When South Korean President Moon Jae-in took office, it was clear that fighting corruption was going to be high on his agenda. After all, his predecessor Park Geun-hye was sentenced to 24 years for pressuring conglomerates such as Samsung and Lotte to give millions of dollars to her friend’s foundation. And the president before her was sentenced to 15 years for collecting bribes of up to $5.4 million from Samsung in exchange for favors. President Moon capitalized on the nation’s anger and sense of betrayal, pledging to crack down on corruption. Part of his reform agenda included addressing how Korea’s investigative and prosecutorial bodies—including the Supreme Prosecutor’s Office (SPO)—have handled, or mishandled, corruption cases.
This concern led to the enactment, in 2019, of legislation authorizing the creation of a new agency called the Corruption Investigation Office for High Ranking Officials (CIO). The CIO can investigate certain crimes, such as bribery and embezzlement, related to the duties of current and retired high-ranking public officials—including, but not limited to, the President, SPO prosecutors, judges, and members of the National Assembly. The CIO has the authority to investigate current and former officials, their family members, and other individuals who are implicated in the crimes under investigation. This means if a company employee bribes the grandson of a public official, then the CIO can investigate the company. Furthermore, other law enforcement agencies must immediately notify the CIO when they learn of crimes that fall under the CIO’s investigative jurisdiction, and the CIO can compel those cases to be transferred to it.
There is, however, a significant problem with this new system, one that will likely impede the CIO’s ability to hold high-level politicians and their cronies accountable: The CIO lacks the power to prosecute most of the cases it investigates. The CIO does have the limited authority to prosecute SPO prosecutors (including the Prosecutor General, who heads the SPO), as well as judges and high-ranking police officers. But for all of its other investigations, the CIO must turn the results of its inquiries over to the SPO, which retains the discretion to decide whether or whom to prosecute. Without independent prosecutorial authority, the CIO is unlikely to live up to its potential to make significant progress against high-level corruption.
To be sure, not all anticorruption agencies have independent prosecutorial authority—some do and some do not. But in South Korea’s case, it is unwise to leave prosecutorial decisions in high-level corruption cases with the SPO. The SPO has, unfortunately, a deserved reputation as a politically-biased that tends to go easy on well-connected criminals. This tendency comes from the top: The SPO prosecutors handling cases that involve powerful politicians or other well-connected suspects often face pressure or outright coercion from their SPO superiors to drop the cases, even when there is sufficient evidence for prosecution. Perhaps even more troubling, there are concerns that the SPO has used its power over prosecutions to thwart attempts to reform the SPO itself. In one particularly high-profile and troubling recent example, in 2019 the SPO conveniently indicted President Moon’s justice minister Cho Kuk—who was tasked to take the lead on prosecutorial reform efforts that the SPO opposed—for bribery, fraud, and manipulation of evidence. Many questioned the legitimacy of this move, suspecting the SPO of retaliation. Whether or not this is true, most South Koreans do not believe prosecutors do their job fairly or are capable of rooting out high-level corruption.
For this reason, even if the CIO works exactly as designed, it is unlikely to achieve its ultimate goals. Even if the CIO finds evidence that incriminates a powerful government official, the fact that the SPO—susceptible to corrupting political influences—can decline to prosecute (either formally or through pretextual delays) means that these cases may never move forward.
To be sure, the CIO does have the power to investigate the SPO, and could therefore open an inquiry into whether a particular exercise of the SPO’s prosecutorial discretion was itself corrupt. (For example, in a case like that of Cho Kuk, the CIO could investigate whether the SPO’s motivations were genuine or whether it was engaged in an unlawful political attack intended to harm President Moon’s administration.) But this is both inefficient and insufficient, because the CIO could remedy the problem only by launching an entirely new investigation into the SPO’s exercise of its prosecutorial discretion, with no guarantee that corruption in that decision could ultimately be proven.
The CIO was designed to end the SPO’s monopoly over the justice system. Yet that objective remains unfulfilled. The CIO should be given the broader power to prosecute a larger array of government officials. Doing so would reign in the unchecked power of the SPO and place government officials on notice that their corrupt activities will no longer be tolerated.