Necessity and Purpose of Research

* Research Background
- As a part of prosecution reform, a discussion on setting up a body for investigating the crimes (corruption) of high-ranking officials (hereinafter “Criminal Investigation Body for High-ranking Officials”) has been ongoing since the early 1990s.
- In November 1996, People’s Solidarity for Participatory Democracy prepared a corruption prevention bill and insisted on setting up a body exclusively responsible for the corruption of high-ranking officials. In December of the same year, 80 persons including National Assembly Member Ryu Jae-Geon submitted a bill containing the contents related to the establishment of the Criminal Investigation Body for High-ranking Officials for the first time. The government started to become interested in founding the Criminal Investigation Body for High-ranking Officials in 1999, and in 2002, People’s Solidarity for Participatory Democracy signed a legislative petition calling for the establishment of the Criminal Investigation Body for High-ranking Officials, stating that the body belongs to the President and is given the right of indictment, the right of investigation, and even the right of penalty-execution.
- The Moon Jae-in Administration, starting from May 2017, after the impeachment of President Park Geun-hye, selected the establishment of the Criminal Investigation Body for High-ranking Officials as one of the top 100 national political agendas as a major means of cleaning up deep-rooted abuses and corruption, and the Ministry of Justice announced its government program aggregating the proposal of the “Judiciary/ Prosecution Reform Committee,” etc.
- In April 2019, bills in relation to the Criminal Investigation Body for High-ranking Officials which were separately proposed by National Assembly Members Baek Hye-ryun and Kwon Eun-hee as representatives were designated as fast-track agenda items, and in addition, 10 bills related to this issue were submitted to the 20thNationalAssemblysession.
- Likewise, despite discussions on more than 20 prepared bills over nearly 25 years, they could not cross the National Assembly threshold, and the establishment of the Criminal Investigation Body for High-ranking Officials is one of the major ongoing social issues. According to the results of various public surveys regarding the establishment of the Criminal Investigation Body for High-ranking Officials, the approval rating is somewhat higher than the disapproval rating.

* Research Purpose
- The current government suggests the mediation of jurisdiction in the investigation between the prosecution and the police and the establishment of the Criminal Investigation Body for High-ranking Officials as its major national political agendas for prosecution reform, which is an axis of its authority reform.
- In the case of the mediation of the right of investigation, after the settlement between the Minister of Justice and the Minister of Interior and Safety, the difference in viewpoints was significantly bridged between the ruling party and the opposition party in the Special Judicial Reform Committee; however, for the matter of the Criminal Investigation Body for High-ranking Officials, it seems that there is a huge difference in viewpoints between the political parties.
- In particular, the Criminal Investigation Body for High-ranking Officials is a systematic reform that a number of citizens support; however, it is still in a state of drift in the National Assembly, and thus the organization of the issues of the relevant bills and the suggestion of practical solutions are highly needed.
- Also, as there are numerous issues with regard to the operation of the Criminal Investigation Body for High-ranking Officials, it seems that conducting detailed research can decrease the trial and error in terms of practical system operation and contribute to the proper establishment of the system.

Research Method

* Literature Review
- Analyzed the journals, books, and research reports published from the moment of starting the discussion on the Criminal Investigation Body for High-ranking Officials up to now and the contents of the bills submitted by the National Assembly, the government, civic groups, bar associations, etc. for each issue.

* Overseas Studies
- The existing research mainly focused on finding the origins of the organizations established in Southeast Asia such as Hong Kong, Taiwan, and Malaysia, and there was research showing that there was no separate organization in developed counties like the United States, Japan, and Germany. However, in order to check more overseas cases, a comparative analysis on the establishment of a corruption investigation body and its authority were carried out for some OECD member countries.

* Interdisciplinary Studies
- Previously, discussions have been mainly conducted from a legal perspective, such as constitutional law, criminal law, and criminal procedure law.
However, in this research, with the analysis per issue from a legal perspective, the feasibility of establishing the Criminal Investigation Body for High-ranking Officials and its direction were analyzed from an administrative perspective, especially with regard to organization theory.

* Survey
- In order to check the perspective of citizens regarding the establishment of the Criminal Investigation Body for High-ranking Officials, an awareness survey targeting the general public was conducted.

Major Research Contents

* Problems of Special Prosecutor/Inspector and the Necessity of Establishing a Criminal Investigation Body for High-ranking Officials
- Even in the United States, due to the extended budget and investigation, a discussion on introducing a permanent organization is taking place along with the criticisms of its special prosecutor system. However, it has yet to be introduced due to criticisms about political motivations when it comes to appointing the special prosecutor, and the possibility of excessive investigation and extensive coverage of authority compared to other general cases.
- The special prosecutor system is a special organization possessing the right of investigation only; therefore, it faces limitations on the prevention of corruption and the investigation of corruption crimes even though it is a permanent organization.

* Public Awareness Survey Results about the Criminal Investigation Body for High-ranking Officials
- Regarding the Criminal Investigation Body for High-ranking Officials, 62.0% supported it, 29.3% opposed it, and 8.6% didn’t know (the approval rate for introducing the autonomous police system is 47.5%; 17% don’t know responses).
- There is no difference in approval rates based on gender. Opposing opinion
: Male: 33.7%, Female: 25.0%. Ratio of don’t know responses - Male: 4.2%, Female: 12.9%.
- Approval rate based on region: Gwangju/Jeolla/Jeju 73.9%, Daegu/ Gyeongbuk 53.5%.
- Approval rate based on age: 30-39 years old, 77.6%; 19-20 years old and 40-49 years old, surpassing 70%.
- Approval rate based on occupation: Student-groups, 81.4%; Agriculture/ forestry/fishery groups, 48%.
- The results show that the groups who are in favor of the President’s performance of duties have a higher approval rate of the Criminal Investigation Body for High-ranking Officials (89.7%). If their supporting party is the Democratic Party, the approval rate is 89.2%. If their supporting party is Our Republican Party, the approval rate is 12.5%.
- The results show that trust in the police does not affect the support for the Criminal Investigation Body for High-ranking Officials; however, it appears that trust in the prosecution is a meaningful factor in the support for the Criminal Investigation Body for High-ranking Officials.
- Trust in Organization: Police, 42%; Prosecution, 36.3%; Court, 39.6%.

* Overseas Cases
- Operating anti-corruption bodies possessing the rights of investigation and indictment: United Kingdom, Norway, New Zealand, Spain, Hungary, Netherlands, etc.
- Operating anti-corruption bodies possessing the right of indictment only: Austria
- Operating anti-corruption bodies including preventive and educational functions: Poland, Australia
- Cases established under the influence of the Ministry of Justice: United Kingdom, New Zealand, Netherlands
- Cases established under the influence of the police: Norway, Ireland, Czech Republic, Belgium
- Cases established under the influence of the prosecution: Spain, Hungary, Austria
- Cases established under the Prime Minister: Poland, Australia

* Feasibility of Establishing the Criminal Investigation Body for High-ranking Officials in Terms of Organization Theory
- Establishing the Criminal Investigation Body for High-ranking Officials is an organizational restructuring for the purpose of dispersing the prosecutorial power by the principle of separation in organizational design and carrying out the investigation and indictment of corruption charges of high-ranking officials as citizens expect.
- From a principal-agent perspective, the abuse of authority and internal corruption shown by the prosecution can be explained as a moral hazard.
It can be interpreted as the result coming from the discordance between information asymmetry and interests. Thus, its resolution is needed.
- In order to cope with corruption effectively, a cooperative governance approach, rather than a segmental correspondence per organization, is needed. Although establishing the Criminal Investigation Body for Highranking Officials may not eradicate corruption of power at a single stroke, introducing a special anti-corruption organization like the Criminal Investigation Body for High-ranking Officials can be seen as the start of reform, breaking out of the previous vicious circle by presenting a new actor.
- Organizational restructuring is not a one-time event; rather it will be done by a series of processes. This is because the citizens expect that the new organization will play a role as a promoter and foundation of reform.
- However, since organizational restructuring may bring out completely different results based on the political background and leadership even if it is the same reorganization plan, it is hard to say that a particular organizational restructuring plan is fundamentally right or wrong.
Consequently, continuous concerns and discussions on the reasonable organizational design and operation of the Criminal Investigation Body for High-ranking Officials for the effective performance of anti-corruption policy and dispersion of prosecution power are needed.

* The Criminal Investigation Body for High-ranking Officials as a Means of Eradicating Corruption and Reforming the Prosecution
- The two goals of the eradication of corruption and prosecution reform initially given to the Criminal Investigation Body for High-ranking Officials should be equally considered and the primary meaning that it targets the corruption crimes of high-ranking officials should not be missed.
- The fact that the subjects of the Criminal Investigation Body for Highranking Officials are authorities supports the reasoning and necessity of the “strong” independence of the Criminal Investigation Body for Highranking Officials. The Criminal Investigation Body for High-ranking Officials system is not just a criminal justice policy function; as a power control device, it possesses a securing function by monitoring the corruption of democracy, constitutionalism, publicness of power, and morality.
- When approaching from the aspect of power control, the Criminal Investigation Body for High-ranking Officials does not just stop at the monitoring and control of the National Assembly; rather, there will be more room to connect with citizens. The proposal including the audit system for indictment and non-indictment among the proposals regarding the Criminal Investigation Body for High-ranking Officials express that the right of indictment of the Criminal Investigation Body for High-ranking Officials was not just separated from the prosecution, but is related to the citizens’ exercise of sovereignty. This is a symbolic facility conforming to the citizens’ Criminal Investigation Body for High-ranking Officials in terms of publicly arraigning the corrupted power in the name of the citizens.
- As a body corresponding to the preexisting prosecution, in order to be a small prosecutor’s office, prosecutors in the Criminal Investigation Body for High-ranking Officials should act as representatives of public interests.
- In Taiwan, large legal corruption incidents in the late 2000s increased the need for the establishment of Agency Against Corruption (AAC) and judicial reform. Since its launch in 2011, the AAC achieved its desired outcomes in uncovering and indicting corruption scandals. However, problems such as feeble independence, non-cooperation by investigation authority, problems of the prosecutor dispatch system, lack of unity within the organization, employees’ sense of alienation due to the control of prosecutors, etc. occurred. Based on the prosecution’s attitude towards the Criminal Investigation Body for High-ranking Officials and the possibility of limiting indictment subject crimes, our country may experience similar problems. There is a need to find plans to prevent unnecessary misunderstandings and oppositions by making a framework that promotes competition in good faith and smooth cooperation.

* Comparison/Analysis of Bills related to the Criminal Investigation Body for High-Ranking Officials
- Comparison targets are proposals made by National Assembly Members Baek Hye-ryun and Kwon Eun-hee, the People’s Solidarity for Participatory Democracy, and the Justice and Prosecutor Reform Committee.
- The affiliation of the Criminal Investigation Body for High-ranking Officials is almost identical in terms of emphasizing independence and political neutrality. Opinions insisting that the Criminal Investigation Body for High-ranking Officials should belong to a certain administrative department involve an excessively mechanical understanding of the separation of powers. Rather, for citizens’ fundamental rights, the integrity of national function, and impartiality, broadly defining the Criminal Investigation Body for High-ranking Officials as an administrative department fits the principle of democracy. For the Criminal Investigation Body for High-ranking Officials, the President, the National Assembly, and the courts are involved in the appointment of the head of the Criminal Investigation Body for High-ranking Officials, and there is leeway for them to be involved in correcting the investigation body’s possible abuse in its performance through the budget, punishment, impeachment, decisions on applications for adjudication, etc.
- When checks and balances are created among the police, which is in charge of the investigation of general cases, the prosecution, which is in charge of indictment and the sustainment of public prosecution, and the Criminal Investigation Body for High-ranking Officials, which is in charge of the investigation and indictment of high-ranking officials, corruption in this country will be eradicated and the impartiality of investigation bodies will be secured.
- Different views on the scope of investigation subjects exist among the proposals, such as on whether a high-ranking official can be an investigation subject after his or her resignation and how long he or she can be an investigation subject.
- With respect to the scope of investigation subjects for the Criminal Investigation Body for High-ranking Officials, the proposal made by National Assembly Member Kwon Eun-hee defines the narrowest coverage of investigation subjects and the People’s Solidarity for Participatory Democracy and the Justice and Prosecutor Reform Committee allow the widest coverage of investigation subjects.
- With respect to the appointment procedure of the head of the Criminal Investigation Body for High-ranking Officials, each proposal shows a different view; among them, the proposal made by National Assembly Member Baek Hye-ryun confers veto power.

Policy Proposal

* Direction of Establishing the Criminal Investigation Body for High-Ranking Officials
- The inducing of competition and mutual control is needed by hiring multiple representatives. (I.e., the introduction of a system in which the prosecution will investigate the corruption of the employees of the Criminal Investigation Body for High-Ranking Officials.)
- With respect to the appointment of the head of the Criminal Investigation Body for High-Ranking Officials, it appears that setting up the recommendation committee, receiving recommendations from all fields of the society, and then going through confirmation hearings will be effective in selecting the best representative. However, there is a need for preparing a plan that will minimize the influence of the President and the political sphere during the course of appointment by the recommendation committee.
- In order to prevent the moral hazard of the Criminal Investigation Body for High-Ranking Officials, appropriate control devices are needed, such as the introduction of a citizen indictment committee, compulsory prosecution, expansion of applications for adjudication, etc.
- At the time of appointing the head of the Criminal Investigation Body for High-Ranking Officials, politically impartial appointment procedures are to be supplemented by conferring veto power to the opposition party.
However, a limitation measure against the abuse of veto power is required.
- In order to secure neutrality and independence, a term of office of four years for the head of the Criminal Investigation Body for High-Ranking Officials and a retirement age of 70 are suggested.
- For securing independence, the independence of the body in budget compilation and accounting needs to be explicitly indicated. For example, indicating the body as a central organization under the National Finance Act is one such method.
- Considering that the purpose of establishing the Criminal Investigation Body for High-Ranking Officials is the prevention of corruption, the delinquency of duties, wrongful exercise of authority, illegal arrest/confinement, assault/cruel treatment, publication of the facts of suspected crimes, and bribery charges must be contained as subject crimes.
In principle, it is proper not to include the violation of the Public Official Election Act due to the acknowledgement of an excessive right of investigation and the problems of setting up a large-scale organization, etc. Violations of the Public Official Election Act can be held in check by adjusting the right of investigation (investigation by the police and indictment by the prosecution).
- It is proper to acknowledge the right of investigation over investigation subjects up to two to three years after the resignation of the subjects, considering that there will be a loophole in the right of investigation if the scope of investigation subjects is limited to current high-ranking officials, since they would resign in the course of the investigation.
- One of the establishment purposes is checks and balances in the right of prosecution; therefore, the right to request a warrant and the right to indict should be given to the Criminal Investigation Body for High-Ranking Officials.
- In order to establish checks and balances within the Criminal Investigation Body for High-Ranking Officials, the functional division of powers called investigation and indictment should also be realized inside of the Criminal Investigation Body for High-Ranking Officials. It is appropriate to divide the internal department of the Criminal Investigation Body for High-Ranking Officials into the investigation division and the public prosecution division; thus, it is advisable that the investigation division needs to be composed of investigators who are not involved in indictment and the division chief.