Abstract

What is prosecutorial independence? What is its relationship with democracy? The case of South Korea, where prosecutorial independence is highly contested in democratic politics, sheds light on these questions. Two styles of prosecutorial independence prevail in the modern world: (i) the Continental European based on mechanisms of bureaucratic accountability for prosecutors, and (ii) the Anglo-American that depends on democratic accountability. Korea offers a window onto these two styles, since Its prosecution system has Continental origins but is adopting certain Anglo-American features. This article analyzes the historical and doctrinal roots of prosecutorial independence in Korea, showing its close embrace of the Continental style. Nineteenth-century Germany devised a doctrinal framework for prosecutorial independence that Japan later adopted and transplanted to its colony, Korea. This framework had considerable political implications in the German and Japanese Empires. Next, the article explains how Korea’s inherited prosecutorial independence framework has functioned by giving an account of prosecutors’ role in political history. During the period of authoritarianism (1948-88), Korean presidents manipulated the prosecution to attack enemies and protect friends (and themselves). Cutiously, after democratization, this pattern intensified. Korea’s experience reveals a “paradox of democratization’—prosecutorial politicization tends to increase after a democratic transition. Why? The more authoritarian an executive, the more it controls politics using extra-legal means, such as secret police, to whom prosecutors tend to be subordinated. After democratization, as law becomes central to governance, prosecutors, as agents of legality and procedural legitimacy, rise in importance, while secret police decline. An inverse relationship exists. Accordingly, temptations to politically misuse prosecutorial powers increase as democracy’s respect for law grows and electoral competition intensifies. This historical pattern has precedents in the German and Japanese histories that continue to influence Korea. This article is the first in a series of three on how Korea's experience illuminates the nature of prosecutorial independence. The second is an ethnographic study of the Prosecutors’ Office’s inner workings, and the third examines reforms.

Keywords: prosecutorial independence, democracy, south korea, continental European, bureaucratic accountability, prosecutor, democratic accountability