Special prosecutor

A special prosecutor (특별검사/特別檢事) refers to one of the followings in Korea:

In a broad sense, a law enforcer acting as if he/she is a public prosecutor or military prosecutor though not appointed as the public prosecutor or military prosecutor under the relevant law, as exemplified by the independent counsel in the cases of the alleged sex torture against Ms. Kwon In-Sook (권인숙) at Bucheon Police Station and the application for the judiciary decision subject to Article 3 of the Special Act on the 5.18 Gwangju Democratization Movement, etc. and Article 4 of the Act on the Special Exception regarding the Extinctive Prescription of Prosecution, etc. of the Constitutional Order-destroying Crime (5.18 민주화 운동 등에 관한 특별법 제3조와 헌정질서파괴범죄의 공소시효등에 관한 특례법 제4조의 재정신청).

In general, an independent counsel appointed by the special act to ensure fair investigation and prosecution of the alleged crimes of high ranking officials associated with the political power.

In the United States, the Independent Counsel was an independent prosecutor — distinct from the Attorney General of the United States Department of Justice — that investigated the alleged crimes of the President and other high ranking officials of the federal government, and provided reports to Congress under 28 U.S.C. § 595. The office was terminated in 1999 and replaced by the U.S. Department of Justice Office of Special Counsel.

Key words
special prosecutor, independent counsel, investigation, prosecution, political scandal

Brief History
The special prosecutor was suggested by the opposition party, the Peace Democratic Party (평화민주당) for the first time in 1988. They argued the prosecutors could be biased and reluctant to investigate the crimes or scandals related with the political power. The arguments were escalated among the political parties, the Prosecutors Office and civic organizations until the Act which may appoint the special prosecutor case by case was legislated in 1999.

The interesting thing is that politicians were changing their position toward the special prosecutor from time to time depending on their grasping of power. The opposition party members who had insisted on the special prosecutor shifted to the other side after they took the power after election, and vice versa.

All the proponents and opponents agree that they do not believe the political neutrality of prosecutors who investigate the alleged crimes or scandals associated with the incumbent President or high ranking officials and politicians. But the opponents like to stress the alternative measures to guarantee the neutral investigation of public prosecutors.

Originally, upon the disclosure of the prosecutor-induced strike at the Korea Minting, Security Printing & ID Card Operating Corp. (KOMSCO, 조폐공사), the Prosecutors Office investigated this case as well as the clothes-for-lobby scandal. In July and August 1999, the prosecutors indicted related persons, but the opposition party did not believe in such investigation results. As a result, in September 1999, the National Assembly passed a bill to appoint the special prosecutor who should investigate the above two scandals in time. It was just a beginning of a series of special prosecutor laws - five cases under the Kim Dae Jung administration, three cases under the Roh Moo-hyun administration and two cases under the Lee Myung-bak administration. So we have seen a number of special prosecutors during the 13 years.

KOMSCO & Clothes-for-Lobby scandal

 * Act No. 6031 (한국조폐공사 노동조합 파업유도 및 전 검찰총장 부인에 대한 옷로비 의혹 사건 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on September 30, 1999 for the investigation of the government's involvement and rich businessman's wife clothes-for-lobby scandal.
 * KOMSCO Strike Speicial Prosecutor was Won-Il Kang (강원일) and Clothes-for-lobby Special Prosecutor was Byung-Mo Choi (최병모).
 * Consequence: KOMSCO CEO Hee-Bok Kang was proved guilty and accused as a single wrong-doer. With respect to the clothes-for-lobby, the Special Prosecutor found out such lobbying had been performed toward the wife of then Public Prosecurtor General.

Lee Yong-Ho Gate scandal

 * Act No. 6520 (주식회사 지앤시 대표이사 이용호의 주가조작·횡령 사건 및 이와 관련된 정·관계 로비 의혹 사건 등의 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on November 26, 2001 for the investigation of GNC CEO Lee Yong-Ho's embezzlement and lobby scandal, or Lee Yong-Ho Gate.
 * Lee Yong-Ho Gate Special Prosecutor was Jong-Il Cha (차정일).
 * Consequence: The brother of the Prosecutor General (신승남 검찰총장 동생) was arrested for involvement in the scandal. The main opposition Grand National Party (GNP) presented a bill to the National Assembly calling for the appointment of independent counsel who should investigate corruption scandals involving the three sons of President Kim Dae Jung.

Secret Remittance to North Korea scandal

 * Act No. 6864 (남북정상회담 관련 대북 비밀송금 의혹 사건 등의 진상규명을 위한 특별검사 임명 등에 관한 법률) established on March 15, 2003 for the investigation of secret remittance of huge amount of money to the North Korean leadership for the Inter-Korean Summit meeting in 2000.
 * Secret Remittance Special Prosecutor was Doo-Hwan Song (송두환)
 * Consequence: Special Prosecutor found that Hyundai Group provided Pyongyang with 450 million dollars in return for business permit in seven areas including railroads and communications. Commodities of 50 million dollars were also forwarded to North Korea. Special Prosecutor Song disclosed 100 million dollars had been paid as honorarium for the forthcoming Summit meeting. Accordingly, former Minister Ji-Won Park, Dong-Won Lim, KCIA Chief and other high ranking officials and government bank executives were arrested.

On July 15, 2005, a new bill "남북정상회담 관련 대북 비밀송금 의혹 사건 및 관련 비자금 비리의혹 사건 등의 진상규명을 위한 특별검사 임명 등에 관한 법률" to extend the investigation period for the Special Prosecutor was passed by the National Assembly, but vetoed by President Roh Moo-hyun on July 22. On July 31, the Legislature failed to override the President's veto, and the bill was abrogated accordingly.

President's Aides scandal

 * Act No. 6990 (노무현 대통령의 측근 최도술·이광재·양길승 관련 권력형 비리 의혹 사건 등의 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on December 6, 2003 for the investigation of alleged bribery involving Do-Sool Choi, former Secretary of General Affairs of Blue House and other key President's Aides.
 * President's Aides scandal Special Prosecutor was Jin-Hong Kim (김진흥)
 * Consequence: Not guilty

Korail Oil Project scandal

 * Act No. 7603 (한국철도공사 등의 사할린 유전개발사업 참여 관련 의혹 사건 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on July 21, 2005 for the investigation of alleged political pressure on the Korail-initiated oil development project
 * Korail project Special Prosecutor was Dae-Hoon Chung (정대훈)
 * Consequence: Mostly not guilty

Samsung Secret Fund scandal

 * Act No. 8668 (삼성 비자금 의혹관련 특별검사의 임명 등에 관한 법률) established on December 10, 2007 for the investigation of Samsung-related secret fund scandal
 * Samsung scandal Special Prosecutor was Joon-Woong Cho (조준웅)

Lee Myung-bak BBK scandal

 * Act No. 8824 (한나라당 대통령후보 이명박의 주가조작 등 범죄혐의의 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on December 28, 2007 for the investigation of Presidential candidate Lee Myung-bak's involvement in BBK scandal and disguised ownership of Dogok-dong land
 * Lee Myung-bak BBK scandal Special Prosecutor was Ho-Yung Chung (정호영)
 * Consequence: Not guilty

So-called Sponsored Prosecutor scandal

 * Act No. 10370 (검사 등의 불법자금 및 향응수수사건 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on July 12, 2010 for the investigation of alleged sponsorship and banquet-providing to a certain group of prosecutors scandal of Samsung Group
 * Samsung Sponsorship Special Prosecutor was Kyung-Shik Min (민경식)
 * Consequence: Not guilty

2011 Re-Election dDOS scandal

 * Act No. 11333 (10.26 재보궐선거일 중앙선거관리위원회와 박원순 서울시장 후보 홈페이지에 대한 사이버테러 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on February 22, 2012 for the investigation of alleged distributed denial of service (dDOS) attack on the website of the National Election Commission on the 10.26 Re-Election Day
 * dDOS Special Prosecutor was Tae-Seok Park (박태석)
 * Consequence: Arrest of several key members, but no organized involvement of the Ruling Party

President Lee's Retirement Home at Naegok-dong scandal

 * Act No. 11484 (이명박 정부의 내곡동 사저부지 매입의혹 사건 진상규명을 위한 특별검사의 임명 등에 관한 법률) established on September 21, 2012 for the investigation of alleged breach of trust related with the purchase of President Lee's Retirement Home at Naegok-dong and violation of real name real estate registration law
 * Special Prosecutor is Gwang-Beom Lee (이광범)
 * Consequence: Investigation closed with three officials including the Secret Service Chief were accused.

Appointment
Mr. Speaker of the National Assembly shall, subject to consultation with floor leaders, request the appointment of a Special Prosecutor in writing to the President.

Upon receiving such request, the President shall ask the Korea Bar Association to recommend two candidates from the attorneys-in-law, one counselor of whom shall be appointed by the President.

Authority and Power
The job of the Special Prosecutor is limited to the investigation related with the specified case, institution and maintenance of prosecution, and the direction and supervision of assistant special prosecutors, special investigators and other public officials dispatched from the related government offices (Article 6 (1)). The Special Prosecutor shall not summon and investigate any person unrelated with the specified case beyond the scope of the assigned job. The head of the Supreme Prosecutors' Office, National Police Agency or other relevant government offices may submit to the Special Prosecutor investigation records, evidence and other materials related with the specified case, and cooperate with the investigation by assisting the Special Prosecutor's activities.

Responsibility
The Special Prosecutor shall maintain confidentiality acquired in the course of conducting the job not only in office but also after retirement. Also he/she shall not be engaged in any job for profit. Disclosure of investigation process is prohibited.

However, it is often criticized improper that the Special Prosecutor is required to shut the mouth on the hot issue in which the citizens are highly interested with suspicion. This is a matter of choice, or conflict of fundamental rights between citizens' right to know and the right to privacy of the accused.

Term of Office
Term of office depends on the case. In general, it is 70 days including the preparation period. If necessary, it may be extended twice by 30 days. The Legislature may decide the term from 60 days (e.g., KOMSCO case) to 120 days (e.g., Secret Remittance case).

The Special Prosecutor may not retire without any justifiable reason. The vacancy shall be resolved by the President in due course after notification to the National Assembly. The successor shall conduct the Special Prosecutor's job in the remaining term of office. The vacancy period shall not be included in the investigation period prescribed by law.

The Special Prosecutor shall automatically retire from the job upon his/her decision not to prosecute or the submission of the final report subject to the confirmation of the judiciary ruling.

Challenging Role of the Independent Counsel
The Independent Counsel in Korea means a Special Prosecutor, by a special Act, designated for the investigation of a specific political corruption. Despite the strong reluctance from the ruling party, a series of Special Acts for Indepedent Counsel have been established since 1999. The Independent Counsel focused on the illegalities of President's aides, leading politicians, and especially the high ranking prosecutors. The existence/possibility of the Independent Counsel pressed the public prosecutors in general to throughly investigate the corruptions especially committed by the power elites.

One ensuing issue is whether a special agency should be established whose delegation will be only the information-gathering and investigation of highranking public officials, including the members of the National Assembly, public prosecutors and even judges. Public prosecutors are very reluctant to introduce new agency who would conflict with them on the issue of investigation/prosecution.

Opposition parties worry about the possibility of being unfairly targeted by a new agency. Regardless of the possibility of new special agency, such an idea shows the remaining distrust of the public prosecution from the populace.