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

Abstract

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.

The politics of prosecution service reform in new presidential democracies: The South Korea and Russia cases in comparative perspective

“…In some new democracies, including South Korea and Russia, prosecutors retained their centralized power, as permitted by the previous undemocratic regime, even after democratization. In particular, as a young democracy adopted presidentialism, rather than a consensual form of government, without careful consideration of whether its prosecution system follows a civil-law tradition, prosecutors repeatedly displayed partisan behaviors, concurrent with presidential electoral cycles (Lee, 2014). However, a more serious problem is that, although a political faction including a presidential one attempts prosecution service reform for resolving this dilemma, the faction tends to abandon it quickly and instead seek to form alliance with the prosecutors, expecting short-term political benefits from exploiting their vast power.…”

“…In reality, the political distortion of criminal justice occurs relatively less often, despite the civil-law prosecution system, not only in Continental Europe, but even in some new consensual democracies (The WJP Rule of Law, 2013). By contrast, in several young democracies adopting a presidential system, which gave the president almost exclusive control over high-ranking prosecutors' career, along with the Third Wave of democratization, civil-law prosecutors have a strong incentive to exercise their extensive power in favor of an incumbent president during most of his or her fixed tenure, but to betray him or her at his or her last phase, for their career progress (Lee, 2014). In practice, Alberto Fujimori in Peru, Chen Shui-bian in Taiwan, Young-Sam Kim (YS) and Dae-Jung Kim (DJ) in South Korea, and Boris Yeltsin in Russia dominated that office during most of their tenure but experienced prosecutorial defection at their final phase.…”

Prosecutors and Presidents in New Democracies: The Russia Case

“…By contrast, civil-law prosecutors can exercise extensive influence through every pre-trial stage of criminal procedure, because they hold the power not only to control criminal investigations but also to indict suspects on the basis of the inquisitorial system (Lee, 2014). There are in fact some additional mechanisms that contribute to curbing their considerable power.…”

“…To bring this into effect, in some countries, the constitution fixes the tenure of the prosecutor general. However, most top-ranking prosecutors, including even the prosecutor general, can be expected to remain loyal in the expectation that they would obtain other high executive posts or at least sustain their current position into the future (Lee, 2014: 87–9).…”