prepared pursuant to articles 184 and 221-2.^[273]

However, worthy of note is that the Korean prosecutors actually interrogated the suspects and the prospective witnesses like the French examining magis­trate did. Furthermore, they reported the result to the trial courts, and the courts’ decisions were widely based on those reports, as a practical matter.^[274] We might be able to say that, in that sense, the Korean prosecutors might be considered half-judges. It was sometimes argued that the Korean prosecutors had been nearly promoted to the group of examining magistrate.^[275]

All that happened was due to the practice that gives relatively high eviden­tial weight to the protocols of the prosecutors. As is true in France, the CPC in Korea gives full evidential weight to the judges’ records. However, the records made by the prosecutors have not been given full evidential weight differently from magistrates’ records.^[276] Thus, the old article 312 said that the transcripts made by the prosecutors could be used as evidence in the trial court, but it specified certain conditions as following:

(1) Aprotocol which contains a statement of a suspect or any other person, prepared by a public prosecutor... may be introduced into evidence, if the genuineness thereof is established by the person making the original statement at a preparatory hearing or during public trial: provided that a protocol containing the statement of the defendant who has been a suspect may be introduced into evidence only where the statement was made in particularly reliable state, regardless of the statement made at a preparatory hearing or during public trial by the defendant.^[277]

To summarize roughly, �the person making the original statement’ has to approve �the genuineness’ of the protocol and there should be �particularly reliable state’ at the moment of making protocol.

... in the cases where judicial police officers,judicial police agents or the civil servants and agents entrusted with certain judicial police duties have been granted by a special legislative provision the power to establish misdemeanors by official records or reports, proof of the contrary may only be brought in writing or through witnesses.^[279]

The wordings of the Korean and French Codes are not the same, but they agree to the point that the protocols or proces-verbaux made by the police and pros­ecutors should not be accorded full evidential weight.

3. Conclusion

At the very least, one thing is not in doubt: namely that the Korean prosecutor is very different from his American counterpart. At the same time, he is not one of the examining magistrates or investigating judges. Nor is the prosecu­tor a police officer. All that I can say with sufficient conviction is that the Korean prosecutor is located somewhere between the OJPs and the examining magistrate, or the police officer and the district judge, in terms of pre-trial examination. This is in fact the point which ignites the judiciary reform in Korea.

IV.