התביעה הפרטית בהליך הפלילי (The Private Prosecution and Criminal Justice)

תקציר

Could the criminal process be privatized? Could this privatization be jurisprudentially analyzed using economical efficiency terms? Traditionally, the legal analysis of privatization is identified with the Commercial Law branches and Administrative Law, since privatization is considered as a transfer of public assets and public services into private management. Privatization is usually analyzed and justified using economical efficiency terms. The criminal procedure is considered, in most western legal systems, a public service supplied by the state. As a result, the public is considered a consumer of this service. Thus, transferring specific criminal procedures into private management might be considered "privatization", and these procedures could be analyzed using economical efficiency terms, even though Criminal Law is not considered a branch of Commercial Law. This article focuses on presenting the private prosecution as privatization of the general (public) prosecution. First, we shall explore the development of private prosecution in the western legal systems. Then, this "privatization" will be analyzed using the common terms of economical efficiency discourse, like any other privatization process, in addition to an empirical analysis. Finally, it will be suggested an explanation of the private prosecution through an economical model of equilibrium between two simultaneous and contradicted processes – "privatization" and "publicization".