Reforms in Criminal Procedure and Investigation
Authority of the Police and the Prosecutors’ Office
As of January 1, 2021, new amendments to the Code of Criminal Procedure and the Prosecutors’ Office Act (the “Amendments”) came into effect, dramatically changing the dynamics of Korean criminal procedure and enforcement. Notably, the Amendments shifts the balance of power between the police and the PO in favor of the police by (i) reducing the scope of the PO’s authority to initiate investigations; and (ii) granting the police with authority to not only initiate certain investigations, but also to independently close an investigation without referring the case to the PO. Following these Amendments, new investigation agencies, such as the “National Investigation Headquarters,” will be established under the Korean National Police Agency (“KNPA”), resulting in a significant reorganization of key police agencies.

1. PO’s Reduced Scope of Authority to Initiate Investigations
Under the Amendments, the PO’s authority to initiate investigations is now restricted to alleged offenses committed by police officers and the following six types of so-called “serious crimes”: (1) corruption; (2) financial crimes; (3) election-related offenses; (4) defense acquisition related offenses; (5) offenses of government officials; and (6) major disasters. This remains true even if a complainant files a criminal complaint directly to the PO, in which case the PO must then refer the case to the police (or other agency with jurisdiction to investigate). Even for criminal complaints or allegations involving serious or police-related crimes, the PO can choose to refer such cases to the police or other agency with jurisdiction.

2. Police Power to Close Investigations
Prior to the new Amendments, the police were obligated to refer every case they investigated to the PO together with recommendations of how the case should be disposed, for the PO to further investigate the case and make a final decision on whether to issue indictments or close the case. Under the new regime, the police now have the power to close a case without further action being required by the PO if, after its investigation, they determine that the allegations have not been sufficiently substantiated to warrant an indictment.

The police’s enhanced authority is not without limitations. For one, it remains unchanged that the police must refer a case to the PO if the police believes the case should be subject to indictment. Further, if a complainant or an injured party objects to the police’s decision to close the case, then the case must be referred to the PO. In addition, even when the police close a case, the case file is sent to the PO, which can direct the police to re-investigate the closed case if the PO finds the police’s decision was unlawful or unreasonable, within 90 days of the closing date. If the PO suspects that the police have committed a violation of law, abuse of human rights, or abuse of authority during the police investigation, the PO can direct the police to take corrective measures.

3. Key Changes in Police Investigation Agencies
As a result of the shifting balance of authority in favor of the police, it is widely expected that the overall caseload of the police will substantially increase. To oversee and supervise police investigations under the new structure, the KNPA has established the National Investigation Headquarters (the “NIH”). Within the NIH are specialized bureaus, including the White Collar Crime (Non-violent Crime) Investigation Bureau, Criminal Investigation Bureau, Cyber Bureau, and National Security Bureau. In addition, a Human Rights Officer is appointed to work with the NIH’s Chief Officer to strengthen the protection of human rights and fairness during police investigations.

The District Police Agencies within the KNPA have also been bolstered to handle the additional load. For example, the Seoul Metropolitan Police Agency expanded its investigation department to add four additional specialized units – Financial Crimes Investigation Unit, Violent Crimes Investigation Unit, Narcotics Crimes Investigation Unit, and Anti-corruption and Public Crimes Investigation Unit. Each of these units will specialize in data collection and investigation of crimes that are designated as “important crimes” by either the Director of the National Investigation Division or the Commissioner of the Seoul Metropolitan Police Agency, filling the gaps caused by the reduction in the PO’s investigatory powers.

With the granting of more authority and power to the police within the Korean criminal enforcement system, we expect the police to take a more proactive approach to investigations, particularly to corporate investigations that had previously been led by the PO. Specifically, with the police now having much more expansive power to initiate investigations, and with the newly established NIH and the special units, we expect the police to actively pursue investigations in high-profile cases, including alleged claims against corporations. Effective criminal defense strategies will require active and comprehensive advocacy from the outset of the investigations to ensure the police are well-informed of the facts and legal principles.

Kim & Chang   39, Sajik-ro 8-gil, Jongno-gu, Seoul 03170, Korea
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