South Korea’s National Assembly on Monday last week passed two bills on prosecutorial reform that significantly reduce prosecutors’ powers of investigation.
In addition to limiting prosecutors’ investigative authority in cases of corruption and economic crimes, through amendments to the Criminal Procedures Act, the bills would also devolve the investigation of criminal cases to the police.
Some commentators have asked why then-South Korean president Moon Jae-in, who left office yesterday, decided to force through the bills at the 11th hour, while South Korean Prosecutor-General Kim Oh-soo has called the move “unconstitutional.”
Nevertheless, should Taiwan devolve prosecutors’ investigatory powers to the police?
Article 228 of the Code of Criminal Procedure (刑事訴訟法) states that the bulk of investigatory work should be carried out by prosecutors, not the police. This means that before police can apply for a search warrant from a court, they must first obtain approval from a prosecutor. Officers must also go through prosecutors to obtain a subpoena or an arrest warrant.
Furthermore, if police arrest and charge a suspect, even for a relatively minor misdemeanor punishable by a maximum jail term of one year, a period of short-term detention or a fine, Article 92 of the code states that police must obtain prosecutors’ approval before they can discharge the suspect.
Under the present system, prosecutors are being misused as a check on police power during the investigatory process.
It is police, not prosecutors, who are responsible for frontline criminal investigation work. In the vast majority of cases, police first carry out an investigation before it is transferred to prosecutors for further investigation and prosecution.
However, Article 231 of the code states that if a prosecutor determines that a case has not been fully investigated, they may send the case back to the police for further investigation.
Therefore, there is a discrepancy between actual operational procedures and the legal code.
Moreover, during a criminal investigation, police units possess the advantage in terms of special skills and specialist equipment, so although the code states that the bulk of investigatory work is to be carried out by prosecutors, in reality, the reverse is true.
For some time now, there have been calls to revise the code. As it would not be possible to transfer all investigatory powers to the police, it is often proposed that Taiwan could emulate Japan’s model, which splits investigatory powers between the police and prosecutors.
In Japan, police conduct the bulk of the frontline investigation and prosecutors play a supplemental role away from the frontline. Japanese police also have the authority to hand out punishments for minor offenses.
Certain offenses such as corruption, negligence or economic crimes, which involve a highly specialized body of law, are the sole responsibility of prosecutors.
Reform of Taiwan’s prosecutorial system along the lines of the Japanese system — let alone South Korea’s more radical version — would undoubtedly elicit a backlash from prosecutors.
Once police obtain investigative powers, all applications for writs would certainly bypass prosecutors. Whether judges would be able to effectively suppress any abuses of power by the police is a question worthy of serious reflection.
Finally, how would a reformed system prevent further occurrences of the absurd situation at Taipei’s Songshan Precinct last year, when drunken youths who damaged the police station were let off without being charged after writing apology letters.
Wu Ching-chin is an associate law professor at Aletheia University and the director of the university’s Research Center for Criminal Law.
Translated by Edward Jones
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