Prosecutorial Independence Regained? Mixing the Continental and Anglo-American Styles in South Korea

Abstract

After prosecutorial independence is lost, how should it be regained? Should a Continental European-style jurisdiction consider importing Anglo-American prosecutorial ideas? This Article analyzes recent changes to and reform debates surrounding South Korea’s Prosecutors’ Office, which follows the Continental European style of prosecutorial organization. It argues that Korea’s case reveals the stark theoretical dichotomy between the Continental and Anglo-American styles of prosecutorial independence: each aims to secure independence primarily through either bureaucratic or democratic accountability.

Korea’s prosecution reform discourse is sophisticated, featuring a clash of well-informed comparative legal visions. Radical reformers, disenchanted with their German-Japanese derived paradigm, argue for adopting Anglo-American institutions that check-and-balance, decentralize, and democratize the prosecution. Reformers propose mechanisms such as prosecutor elections, special prosecutor systems, strengthened police autonomy, and grand juries, despite knowing their drawbacks. Traditionalists advocate for maintaining or improving existing Continental-style mechanisms of centralization, meritocracy, regulation, and hierarchical supervision. The reforms that were ultimately enacted are explained, including the creation of the Corruption Investigation Office for High-Ranking Officials (CIO), quasi-grand jury institutions, and the expansion of police powers. This Article’s account of how prosecutorial independence is endeavored to be regained highlights the differences between the styles of prosecutorial independence and demonstrates how these styles can mix.

This Article is the last in a series of three articles on how Korea’s struggle for prosecutorial independence offers a window into the nature of the concept. The first Article explains the historical and doctrinal foundations of Korea’s system and the second is an interview-based study of how prosecutorial independence is lost.

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