[비즈한국] Companies sometimes make decisions that are difficult to explain based on money alone. Understanding the laws and systems behind them allows for a deeper grasp of the inner workings. "Useful Business Tips" introduces clues to help understand the flow of business.
Administrative civil complaint cases differ fundamentally from civil and criminal cases in court or the prosecution in that the initiation of the case depends on the discretion of the administrative agency. For civil and criminal cases under the court's jurisdiction, once a complaint or indictment is filed, a case number is assigned and it is distributed to a judicial panel to formally commence as long as there are no formal defects. Over time, the court will take follow-up measures in some form. In civil cases, the complaint is served to the defendant, and in criminal cases, the defendant is summoned.
Even for criminal cases handled by the prosecution, where maintaining investigative secrecy is crucial, one can estimate the progress to some extent by checking the "Criminal Justice Portal (KICS)." Most cases end with a decision by the prosecutor, such as indictment or non-indictment. For lawyers, this procedural flow is familiar and expected. In other words, if a complaint is submitted, it must be accepted, and once a formal case is initiated, it must conclude with some form of judgment, decision, or disposition.
With this perception as a premise, the police practice of rejecting and returning complaints without formal filing became an issue in the media. Following changes in criminal procedures, complaints that were previously submitted to the prosecution are now submitted to the police. However, there were cases where the police refused to accept or returned complaints due to lack of manpower or excessive workload. Simply put, it meant, "I can't take this, so take it back."
From the perspective of a complainant, it would be shocking if the police told them to take back the complaint after they had filed it because they believed they were victims of a crime. As the media highlighted this as a problem for some time, the practice changed to "acceptance followed by dismissal" instead of returning the complaints. One might think that there is no difference in the result between returning and dismissing. However, there is a fundamental difference in that with "acceptance followed by dismissal," the police at least accept the complaint, assign a case number, and reach a conclusion after reviewing the complaint.
Why do we believe that civil and criminal cases must be initiated and that fairness and independence must be guaranteed in the subsequent procedures? In particular, why do we demand a level of independence and fairness similar to the court not only from the court itself but also from prosecutors and police who are considered administrative agencies or officials belonging to such agencies?
The reason is that civil and criminal cases are representative cases where the court exercises its judicial power, meaning that the judicial procedure of processing and deciding on specific matters in court is applied. In addition, the investigation procedures performed by prosecutors and police are required to have court-level independence and fairness because they are quasi-judicial procedures where the fundamental elements of judicial procedures are applied mutatis mutandis.
A concept compared to this is the administrative procedure, where administrative agencies perform their duties. In administrative procedures, elements that constitute judicial procedures—such as an adversarial structure (deliberation based on attack and defense rights submitted by the parties involved in a dispute) and the guarantee of the parties' procedural rights—may not apply regarding independence and fairness. For example, if you report illegal parking, it is not necessarily considered that the agency must guarantee an opportunity to state an opinion before a disposition, notify the result of the disposition, or guarantee the right to appeal the result.
From the perspective of administrative procedures, the police returning a complaint is not an incomprehensible measure. If the police determine that a crime is unlikely to be established based solely on the facts stated in the complaint, it is more efficient to return the complaint without initiating an investigation.
Moreover, while Korea distinguishes between judicial police and administrative police in terms of concept, the two cannot be effectively separated in terms of police organization or system. For instance, Korea lacks specialized judicial police organizations like the DEA in the U.S. seen in the drama "Narcos" or the FBI seen in various media. Regardless of this background, investigation procedures have a mission that includes judicial control, compliance with due process, and protection of human rights. Since investigation procedures performed by judicial police are quasi-judicial procedures subject to strict procedural control, the practice of returning complaints becomes problematic.
Recently, there has been an increase in administrative agencies claiming to be quasi-judicial bodies or case-handling procedures claiming to be quasi-judicial, leading to more controversy over the extent to which a party's procedural rights should be guaranteed. Let's look at an example. In the process of investigating a violation of the Capital Markets Act, can the Financial Supervisory Service (FSS) prevent the person under investigation from appointing an attorney or block the attorney's attendance? In other words, can the person under investigation be guaranteed the right to appoint an attorney during an FSS investigation?
There can be various positions depending on one's point of view. Even those currently in the field have differing thoughts. Some argue that since the FSS investigation is merely an administrative investigation, the right to appoint an attorney is not guaranteed, while others argue that since the results of an FSS investigation can serve as grounds for conviction, the right to appoint an attorney must be guaranteed. As a result, since 2018, the appointment and attendance of attorneys in FSS investigations have been permitted. Depending on the person, one might think that changing the system this way hinders proper investigations, or that it was an overdue recognition of something that should have been allowed from the beginning.
This controversy is not limited to FSS investigations. In the past, there was also controversy over whether to allow attorney attendance during investigations by the Korea Fair Trade Commission (KFTC). In fact, I have personally been unable to enter the investigation site due to an investigator's objection and had to wait in the hallway. The client had called an attorney for help, but the attorney was kicked out and the client had to be investigated alone; the embarrassment was indescribable. Perhaps because there was much talk about this practice, the KFTC formally permitted the attendance of attorneys during investigations in its "Case Handling 3.0" announced in 2015, and a clear change in investigation practices has emerged.
In ambiguous procedures that seem like both administrative and judicial processes, it is not easy to determine to what extent a party's procedural rights, especially the right to receive the help of an attorney, should be guaranteed. In the past, the logic in the field was that the right to receive the help of an attorney could be limited for efficient investigation if there was no legal basis. However, looking at the aforementioned cases, it is safe to say that since the late 2010s, the majority view has settled on the fact that procedural rights, particularly the right to appoint an attorney, must be guaranteed.