Research On American Prosecutorial System

The US prosecutorial system has the most special characteristics in organization structure, power status, and procuratorial function etc. The legal position of prosecutorial system in each country is different, and the power content is also different. But no matter how to define and evaluate the procuratorial power, the prosecutorial system and procuratorial organ, the prosecutorial system plays a large part in state power. It is a direct reflection that the allocation of prosecutorial power is a method of power allocation for a constitutional government. For the analysis on the US prosecutorial system, the first step is to give a brief introduction on foreign prosecutorial systems, and the second is to make us to be clearer about the connotation of our own country's prosecutorial system and retain it.Firstly in the preface, this paper aims to analyze the difficulties on the US procuratorial organ one by one. Owing to the different origins of the two countries' prosecutorial system, the discrepancy of the two countries' legal cultures and languages, and the distinction between the two countries' division of procuratorial departments, there are some obvious obstacles to definite the concept of the US prosecutorial system. According to the method of formal logic and the core of public action, this paper aims to put forward three essential connotations to distinguish prosecutorial systems. According to the above methods, the functions of the US procuratorial organs will be relatively separated, and squeeze the non-procuratorial departments out of the Ministry of Justice. To some extend, this way will reduce the dilemma in the research object arising out of the combination of the US procuratorial organs and administrative organs offices.The second chapter of this paper aims to give an introduction of the historical evaluation of the US prosecutorial system, which shall be approximately divided into three periods, colonial period, after the War of Independence and after World War II. During the north American colonial period, the US prosecutorial system is in infancy, all the colonial prosecutorial systems imitate its metropolitan state's system, and there are several prosecutorial systems at the same time. After the War of Independence, prosecutorial system gradually went to be mature, with clear American immigrant culture characteristics. In this process, prosecutorial system of north American colonies has appeared two trends, one is from the centralization to decentralization, and the other is mainly from the "private action" to public action. In general, the prosecutorial system evaluation of north American colonial period is from centralization to decentralization, and this course are closely related to the north American gradually getting rid of colonial governance; and the other trend is from private action to public action, which reflected the modernization process of the US prosecutorial system after getting rid of colonial influence. After America independence, the evolution of the federal law going to be independence is also the process of US federal prosecutorial system going to be mature and perfect. During this process, the US prosecutorial system shows two features, one is the appointment of procurator turns into election, and the other is the power of procurator expands and be flexible, especially in discretion expanding. It is a particular political phenomenon in US prosecutorial system that the independent procurator appeared in the 1970s, and its rise and decline has closely related to the US political system.The third chapter of this paper aims to introduce two aspects about the theoretical foundation of the US procuratorial system, one is about the "separation of powers" procuratorial system, originated in ancient Greece and Rome and made by Locke, Montesquieu and Jefferson, and as a type of executive power the procuratorial power is a type of power allocation which established on the basis of the separation of powers and balance of powers; and the other is federalism based on the north American colonies and made by federal party. As set forth, all the theories starts from the protection of individual right and autonomy, with remarkable American culture characteristic.The forth chapter of this paper aims to introduce the US procuratorial system and its characteristics, which based on the power-separation theory of the US procuratorial system, formed a relatively independent procuratorial organ between state and federal, and state and federal are governed by multiple legal systems. Under the tradition of private action, the US procuratorial system comes down in continuous with lamyer system. The training and selection on procuratorial employees are based on the same standard qualification of integration of legal profession with lawyers, and its formation of special prosecutorial system is closely related to protection of right and autonomy. Although the US procuratorial organ belongs to administrative organ, it also expresses a vivid trend to weaken administration. The fifth chapter of this paper aims to analyze the function of the US procuratorial organ. The function of US procuratorial organ shall be divided into three parts, "criminal lawsuit function", "civil lawsuit function" and "administrative lawsuit function". It also gives a detailed introduction on administrative function of US procuratorial organ. Although some of the said powers do not belong to procuratorial organ, it deeply reflects the type of the American state power allocation, and a vivid characteristic about procuratorial organ going along with administration organ.After clearing the nature of power, the sixth chapter of this paper aims to put the US procuratorial power into the framework of state power, and compare the relationship with procuratorial organ, administration, judiciary, legislation and party powers. The primary relationships between the US legislative organ and procuratorial organ are appointment and financial supervision, and the interference of legislative organ on a certain case is restricted by procedure so that the procurator can keep high independence in case survey stage. The mutual checks and balances between procuratorial organ and judicial organ is embodied in lawsuit process, and the two form a accused and trail relation based on public action. At the same time, there also is a mutual supervision relation between judicial organ and procuratorial organ, which is primary based on the morality of state functionary not on the duty of judge and procurator. The relationship between the US procuratorial organ and administrative organ based on professional position contains as follows: the first is to take an investigation on the improper actions of administrative officers according to public actions, the second is to give a checks and balances on government actions according to judicial review and lawsuit on government tort, and the third is, as a lawyer, to give some legal consultation and suggestion. There are two parties in America, while the final administrative power belongs to president power, and president power directly relates to parties, in fact the administrative power can not avoid the influence of ruling party.The last chapter of this paper aims to give a perspective on the development direction about the US prosecutorial system. In this century, there is a deep revolution happened in American domestic and international situation, especially after 911 terrorist attacks, and under the shadow of threat of terrorism, prosecutor of federal, state and district meet a new situation on separation of powers and functions. Under the new judicial requirements, the procuratorial organ, especially the federal procuratorial organ, gains a hard-won opportunity to expand its power, at the same time the strengthening on federal law system restricts the state procuratorial authority, while the core of procuratorial authority begins to incline to "community procuratorial". As a whole, there are three directions in the development of US prosecutorial system as follows: firstly, in order to ensure national security procuratorial power goes to be centralized to federal; secondly, in order to improve residents security procuratorial work extends to grassroots community; and the third is the expanding of Procuratorial authority and the structure of checks and balances on judicial and administrative power has been changed.