Special Prosecutor Bill on Fabricated Indictments Passes Legislative Committee Without Power to Withdraw Prosecutions

A special prosecutor bill targeting fabricated indictments has crossed the threshold of the National Assembly's Legislation and Judiciary Committee — but without the power to withdraw prosecutions.

The Democratic Party on Friday (Dec. 4) passed the "Special Prosecutor Bill on Fabricated Indictments by the Prosecution, National Intelligence Service, and Board of Audit and Inspection under the Yoon Suk-yeol Government" through a full committee meeting under the ruling party's leadership, and aims to bring the bill to a plenary vote as early as the following day. Mindful of a public backlash, the most controversial provision — the special prosecutor's power to withdraw prosecutions — was deleted. With cases from the Moon Jae-in administration also added to the scope of investigation, disputes between the ruling and opposition parties continue over the very nature of the bill.

Why the Controversy Resurfaced

The bill centers on appointing a special prosecutor to investigate allegations that the prosecution under the Yoon Suk-yeol government deliberately fabricated and indicted certain cases. The targeted institutions are the Prosecution Service, the National Intelligence Service, and the Board of Audit and Inspection. However, the special prosecutor's power to withdraw prosecutions contained in the initial draft became the key sticking point. Withdrawing a prosecution allows prosecutors to retract a criminal trial already underway — a measure that is, in principle, prohibited under the Criminal Procedure Act. Critics argued that granting this power to a special prosecutor would allow them to influence even cases currently in trial.

President Lee Jae-myung was also known to have explicitly requested at a press conference that this provision be removed from the bill. As public opinion polls continued to show negative reactions, the Democratic Party eventually put forward a revised version deleting the power to withdraw prosecutions, and the committee passed it. Some in the legal community noted that a similar effect could be achieved even without prosecution withdrawal, based on trial-related provisions of the Criminal Procedure Act.

The Bill's Framework and Scope of Investigation

Under the revised bill, the special prosecutor can investigate and indict suspected fabricated indictment cases, but will not have the authority to retract ongoing trials. The scope covers cases raised during the Yoon Suk-yeol government in which the likelihood of fabrication was raised among the prosecution's, NIS's, and Board of Audit's investigative and audit activities.

However, opposition to the list of investigation targets remains. According to Yonhap News, half of the investigation targets are cases related to President Lee Jae-myung, many of which are already in trial. The opposition has criticized this as an attempt to use the special prosecutor as a means of halting the judiciary. Some analyses note that with the addition of cases from the Moon Jae-in administration in this committee passage, the scope has actually widened.

Rivalry Between Parties and the Legal Community

The Democratic Party takes the position that a special prosecutor is needed as an extension of prosecution reform following the presidential election. The People Power Party, on the other hand, has raised concerns about the lopsided selection of investigation targets and the potential abuse of the special prosecutor, and reportedly even considered a filibuster (unlimited debate) to block the plenary passage. Negotiations between the parties on Friday ended without agreement.

Concerns are also significant in the legal community. It is pointed out that if this bill passes, it will be the seventh special prosecutor since the Lee Jae-myung administration took office. Some voices warn that if special prosecutors become routine, the morale and investigative functions of the prosecution could be undermined, while others note the lack of safeguards to guarantee the special prosecutor's political neutrality.

Upcoming Schedule and Outlook

The Democratic Party, relying on votes from across the liberal camp, aims for a plenary passage on Friday. Once the bill passes the National Assembly, the process of recommending special prosecutor candidates will begin, followed by the formation of a special prosecution team to launch its investigation. If the opposition resists by occupying the plenary chamber or staging a filibuster, the schedule could be delayed.

While the deletion of the prosecution-withdrawal power has removed one obstacle to the bill's passage, the trust issue surrounding the composition of investigation targets remains unchanged. Whether the special prosecutor will function as an effective check on prosecutorial power rather than a tool of political retribution is expected to depend on its composition, the balance of investigation targets, and transparency in the investigative process.