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Lee, Sun Woo (2014) a Civil-Law Prosecution System, Presidentialism Lee, Sun Woo (2014) A civil-law prosecution system, presidentialism and the politicisation of criminal justice in new democracies: South Korea and Russia in comparative perspective. PhD thesis. http://theses.gla.ac.uk/5653/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] A Civil-Law Prosecution System, Presidentialism and the Politicisation of Criminal Justice in New Democracies: South Korea and Russia in Comparative Perspective Sun Woo Lee, BA, MA Submitted in fulfillment of the requirement of the Degree of Doctor of Philosophy (Politics) School of Social & Political Sciences College of Social Sciences University of Glasgow October 2014 2 Abstract This study aims to comparatively explore how the politicisation of criminal justice would appear in several new democracies with the institutional combination of presidentialism and a civil-law prosecution system, by focusing on the strategic interaction between an incumbent president and prosecutors, in South Korea and Russia, in the new institutionalist perspective. Civil-law prosecutors could damage particular politicians‟ moral foundations with specific timing and extent, manipulating criminal proceedings through their broad power within the centralised criminal procedure. This is why they must be cautiously checked by any other body of government, contrary to their common-law counterparts who exercise a limited power due to the decentralised criminal procedure. Fortunately, in most civil-law countries, prosecutors are accountable to democratic bodies, in spite of the global tendency of judicial independence. Also in practice, civil-law prosecutors have not often been involved in the politicisation of criminal justice, despite their extensive influence over criminal procedure, in the continental European countries wherein the tradition of parliamentary supremacy is strong. By contrast, in new democracies with the institutional combination between a civil-law prosecution system and presidentialism, prosecutors have often taken partisan behaviour in favour of or against an incumbent president. For instance, two South Korean Presidents, Young-sam Kim and Dae-jung Kim, and Russian President Boris Yel‟tsin, had exploited civil-law prosecutors for the politicisation of criminal justice, but were faced with their defection immediately before their retirement. Unusually, only Vladimir Putin could avoid this unfortunate fate, even at the last phase of his tenure, among the South Korean and Russian Presidents after democratisation. According to this study, high-ranking prosecutors generally pursued their own career advancement, and consequently the prosecution service was loyal to an incumbent president during most of his tenure, but betray him in his last phase, during South Korean President Young-sam Kim‟s and Dae-jung Kim‟s periods, and in Russian President Yel‟tsin‟s period. Only in the Russian President Putin period in the two countries after democratisation, prosecutors unusually continued to serve the president even when he left the presidency. This could be because they had no incentive to betray the outgoing president in order to further their career development under the next presidency, given that Putin would undoubtedly maintain a strong political influence over their careers, even after his retirement, according to this research. On the other hand, South Korean President Moo-hyun Roh frequently came into conflict with prosecutors, and had his close allies investigated or even indicted by them, during his entire period, while repeatedly attempting major reform against the civil-law prosecution service, which President Young-sam Kim and Dae-jung Kim had abandoned, in order to maintain the alliance with the power apparatus. According to this study, prosecutors made 3 their organisational resistance based on their far-reaching power over criminal procedure, against President Moo-hyun Roh, for protecting their great prerogative, and therefore he failed in the reform. By contrast, Russian President Putin was exceptionally successful in large-scale reform against civil-law prosecutors, which not only President Yel‟tsin but Putin himself in his first term had also suspended, by establishing the new „investigative committee‟ in June 2007. According to this research, this outcome was possible because the prosecutors could no longer enjoy the political opportunity structure enabling them to effectively defeat the president‟s reform against their collective interests, and consequently President Putin could circumvent their organisational resistance, in the absence of political competition under his electoral authoritarian regime. This study provides three important academic implications. Firstly, under the institutional combination of presidentialism and a civil-law prosecution system, prosecutors are not likely to preserve political neutrality, but to display a partisan behaviour either in favour of or against an incumbent government. That is, the institutional factor of combination of a civil-law prosecution system and presidentialism tends to induce the prosecution service, as a judicial body, to behave differently from the expectations of both the democrats and the liberals. Secondly, the variation of political competition can seldom influence judicial officers, who are responsible to the other branches of government, to behave independently of politicians, but can influence them, especially the top rankers, to betray an incumbent government in the last phase of its tenure on specific institutional and political conditions. Thirdly, and most importantly, the variation of political competition can influence judicial officers to take collective action for protecting their collective interests. In particular, if the judicial officers could exercise far-reaching power over criminal procedure, as civil-law prosecutors, their organisational resistance against an incumbent government which pushes for reform encroaching on their collective interests, such as prerogative powers, would be threatening enough to make the incumbent abandon the reform plan. 4 Table of contents Chapter I: Introduction ……………………………………………………………………….……………… 13 1. 1. Puzzle ……………………………………………………………………………………………………… 13 1. 2. Literature review …………………………………………………………………………………… 17 1. 2. 1. Democracy and the rule of law ……………………………………………………………. 17 1. 2. 2. The politicisation of criminal justice …………………………………………………… 23 1. 3. Research hypotheses ……………………………………………………………………………… 28 1. 4. Cases, method and structure of research ……………………………………………. 32 1. 4. 1. Cases and method of research ……………………………………………………………… 32 1. 4. 2. The structure of thesis …………………………………………………………….…………….. 35 Chapter II: A civil-law prosecution system and presidentialism – discordant institutional combination ……………………………………….. 38 2. 1. Two types of prosecution systems in the era of the judicialisation of politics ………………………………………………………………………………………………….. 39 2. 1. 1. The global expansion of judicial activism, and prosecutors ………………. 39 2. 1. 2. Two types of prosecution systems ……………………………….…………………………. 41 2. 2. Institutional harmony between a civil-law prosecution system and a consensus form of government ……………………………………………………………. 48 2. 2. 1. The institutional mechanisms for effective control over civil-law prosecutors in consensus forms of government ……………………………………. 49 2. 2. 2. The importance of stable executive leadership under consensus forms of government …………………………………………………………………………………. 53 2. 3. Institutional disharmony between a civil-law prosecution system and presidentialism …………………………………………………………………………………. 56 2. 3. 1. Institutional preconditions for the politicisation of criminal justice in new democracies ………………………………………………………………………………… 57 2. 3. 2. A civil-law prosecution system, presidentialism and the politicisation of criminal Justice: the main framework of research ……… 62 Chapter III: Presidents’ abuse of the prosecution service, and the politicisation of criminal justice in South Korea ……. 73 3. 1. Institutional preconditions for main actors’ strategic behaviour….….. 73 3. 1. 1. The South Korean Prosecution System …………………………………………………… 73 3. 1. 2. The South Korean Presidency …………………………………………………………………. 80 3. 2. Presidents’ abuse of the prosecution service and the politicisation of criminal justice in South Korea after democratisation ……………………. 87 3. 2. 1. Political conflicts and polarisation in newly democratised South Korea ………………………………………………………………………………………………………. 87 5 3. 2. 2. The cases in President YS’s period ………………………………………………………. 90 3. 2. 3. The cases in President DJ’s period ………………………………………………………. 96 3. 3. Summary ………………………………………………………………………………………………… 102 Chapter IV: Presidents’ reform of the prosecution service, and the politicisation of criminal justice in South Korea …. 104 4. 1. Insignificant reform of the civil-law prosecution service in South Korea after democratisation …………………………………………………………………. 105 4. 1. 1. No large-scale reform of the prosecution service
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