The Discordant Combination of Civil-Law Prosecution System and Presidentialism: A Theoretical Framework

  •  Sun-Woo Lee    


Civil-law prosecutors could damage particular politicians’ moral foundations with their own timing and extent, manipulating criminal proceedings through their broad power within the centralized criminal procedure. This is why they must be cautiously checked by any other body of government, contrary to their common-law counterparts who exercise limited power because of the decentralized criminal procedure. Fortunately, in most civil-law countries, prosecutors are required to be accountable to democratic bodies, despite the global trend of judicial independence. In several new presidential democracies, however, civil-law prosecutors are often involved in the judicialization of politics through criminal proceedings, despite their accountability to a political branch, unlike in the continental European countries. Why is there such a difference? To answer this question, this article provides an innovative theoretical framework explaining that civil-law prosecutors would be induced to abuse their great power in a partisan position, not under a consensus form of government, but under presidentialism, with the new institutionalist approach. According to this framework, empirical researches will also be encouraged.

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