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2023-08-04
{"zh":"谁来守护公正","en":"Who will protect justice"}
司法公正是社会公正的最后一道防线。但是,近一段时期,浙江张氏叔侄强奸案、上海梅氏兄弟杀人案以及河南李怀亮杀人案等刑事冤假错案先后进入公众的视眼,给司法公信再次带来了灾难性影响。这些案件与之前的云南杜培武案、湖北佘祥林案、河南赵作海案、河北聂树斌案一样,一次次挑战着法律与正义的底线,一次次考验着人们对于社会公正的承受极限。审判是诉讼的最后一个环节,也是实现社会公正的最后一道防线。而作为目前矛盾的突发点——刑事审判,可谓是生杀予夺,事关公民的名誉、财产、自由乃至生命,事关国家安全和社会稳定。因此坚持依法公正审判,防止发生冤假错案,是我们必须坚守的底线。
习总书记曾指示我们要“努力让人民群众在每一个司法案件中都感受到公平正义”。那么谁来守护公正?是造成冤假错案的公检法系统?是中国最牛的部门“有关部门”?还是时常能给我们以震惊新闻的媒体记者?都不是,我认为守护公正的是大量信仰法律尊重事实的律师。律师是具备法律专业知识的高素质人才,只有发挥好律师在社会各个方面的作用,才能真正守护公正的底线。
我想,很多人肯定会问为什么不能是政府、司法机关来守护公正?在中国,政府、司法机关中虽然存在着大量守护公正的人员,但是传统根深蒂固的思想观念让很多人为利益所动,一些人报考公务员就是为了去以权谋私,另一些人曾经怀揣报效祖国的壮志后来被利益所腐化而无法坚持公正的操守。因此,要想从政府、司法机关内部来推动社会工作,必然面临着很多无形的阻力,起到的效果也是微乎其微的。
那么,为什么是律师?律师能做什么?我想可以从以下两方面来谈。
一方面,律师可以提供专业的法律服务,根据法律的授权,律师可以做到以下四点。
一、预防针作用。即防止诉争的发生。很常见的便是律师在拟定、审查各类合同文本的时候,都是尽自己所能避免合同漏洞、文字歧义,防止合同双方发生争议以致打官司。诉讼是一件耗时耗力的事,律师利用自己的专业技能在事前筑好防火墙,将交易成本降至最低。
二、调和剂作用。即调和已经发生的争议。好比之前的预防针未有效防止疾病发生,在送至医院(即法院)之前,我们会先尝试自我救治,律师就是那个自救的人。律师通过调解的方式协调各方利益,晓之以礼、动之以情,将矛盾消灭在诉讼之外。
三、恢复平衡的作用。法官是天平,而律师正是那一颗颗决定天平倾向哪边的砝码。在利益失衡又无法通过自救途径解决时,当事人往往会走上诉讼的道路。在诉讼中,律师通过占有资料、分析案情、调查取证、策划诉讼等手段,将事实和法律巧妙而科学地结合起来,充分利用逻辑、法理和雄辩将法律事实呈现在法官的面前。双方律师据理力争,不停地往天平上增减砝码,最终使失衡的天平再次平衡,从而体现和弘扬公平与正义。
四、维护犯罪嫌疑人合法权利的作用。社会上对律师有一种简单而明了的评价:在民事案件中,律师是“抠字眼”的人;在刑事案件中,律师是站在“坏人”立场上为犯罪分子说话的人。每一个具备法治信仰的公民都能从中体会到律师的无奈。但是,对于刑辩律师来说,他们面对的不仅仅是被误解的痛苦,还有维护“坏人”权益的艰辛。但没有哪个律师会因此而退却,放弃自己的神圣职责—-刑事辩护,因为律师作为公平正义的守护者,这是一个不可缺失的舞台,是一个永远都值得坚守的阵地。
另一方面,律师是弥补制度缺陷和进行有效监督的主力军。
在目前的中国社会,还存在着大量存在着官员贪污腐败、以权谋私的现象,还存在着律师与检察官的地位不平等,律师无法更好维护犯罪嫌疑人权利的现象,还存在着司法机关为了片面追求破案率而刑讯逼供的现象……这些归根到底是制度的缺陷和执行的不到位。律师,有着敏锐的法律直觉,比起普通民众更容易去发现社会中的不公正现象,如果能充分发挥好律师的作用,政府、司法机关能做到重视律师的意见,这样律师就会成为维护公正的利器。
说到这里,不免有人就会问律师在这个社会上什么都不是,没有任何的法律、制度保障律师的权利,凭什么能让政府、司法机关重视律师的意见。我想,作为社会的精英,随着社会的发展,广大选民会更加倾向于选择律师来代表自己参与政治生活,越来越多的律师将会融入到人大的工作中去,而人大正是律师维护社会公正的最终法宝。人大是我国的权力机关,人大代表可以通过提议案等方式在制度的设计、不公正现象的质询等方面发挥重大作用。如果能让律师对于社会的不公正现象在人大的层面进行制度的设计以及实施效果的监督,那么效果肯定是立竿见影的。
守护公正并非律师的口号,而是职业道德和法治精神的有力彰显,更是当前致力于“避免和化解社会矛盾,维护和调整失衡权益”,构建社会主义和谐社会的迫切要求。律师涉猎范围的广泛性和专业性决定了其履行社会职责的空间,律师既可以在法律服务中发挥应有的作用,又可以依托人大这一平台为制度的设计与监督献计献策。尽管,在守护公正的道路上律师常常处于矛盾的中心和对抗的顶峰,但我们坚信只要秉持公平正义这一信念,并为坚守这一信念而持续奋斗,矛盾、对抗就会因律师的社会价值而在自身的领域内转化为和谐。公平与正义会因律师群体的守护而表现出强大的生命力,为和谐社会这一生命体的形成与壮大增添无限助力。当我们和我们的后代享受这个生命体带来的无限营养的时候,我们也会在自豪中惊奇的发现我们的守护原来如此神圣和光荣。
Judicial justice is the last line of defense for social justice. However, in recent times, criminal cases such as the rape of Zhang's uncle and nephew in Zhejiang, the murder of the Mei brothers in Shanghai, and the murder of Li Huailiang in Henan have successively entered the public eye, bringing a disastrous impact on judicial credibility once again. These cases, like the previous Du Peiwu case in Yunnan, She Xianglin case in Hubei, Zhao Zuohai case in Henan, and Nie Shubin in Hebei, challenge the bottom line of law and justice again and again, and test people's tolerance for social justice again and again. Trial is the last stage of litigation and the last line of defense for achieving social justice. As a sudden point of contradiction at present - criminal trial, it can be said to be life or death, which is related to the reputation, property, freedom, and even life of citizens, as well as national security and social stability. Therefore, adhering to the rule of law and fair trial to prevent the occurrence of unjust, false, and erroneous cases is the bottom line that we must adhere to.
So who will protect justice? Is it the public prosecution and legal system that causes unjust, false, and erroneous cases? Is it the most powerful department in China? Or is it a media reporter who often gives us shocking news? No, I believe that the guardians of justice are a large number of lawyers who believe in the law and respect the facts. Lawyers are high-quality talents with legal professional knowledge. Only by playing a good role in various aspects of society can we truly safeguard the bottom line of fairness.
I think many people will definitely ask why it cannot be the government or the judiciary to protect fairness? In China, although there are a large number of personnel in the government and judicial organs who protect fairness, traditional deep-rooted ideologies have caused many people to be swayed by interests. Some people apply for civil service only to seek personal gain through power, while others once harbored the ambition to serve the motherland but were later corrupted by interests and unable to adhere to fair conduct. Therefore, in order to promote social work from within the government and judicial organs, there will inevitably be many intangible obstacles, and the effect will be minimal.
So, why a lawyer? What can lawyers do? I think we can discuss it from the following two aspects.
On the one hand, lawyers can provide professional legal services, and according to legal authorization, lawyers can achieve the following four points.
1. Prevention of needle effects. To prevent the occurrence of disputes. It is very common for lawyers to do their best to avoid contract loopholes and ambiguity when drafting and reviewing various types of contract texts, in order to prevent disputes between both parties and lead to litigation. Litigation is a time-consuming and labor-intensive matter, and lawyers use their professional skills to build a firewall in advance and minimize transaction costs.
2. The effect of a blending agent. Reconciling disputes that have already arisen. For example, the previous preventive measures did not effectively prevent the occurrence of the disease. Before being sent to the hospital (i.e. the court), we will first try to self rescue, and the lawyer is the person who self rescues. Lawyers coordinate the interests of all parties through mediation, show courtesy and appeal to emotions, and eliminate conflicts outside of litigation.
3. The role of restoring balance. A judge is a balance, while a lawyer is the weight that determines which side of the balance leans. When the interests are imbalanced and cannot be resolved through self rescue, the parties often take the path of litigation. In litigation, lawyers cleverly and scientifically combine facts and laws by possessing information, analyzing the case, investigating and collecting evidence, and planning litigation, fully utilizing logic, legal principles, and eloquence to present legal facts before the judge. The lawyers on both sides argued and continuously added or subtracted weights to the balance, ultimately balancing the imbalanced balance again, thereby embodying and promoting fairness and justice.
4. The role of safeguarding the legitimate rights of suspect. There is a simple and clear evaluation of lawyers in society: in civil cases, lawyers are "stingy" people; In criminal cases, lawyers are people who speak for criminals from the perspective of "bad guys". Every citizen with a belief in the rule of law can experience the helplessness of lawyers from it. However, for criminal defense lawyers, they face not only the pain of being misunderstood, but also the difficulty of safeguarding the rights and interests of "bad people". But no lawyer will retreat and abandon their sacred duty of criminal defense because lawyers, as guardians of fairness and justice, are an indispensable stage and a position that is always worth defending.
On the other hand, lawyers are the main force in compensating for institutional deficiencies and conducting effective supervision.
In the current Chinese society, there are still a lot of official corruption, abuse of power for personal gain, inequality between the status of lawyers and prosecutors, lawyers can not better safeguard the rights of suspect, and Forced confession by torture by judicial authorities in order to one-sided pursue the rate of solving cases... These are ultimately the defects of the system and the lack of implementation. Lawyers have a keen legal intuition and are more likely to discover social injustices than ordinary people. If the role of lawyers can be fully played, the government and judicial organs can attach importance to their opinions, and lawyers will become a tool to maintain fairness.
Speaking of this, some people inevitably ask that lawyers are nothing in this society, and there is no legal or institutional guarantee for lawyers' rights. How can the government and judicial organs value lawyers' opinions. I think, as the elites of society, with the development of society, the majority of voters will be more inclined to choose lawyers to represent themselves in political life. More and more lawyers will be integrated into the work of the National People's Congress, and the large number of people is the ultimate weapon for lawyers to maintain social justice. The National People's Congress is the organ of power in China, and its representatives can play a significant role in the design of the system and the questioning of unfair phenomena through proposals and other means. If lawyers can design the system and supervise the implementation effect of social injustice at the level of the National People's Congress, then the effect will definitely be immediate.
Guarding justice is not a slogan for lawyers, but a powerful manifestation of professional ethics and the spirit of the rule of law. It is also an urgent requirement for current efforts to "avoid and resolve social conflicts, maintain and adjust imbalanced rights and interests," and build a socialist harmonious society. The breadth and professionalism of lawyers' scope of involvement determine their space for fulfilling social responsibilities. Lawyers can not only play their due role in legal services, but also rely on the platform of the National People's Congress to provide suggestions and suggestions for the design and supervision of the system. Although lawyers are often at the center of contradictions and the pinnacle of confrontation on the path of safeguarding justice, we firmly believe that as long as we uphold the belief of fairness and justice and continue to strive to uphold this belief, conflicts and confrontations will be transformed into harmony in our own field due to the social value of lawyers. Fairness and justice will demonstrate strong vitality due to the protection of the lawyer community, adding infinite assistance to the formation and growth of a harmonious society. As we and our descendants enjoy the infinite nourishment brought by this living entity, we will also be amazed in pride to find that our guardianship is so sacred and glorious.
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