It is common in Korea that when a dispute regarding ownership or rights arises between individuals, they make a complaint to the criminal justice system, rather than turn to the civil procedures. In other words, the complaint system in Korea does more than what is expected from an ordinary criminal justice system, and plays a role as a relief mechanism for civil procedures in, mostly, debt repayment or compensation for damage cases. The names of the offences claimed in the complaints signify that more than half of these complaints concern property ownership, most of which are a plain civil case where the complaint seeks credit collection or recovery from the accused. The complaint system is widely used because of its obvious advantages that one can file his/her complaint to a law-enforcement agency without fees and expect to recover the claimed debt.
This study aims to identify the problems of current complaint system through an investigation on its operation state, in-depth interviews of the experts, and a survey, make a suggestion from the legislative perspective by analyzing the foreign cases, and seek for a solution to improve the booking process and the practice of the complaint system.
In the analysis of the foreign cases, a comparison between the Korea’s case and that of German, Japan, the UK, and the US has been carried out, and a legal policy direction is suggested to tackle the abuse of complaint system. The foreign cases signify that a policy to prevent the abuse should be sought from the both perspectives, that is the mitigation of workload on the prosecuting body and the protection of the alleged victim. Based on a comparative study with such idea, this paper proposes a solution to the abuse of complaint system.
The examination of the actual complaints’ types and cases has revealed that most of the complaints are related to property or civil disputes. On the legal consultation stage, insulting and libelling, simple assault, and small claims cases have been found to be the majority in the complaints. In the prosecutors’ investigation records, forgery of has been found, as well. The lase category often appears as an issue of forgery, but in many cases they are actually related to civil disputes. The examination of false accusation by the first complaint cases which were recorded on the police investigation records and the courts' rulings has also shown that majority of the complaints are property crime. In fact, these are false or improper complaints of civil cases to the criminal justice system. Other cases have included false accusations about sex crime, civil complaints about government agencies, including criminal investigation body, and various retaliation cases.
In the survey conducted among the complainants, 48% respondents said ‘compensation for damages’, 31% said ‘punishment of the wrongdoer’ as the cause of complaint. Given that damages can be recovered by civil action and the complaint itself does not guarantee the compensation of any damages in many cases, it could be inferred that their causes of complaints are essentially civil in nature. Regarding the connection to civil action, 50% respondents said that they took a legal action in both civil and criminal justice system simultaneously. For the reason of filing, 33% answered ‘to put psychological pressure on the other party’ and 28% answered ‘to save the time involved in resolving the issue’. This indicated that the respondents who took both civil and criminal actions regarded filing a complaint to the criminal justice system as a complementary means to civil action. About the criminal mediation, more respondents answers affirmatively than negatively, and 77% said that the criminal mediation would be most effective at the stage between the police investigation and the initial hearing of the court. Moreover, 88% respondents said that they would not use the complaint system again, or would not use if there was an alternative, which suggests that most of the system users agree that the current complaint system needs to be improved.
Further, in-dept interviews were conducted among the relevant experts to understand the actual operation of the complaint system better and thus rectify the system abuse, and to find an alternative measure in criminal policy aspects. The experts interviewed through this investigation included criminal justice practitioners who interacted with the complainants in person and processed the complaints through the system (police officers, public prosecutors, and lawyers). The in-depth interviews focused on the information which was difficult to obtain from the complainants survey. The ultimate goal was, again, to have a better understanding on the complaint system based on the hands-on information of these interviewees. According to these criminal justice practitioners, the abuse of complaint system can divided into three types. The first is making a fraud or embezzlement charge out of a civil dispute, most of which concerns property crimes such as failure to replay the debts. This type lies on the borderline between civil and criminal cases. The next are libel or insult-related complaints, and infringement of intellectual property. As for the issues arising in each processing stage of the complaints, it has been found that first, too many windows to file a complaint rather creates the balloon effects, secondly, the police's current 'same day investigation system' could weaken their preliminary investigation, and thirdly, the current system of turning-down of the complaints should be improved, as the problems in the initial stage. For the investigation stage, suggested as the most significant are first, violation of the accused's human right, second, inefficient use of police investigation, third, long processing time, and fourth psychological distress of the law-enforcement officer who receives the complaint. In the closing and disposition stages, dismissal of the complaints and protest against the prosecutor's decision have been identified.
As for the measure to improve the current complaint system, this study recommends the change in the investigation method, promotion of criminal mediation program, and cost-bearing on the complaints as a means to mitigate the workload of the investigation agencies. A proper adjustment between criminal accusation and civil procedures is required to make the current complaint system better, fundamentally. Finally, legal education for the citizen should be strengthened as the public understanding and knowledge of legal contact need improvement as well.