中美律师庭外言论规制比较研究

Comparative study on extrajudicial speech regulations of Chinese and American lawyers

律师在庭外通过自媒体平台发表的不当言论不仅损害当事人的合法权益,也会对司法秩序产生负面影响。美国采取底线标准模式处理律师庭外言论与司法公正审判之间的矛盾,以引致"重要偏见的实质可能"作为判断律师庭外言论是否正当的标准,保留部分"安全港"的规定,允许律师发表不逾底线的庭外言论。我国对律师庭外言论的规制可以借鉴底线标准模式,明确规定适用的人员范围、言论范围和处罚程序。

Lawyers'extrajudicial speeches published through those new media not only damage the interests of the parties,but also have adverse impacts on the judicial order.The United State of America adopts the bottom line standard model to solve the contradiction between lawyers extrajudicial speech and trail publicity,and uses the substantial likelihood of material prejudice as the standard to judge whether the lawyers extrajudicial speech is legitimate or not.Meanwhile,America also establishes the safe-harbor provisions and allows lawyers to publish extrajudicial speeches which do not violate the bottom line.There is a gap in China's legislation to regulate the lawyers'extrajudicial speech.It is vital to establish some relevant regulations by borrowing the bottom line standard model,and define the range of people,the boundary of the speech and the punishment measures.