發(fā)布時(shí)間：2016-09-02 14:12

  本文關(guān)鍵詞：律師的職業(yè)角色定位及其職責(zé)，由筆耕文化傳播整理發(fā)布。

律師的職業(yè)角色定位及其職責(zé)

律師的職業(yè)角色定位及其職責(zé)

律師是隨著社會(huì)的發(fā)展而產(chǎn)生的,社會(huì)是其成長(zhǎng)的深厚土壤。律師角色來(lái)源于社會(huì),是社會(huì)需求、期待、評(píng)價(jià)的結(jié)果。在不同社會(huì)環(huán)境下,對(duì)律師職業(yè)角色的定位自然不同。在不同的歷史階段,律師也會(huì)呈現(xiàn)不同的角色。西方國(guó)家大多數(shù)將律師定位為自由職業(yè)者,強(qiáng)調(diào)律師執(zhí)業(yè)的獨(dú)立性,而我國(guó)對(duì)律師的定位,不但未給予律師以獨(dú)立性,而且其潛在的司法輔助功能及天生政治人的功能也并未得到我國(guó)立法和制度構(gòu)建等方面的重視。律師僅僅成為為當(dāng)事人提供法律服務(wù)的工具,律師行業(yè)也僅是以牟利為目的的中介機(jī)構(gòu)。因此,給予律師職業(yè)角色準(zhǔn)確合理地定位迫在眉睫。這不但是律師及律師行業(yè)自身發(fā)展首要解決的不足,而且也是我國(guó)法治發(fā)展,構(gòu)建和諧社會(huì)之需要。由于中國(guó)律師的發(fā)展歷史非常短暫,對(duì)律師職業(yè)角色認(rèn)識(shí)也非常有限,當(dāng)前律師界、學(xué)術(shù)界對(duì)律師的職業(yè)角色的定位存在著很大爭(zhēng)議。有學(xué)者在中國(guó)語(yǔ)境中全方位地解構(gòu)律師的職業(yè)角色,提出“在法律職業(yè)共同體中律師是具有誠(chéng)信性、自律性、民間性、邊緣性、服務(wù)性、獨(dú)立性、復(fù)合性和風(fēng)險(xiǎn)性的獨(dú)特角色�！庇械膶W(xué)者從法社會(huì)學(xué)的角度,運(yùn)用法社會(huì)學(xué)的策略,“將律師為法律人、政治人、經(jīng)濟(jì)人、文化人、道德人諸種角色”。而有的律師則“將律師的社會(huì)角色定為在民間的司法人員�！备鲗W(xué)者及律師從不同的角度對(duì)律師的職業(yè)角色進(jìn)行了定位,各有各的根據(jù),但筆者認(rèn)為“角色”是與行為相聯(lián)系,是從動(dòng)態(tài)的角度來(lái)講的,應(yīng)體現(xiàn)在一定的社會(huì)關(guān)系中。律師職業(yè)角色的定位,也應(yīng)該通過(guò)律師與社會(huì)的關(guān)系來(lái)展現(xiàn)。所以本文采用歷史的策略、比較的策略及理論聯(lián)系實(shí)際的策略,通過(guò)梳理律師與當(dāng)事人的關(guān)系、律師與司法人員的關(guān)系及律師與政治的關(guān)系定位其角色并淺析淺析其職責(zé)。西方國(guó)家大多數(shù)將律師定位為自由職業(yè)者,強(qiáng)調(diào)律師執(zhí)業(yè)的獨(dú)立性,而我國(guó)對(duì)律師職業(yè)角色的定位,隨著我國(guó)政治、經(jīng)濟(jì)、社會(huì)、文化的發(fā)展,經(jīng)歷了多次立法變遷。從“國(guó)家法律工作者”到“為社會(huì)服務(wù)的專業(yè)法律工作者”,再到“為社會(huì)提供法律服務(wù)的執(zhí)業(yè)人員”,直到現(xiàn)在的“為當(dāng)事人提供法律服務(wù)的執(zhí)業(yè)人員”。雖然我國(guó)對(duì)律師職業(yè)角色的認(rèn)識(shí)在不斷地提高,但一些固有的缺陷并未得到根本的解決。不但仍未賦予律師完全的獨(dú)立性,而且也未賦予律師積極參政、議政的政治使命等。要揭開律師所充當(dāng)職業(yè)角色的面紗首先應(yīng)該從律師與當(dāng)事人的這一關(guān)系入手,這是律師所充當(dāng)?shù)淖钤�始的角�?也是其最基礎(chǔ)的角色。律師依法接受當(dāng)事人的委托,依照當(dāng)事人的授權(quán)行使代理權(quán),盡最大可能地維護(hù)當(dāng)事人的合法權(quán)益。在律師與當(dāng)事人之間的這種委托代理關(guān)系中,律師本質(zhì)上充當(dāng)著獨(dú)立的委托代理人角色。律師完全獨(dú)立于當(dāng)事人,這不僅是律師職業(yè)得以產(chǎn)生和存在的條件,律師法定職能得以實(shí)現(xiàn)的保障,也是律師能夠獲得社會(huì)大眾廣泛尊重,認(rèn)可和支持的前提。而當(dāng)前我國(guó)有些律師過(guò)分地與當(dāng)事人的利益保持一致,不能恪守其獨(dú)立性,這就要求不但要提高律師的職業(yè)素質(zhì)和職業(yè)道德水平,對(duì)律師職業(yè)和律師群體實(shí)行行業(yè)自治制度,并且應(yīng)盡快修改《律師法》以明確規(guī)定律師為獨(dú)立和自由的法律服務(wù)者。律師與當(dāng)事人的委托代理關(guān)系還要求律師應(yīng)恪守其保守職業(yè)秘密的職責(zé)。而且當(dāng)律師對(duì)法庭的真實(shí)義務(wù)與對(duì)當(dāng)事人的保密義務(wù)相沖突時(shí),應(yīng)堅(jiān)持以保密義務(wù)為原則,真實(shí)義務(wù)為限制的原則,尋求“保密義務(wù)”與“真實(shí)義務(wù)”的平衡。雖然社會(huì)因保守職業(yè)秘密而喪失某些個(gè)案中的利益,但也會(huì)同時(shí)獲得其它的或更大的利益。雖然律師與檢察官、法官的社會(huì)分工和訴訟職能不同,但三者同屬于法律職業(yè)共同體。共同的教育背景,共同的職業(yè)意識(shí)和職業(yè)理念及共同的職業(yè)倫理使他們具有共同的法律職業(yè)信仰。事實(shí)上他們職業(yè)的終極目的也是一致的,即為維護(hù)合法的權(quán)益、保障法律的正確實(shí)施,實(shí)現(xiàn)社會(huì)的公平與正義而各盡所能。這就使得律師充當(dāng)著司法輔助人的角色。但當(dāng)前由于我國(guó)體制、司法人員素質(zhì)、訴訟模式、對(duì)實(shí)質(zhì)正義的過(guò)分追求、訴訟文化等等差異,造成我國(guó)律師不但與法官、檢察官在司法制度框架內(nèi)享有的權(quán)利不平衡,而且其承擔(dān)的責(zé)任在整個(gè)司法責(zé)任系統(tǒng)中也不平衡,使我國(guó)律師的這一角色功能并未充分地得以發(fā)揮。這不僅要求我們盡快構(gòu)建法律職業(yè)共同體,培植法律職業(yè)者共同的職業(yè)信仰,而且應(yīng)賦予律師充分的訴訟權(quán)利,平衡律師與檢察官之間的權(quán)力(權(quán)利),加強(qiáng)律師對(duì)法官的監(jiān)督和約束。從而完成律師作為司法輔助人,維護(hù)國(guó)家法律的正確實(shí)施和維護(hù)社會(huì)的公平與正義的職責(zé)。在西策略治發(fā)達(dá)國(guó)家,律師在政治生活中具有重要地位。律師精通法律,并且對(duì)社會(huì)各階層的利益需求有著更為深刻的了解,律師崇尚民主法治的天然本性使其具備充當(dāng)政治人角色的獨(dú)特優(yōu)勢(shì)。律師應(yīng)積極參政、議政,推動(dòng)民主政治和法治建設(shè)。而在我國(guó),律師的政治人角色仍是一種期待角色,律師參政、議政意識(shí)不強(qiáng)、參政機(jī)會(huì)稀少,立法上也缺乏對(duì)律師這一重要角色的定位。因此,除提高律師參政的自覺(jué)性和主動(dòng)性,積極推進(jìn)政治體制革新外,更應(yīng)盡快修改《律師法》對(duì)律師的政治人角色加以定位,賦予律師積極參政、議政,推動(dòng)民主政治和法治建設(shè)的政治使命。著名法學(xué)家兼律師賀衛(wèi)方先生所說(shuō)“凡是法治發(fā)達(dá)國(guó)家,律師們的用武之地都不僅僅局限于司法領(lǐng)域,他們?cè)诟鼜V泛的社會(huì)事務(wù)管理方面發(fā)揮著重大的作用”。律師職業(yè)的特殊性決定了律師在社會(huì)生活中充當(dāng)著豐富的角色。他們不僅僅作為獨(dú)立的委托代理人,擔(dān)負(fù)著維護(hù)當(dāng)事人合法權(quán)益的使命,而且他們還是司法的輔助人,擔(dān)負(fù)著維護(hù)法律的正確實(shí)施,維護(hù)社會(huì)的公平與正義的使命。除此之外,時(shí)代還呼喚著我國(guó)律師政治意識(shí)的覺(jué)醒,期待著他們?cè)谡�治生活的舞臺(tái)上扮演其更重要的角色,積極參政、議政,為推動(dòng)民主政治和法治建設(shè)作出重要的貢獻(xiàn)。

【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.

【關(guān)鍵詞】 律師角色定位； 律師職責(zé)； 委托代理人； 司法輔助人； 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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  本文關(guān)鍵詞：律師的職業(yè)角色定位及其職責(zé)，，由筆耕文化傳播整理發(fā)布。

本文編號(hào)：108213