[TAX & LAW] 변호사(KO, USA, IL) 이재욱 Office Map
LAW OFFICE [ TAX & LAW ] 세금과 법률
I P

Hello everybody! Translate this page:

You can translate the content of this page by selecting a language in the select box. This Website provides diverse language translation by Google Translation button. You can find translation menu at the upper left corner of this website. You can select your own language for the translation of the pages you want to read in your own language.


∗ [LANGUAGE Translation] You can use Google Translate application to see in your own language the pages in this website. For your convenience, click the "Google Translate(Select Language)"

[한국변호사, 미국변호사, 일리노이 변호사, 세무사 이재욱] → [의뢰인이 비용을 지불하고 적법한 해결을 원하는 것이라면 개인과 기업을 위한 모든 법률문제를 서비스하고 뭐든지 대리해드립니다. ]
∗ 1997년부터 20년이상의 노하우를 가지고 웬만한 개인과 기업이 평생에 걸쳐 경험할 수 있는 거의 대부분의 민사,형사,행정,조세,국제거래,국제계약,이민,탄원,진정,고소,고발,제안,협상,중재,조정,업무대행,대리 사건의 자문과 소송과 계획안 제출대리 업무을 경험하고 처리해 왔으며, 이를 바탕으로 국내거래나 국제거래를 비롯하여 개인과 기업이 당면한 어떤 문제도 모두 해결해 드립니다.
관련된 업무분야는 아래 매뉴항목을 참조하십시요. 아래 업무 메뉴는 예시이며, 메뉴에 없는 서비스도 모두 제공합니다. 주저하지 마시고 사무실을 내방하여 이재욱변호사의 축적된 경험과 학식과 지식을 이용하여 상담부터 받으세요. 본 사무실에서 해결해드리지 못할 경우 다른 해결방안을 제시해드립니다.

∗ [LANGUAGE Translation] You can use Google Translate application to see in your own language the pages in this website. For your convenience, click the "Google Translate(Select Language)"


ATTORNEY [ licensed to practice in KOREA, U.S.A., ILLINOIS ] LEE, JAE WOOK
∗ [FOR FOREIGNERS - ENGLISH LANGUAGE LEGAL SERVICES in Counseling, Application and LITIGATION & TRIAL IN COURTS and TRIBUNALS in KOREA]
INTERNATIONAL DIVORCE, CIVIL, REAL ESTATE, PERSONAL INJURY, DAMAGES, TRAFFIC ACCIDENT, FRAUD, PENAL LAW, CRIMINAL TRIAL, FELONY, GUILTY PLEA, LEASE, RENTAL LAW, IMMIGRATION, INVESTMENT, TAX, INCORPORATION, TRADE, CONTRACT, DISPUTE IN CORPORATION, GOVERNMENT TREATMENT, REFUGEE, REMOVAL, VISA, PERMANENT RESIDENCE, CITIZENSHIP]
For more information for the services Attorney LEE provide for the foreigners who want for legal services in Korea, Please do not hesitate to click the below MENU link for "SERVICES FOR FOREIGNERS".

∗ [LANGUAGE Translation] You can use Google Translate application to see in your own language the pages in this website. For your convenience, click the "Google Translate(Select Language)"


∗ [LANGUAGE Translation] You can use Google Translate application to see in your own language the pages in this website. For your convenience, click the "Google Translate(Select Language)"

상담료
선임료
소개
위치
| 민사
상속
이혼
부동산
| 세무
조세
행정
주식분쟁
| 병역법
기소중지
병역면제
국외여행
| 특허
지적재산
상표권
침해소송
| 형사재판
고소
고발
| 미국이민
VISA
영주권
SERVICE
| SERVICES
FOR
FOREIGNERS
| |
↓ DACA, DAPA
→   미국 이민,비자,영주권
→   미국이민뉴스
→   PRACTITION TIP
→   U.S.A. Tax News
→   미국이민 범죄행위 Defend 서비스
→   미국 이민사기 범죄 Defend 서비스
→   비거주자,영주권자의 상속세,증여세
→   미국 부동산거래실무
→   비거주자,영주권자의 양도소득세
→   비거주자,영주권자의 소득세
→   미국세금(U.S. TAX)
→   재산상속,분쟁,이전,세금
→   C VISA
→   FATCA
→   USCIS AFM(DHS)
→   FBAR
→   9 FAM VISAS(DOS)
→   PERM (Labor Certification)
→   Consular Process(DOS)
→   E1, E2
→   F visa
→   H visa
→   J visa
→   K visa
→   L visa
→   O, P visa
→   R visa
→   S visa
→   T, U visa
→   V visa
→   WAIVER(추방,입국불허면제)
→   체류기간연장(NIV EOS)
→   비이민비자 신분변경(NIV COS)
→   inadmissibility 입국불허사유
→   deportability 추방사유
→   조건해제(Removal of condition)
→   EB2, NIW(국익면제)
→   고용이민
→   가족이민
→   영주권 신분변경(AOS)
→   투자이민(EB-5)
→   LPR TRAVEL 영주권자 해외여행
→   DACA, DAPA
→   VAWA
→   legal english
→   AAO불복
→   연방법원항소
→   Immigration Court 항소
→   BIA항소
→   ICE 이민집행
→   CBP 세관 및 입출국관리
→   Removal 추방
→   일리노이주법 기초
→   캘리포니아법 기초
→   미 연방법 기초
→   캘리포니아 부부공동체법
→   캘리포니아 가족법
→   캘리포니아 민사소송법
→   일리노이 민사소송법
→   일리노이 가족법
→   미국 연방헌법
→   PT
↓ DACA, DAPA


Prosecutorial Discretion Generally
in [ DACA, DAPA ]
Start →

Prosecutorial Discretion Generally

The judicial branch has traditionally accorded federal prosecutors
        a) “broad” latitude
                i) in making a range of
                        A) investigatory and
                        B) prosecutorial
                                I) determinations,
                                        (a) including when, whom, and whether
                                                (i) to prosecute particular violations of federal law.39

This doctrine
        a) of “prosecutorial discretion”

1) has a long historical pedigree
        a) —the early roots
        b) of which can be traced at least to a Sixteenth Century English common law procedural mechanism
                i) known as the nolle prosequi.40

nol·le pros·e·qui
ˌnälē ˈpräsəˌkwē/
nounLAW
a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action.
the entry of nolle prosequi in a court record.
Nolle prosequi (/ˌnɒli ˈprɒsəkwaɪ/;[1] Classical Latin: [ˈnolːe ˈproːsekwiː])
is legal term of art and a Latin legal phrase meaning "be unwilling to pursue",[2] a phrase amounting to "do not prosecute".

It is a phrase used in many common law criminal prosecution contexts to describe a prosecutor's decision to voluntarily discontinue criminal charges either before trial or before a verdict is rendered.[3] I

t contrasts with an involuntary dismissal.
Application in law[edit]
Nolle prosequi as a declaration is most often used in criminal cases, but in jurisdictions making use of nolle prosequi in civil lawsuits, is used by a plaintiff to voluntarily drop its claims. In civil cases, a motion for voluntary dismissal may be made by a plaintiff instead of a declaration of nolle prosequi, depending upon the custom and rules of a given jurisdiction


In the early English legal system,

criminal prosecutions were generally initiated
        a) by private individuals
                i) rather than public prosecutors.

The nolle prosequi, however, allowed the government,
        a) generally at the direction of the Crown,
        b) to intervene in and
        c) terminate
                i) a privately initiated criminal action
                        A) it viewed as
                                I) “frivolous or
                                II) in contravention of royal interests.”41

The discretionary device
        a) was later adopted into American common law and
        b) has been used
                i) by prosecutors
                ii) to terminate criminal prosecutions
                        A) that are determined to be unwarranted or
                        B) which the prosecuting authority chooses not to pursue.42

Notwithstanding this historical background,

the modern doctrine
        a) of prosecutorial discretion

1) derives more from our constitutional structure
        a) than English common law.

However,

the exact justification
        a) for the doctrine

1) does not appear to have been explicitly established.

Generally,

courts have characterized prosecutorial discretion
        a) as a function of some mixture of
                i) the separation of powers,
                ii) the Take Care Clause,43 or
                iii) the duties of a prosecutor
                        A) as an appointee
                                I) of the President.44


Moreover,

both
        a) federal and
        b) state
                i) courts

1) have ruled that
        a) the exercise of prosecutorial discretion is an executive function
                A) necessary to the proper administration of justice.

Given these precedents,

prosecutorial discretion may be appropriately characterized
        a) as a constitutionally based doctrine.



39 See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985) (“In our criminal justice system, the Government retains
‘broad discretion’ as to whom to prosecute.”) (citing United States v. Goodwin, 457 U.S. 368, 380 (1982)); United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…”) (citing the Confiscation Cases, 74 U.S. 454 (1869)).
40 See, e.g., Rebecca Krauss, The Theory of Prosecutorial Discretion in Federal Law: Origins and Development, 6
SETON HALL CIR. REV. 1, 19-26 (2009) (describing the English use of the nolle prosequi and its “absorb[tion]” by
American law).
41 Id. at 20.
42 See, e.g., Confiscation Cases, 74 U.S. 454 (1869); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (“Most recently, the issue of the United States Attorney’s ‘discretionary control of criminal prosecutions has arisen in connection with the filing of a nolle prosequi, and the Courts have regularly refused to interfere with these voluntary dismissals of prosecution.’”) (citing Louis B. Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13
LAW & CONTEMP. PROB. 64, 83 (1948)). Today, judicial approval is generally required before a prosecutor may dismiss an ongoing prosecution. See FED. R. CRIM. P. 48(a) (“The government may, with leave of court, dismiss an indictment,
information, or complaint.”).
43 U.S. Const. Art. II, §3 (“[H]e shall take Care that the Laws be faithfully executed.... ”).
44 See, e.g., Armstrong, 517 U.S. at 464 (“They have this latitude because they are designated by statute as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the Laws be faithfully executed.’”); Confiscation Cases, 74 U.S. at 458 (“Appointed, as the Attorney General is, in pursuance of an act of Congress, to prosecute and conduct such suits, argument would seem to be unnecessary to prove his authority to dispose of these cases in the manner proposed.... ”); Ponzi v. Fessenden, 258 U.S. 254, 262 (1922) (“The Attorney General is the head of the Department of Justice. He is the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and in the prosecution of offences
be faithfully executed.”); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (“The Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be
faithfully executed. Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he
exercises discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers
of the attorneys of the United States in their control over criminal prosecutions.”) (internal citations omitted)).




Regardless of its precise textual source,

courts generally will neither
        a) review
        b) nor question
                i) discretionary prosecutorial decisions,
        c) nor “coerce” the executive branch
                i) to initiate a particular prosecution.

In acknowledging the discretion
        a) possessed by enforcement officials,

1) courts have recognized that
        a) the “decision
                i) to prosecute

          is particularly ill-suited
                i) to judicial review,”
        b) as it involves the consideration of factors—
                i) such as
                        A) the strength of evidence,
                        B) deterrence value, and
                        C) existing enforcement priorities—
                ii) “not readily susceptible to the kind of analysis
                        I) the courts are competent to undertake.”45

Moreover,

the executive branch has asserted that
        a) “because the essential core
                i) of the President’s constitutional responsibility

          is the duty
                i) to enforce the laws,
        b) the Executive Branch has exclusive authority
                i) to initiate and
                ii) prosecute
                        A) actions
                                I) to enforce the laws
                                        (a) adopted by Congress.”46

An agency decision
        a) to initiate an enforcement action
                i) in the administrative context

1) “shares
        a) to some extent
        b) the characteristics
                i) of the decision
                        A) of a prosecutor
                                I) in the executive branch”
                        B) to initiate a prosecution
                                I) in the criminal context.47

Thus,

just as courts are hesitant to question a prosecutor’s decisions
        a) with respect to whether to bring a criminal prosecution,

1) so too are courts
        a) cautious in reviewing an agency’s decision
                i) not to bring an enforcement action.

In the seminal case
        a) of Heckler v. Cheney,

the Supreme Court held that
        a) “an agency’s decision
                i) not
                        A) to prosecute or
                        B) enforce,
                                I) whether through civil or criminal process,

          is a decision
                i) generally committed to an agency’s absolute discretion.”48

The Court noted that
        a) agency enforcement decisions,
                i) like prosecution decisions,

          involve a “complicated balancing”
                i) of agency
                        A) interests and
                        B) resources
                ii) —a balancing that
                        A) the agency is “better equipped”
                                I) to evaluate
                                II) than the courts.49

The Heckler opinion proceeded to establish the standard
        a) for the reviewability
                i) of agency non-enforcement decisions,
        b) holding that
                i) an “agency’s decision
                        A) not to take enforcement action

                  should be presumed immune
                        A) from judicial review.”50

However,

the Court indicated that,
        a) in certain cases,
        b) that presumption may be overcome
        c) “where the substantive statute has provided guidelines
                i) for the agency to follow
                        A) in exercising its enforcement powers,” 51

1) as is discussed below.



45 Wayte, 470 U.S. at 607. However, the U.S. Court of Appeals for the District of Columbia Circuit has observed that “the decisions of this court have never allowed the phrase ‘prosecutorial discretion’ to be treated as a magical incantation which automatically provides a shield for arbitrariness.” Med. Comm. for Human Rights v. SEC, 432 F.2d
659, 673 (D.C. Cir. 1970).
46 See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 OP. OFF. LEGAL COUNSEL 101, 114 (1984) (emphasis added). This traditional conception may, however, have been qualified in some respects following the Supreme Court’s decision in Morrison v. Olson, in which the Court upheld a congressional delegation of prosecutorial power to an “independent counsel” under the Ethics in Government Act. In sustaining the validity of the statute’s appointment and removal conditions, the Court suggested that although
the independent counsel’s prosecutorial powers—including the “no small amount of discretion and judgment [exercised by the counsel] in deciding how to carry out his or her duties under the Act”—were executive in that they had “typically” been performed by executive branch officials, the court did not consider such an exercise of prosecutorial
power to be “so central to the functioning of the Executive Branch” as to require Presidential control over the independent counsel. 487 U.S. 654 (1988). While the ultimate reach of Morrison may be narrow in that the independent counsel was granted only limited jurisdiction and was still subject to the supervision of the Attorney General, it does appear that Congress may vest certain prosecutorial powers, including the exercise of prosecutorial discretion, in an
executive branch official who is independent of traditional presidential controls. But see Nixon, 418 U.S. at 693 (“[T]he
Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.... ”).
47 Heckler, 470 U.S. at 832. The Court also expressed concern that judicial review of agencies’ exercise of
prosecutorial discretion could impose “systemic costs” by delaying criminal proceedings, chilling law enforcement, and undermining prosecutorial effectiveness. Id. at 833.
48 Id. at 831. Accordingly, such decisions are generally precluded from judicial review under the Administrative Procedure Act (APA). 5 U.S.C. §701 (establishing an exception to the APA’s presumption of reviewability where “agency action is committed to agency discretion by law”).
49 Heckler, 470 U.S. at 831.



← End



Prosecutorial Discretion Generally
in [ DACA, DAPA ]



Copyright 1997-2019 TAX & LAW (세금과 법률)
본 site의 정보는 영리를 목적으로 제공하는 것이 아니며, 이곳에 등재된 모든 글은 "공개"된 대법원판례(온라인이 아니라 대법원이 종이책으로 출간한 대법원 법원공보상의 판례집)에 기한 것으로 실명과 무관합니다.
따라서, 이 곳에 기재된 대법원 판례에 혹시라도 귀하의 성명과 인적사항이 있다면, 그것은 귀하의 것이 아니며, 귀하와 동명이인이거나 가상의 인적사항이라는 점에 유의하시기 바랍니다.
그럼에도 불구하고 이를 귀하의 인적사항이라고 주장하신다면, 귀하는 본 사이트가 아니라 대법원에 그러한 점을 적시하여 공개된 (종이책으로 출간된 대법원 법원공보상의 판례집) 판례의 내용을 전부 직접 수정을 해줄 것을 스스로 주장하십시요. 본 사무실에 연락하실 부분이 아닙니다.
[OFFICE MAP] ↓