论律师的有效代理

发布时间：2018-10-14 14:09

【摘要】：本文围绕律师的有效代理这一主线,主要从五个部分展开论述。文章的第一部分为律师有效代理的理论综述。作者从有效代理在法律条文中的体现、概念解读、认定标准以及有效代理在多维度的意义层面进行分析,并创新性地将律师的有效代理概念解读为以下四个层面,即“一个中心,两方主体,三维要求,四重效果”。律师有效代理的认定标准则主要从职业操守和法律技能两方面进行界定。职业操守层面涉及勤勉尽责、诚信、保守秘密、忠诚义务、同理心等方面;法律技能层面涉及扎实的法律知识功底,审慎的判断力,缜密的表达能力等方面。在该部分中作者将律师提供有效的法律代理服务视为律师职业属性和以委托人利益为中心执业理念的应有之义。第二部分从现实发生的案例着手,将律师有效代理的缺失归纳为六个方面。继而,在部分中作者分析了有效代理缺失在现实中的多方影响。律师有效代理的缺失不仅直接影响到委托人的利益,而且贬损律师自身的形象,更有甚者,会加剧公众对包含律师服务、法院审判等在内的司法环境的不信任。文章的第三部分主要从四个方面分析了律师有效代理缺失的原因。首先,律师这一法律服务供体既有着法律人的特质,又有着经济人的特质。游走在职业使命和商业主义之间的律师群体,不可避免地面临经济上的巨大诱惑而出现偏离职责和担当的可能性;其次,律师代理案件,理所当然地会跟法官打交道。法官与律师在庭上的不良对抗以及在庭外的不当交往,无形之中使得律师的有效代理大打折扣;再次,在公诉案件中,检察机关与律师分庭抗礼,倘若检察官恃权自大,也会直接弱化律师有效代理的实现;最后,当下法务市场主体良莠不齐,公众认识的局限性亦会导致律师有效代理的“被缺失”。在第四部分中,作者根据在第三部分提及的原因,有针对性地列出对策,对症下药。第一,律师队伍必须独善其身,在职业操守和法律职业技能两方面努力提升自身素质;第二,规范法官与律师之间的关系,提高律师的地位;第三,规范检察官与律师之间的关系,增强律师的声音;第四,整顿法律服务市场,提高公众认识,优化律师的执业环境。第五,构建律师诚信评价系统,使得律师对于委案不敢懈怠、不能懈怠、不愿懈怠。构建具有“吓阻效应”的律师诚信评价系统的设想,是本文的创新之处。该评价系统涉及五方主体——创建主体、维护主体、监督主体、评价主体和受益主体。该诚信评价系统之所以具有“吓阻效应”,一方面,它具有预防之功效,另一方面,它也有委托人投诉制度之惩戒功用。第五部分是本文的结语部分,在此部分中,作者表达了对未来律师提供热忱尽职法律服务的大环境到来的殷殷期许
[Abstract]:This paper focuses on the main line of effective representation of lawyers, mainly from five parts. The first part of the article summarizes the theory of effective representation of lawyers. The author analyzes the embodiment of effective agency in legal articles, the interpretation of concept, the standard of cognizance and the meaning of effective agency in many dimensions, and interprets the concept of effective agency of lawyer into the following four levels. That is, "one center, two main bodies, three-dimensional requirements, four-fold effects." The standard of effective representation of lawyers is mainly defined from two aspects: professional conduct and legal skills. Professional integrity involves diligence, integrity, secrecy, loyalty, empathy, and so on; legal skills involve solid legal knowledge, prudent judgment, careful expression, and so on. In this part, the author regards providing effective legal representation service as the proper meaning of lawyer's professional attribute and client's interests as the center of practice. The second part starts with the actual cases and concludes the lack of effective representation into six aspects. Then, the author analyzes the effect of the absence of effective agent in reality. The lack of effective representation of lawyers not only directly affects the interests of clients, but also detracts the image of lawyers themselves. What is more, the lack of effective representation of lawyers will aggravate the public's distrust of the judicial environment, including the services of lawyers, court trials, and so on. The third part of the article analyzes the reasons for the lack of effective representation from four aspects. First of all, lawyer as a legal service donor has the characteristics of legal person as well as economic man. The group of lawyers who wander between professional mission and commercialism inevitably face the great economic temptation to deviate from their duties and take on the possibility; secondly, lawyers' representation cases naturally deal with judges. The bad confrontation between the judge and the lawyer in court and the improper communication out of court have made the effective representation of the lawyer greatly reduced. Thirdly, in the case of public prosecution, the procuratorial organ and the lawyer are competing against each other, if the prosecutor relies on his right to be arrogant, It also directly weakens the realization of effective representation of lawyers; finally, the main body of the current legal affairs market is intermingled, and the limitations of public understanding will lead to the lack of effective representation of lawyers. In the fourth part, according to the reasons mentioned in the third part, the author lists the countermeasures. First, the team of lawyers must strive to improve their quality in terms of professional conduct and legal professional skills; second, to regulate the relationship between judges and lawyers, and to improve the status of lawyers; third, The fourth is to rectify the legal service market, improve the public understanding and optimize the lawyer's practice environment. Fifthly, to construct the system of lawyers' integrity evaluation, which makes lawyers not lazy, unable to slacken, unwilling to slacken. It is the innovation of this paper to construct an evaluation system of lawyer's honesty and credit with "deterrent effect". The evaluation system involves five main bodies: creating, maintaining, supervising, evaluating and benefiting. On the one hand, it has preventive effect, on the other hand, it also has the disciplinary function of client complaint system. The fifth part is the conclusion of this paper, in which the author expresses his earnest expectations for the coming environment of dedicated legal service for future lawyers.
【学位授予单位】：中国政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5

【引证文献】