“法庭之友”:一种诉讼信息披露机制

Amici Curiae:A Mechanism of Litigation Information Disclosure

由于司法制度环境等因素的差异,各国法官在司法裁判过程中处于不同的案件信息结构之中。在美国,"法庭之友"制度的兴起具有鲜明的信息获取的功能特征,联邦法院更多将其视为一种诉讼程序与结构的调整性工具,充分利用了其背后隐藏的有关信息披露的激励机制,以改善自身信息短缺的处境。在英国,出庭律师实际发挥的"法官助理"功能、法官群体的职业化和官僚化,以及法律服务市场、司法系统规模和特定司法制度等因素则为法官提供了更为经济的信息获取渠道。本文采取的以功能性和整体性原则为基础的研究进路对于我们关注法律体系内部制度间的功能关联性,更精细地解释制度的运作逻辑,具有启示意义。

In view of the discrepancies between the judicial environments of countries in the world, various judges are in the different judicial information structures in the process of judicial adjudication. In the United States, the rise of amici curiae has rooted the needs of the judges＇access to the information, and as an tool to adjust the proceedings and structure, the federal courts have taken full advantage of the incentive principle to promote the information disclosure behind it. Through this effective mechanism, the situation of information shortage which the judges faced has been effectively improved. In the UK, in the litigation pro- cedure, the barristers have actually played a function similar to that of a law clerk. In addition, profession- alization and bureaucracy of British judges, legal service market, the scale of judicial system, and some certain legal rules also have offered condition and possibility for a more efficient information access channel. This kind of research path that based on the principle of functionalism and integrity has prompted us to focus on the functional correlations between the various rules in a legal system.