律师的职业角色定位及其职责
本文关键词：律师的职业角色定位及其职责，由笔耕文化传播整理发布。
律师的职业角色定位及其职责
律师的职业角色定位及其职责
律师是随着社会的发展而产生的,社会是其成长的深厚土壤。律师角色来源于社会,是社会需求、期待、评价的结果。在不同社会环境下,对律师职业角色的定位自然不同。在不同的历史阶段,律师也会呈现不同的角色。西方国家大多数将律师定位为自由职业者,强调律师执业的独立性,而我国对律师的定位,不但未给予律师以独立性,而且其潜在的司法辅助功能及天生政治人的功能也并未得到我国立法和制度构建等方面的重视。律师仅仅成为为当事人提供法律服务的工具,律师行业也仅是以牟利为目的的中介机构。因此,给予律师职业角色准确合理地定位迫在眉睫。这不但是律师及律师行业自身发展首要解决的不足,而且也是我国法治发展,构建和谐社会之需要。由于中国律师的发展历史非常短暂,对律师职业角色认识也非常有限,当前律师界、学术界对律师的职业角色的定位存在着很大争议。有学者在中国语境中全方位地解构律师的职业角色,提出“在法律职业共同体中律师是具有诚信性、自律性、民间性、边缘性、服务性、独立性、复合性和风险性的独特角色。”有的学者从法社会学的角度,运用法社会学的策略,“将律师为法律人、政治人、经济人、文化人、道德人诸种角色”。而有的律师则“将律师的社会角色定为在民间的司法人员。”各学者及律师从不同的角度对律师的职业角色进行了定位,各有各的根据,但笔者认为“角色”是与行为相联系,是从动态的角度来讲的,应体现在一定的社会关系中。律师职业角色的定位,也应该通过律师与社会的关系来展现。所以本文采用历史的策略、比较的策略及理论联系实际的策略,通过梳理律师与当事人的关系、律师与司法人员的关系及律师与政治的关系定位其角色并浅析浅析其职责。西方国家大多数将律师定位为自由职业者,强调律师执业的独立性,而我国对律师职业角色的定位,随着我国政治、经济、社会、文化的发展,经历了多次立法变迁。从“国家法律工作者”到“为社会服务的专业法律工作者”,再到“为社会提供法律服务的执业人员”,直到现在的“为当事人提供法律服务的执业人员”。虽然我国对律师职业角色的认识在不断地提高,但一些固有的缺陷并未得到根本的解决。不但仍未赋予律师完全的独立性,而且也未赋予律师积极参政、议政的政治使命等。要揭开律师所充当职业角色的面纱首先应该从律师与当事人的这一关系入手,这是律师所充当的最原始的角色,也是其最基础的角色。律师依法接受当事人的委托,依照当事人的授权行使代理权,尽最大可能地维护当事人的合法权益。在律师与当事人之间的这种委托代理关系中,律师本质上充当着独立的委托代理人角色。律师完全独立于当事人,这不仅是律师职业得以产生和存在的条件,律师法定职能得以实现的保障,也是律师能够获得社会大众广泛尊重,认可和支持的前提。而当前我国有些律师过分地与当事人的利益保持一致,不能恪守其独立性,这就要求不但要提高律师的职业素质和职业道德水平,对律师职业和律师群体实行行业自治制度,并且应尽快修改《律师法》以明确规定律师为独立和自由的法律服务者。律师与当事人的委托代理关系还要求律师应恪守其保守职业秘密的职责。而且当律师对法庭的真实义务与对当事人的保密义务相冲突时,应坚持以保密义务为原则,真实义务为限制的原则,寻求“保密义务”与“真实义务”的平衡。虽然社会因保守职业秘密而丧失某些个案中的利益,但也会同时获得其它的或更大的利益。虽然律师与检察官、法官的社会分工和诉讼职能不同,但三者同属于法律职业共同体。共同的教育背景,共同的职业意识和职业理念及共同的职业伦理使他们具有共同的法律职业信仰。事实上他们职业的终极目的也是一致的,即为维护合法的权益、保障法律的正确实施,实现社会的公平与正义而各尽所能。这就使得律师充当着司法辅助人的角色。但当前由于我国体制、司法人员素质、诉讼模式、对实质正义的过分追求、诉讼文化等等差异,造成我国律师不但与法官、检察官在司法制度框架内享有的权利不平衡,而且其承担的责任在整个司法责任系统中也不平衡,使我国律师的这一角色功能并未充分地得以发挥。这不仅要求我们尽快构建法律职业共同体,培植法律职业者共同的职业信仰,而且应赋予律师充分的诉讼权利,平衡律师与检察官之间的权力(权利),加强律师对法官的监督和约束。从而完成律师作为司法辅助人,维护国家法律的正确实施和维护社会的公平与正义的职责。在西策略治发达国家,律师在政治生活中具有重要地位。律师精通法律,并且对社会各阶层的利益需求有着更为深刻的了解,律师崇尚民主法治的天然本性使其具备充当政治人角色的独特优势。律师应积极参政、议政,推动民主政治和法治建设。而在我国,律师的政治人角色仍是一种期待角色,律师参政、议政意识不强、参政机会稀少,立法上也缺乏对律师这一重要角色的定位。因此,除提高律师参政的自觉性和主动性,积极推进政治体制革新外,更应尽快修改《律师法》对律师的政治人角色加以定位,赋予律师积极参政、议政,推动民主政治和法治建设的政治使命。著名法学家兼律师贺卫方先生所说“凡是法治发达国家,律师们的用武之地都不仅仅局限于司法领域,他们在更广泛的社会事务管理方面发挥着重大的作用”。律师职业的特殊性决定了律师在社会生活中充当着丰富的角色。他们不仅仅作为独立的委托代理人,担负着维护当事人合法权益的使命,而且他们还是司法的辅助人,担负着维护法律的正确实施,维护社会的公平与正义的使命。除此之外,时代还呼唤着我国律师政治意识的觉醒,期待着他们在政治生活的舞台上扮演其更重要的角色,积极参政、议政,为推动民主政治和法治建设作出重要的贡献。
【Abstract】 The lawyer came into being along with society’s development, the society is the deep soil of its growth. the roles of the lawyer originates from the society, which is the result from the demand, the anticipation and the appraisal of the society. Under different social environment, the role localization of the lawyer is also different. Moreover, in the different historical stage, the lawyer will also present the different roles. Most of the western nations often locate the lawyer as a free professional person, which emphasizes the independence of the lawyer. However, our country for the lawyer’s localization, not only has not given the independence of the lawyer, moreover, its potential judicial auxiliary function and the inborn political function has not obtained enough attention on the legislate or system construction and other aspects. The lawyer is just the tool of the client which provides the legal service, and the green bag is also the intermediary organ which merely take profit-making as the goal. Therefore, it’s extemely urgent to locate the roles of the lawyer reasonably and accurately. Not only is it the most important question to resolve for the development of the lawyer and the green bag, but also it is badly needed for the building of the law-construction and harmonious society.Because the historical development of Chinese lawyers is very short, the understanding of the professional roles of the lawyer is also limited, there is also great dispute to lawyer’s professional role’s localization in the current legal profession and the academic circle. Some scholars analyze the lawyers’ professional role omni-directionally in the Chinese linguistic environment, proposing that "the lawyer plays the unique role in the legal professional community who has the good faith, the automaticity, the folk character, the marginality, the serviceability, the independence, the multiplicity and the risk." Some scholars, from the angle of the law-sociology, with law-sociology’s methods, "restore the lawyer into the legal person, the political person, the economic man, the cultural man, the moral person ". In addition, some attorney "locates the social role of lawyers as the judicial officials in the folk." Various scholars and lawyers have locateed the professional roles of the lawyer from the different angles, which have their own basis respectively, but I think that "the role" is related to the behavior, which is dynamic, so we should manifest it in certain social relations. Meanwhile, the professional roles-localization of the lawyer should be also analyzed through the all kinds of relations betweeen the lawyer and the society. Therefore, this article locates the roles of the lawyer and analyzes its responsibility through sorting out the lawyer-client relation, the lawyer-judicial official relation and the lawyer-politics relation which uses the historical method, the comparison method and the method of integrating theory with practice.In most of western nations the lawyer is located as free professional, which emphasizes the independence of the lawyer, but in our country the role-location of the lawyer has experienced the legislative change many times along with the development of the politics, the economy, society and the culture, which is from "the legal officer of our country" to "the specialized legal professional for the social service", and then to "the practitioner who provides the legal service for the society", until "the practitioner who provides the legal service for clients". Although the awareness to the professional role of the lawyer has been raised unceasingly, some inherent flaws have not been solved in the fundamental way. Not only has the complete independence not been still entrusted with the lawyer, but also the political mission has not been entrusted that the lawyer participates and discusses in polictics actively and so on.To analyze the professional roles of the lawyer, first of all, we should begin with the analysis of the lawyer-client relation, among which there is the most primitive and the most fundamental role of the lawyer. The lawyer accepts the commission of the client, and then exercises the agency power within the limit of power authorised by his clients to defend the client’s legitimate rights and interests with every effort. In the principal-agent relation between the lawyer and the client, the lawyer plays the independent role of the entursted agent essentially. The lawyer is completely independent from the client, which is not only because it’s the condition that the lawyer and the occupation can emerge and exist, and the safeguard that the lawyer can realize the legal function, but also it’s the premise that the lawyer can obtain the respect, approval and support of the social populace widely. However, some lawyers keep consistent excessively with the interests of their clients and cannot scrupulously keep independent, which require we should not only improve the lawyer’s professional quality and ethics level, practice the self-regulation system of the profession to the occupation and the community of the lawyer, but also should revise Act of Lawyer as soon as possible to stipulate the lawyer as the independent and free legal practitioner explicitly. The principal-agent relation between the lawyer and the client also requests the lawyer to scrupulously follow the duty of confidentiality. Moreover, when the duty of confidentiality of the lawyer has conflict with the duty of being honest to the court, the principle should be insisted that the duty of confidentiality of the lawyer is prior to the duty of being honest to the court, meanwhile, to seek he balance of both of the duties. Although the society loses the benefit of some case because of keeping the confidentiality, simultaneously, more benefits will also be obtained.Although the lawyer is different from the public prosecutor and the judge on the aspects of social division of labor and the function of lawsuit, they all belong to the legal professional community. They have the common educational background, the common occupational consciousness and the professional idea and the common professional ethics which enable them to have the common legal occupational belief. In fact, the ultimate goal of their occupation is also consistent that they make their effort to maintain the legitimate rights and interests, ensure correct implementation of the laws and realize the fairness and justice of the society, in which the lawyer plays the role as the judicial auxiliary staffs. However, some problems on the systems of our country, the quality of judicial officials, the lawsuit pattern, the lawsuit culture and the excessive pursuit of the substantive just and so on, cause the imbalance of their powers or rights among the lawyer, the judge and the public prosecutor in the legal system frame, moreover, the responsibility they undertake is aslo imbalance in the entire judicial responsibility system, which causes the role function as the judicial auxiliary staffs hasn’t been displayed fully. Therefore, Not only should we construct the legal professional community as soon as possible and cultivate their common occupational belief, but also we should entrust the lawyer with enough lawsuit rights to get the balance of the powers or rights between attorney and public prosecutor, meanwhile, strengthen the surveillance and the restraint of the lawyer to the judge. Only in this way can the lawyer play the important role as the judicial assistant to maintain the correct implementation of national laws and the fair and the justice of the society.In the western law flourshing developed countries, the lawyer has the important position in the politics. The lawyer is skilled in the law, has a more profound understanding to the demand of various social strata’s benefits and they advocate the democratic government by law, which make the lawyer have the natural unique superiority to play the role as the political person. Therefore, the lawyer should participate and disscuss in politics positively and actively to promote the democracy and the law-construction. However, in our country, the role of the lawyer as the political person is still one kind of expectation role. Not only is the consciousness of the lawyer to participate and discuss in politics not strong, but also the opportunities to participate in politics are very scarce, and the legislation also lacks the role-localization. Therefore, except for enhancing self-consciousness of the lawyer to participate in politics and advancing the political reform positively, the Act of The lawyer should be revised as soon as possible to locate the role of the lawyer as the political person, and to entrust the lawyer with the political mission to participate in government positively, discuss politics and promote democracy and law-construction.The well-known jurist and lawyer Mr. He Weifang has said that "In the countries that are ruled by advanced legal system, the functions of the lawyer are not only limited to the judicial domain, they play the important role on the the more widespread management of social affair". The particularity of the occupation of the lawyer decides that the lawyer plays rich roles in the social life. They play the role not only as the independent agent to defend the legitimate rights and interests of clients, but also as the judicial auxiliary stuffs to ensure the correct implementation of the laws and maintain the fair and the just of the society. In addition, the time summons the political awareness of the lawyer awaken, expecting they play more important role in the political stage to make more contribution to our democracy and law-construction through participating in government positively and discusses politics actively.
【关键词】 律师角色定位； 律师职责； 委托代理人； 司法辅助人； 政治人；【Key words】 the role-location； the duty of the lawyer； the entrusted agent； judicial auxiliary stuffs； political person；
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本文关键词：律师的职业角色定位及其职责，，由笔耕文化传播整理发布。
本文编号：108213
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