A Critical Review on the Case that Has Acknowledged Abuse of Prosecutorial Right

Abstract

For the first time in its history, the Supreme Court handed down a decision recognizing the abuse of prosecutorial power. This case affirmed the holding of the original court’s decision of dismissing a criminal complaint for abuse of prosecutorial right. The Court held that the prosecutor abused its right of prosecution by arbitrarily exercising the same and that the defendant clearly suffered a substantial harm as a consequence. The Court determined that, in such a situation, there was a grave deviation from the standard governing the discretionary right of prosecution. This research attempts to review the elements needed to establish a case of prosecutorial abuse as identified by the Court and to determine whether the ultimate holding approving the dismissal of the criminal complaint is legally sound, by discussing and reviewing prior researches and discussions by legal scholars. The paper initially looks at the status of a prosecutor under the criminal procedure law. It also briefly reviews the nature and the significance of the Right of Prosecution. With respect to the abuse issue, the paper will evaluate the soundness of the case at issue, limiting the discussion to the elements articulated by the Court and the legal effects thereto. The paper then suggests the following. In order to have a reasonable check on the abuse of prosecutorial right by the prosecutors, we need to introduce the system of Compulsory Prosecution. However, rather than adopt the system all at once for every crime, the paper proposes that we initially introduce the system for the crimes covered by the prosecutorial jurisdiction of the High-ranking Officials Criminal Investigation Office. And then, after analyzing the results of the cases from the High-ranking Officials Criminal Investigation Office, we shall consider introducing the system for all the crimes.