Prosecutorial Role and Function in the United States (미국 분야)

Any discussion related to comparative jurisprudence must begin with a basic understanding of its respective foundational approaches to systematic jurisprudence. This is a necessary pre‐requisite to a productive dialogue. An average lay person may not readily grasp the rudimentary differences between comparative legal systems nor even appreciate their own justice system, but there is a sense that even many legal professionals are generally unfamiliar with the differences beyond the basics. This unfamiliarity is not limited to the Korean legal community, but to legal professionals all around the world. One obvious explanation is that practicing legal professionals are most familiar with their own system because that is their sphere of knowledge, skill, and experience and there is little opportunity to engage in comparative practice. As a result, there can be temptation to assume that a particular legal terminology or concept means the same thing in another context because the terminology equivalent exists in the other language. Nonetheless, comparing items that cannot be equivalently compared ought to be approached with caution as summed up by the American colloquial expression, “You can’t compare apples and oranges.” Therefore, ignoring the systematic distinctiveness in comparative legal systems is to err because woven into the fabric of the respective systems exist an inherently different philosophical and systematic approach. Hence, any particular comparison between the particularities of a subject matter such as prosecutorial role and function must be done with an eye towards appreciating the chasm of dissimilarities between the backdrop of the continental legal system (civil law/code or inquisitorial system) of Korea and the common law system of America. The function and role of the prosecutor is a vast subject matter even within the context of a particular justice system, and there is much scholarly work that has been written. This paper attempts to merely provide a broad overview by dividing the discussion into three categories: the prosecutor’s role and function within the federalism system, within the adversarial system, and within the jury system.