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Investigator and Prosecutor Cannot Be the Same: Court Dismisses Charges Over Separation-of-Functions Violation

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A Seoul court has thrown out criminal charges against a university professor and graduate student on the grounds that the prosecutor who investigated the case was the same one who brought the charges — a violation of Korea’s reformed prosecution law requiring investigation and indictment to be handled separately. Here are the key points.

Issue

When a prosecutor directs a prosecution investigator to conduct the initial investigation, then personally takes over, conducts further interrogations, and files charges, does that constitute a prohibited merger of investigative and prosecutorial functions under the Prosecutors’ Office Act?

Background: The Separation Rule

  • Following major reforms to Korean prosecutorial powers, Article 4(2) of the Prosecutors’ Office Act now prohibits a prosecutor from indicting a suspect in a case that the same prosecutor initiated or conducted. The rule is designed to ensure objectivity and fairness by separating the person who builds a case from the person who decides to prosecute it.
  • An exception exists where a judicial police officer has transferred (송치, “songchi”) a case to the prosecutor — in that scenario, the receiving prosecutor may still indict.

Facts

  • The Board of Audit and Inspection requested the Prosecutor General to investigate Art Graduate School Professor A and graduate student B over allegations that B had given A ₩30 million in cash.
  • The case was assigned to the Violent Crimes Investigation Division at Seoul Central District Prosecutors’ Office. Prosecutor D directed Prosecution Investigator C of the Investigation Section to conduct the initial inquiry, during which C prepared interrogation records in the format used by judicial police officers.
  • Investigator C then transferred the case file internally to Prosecutor D’s division. Prosecutor D personally summoned and interrogated both suspects, prepared his own interrogation records, and filed charges.

Prosecution’s Argument

  • The prosecution argued that Investigator C qualifies as a judicial police officer under the law, meaning the internal transfer of the case constituted a lawful “송치” from a judicial police officer to a prosecutor. Under the statutory exception, Prosecutor D was therefore entitled to indict.

Court Decision

  • The Seoul Central District Court (Criminal Division 5-1) dismissed all charges on January 14, 2026, finding the indictment unlawful.
  • The court rejected the prosecution’s characterization of the internal file transfer as a “송치.” True 송치 involves a transfer between independent agencies. Investigator C was not an independent investigative body — he operated entirely under Prosecutor D’s direction and supervision, making him no more than an assistant to the prosecutor.
  • Because Investigator C’s work was conducted under Prosecutor D’s command, it was legally indistinguishable from Prosecutor D having conducted the investigation himself. The fact that C drafted documents in the judicial police format did not change the underlying reality.
  • The court held that investigation and indictment were never genuinely separated in this case, directly contradicting the legislative purpose of the reform.
  • The prosecution has appealed to the Supreme Court, where the case is now pending before Criminal Division 1.

A Pattern Emerging

This is not an isolated ruling. In August 2025, Suwon District Court similarly dismissed a Political Funds Act case on the same grounds, rejecting an identical prosecution argument that an investigator’s internal transfer constituted a judicial police송치. That court held that even where an investigator uses the formal송치 paperwork, it cannot be treated as the statutory equivalent of a transfer from an independent judicial police officer.

Key Takeaways

  • A prosecution investigator who works under a prosecutor’s direction is legally that prosecutor’s assistant — not an independent investigative body capable of making a formal 송치.
  • Dressing up an internal file transfer in 송치 paperwork does not convert it into a genuine inter-agency transfer that satisfies the statutory exception.
  • Where the same prosecutor who directed and supervised the investigation then personally interrogates suspects and files charges, the separation requirement is violated — regardless of how the handover is formally documented.
  • Indictments filed in violation of Article 4(2) are void, and courts must dismiss the charges.

Why This Matters

This ruling — and the pattern it reflects — has significant implications for how Korean prosecutors structure their investigations. The separation of investigation and indictment is not merely a procedural formality: courts are treating it as a substantive safeguard, and are willing to dismiss cases entirely when it is breached. For defense counsel, scrutinizing the chain of investigative command from the outset has become an essential part of case strategy. For prosecutors and policymakers, the rulings signal an urgent need to clarify — whether through legislation or Supreme Court guidance — exactly when an internal investigator’s transfer qualifies as a 송치, and when it does not.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=219676

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