滥用诉讼程序治理中的律师责任

The Responsibility of the Lawyer in the Governance of Abuse of Procedural

律师既可能是滥用诉讼程序行为的策划者、参与者和实施者,也可能是滥用诉讼程序行为的重要防治机制。在我国滥用诉讼程序治理机制初步建立并不断完善的背景下,应当充分认知律师在滥用诉讼程序中的作用,在实行任意代理的民事诉讼中,区分并明晰律师在滥用诉讼程序中的责任,构建并完善包括程序法责任、律师职业伦理责任、民事实体法责任和刑事法责任在内的多层次责任承担机制。重新审视作为当事人主义诉讼模式重要修正机制的律师强制代理制度对于滥用诉讼程序治理的作用机理,并逐步探索在民事诉讼中渐进式导入律师强制代理制度,以期发挥律师强制代理对于抑制滥用诉讼程序、促进诉讼、减轻法官释明和实质性保障当事人诉权的价值功能。

Lawyers may be not only the planners, participants and implementers of the abuse of procedural, but also the important prevention mechanism of the abuse of procedural. Under the background of the preliminary establishment and continuous improvement of the abuse litigation procedure governance mechanism in China, it is necessary to fully recognize the role of lawyers in the abuse litigation behavior, distinguish and clarify the liability of lawyers in the abuse litigation procedure in the implementation of arbitrary agency civil litigation, and construct and improve the multi-level liability undertaking mechanism including the liability of procedural law, professional ethics of lawyers, civil substantive law and criminal law. Re-examine the function mechanism of the lawyer’s compulsory agency system, which is an important amendment mechanism of the litigant litigation mode, on the governance of the abuse of litigation procedure, and gradually explore the gradual introduction of the lawyer’s compulsory agency system in civil litigation, in order to play the lawyer’s compulsory agency to restrain the abuse of procedural, promote litigation, reduce the value function of the judge to clarify and substantially protect the litigant’s right of action.