Research Objective

  With the enactment of the 「Act On The Establishment And Operation Of The CIO(CIO: Corruption Investigation Office For High-ranking Official s)」 in 2019 and the revision of the 「Criminal Procedure Act in 2021」, investigative agencies that can intervene in corruption offences have expanded to the CIO in addition to the existing prosecution service, police, military prosecutor’s office, and coast guard. The CIO is an institution that only deals with specific crimes of high-ranking government officials, but unlike the prosecution service, police, military prosecutor’s office, and coast guard, CIO’s target crimes and subjects are specified, and institutional independence is strongly guaranteed. Therefore, this research report aims to cover the diagnosis of the current corruption offence investigation system to uate and improve the CIO, a special investigation agency.

Terminology of Corruption offences

  In traditional Roman law, public officials were prohibited from receiving any compensation for their duties, and bribery was immediately established after being compensated as it was uated as an act contrary to the duty of sincerity and integrity regardless of whether they committed an illegal job.

  During the Joseon Dynasty, bribes to whom engaged in public service were severely punished. During the Joseon Dynasty, there was no separate agency that investigated only corruption offences, and the detection and punishment were managed by Uigeumbu, Podocheong, Hansungbu, Hyeongjo, governors and mayors regardless of the type of crime.

  The international community, especially the United Nations Convention against Corruption, does not conceptually define corruption offences, but bribery of state officials, foreign officials and employees of international organizations is prohibited. In this agreement, embezzlement or breach of trust of public officials is also considered one of the corruption offences. According to the European Parliament's decision, corruption in the private sector refers to the act of promising, providing, or receiving unfair profits for a person or a third party directly or through an intermediary.

  Domestic law defines corruption offences in the 「Act On Special Cases Concerning The Confiscation And Return of Property Acquired Through Corrupt Practices」 and the 「Regulation Of A Range of Crimes Initiating Prosecutors' Investigation」. In the above laws, corruption offences have many types and include forms which are difficult to be in the type of corruption offence like any act of abusing one's position or taking advantage of one's position. In addition, the scope of corruption offences in「the Regulation of a Range of Crimes Initiating Prosecutors' Investigation」 is relatively wide. For example, in the cases of destroying presidential records without undergoing deliberation or without complying with procedures, and removing presidential records from Korea(article 30) as in the 「Act On The Management Of Presidential Archives」, in the case of who performs the duty of attaching electronic devices removes or destroys any electronic device without good cause (article 36, paragraph 1)as in the 「Act On Electronic Monitoring」, in the case of damaging or concealing previous criminal records materials or investigation records materials or undermining their utility in other ways (article 9, paragraph 2) as in the「Act On The Lapse Of Criminal Sentences」are far from corruption offences and included regulations related to abuse of authority or status of public officials do not fit the concept of corruption, such as corruption in the form of receiving unfair profits, entertainment, etc. in return, or simply receiving a certain amount of money from a specific person. In this respect, it is considered reasonable to define the scope of research to limit the scope of corruption crimes as defined by the 「Act On Special Cases Concerning The Confiscation And Return Of Property Acquired Through Corrupt Practices」 which stipulates the scope of corruption crimes in relative detail. However, crimes such as simple fraud and embezzlement generally account for a large proportion of crimes in the private sector but are excluded for the limitation of the scope of research.

Oversea Cases on Special investigation Agency Against Corruption Offences

  Corruption fosters distrust of government, public institutions, businesses, political parties, and democracy and decompose our social fabric. As such, corruption is one of the urgent challenges to be actively addressed. Germany, the United States, and the United Kingdom have long sought to respond against corruption. The enactment of corruption-related laws, the establishment of corruption investigative agencies, and maintaining the top rank in the corruption perception index (CPI) reflect these efforts.

  An accurate understanding of the status quo of corruption in our society must be premised to establish efficient measures for corruption. Germany and the United Kingdom continue to strive to respond to corruption even though their CPI is quite high. On the other hand, Korea ranks lower among 35 OECD member countries in the CPI, and in the 2016 survey conducted by Korean Anti-corruption & Civil Rights Commission, more than 50% of respondents said, "Our society is corrupt," indicating that negative perception of Korea's integrity is not small. Ultimately, it is difficult for each country to respond to corruption beyond the level of public awareness of corruption. Therefore, to solve the corruption problem in our society, institutional measures should be prepared to escalate the anti-corruption education, the promotion of the agenda and the CPI.

  In the United States, the U.S. Office of Special Counsel (OSC) is an investigation and prosecution agency independent of the federal government. The basis for the existence of the OSC is also to prevent various disadvantages to whistleblowers who internally accuse illegal acts of public officials working in the federal government. In our case, whistleblowing should also be encouraged by expanding the scope of application of the 「Public Interest Whistleblower Protection Act」 and strengthening the degree of protection. However, since there is also a negative view of whistleblowing in society, it is necessary to promote a change of recognition against this view.

  The UK has been responding by enacting laws since the 1700s against corruption issues such as bribery. The result of such efforts is the Bribery Act 2010, which is currently considered the most stringent. The enactment of corruption-related laws in the United Kingdom reflects the British government's willingness to fight against corruption. In particular, the Bribery Act 2010 punishes bribes in the private sector same as in the field of government and bears responsibility for companies' failure to prevent bribery crimes. Korea also made legislative improvements in 2015, such as the enactment of the 「Improper Solicitation And Graft Act」, but it can be uated that it has not yet been settled. In the future, it is necessary to overhaul more realistic and fundamental corruption-related laws and systems to control the collusion and corruption of political power and companies.

  The UK's most innovative response to corruption is the creation of dedicated organizations for corruption. Although SFO and NCA have not started as dedicated organizations for corruption, SFO is now investigating bribery and corruption in line with the changing times. SFO operates through a Roskill model that integrates investigation and prosecution with the utilization of employed lawyers, accountants, financial experts, and computer experts. On the other hand, NCA also has an International Anti-Corruption Coordination Centre (IACCC), raising problems such as overlapping functions. The operation method of the UK SFO has become a model for the establishment of the CIO in Korea.

  Reflecting on the UK case, it is necessary to strengthen the role and status of the CIO as an independent corruption offence investigation and prosecution agency independent from political power. For example, SFO is legally authorized to differentiate itself from other law enforcement agencies. The representative one is the authority to request information under Section 2 of the Criminal Justice Act 1987. In addition, NCA and SFO have systems that can facilitate the recovery of property formed by corruption crimes through the UWO (Unexplained Wealth Order) under the Criminal Finances Act 2017. The operation of such a system is related to the public awareness and the realization of judicial justice over a long period of time, and sufficient discussion and national consensus must be required for the introduction to Korean law. However, it is a system worth referring to for addressing corruption problems in the future.

  It is necessary to refer to the principle of mutual cooperation and check between various federal agencies and state investigative agencies. The Federal Bureau of Investigation (FBI) of the USA, the Office of Special Counsel (OSC), the Public Integrity Section (PIN), and police and prosecutors in each state are actively responding to the concerns on corruption. In the UK, British law enforcement agencies such as SFO, NCA, police, and prosecutors are also checking and cooperating with each other. In Germany, prosecutors and police, the dedicated prosecutor’s office for financial crimes (Schwerpunktstaatsanwaltschaft), the General Prosecutor's Office, and the Federal Criminal Police Office (BKA) are organically cooperating.

  The cooperation of law enforcement agencies is essential to achieve the national goal of eradicating corruption crimes. In addition, the UK's SFO allows public uation of its own duty performance, institutional operation status, and fair execution of the budget through an annual report published every year. In addition, it is worth noting that a memorandum of understanding (MOU) is prepared and disclosed to ensure its implementation and cooperation in order to prevent conflicts with related institutions in advance. Since it is highly related to politics due to the nature of corruption, it is necessary to consider the institutional mechanism of the SFO that can block political intervention in the decision to investigate and prosecute corruption-related cases.

Corruption Offence Investigation System and the Establishment· Operation of Corruption Investigation Office for High-ranking Officials

  Currently, the corruption offence investigation system includes the Anti-corruption & Civil Rights Commission, the Board of Audit and Inspection, the special inspector, the joint government corruption prevention team, and the Office of the President inspection team. For investigative bodies, there are police, prosecution service, coast guard, military prosecutor’s office, CIO, etc. A special prosecutor belongs to a special case because it is invoked on an issue that specifically requires fairness in the investigation.

  Among corruption offences, bribery crimes by public officials are often chained from investigating entities who give bribes, such as specific individuals or companies. Whistleblowing is extremely rare, and high-ranking officials’ crimes of bribery or Improper action after acceptance of bribe are rarely investigated immediately. While the form of investigation of police and prosecution service is expanding from general crimes to bribery cases, the CIO’s subjects are limited to high-ranking government officials, making it difficult to start investigating corruption crimes such as bribery in this way. In addition, the CIO has a limited function in collecting intelligence. The CIO’s investigation of bribery is transferred from other institutions or has no choice but to rely on whistleblowing or accusations.

  Investigation of corruption crimes by public officials is difficult because of ①innate difficulty for an investigative agency to understand the chronic corruption structure of the administration (difficulty in crime detection), ②difficulty of whistleblowing for common interests between director and executioner of crime (consensus of personal interests), and ③ difficulty of securing sufficient evidence for the maintenance of prosecutions and conviction in the case of the systematic destruction of evidence is carried out within an administrative agency (difficulty of securing evidence) ④ difficulty on obtaining sufficient cooperation from the administrative organization in the case of corruption linked to the core of political power (difficulty of excluding political influence) ⑤ difficulty of obtaining the story map of the case, evidence, and data because it is a crime that benefits without a conflict of interest between the donor and the recipient due to the nature of the crime of bribery. Corruption in the private sector is ①not easy to capture the truth of a case by complex financial interests, financial engineering techniques, or accounting tools, ② hard to detect the crime and secure the evidence as crimes are committed among people with shared interests, ③ a leading those committed crimes by their hands are active in concealing the offences due to the fear of punishment, ④ likely to hide the crime and solve it by corruption organization’s own, as in the case of a corruption crime is known to the outside world, trust in the institution or organization may fall, causing financial damage such as stock price decline and investor withdrawal, and making it difficult to survive.

  Considering the characteristics of these corruption crimes, it is considered necessary to have an agency dedicated to professional corruption investigations, and a functioning intelligence exchange between the intelligence agencies and investigative agencies listed above is necessary. One of the reasons for the need for interagency cooperation is that evidence may disappear or be contaminated if the investigation is not conducted in the initial stage of obtaining information.

  The CIO is currently dealing with 13.4 cases per prosecutor based on 282 cases under investigation or prosecution (as of May 31, 2022) based on the number of prosecutors (currently 21), without counting the head and the vice of the CIO and 8.5 cases per investigator based on the number of investigators (33). Considering that the CIO is in the early stages of its establishment, it is the number which seems not so many. However, there is a doubt that cases can be managed by a limited law-regulated number of staff, considering the expected number of accusations and complaints (about 1,500-2,000 per year). Due to these difficulties, seconded officers from investigative institutions like Korean National Police Agency (KNPA) were in charge of parts of the investigation-related works at CIO. However, most of the seconded staffs are now returned to the original agency without further secondment. In addition, since the seconded personnel returned to the original agency after a certain period, continuity of work is not guaranteed, and the investigation of the case cannot be properly continued because the dispatched personnel must return to the original agency after a certain period of time.

  According to the 「Act On The Establishment And Operation Of The CIO」, the basic term of the prosecutor is three years, and he or she can be reappointed three times. According to the interpretation of the regulations, it is possible to perform duties for a total period of 12 years (Article 8), and the retirement age is 63. Meanwhile, the basic term of office for investigators is six years with no restriction on consecutive terms, and the retirement age is 60 years (Article 10). The prosecutor is appointed by the president after being recommended by the personnel committee among those who are with more than seven years of bar license. The investigator is appointed by the head of CIO from among those who have been engaged in investigation and enquiry as a public official of Grade 7 or higher, or who have been engaged in the investigation for more than five years or who is with bar license. In contrast, according to the「Prosecutor's Office Act」, there are no regulations for consecutive terms for prosecutors, and they can perform their duties until the retirement age (63 years old) unless they are recognized as having a significant lack of ability to perform their duties in every seven years after appointment (Article 39 and Article 41 of the Prosecutor's Office Act).

  Since the number of personnel is limited in the CIO, the secondment system is used to supplement the number of staff. The secondment of public officials is stipulated in Article 44 of the Supplementary Provisions of Chapter 6 of the 「Act On The Establishment And Operation Of The CIO」, and it is possible to receive a secondment from other administrative agencies if necessary in consideration of the content and specificity of the duties. Accordingly, investigators may be dispatched from the prosecution service, but if the prosecution service’s investigators are seconded, they are included in the ceiling number of investigators (40 people). The fixed number of other employees is 20. As such, it is interpreted as possible to have seconded prosecutors that there is no separate restriction on whether the prosecutor can be seconded.

Policy Implications

∙ Regulation of role-sharing between institutions or operating consultative body

  Since our corruption offence response system is in a form in which each plays its own role without a single central institution, it is difficult to respond efficiently. When particularly seeing the investigation sector, there are grey areas like the police and the prosecution services’ duty investigation boundaries overlap, and crimes subject to the CIO can be investigated by the prosecution service or the police.

  However, in terms of the efficiency in responding to corruption offences through various institutions, not only mutual monitoring but also overlapping monitoring is enabled, so it might increase the total amount of corruption offences and increase the effectiveness of preventing corruption.

  However, there is a need for an institutional mechanism to appropriately share roles between institutions, and if there would be no such mechanism, it is reasonable to operate a consultative body at least. In the event of a major corruption crime, a central body is needed to control it and coordinate investigative agencies as a whole. Currently, the CIO is not suitable for this role considering its capacity and manpower, so it is reasonable for now the prosecution holds the grip, which has continuously secured expertise in corruption offences while other institutions are the participating and cooperating to this.

∙ Enhancing corruption offence intelligence sharing system

  As for peacetime information sharing, the Anti-Corruption and Civil Rights Commission currently has jurisdiction over corruption issues in both public and private sectors and civil rights violations, so it is possible to discuss the distribution of major corruption crimes centered on the Anti-Corruption and Civil Rights Commission.

∙ Strengthened compensation for the information providers (i.e. reporter)

  There is an opinion that if the government wants to actively respond to corruption offences in the private sector, the current scope of corruption prevention should not be limited to preventing corruption by public officials but be expanded to preventing corruption by the private sector. In particular, due to the secrecy of corruption, the reporter's report plays an important role in the start of the investigation, so it is necessary to expand the compensation for the reporters. The provisions of the 「 Public Interest Whistleblower Protection Act」regarding the protection and compensation of reporters related to civil corruption are limited to public interest violations and do not cover economic crimes, so there needs a compensation system enough to offset the expected disadvantages of civil corruption reporting.

∙ Related amendments on the articles of the Criminal Procedure Law

  Article 245-7 of the 「Criminal Procedure Act」 excludes the complainant's right to file an objection. As such, in the case of a civic group, etc. filing a complaint for whistleblowers on their behalf, there is no way to examine the problems of the police investigation if it is not transmitted to the prosecution from the police level. So, this regulation needs to be improved

  Corruption offences of public officials may require voluntary cooperation from the subject institution when targeting that authority-wielding institution. In the case of seizure and search of a place that requires military secrets or public offices and supervisory offices, consent may be required with a proviso that tells the consent can’t be rejectable except in the event of an infringement of the grave interests of the state under Articles 110 and 111 of the 「Criminal Procedure Act」. However, the proviso itself is ambiguous. In this regard, there is room for improvement in the fact that the 「Act On The Establishment And Operation Of The CIO」did not stipulate those special cases of seizure and search for corruption crimes of public officials.

∙ Extension the target offences and subjects of the CIO’s investigation

   The purpose of enactment of 「Act On The Establishment And Operation Of The CIO」is to prevent power-driven corruption through the establishment of the CIO. Considering that one of the purposes of the establishment of the CIO is the strictness of high-ranking government officials in the blind spot of the existing investigation, violations of the 「Improper Solicitation And Graft Act」, which is based on the tax offenders and the integrity of public officials, are the starting point and foundation of the researching against power-driven corruption prevention in terms of individual and cooperate body’s offences. Violation of the 「Punishment Of Tax Offenses Act」 (tax evasion, etc.) is a mixture of corruption offences such as public officials’ real estate-related crimes, illegal gifts, and tax evasion using ghost corporations. Especially, if corporate tax evasion is combined with power-driven corruption, it can have a significant impact on the national economy and national tax collection authority. These tax crimes are stipulated in the Special Criminal Law of 「Punishment Of Tax Offenses Act」, and they need to be included as targeted crimes, considering that they constitute aggravated punishment under the 「Act On The Aggravated Punishment Of Specific Economic Crimes」and Concealment and Disguise of Criminal Proceeds under the「Act On Regulation And Punishment Of Criminal Proceeds Concealment」

  Provisos regarding corrupt practices and Inducement by Interest under the 「 Referendum Act 」 and the 「 Public Official Election Act 」 are not only see unavailability of elections as tis benefit and protection of the law but also the infringement of job integrity through the provision of profits too. Therefore, these crimes need to be added as one of the types of corrupt offences. In particular, subjects of violations of the 「 Referendum Act 」 and the 「 Public Official Election Act 」 are including high-ranking officials like the member of the National Election Commission. So, it is reasonable to add them as target crime considering the characteristics and subjects of the crime.

  If the investigation cannot be conducted on related accomplices by limiting the investigation target to high-ranking government officials, problems in securing evidence, trial efficiency, and duplicate investigations of suspects may occur, not to mention the inefficiency of the investigation via overlapping different investigative agencies to an investigation. There may be confusion in interpretation in relation to the jurisdiction and handling of competing cases in the trial procedure, and the damage caused by this confusion will be delivered to the suspect as it is. Therefore, it is necessary to revise 「Act On The Establishment And Operation Of The CIO」 so that investigations can be conducted on those involved.

∙ Improvement of the personnel system in the Corruption Investigation Office for High-ranking Officials

  The term of office system of prosecutors and investigators in the CIO brings anxiety over the continuity of work. Unlike public officials in other ministries, prosecutors and investigators have a fixed term of office, so even if they are not subject to heavy punishment such as expulsion or dismissal, they may be discharged from the next term’s appointment review if they have been punished for simple misconduct. This term system and re-appointment review are factors that hinder the stability of the institution and the efficiency of the investigation. The CIO shall re-appoint prosecutors and investigators once every three years or every six years, and in the case of prosecutors, the maximum period of work is only 12 years as the limit of consecutive term is three times.

  In the case of investigators, it is reasonable to guarantee retirement age while having a work uation process or dismissal procedure in the case of heavy misconduct via disciplinary action. For the prosecutors, same rule might applies by the guarantee of retirement age in consideration of equity with prosecutors under the 「Prosecutors’ Office Act」, but to go through procedures such as qualification every seven years. The above are considered valid in terms of the continuity in handling the case and improving the expertise of the CIO.

  There is also a problem with the term of office of the CIO’s head and the deputy. The term of office of the head of the CIO is three years and cannot be reappointed, and the deputy head of the CIO also follows the same term and rule. Eventually, if the head and the deputy retire after the expiration of their terms, there will be a vacuum in the investigation of the CIO. Since the deputy will be appointed by the president at the recommendation of the head, the retirement is expected to be only a few months later. In fact, even from the point of view of the deputy’s directing the investigation of important cases, it is unreasonable to make the deputy’s term short like the head to secure the continuity and expertise of the investigation. To solve this problem, it is necessary to adjust the term of office of the deputy to 4 or 5 years instead of 3 years.

  There is no separate provision on what to do when the head of the CIO is subject to disciplinary action. In the 「Act On The Establishment And Operation Of The CIO」, if the head is subject to disciplinary action, the deputy is required to chair the disciplinary committee, but if the head is subject to disciplinary action and reprimanded for the disposition, there is no separate execution provision in the law. Since the National Assembly's actual right to participate in personnel affairs for the head of the CIO is not considered, institutional supplementation such as imposing a duty to notify the National Assembly of the disciplinary results is required

∙ Increase in manpower of the CIO

  In terms of the ratio of the personnel of the CIO, the number of administrative staff is only 0.8 based on the number of prosecutors, and the number of investigators compared to prosecutors is only 1.6. The number of non-prosecutor employees compared to the prosecutors is 2.2. This is far from sufficient compared to the ratio of prosecutors and non-prosecutors at the prosecution service

  The number of administrative positions in the CIO is set to be too small, and considering the number of prosecutors, it seems that at least four to five times the size of staff including investigators and administrative positions can make the organization efficiently perform. As of August 31, 2022, the number of prosecutors in the Seoul Central District Prosecutors' Office's anti-corruption investigation division 1 was 8, division 2 was 7, and division 3 was 7. These three divisions alone do not differ from the number of prosecutors at the CIO.

  As the number of prosecutions increases, the demand for trial prosecutors will increase, and the increase in trial prosecutors will increase the work of investigative prosecutors. The more people subject to prosecution, the more likely it is to focus on the trial and not use manpower for investigation. Therefore, it is essential to increase the number of prosecutors, investigators, and administrative personnel at least for the proper investigation and prosecution.

∙ Enhanced protection for the information providers

  To protect the information provider, an alias report can be prepared, and anonymous reports can be made with the personal information of the lawyer if with the lawyer. However, to protect the information provider, it is necessary to provide tracks which enable anonymous reports from the beginning.

  Compensation for information providers should also be strengthened. Currently, there are compensations and rewards. However, the compensation is not large enough to offset the reporter's expected disadvantages because it is based on the premise that direct income recovery or increase to the state or local government, or the legal relationship is established upon those. Thus, it is necessary to significantly increase the amount of reward so that compensation can be replaced.