1. Background 

A series of readjustment of the investigation right and the chain of command between the police and the prosecution, collectively called ‘judicial reform’ of the latest, presupposes the reform of authorities, and the movement is spreading to the entire judicial system beyond the realm of investigation structure.

Investigation is basically a process to find out the truth about the alleged misconduct, and the purpose is to gather evidence and identify the offender and the crime that is committed. Criminal investigation is an important task of the State to ensure the safety and freedom of its people, for which the authority and responsibility of investigation is defined clearly on the national level and relevant institutions and procedures are stipulated by legislation. In this context, investigation structure is a system to guard the safety and freedom of the people. As the readjustment of the investigation right between the police and the prosecution, of which the legislative process has been completed recently, and the changes related to the criminal evidence laws have a serious impact on the investigating practice, a further discussion concerning various methods and procedures to collect evidence is necessary in a more systematic manner.

2. Examination on the Changes in the Investigation Structure and the Potential Changes in the Criminal Evidence Laws 

The changes in the investigation structure, more specifically in the investigating methods and procedures, affect the criminal evidence laws, directly. Before the revision of the Criminal Procedure Act in 2021, a statement of a criminal defendant prepared by the prosecution was admissible as evidence, despite the defendant’s denial of the authenticity of the alleged crime’s formation, under Article 312, Paragraph 2 of the Act. However, this article was abolished with the revision of the Act, and the admissibility of evidence of criminal defendant’s statements are now under the same standard as the admissibility requirements of defendant’s statements prepared by judicial police officer. It is inevitable that such changes in the investigation structure and the revision of legal provisions related to criminal evidence are going to influence both the legal system and the actual practice of prosecutorial investigation and police work under the criminal evidence laws. Given that, now, the primary responsibility for investigation lies on the police, this study attempts to explain how the primary collection of evidence is conducted by the police investigation and through what procedure such evidence is admitted to a trial and used to prove the guilt or innocence of the criminal defendant, from the perspective of the changes in both legal and practical aspects, as well as any consequential and potential changes of legislative policy.

Many professionals rightly argue that in order to effectively respond to crimes that become more sophisticated and intellectualized, response measures to crime under the Criminal Procedure Act, in other word, the investigation method or evidence law and regulations must be revised to increase the judicial efficiency. However, judicial efficiency should not be obtained at the expense of due process or the human right of criminal suspect and defendants, which are the most important rights protected by the Constitution. The issue arising in this aspect is whether a supplementary measure is necessary under the criminal evidence laws in order to counter-balance the strengthened admissibility requirements of the criminal defendant’s statement prepared by the prosecution. Nevertheless, given the fact that the intention of the revision of Article 312 Paragraph 2 of the Criminal Procedure Act and the abolition of the Article 312 Paragraph 1 of the same Act which used to deal with the admissibility of criminal defendant’s statement, as evidence, written by the prosecution was to redress the issues in the previous statement-based trials, which completely replaced the defendant’s testimonies on the stand, making a legislative measure to relieve the admissibility of evidence concerning the criminal defendant’s statement written by the prosecution appears to be unnecessary. 

The changes, such as the change in the investigation structure and procedure and the acceptance of digital media in trial, as well as the strengthened admissibility requirements for the criminal defendant’s statement prepared by the prosecution, are likely to be that Korea’s criminal evidence laws are falling into place. Evidence used to be focused on the investigating procedure, but now it must be disclosed and presented to the trials as original evidence to satisfy the direct examination principle, which, in turn, is expected to expand the roles of criminal courts. Since the increased role of criminal courts will impose an additional burden on the court system, a proper measure in the procedural laws should be taken to relieve such burden. For this point, another study ought to be followed in the future.

3. Policy Suggestions

 In the following, a brief summary of this study with main points will be given as a conclusion. First, an argument could be made from the perspective of active fighting against crimes, or effective criminal justice, that a visual recording of criminal defendant interviews should be used as a legitimate evidence at trials. In fact, the use of visual recordings as a trial evidence was a subject discussed for the revision of the Criminal Procedure Act in 2007. A method to use more actively the criminal defendant’s statements prepared by investigating agencies under the current Act, for instance an active use as impeachment evidence, is also worth a further discussion. However, in that the Regulations on Criminal Procedure allows the reproduction of any visual recording for the purpose of refreshing the memories of person(s) related to a criminal case only for the occasions when the prosecution makes such request, visual recording should not be allowed as impeachment evidence. In the prosecutorial practice, a manual has been already prepared in case, following the revision of evidence laws, the admissibility of criminal defendant’s statement is denied. This manual instructs prosecutors to actively conduct investigation using visual recording, as an effective method both to protect the human rights of the people related to the criminal cases and to prevent their recanting or retracting of their own previous statement. Such measure may contribute to proving a particularly reliable state of interviewee during the interviewee’s testimony, and may make criminal defendants refrain from giving statements at trial inconsistent with or different from what they previously gave to the investigators. It is a matter of legislative policy how to constitute the visual recordings of the interrogation of criminal defendants in the investigating process, and whether to allow visual recording to be used as prosecution’s evidence or as an independent evidence. However, as mentioned earlier, because the revision of Article 312 of the Criminal Procedure Act has radically changed the admissibility of criminal defendant’s statement prepared by the prosecution, it would be appropriate to form a legislative principle concerning visual recording system to the extent not to impair the legislative intent of the revision. 

The second issue is concerning the collection and use of digital information as evidence. Already in 2011, provisions dealing with seizure of digital data and information were added to the Criminal Procedure Act under Article 106

Paragraphs 3 and 4, and the Supreme Court, for the first time, provided the key points of digital data and information seizure on May 26, 2011, which was prior to the revision of the Criminal Procedure Act, while examining the case of declaration of the state of affairs by the Korean Teachers and Education Workers Union (KTU). Going through such courses, deeply widespread was a perception that it would be impossible to conduct an investigation without search and seizure of digital data or data storage medium. In other words, digital data and data storage medium became the core evidence to the finding of substantial truth. However, as the Supreme Court has continuously pointed out trough its rulings, data storage medium usually contains enormous digital information concerning individuals’ privacy or companies’ property rights, and sometimes it contains information that is not related to particular cases under investigation. Now, the risk that personal privacy would be violated is increased in the course of search and investigation of information potentially relevant to the criminal cases in question when the investigators secure a certain data storage medium or copy the entire data content, which is beyond the level of search and seizure of physical evidence. Recognizing this problem, the Supreme Court has provided guidelines, through many cases, for the investigating agencies to comply with in their execution of search and seizure warrant in order to protect personal privacy of the people and the property rights of the companies. The control of the judiciary in this respect is desirable in the aspect of protecting basic rights of the people. However, it requires further consideration whether to codify or make into law all the precedents made by the Supreme Court in suggesting a legislative principle concerning the procedure of search and seizure of digital information. In most cases, the procedure of search and seizure under the Criminal Procedure Act follows the procedure of search and seizure of tangible or material things. It indicates that although the Supreme Court’s relevant rulings are about the digital informations’ search and seizure procedure, they can be also applied to the general search and seizure procedure and can be understood as the needs to revise the general procedure from the legislative perspective. In this regard, this study has suggested legislative principles concerning systems that are particular to digital information and data only, including establishment of new provisions about stipulation of the target data of seizure, stipulation of the target data of search, and returning of the storage medium after the completion of search and seizure practice, improvement of the seizure scheme on voluntarily submitted evidence (voluntarily submitted digital data), and making of new provisions concerning search and seizure procedure for remote servers. 

In that in the course that a new legislation is enforced and implemented, various practical factors exert their influences as much as the clarification of the investigation target and procedure from the evidence collection in the investigation stage does, the will and roles, beyond the focus on the legal text, of the people working for and operating the criminal justice are also very important. Strengthening of the investigation right at the police level must be supported by better investigation ability, by which the law enforcement will be able to attain the public confidence in the competency of police investigation. In the changed reality due to the readjustment of investigation right between the police and the prosecution, it may be natural for many of the interested parties to feel uncomfortable and find difficulties. Nevertheless, the consequences should not be at the expense of the daily lives and human rights of the people. If we cannot control excessive or insufficient investigation of the police, the frontline investigation, it will affect the trial procedures of the courts which have the ultimate control over both the investigation and the prosecution. More than anything else, it would make a negative impact on the basic purpose of the evidence laws, that is, ‘to realize justice through trials’ based on the guarantee of the human rights of criminal defendants and suspects and the guarantee of due process in criminal procedure. 

4. Direction for Future Improvement

The changes in investigation structure and the criminal evidence laws would have positive results, as well. Based on that, the next issue will be the examination of various methods to prove the statements of witnesses, and the establishment of court-oriented trials in which the main focus is to secure the evidence to prove the guilt of the criminal defendant. Such new practices will lead the investigation to focus on securing material evidence through search and seizure, breaking away from the existing practice of obtaining the confession of criminal defendant. As the possibility that a criminal defendant’s statement or confession which is against him/herself to the prosecution, would be inadmissible to the trial as evidence, becomes more likely, securing objective evidence becomes a more important investigation method than preparing defendant statements. Consequently, search and seizure to attain material evidence, as well as the use of digital information and storage medium will be more actively adopted as an effective investigation method, in addition to the use of visual recording to secure witness statements. In addition, as there is ain increased possibility that investigators’ testimony will be accepted more widely, relevant legislative policies should be followed. 

The most noticeable change is the change in the police investigation process, and as a result, it appears that a control measure of investigation procedure from inside and outside of the police will be soon strengthened. Internally, the police will prepare and implement various new systems to improve its own investigation competency, and externally, a measure to prevent the prosecution from conducting illegal investigation will be stipulated and implemented as a statute. It is also necessary to supplement the insufficient areas of the current legislation, such as securing evidence in both the police investigation and the trial stages. A method to secure an opportunity for police investigators to participate in the trial process and make testimonies in the stand should be considered, as well.