Case Explained: Police Expand Scope of Law Distortion Crime to Pre-Investigation Stage – Legal Perspective

South Korea’s National Police Agency has determined that the “law distortion crime” could apply even to preliminary inquiries conducted before formal case registration, according to sources familiar with the matter.

The decision reflects a broad interpretation of “criminal cases under investigation” as defined in the law distortion statute, raising concerns among frontline officers that intelligence gathering and preliminary inquiry activities could be curtailed.

According to Seoul Economic Daily’s reporting on the 16th, the National Police Agency distributed guidelines on law distortion crime criteria to provincial police agencies on the 12th of this month. The document explained that preliminary inquiry cases—even before formal registration procedures begin—could be subject to the law distortion crime depending on circumstances.

The agency interpreted “criminal cases under trial or investigation,” one of the constituent elements of the crime, as not excluding preliminary inquiries.

The law distortion crime is stipulated in Article 123-2 of the Criminal Act. The provision states that judges involved in criminal trials, prosecutors who file or maintain indictments, or persons performing duties related to criminal investigation shall be punished with imprisonment of up to 10 years and suspension of qualifications of up to 10 years if they commit certain acts regarding criminal cases under trial or investigation with the purpose of unlawfully or improperly providing benefits to others or harming their rights.

The key issue is the scope of “criminal cases under investigation.” The distinction between preliminary inquiries and formal investigation typically involves competing theories: the “formalist theory” and the “substantive theory.”

The formalist theory holds that formal investigation begins only when a judicial police officer prepares a crime recognition report containing the suspect’s personal information, criminal facts, and applicable legal provisions, and completes formal registration procedures.

The police, however, appear to have weighted the substantive theory in their guidelines. Under this view, registration is merely an internal procedure, and if investigative authorities recognized criminal suspicion and actually commenced investigative acts, investigation can be deemed to have begun from that point.

Sources said police explained in the document that a “criminal case under investigation” may apply when investigative authorities acknowledged criminal suspicion and began acts constituting investigation. This interpretation suggests that regardless of formal registration, if substantive investigative acts occurred—such as summoning and questioning parties—the law distortion crime could potentially apply.

The police also reportedly determined that cases where supplementary investigation requests are received after transfer to prosecutors, or cases re-transferred through objection procedures following non-transfer decisions, could all be included in “criminal cases under investigation.”

Many frontline officers believe there is little likelihood that the law distortion crime would actually be applied to the preliminary inquiry stage and result in punishment. However, concerns are being raised that the mere possibility of application could chill investigative activities.

A police officer at a Seoul police station said, “It won’t often happen that subjects become aware of preliminary inquiries and immediately file complaints for law distortion crime, but this is sufficient to chill intelligence activities by frontline officers.” The officer added, “Preliminary inquiries other than those based on petitions and appeals will inevitably become much more cautious than now, and the burden will increase if preliminary inquiry activities become known externally.”

The police also did not limit those subject to the law distortion crime to investigation department officers directly handling investigations. They determined that even officers in local police, security departments, or investigation support departments could be subject if they performed investigation-related acts. For example, evidence collection by investigation support departments or arrests of flagrant offenders by local police could be evaluated as investigation-related acts.

Additionally, the guidelines reportedly included content stating that broadly reviewing charges alleged by complainants or “discretionary judgments within reasonable scope” would only be recognized when clear evidence such as investigation reports is confirmed.

However, the National Police Agency explained regarding the document: “This is not an investigation directive or official guideline on the law distortion crime.”