헌법재판에서 법정조언자의 도입가능성에 관한 시론적 연구

This article argues for the importance of amicus participation in a democratic systemand the possibility of introducing. Amicus curiae briefs have become a regular part of the litigationprocess in the United States. Amicus curiae, or friend of the court, refers to the tradition of courtspermitting non-parties t litigation to submit their opinion on issues involved in the proceedings. Inorder to participate in a case, an amicus curiae always needs permission of the court to file a brief as a non-party. The amicus curiae are classified with private amici and governmental amici. Thebroad category of non-governmental entities includes a myriad of subcategories, individuals,charitable and community organizations, public interest law firms and policy research groups,citizen and public interest advocacy groups, business(trade) and professional organizations, andunions. In most instances, courts have allowed private amici, representing either private economicor public interests, only a limited role in the litigation social issues in which the group lackedstanding as a party. Governmental entities participate more than other groups of amici. Theseentities include state, county, district, municipal, and the federal government. The most influentialgovernmental entity is the Office of the Solicitor General. Faced with the social problems of thelate 1970s and early 1980s, federal courts began to permit governmental units to enter litigation asa hybrid form of amicus curiae status. Throughout the gradual creation of the hybrid litigatingamicus, courts failed to explicitly distinguish the governmental litigating amici curiae from theirprivate counterparts. The amicus briefs serve an important function. The amicus curiae participation provides values intwo principle ways: (i) acting as barometer for interest group activity and public opinion and (ii)providing supplemental substantive legal, policy, and social science arguments. Also it provides thevalue as the deliberation democracy, the counteractive lobbying, the right of the freedom of speech. Sothis article may have important implications for the introducing the amicus curiae system in theconstitutional trial.