The unfinished "criminal procedure revolution" of post-democratization South Korea.

• Author: Cho, Kuk

1. INTRODUCTION

   The nationwide June Struggle of 1987 led to the collapse of Korea's authoritarian regime and opened a road toward democratization. (1) Under the authoritarian regime, the "crime control" value dominated over the "due process" value in regards to criminal procedure. (2) The Constitution's Bill of Rights was merely nominal, and criminal law and procedure were no more than instruments for maintaining the regime and suppressing those dissident. It was not a coincidence that the June Struggle was sparked by the death of a dissident student tortured during police interrogation. (3)

   The new 1987 Constitution brought a significant change in the theory and practice of the Korean criminal procedure. Explicitly stipulating the idea of due process in criminal procedure, (4) the Bill of Rights in the Constitution has become a living document. (5) The 1988 and 1995 amendments to the Korean Criminal Procedure Code (6) [hereinafter "CPC"] have also strengthened the procedural rights of criminal suspects and defendants to some degree. The newly established Korean Constitutional Court and the Korean Supreme Court have made important decisions for such rights.

   However, a number of problems still remain which disturb the change in the Constitution and overshadow the constitutional procedural rights. Police practices of avoiding the warrant requirements for arrest and search-and-seizure have continued. Guarantees of procedural rights for criminal suspects in police interrogation still remain incomplete and fragile. Investigators enjoy their dominant role in the criminal procedure scheme, while citizens are often treated merely as an object of the investigation. The judiciary is reluctant to exclude illegally obtained confessions and physical evidence in trials.

   This article examines the basic system of Korean criminal procedure after democratization, and analyzes its problem from the standpoint of the "constitutionalization of criminal procedure." First, it starts with a brief review of the implication of the shift brought by the 1987 Constitution. Second, it outlines the basic system of Korean criminal procedure, focusing on the advancement of the guarantee of procedural rights. Third, it explores the legal provisions of the CPC, the Police Duty Law, and police practices which block the further advancement of Korean criminal procedure. Finally, this article reviews the passive position of the Korean Supreme Court on the exclusionary rule.

2. OUTSET OF THE "CONSTITUTIONALIZATION OF CRIMINAL PROCEDURE" AFTER THE 1987 KOREAN CONSTITUTION

   Under the authoritarian regime established after the May 16th military coup in 1961, democracy in South Korea was nominal, and the Korean Constitution was akin to the "Emperor's new clothes." Illegal police practices including torture, illegal arrest and detention were widespread in the criminal process. Beating, threatening, and torture by water or electricity were routinely applied to political dissidents.

   Let us turn to some highly profiled cases in the 1980s (although there are many other similar cases under the regime). Supporters for President Kim Dae-Jung, a political dissident at that time, were severely tortured when arrested for their alleged conspiracy to overthrow the state in 1980. (7) In particular, those who violated the National Security Law were brutally tortured, and accused of being "pro-enemy leftists." (8) For instance, Presidential Secretary Lee Tae-Bok and Congressman Kim Geun-Tae, who were then leaders of the democratization movement, were brutally tortured when arrested for the violation of the National Security Law in 1980 and in 1983 respectively. (9) In 1987, Professor Kwon In-Sook, then a labor movement activist, was sexually abused by a policeman when arrested, and Park Jong-Chul, a dissident student, was suffocated to death in the bathtub during police torture. (10) Besides political dissidents, ordinary people also had to go through the cruel investigation process. Illegally-obtained confessions and physical evidence were usually admitted by the Court to prove a defendant's guilt. (11) From the standpoint of human rights, it was no more than a "Dark Age," when the procedural rights of criminal suspects and defendants were nothing but meaningless rhetoric.

   The June Struggle of 1987 opened a new era of democracy and gave birth to the 1987 Constitution. The Constitution established a blueprint for the "constitutionalization of criminal procedure" in Korea and created the Korean Constitutional Court as a watchtower to monitor unconstitutional laws and police practices.

   First, Article 12 (1) and (3) of the Constitution have explicitly incorporated the principle of due process in criminal procedure. According to the Constitutional Court, the principle is "to guarantee not only the legality of the procedure but also the legitimateness of the procedure." (12) The Court made sure that the principle of due process was a core value to penetrate and control all stages of criminal procedure, stating:

   The principle of due process requires that both the formal procedure described by the law and the substantial content of the law be reasonable and just.... In particular, it declares that the whole criminal procedure should be controlled from the standpoint of guaranteeing the constitutional basic rights. (13) Second, the Bill of Rights in the 1987 Constitution provides very detailed provisions regarding criminal procedural rights, including strict requirements for obtaining judicial warrants for compulsory measures, (14) the right not to be tortured, (15) privilege against self-incrimination, (16) right to counsel, (17) right to be informed of the reason of arrest or detention, (18) right to request judicial hearing for arrest or detention, (19) exclusionary rule of illegally obtained confession, (20) protection against double jeopardy, (21) right to fair trial, (22) right to speedy and open trial, (23) presumption of innocence, (24) and right to compensation for the suspect and defendant found innocent. (25) These rights incorporated in the Constitution reflect the Korean people's desire to guarantee their human rights which had been nominal under authoritarian regime.

   Besides these changes, it is noteworthy that in 1995, two former presidents, Chun Doo-Hwan and Roh Tae-Woo, were prosecuted and found guilty for leading the December 12th coup of 1979, and for killing many civilians in Kwangju in 1980. The case was symbolic of the change in Korean society. (26)

   In brief, the new Constitution has required that criminal procedure be under the control of the Constitution and has provided the detailed Bill of Rights to guarantee the procedural rights of criminal suspects and defendants. In this context, the "constitutionalization of criminal procedure" had begun.

3. THE OUTLINE OF THE REFORMED KOREAN CRIMINAL PROCEDURE AFTER DEMOCRATIZATION

   Following the constitutional request in some degree, the CPC was revised in 1988 and 1995. Section III outlines and reviews the principles of the revised Korean criminal procedure.

   1. Investigation

      1. The Investigative Authorities

         The investigative authorities are composed of two bodies. First, police are a subsidiary organ of the prosecution, lacking independent powers of investigation. They conduct investigations under the direction and supervision of prosecutors. (27) Some minor offenses, which are punishable by fines of not more than 200,000 Won (currently equivalent to about U.S. $170) or detention for less than thirty days, may be brought by the chief of police before the court without a formal indictment. (28) The police have attempted to gain more autonomy, but have failed both because there exists deep-rooted public distrust of the police, and because prosecutors, who were reluctant to share investigative powers, strongly opposed the change. (29)

         Second, prosecutors retain full authority for both investigation and prosecution in Korea, (30) under a "principle of monopoly" [Anklagemonopol]. They are also assumed to be semi-judicial agents [Justizbehorde] in Korea. (31) Although democratization after 1987 led to the weakening of the police and the intelligence agency's powers, the power of prosecutors has not been damaged under the Kim Young-Sam and Kim Dae-Jung governments. (32) This is probably because, like the authoritarian government, the two civilian governments were not free of the temptation to use the prosecution for their political purposes.

         There has been criticism of the organizational principle of prosecutors after democratization. It is called the "principle of the uniformity of prosecutors" [Einheit und Unteilbarkeit der Staatsanwaltschaft], which guarantees uniformity and fairness of the investigative and prosecutorial authority. The problem occurs because according to the principle, "prosecutors shall obey the prosecutors in higher office in prosecutorial affairs." (33) In the cases involving powerful politicians or high-ranking government officials, prosecutors in charge had to unwillingly quit their investigation, often facing pressure or persuasion from prosecutors in higher office, and through the Supreme Prosecutor's Office, the ruling political party has kept a substantial influence on the prosecutors in charge of the cases. (34) Consequently, public distrust of the prosecution has increased.

         Many academics and civic organizations such as "People's Solidarity for Participatory Democracy" (PSPD or Chamyeoyeondae) (35) have strongly requested to revise the principle, and the request was partly accepted by the Ministry of Justice. In 2001, the Ministry of Justice announced that the Prosecutor's Office Law would be revised to guarantee the protest right of prosecutors against an improper order of the prosecutor in higher office. (36)

      2. Reshaped Judicial Warrant System for Custody

         The CPC provides two types of warrant systems for the custody of persons. First, the 1995 amendment of the CPC has...