律师庭外言论的规制逻辑与模式转型

The Regulatory Logic and Model Transformation of Lawyer's out of Court Speech

律师庭外言论是律师法庭辩护的必要延伸,对于促进司法公正的实现具有重要意义。同时,自媒体时代律师庭外言论的特点也决定了规制律师庭外言论的必要性。问题的关键在于如何有效规范律师庭外言论、确立庭外言论的衡量标准。我国对于律师庭外言论的规制属于司法秩序模式,以司法秩序的维护为价值导向,应当由行政管控转向审理公正的规制逻辑,实现审理公正的模式转型。具体而言,在衡量律师庭外言论正当与否方面,应确立实质危险与道德性相结合,即主客观相统一的评判标准,实质危险是指律师庭外言论可能或已经对司法公正造成实质损害,这是非正当庭外言论的形式特征;道德性与非道德性相对,律师基于法律职业伦理为当事人谋取合法利益,在相对意义上即具有了道德性。此外,法律还应明确规定“禁止区”与“安全区”,为律师庭外言论的发表提供清晰明确的规范指引。

Lawyer's out of court speech is a necessary extension of lawyer's criminal defense and is of great significance in promoting the realization of judicial fairness.At the same time,the characteristics of lawyer's out of court speech in the era of self media also determine the necessity of regulating lawyer's out of court speech.The key lies in how to effectively regulate lawyers'out of court speech and establish measurement standards for it.The regulation of lawyer's out of court speech in our country belongs to the judicial order model,with the maintenance of judicial order as the value orientation.It should shift from the logic of administrative control to the fair trial.Specifically,a combination standard of substantive danger and moralit should be established to determine the legitimacy of lawyer's out of court speech:substantive danger refers to the formal characteristics of lawyer's out of court speech that may or has already caused substantial damage to judicial fairness,whether it is legitimate or not;morality and immorality are relative,and lawyers based on legal professional ethics seek legitimate interests for their clients,thus possessing morality in a relative sense.In addition,the law should clearly define the prohibited zone and safe zone,providing clear and standardized guidance for lawyers to express their opinions outside of court.