论法官与律师的关系

发布时间：2018-06-02 19:08

本文选题：法官 + 律师　；参考：《安徽大学》2011年硕士论文

【摘要】：司法在国家和社会生活中的地位和作用日益重要。人们对司法公正的期待和要求也更为迫切,对作为司法腐败问题之法官腐败、律师犯罪等案件尤显注目,人们越来越开始高度关注法官与律师间的关系问题。法官和律师虽然分工不同,但他们同属法律职业共同体成员,共同以公平正义和司法公正为职责。司法公正是社会公正的最后一道底线,而法官与律师之间的相互关系对司法公正乃至社会的公平和正义有着非常重大的影响,在当今中国已构成一道由法官与律师的紧张关系构成的特殊风景线。若他们相互勾结、狼狈为奸,则必将严重破坏法律尊严和司法权威；反之,他们严格依法办案,维护社会公平正义,必将最大限度的实现司法公正,促进法治社会的加速形成。因此,正确看待和研究法官与律师之间的关系,在当前法治现代化建设进程中显得尤为重要和迫切。虽然引起社会高度关注法官与律师间关系的重要原因源自当前严重的司法腐败现象。但是,我们不能仅仅囿于从司法腐败的现象来看待和分析两者之间的关系,否则狭隘的观察与分析视角将无助于从根本上解决任何实质性问题。因此,笔者尝试将法官与律师间的关系置于中国法治现代化进程的大背景下,运用社会学、伦理学以及法学的知识和方法来综合分析两者之间的关系——法官与律师的应然关系和实然关系,并通过对造成实然关系与应然关系差异的原因分析,探讨实现走向应然关系的法律路径等。全文共分为四个部分：第一部分,详细分析了法官与律师应然状态下的五种关系,即相互独立的平等关系、彼此尊重的职业关系、正相关的合作关系、负相关的制衡关系和诉讼外正常交往关系。第二部分,结合我国当前法治状况和司法过程实际,阐述法官与律师实然状态下的四种关系,即不平等的依赖关系、职业错位关系——职业者与“边缘化的职业者”的错位关系、不正当“勾兑”关系和不尽合理的对抗关系。同时,对法官与律师实然关系的负面后果进行相关分析,凸显这些实然关系的各种危害与弊端。第三部分,结合法学、社会学和伦理学的知识与方法,运用比较分析、逻辑分析等方法,详细阐述造成法官与律师应然关系与实然关系差异的最主要的八种原因,即历史传统的原因；近现代法官制度与律师制度在我国历经波折与磨难,必将有个本土化的过程；社会环境的影响；法学教育弊端之影响；司法不独立、法官不独立；“轻程序、重实体”的影响；法官自由裁量权过大；律师及律师业自身社会力量和法律地位弱小。第四部分,文章的落脚点,分析了如何实现法官与律师走向应然关系的法律路径。
[Abstract]:The status and role of justice in the national and social life is becoming more and more important. People's expectations and demands on judicial justice are also more urgent. The cases of judge corruption and lawyer crime as judicial corruption are particularly prominent. People are increasingly concerned about the relationship between judges and lawyers. But they belong to the members of the legal profession community, with the common responsibility of fair and justice and judicial justice. Judicial justice is the last bottom line of social justice, and the relationship between judges and lawyers has a great influence on judicial justice and even the fairness and justice of the society. In today's China, a judge and lawyer have been formed. If they collude with each other and collaborate with each other, they will seriously destroy the legal dignity and judicial authority. On the other hand, they do the case strictly according to law, maintain social justice and justice, and will maximize the justice of the judiciary and promote the accelerated formation of the rule of law society. Therefore, judge and study the judge and law correctly. The relationship between teachers is particularly important and urgent in the process of the rule of law modernization.
Although the important cause of social attention to the relationship between judges and lawyers originates from the current serious judicial corruption, we can not only view and analyze the relationship between the judicial corruption, or the narrow view and analysis perspective will not help to fundamentally solve any substantive problems. Therefore, The author tries to put the relationship between the judge and the lawyer under the background of the modernization of the rule of law in China, and uses the knowledge and methods of sociology, ethics and law to analyze the relationship between the judges and the lawyers and the relationship between the judges and the lawyers, and the reasons for the differences in the relationship between the judges and the lawyers. This article is divided into four parts: exploring the legal path to achieve the right relationship.
In the first part, the five relations between the judge and the lawyer are analyzed in detail, namely, the independent equality relations, the professional relations that respect each other, the relevant cooperative relations, the negative balance relations and the normal relations outside the lawsuit.
The second part, combining with the current situation of the rule of law and the actual judicial process in our country, expounds the four relations between the judge and the lawyer in the actual state, that is, the unequal dependence relationship, the professional dislocation relation - the misplacement relationship between the professional and the "marginalized professional", the improper "blending" relationship and the unreasonable antagonism relationship. This paper analyzes the negative consequences of the actual relationship between lawyers and highlights the dangers and drawbacks of these real relationships.
The third part, combining the knowledge and methods of law, sociology and ethics, using comparative analysis, logic analysis and other methods, expounds the most important eight reasons that cause the difference between the judge and the lawyer and the real relationship, namely the reason of the historical tradition; the modern judge system and the lawyer system have gone through the discounts and hardships in our country. There will be a localized process; the influence of the social environment; the influence of the legal education; the judiciary is not independent, the judge is not independent; the influence of the "light procedure, the entity"; the discretion of the judge is too large; the lawyer and the lawyer's own social strength and legal status are weak.
The fourth part, the foothold of the article, analyzes how to realize the legal path of the relationship between judges and lawyers.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926

【参考文献】