The Defense Lawyer,the Accused,and the Procurator

As the matter is generally conceived, it is the accused who needs a defense attorney. Of course, it is he who needs a lawyer above all. But lawyers for the defense are no less essential to the Soviet state in its administration of justice. The administration of justice, the prosecution, and the defense are three functions, clearly differentiated from each other, that are implemented respectively by the court, the procuracy, and the institution of advocates. Together, they are called upon to assure the smooth functioning of the mechanism of struggle against crime.     

保密义务中“律师”外延的比较研究

保密是贯穿律师执业活动始终的基本问题。我国《律师法》第三十八条仅规定"律师"应当对委托人承担保密义务,并未对"律师"外延作出解释。除受委托的律师以外,律师聘请的辅助人员、与律师同一律师事务所的其他律师与职员以及实习律师在正常的执业活动中也会不可避免地知悉委托人的相关情况和信息,其是否应当履行保密义务尚无定论。考察域外相关规则,无一例外均要求此类人员承担相应保密义务。规定律师聘请的辅助人员、与律师同一律师事务所的其他律师与职员以及实习律师的保密义务势在必行,这是现代分工的必然结果,也是构建和维系律师与委托人信赖关系的必然要求。     

律师行贿法官案背后的理性思考

目前我国关于律师业务推广的规则较为简约,不够完善。以下律师业务推广行为应在规则中加以规制:第一,为推销其服务或获得雇佣而向他人或组织偿付有价值的东西;第二,律师不应为了获得经济利益,通过面谈或电话,招徕那些与律师没有家庭关系或以前无职业上的联系的潜在委托人雇佣该律师;第三,有失律师职业品格的;第四,有悖律师对司法公正的责任的。同时,应完善律师惩戒制度,律师严重的违法行为、渎职行为、不道德行为都应受吊销律师执业证书的处分。     

崇法弘道育人的杰出法学家--陈光中教授的法学生涯

陈光中教授年过七旬,精力仍然充沛,执教、笔耕不辍.有一年恰逢陈光中教授生日,几位门生环坐,同先生小酌.先生兴致很高,话题自然转到人生经历,席间禁不住感慨平生,令在座的弟子为之动容.笔者置身其间,忽然想起过去读过的两句联语,道是:心事数茎白发,生涯一片青山.当时便觉得这两个质朴的短句,也许可以用来为陈光中教授的法学生涯做个描述,以概括陈光中教授的情怀、事业和成就.     

从案例透视专利技术出资

一、案例 甲公司拥有一项专利技术.为了完善和推广该专利技术,甲公司与乙公司签订了《合作推广专利技术协议书》.合作协议书中约定,甲乙双方联合组建丙公司.丙公司注册资本108万元,甲公司以专利技术的使用权投资,乙公司以货币资金投资.后丙公司依照《公司法》成立.然而,在丙公司的公司章程和第一次股东会议记录上,均显示甲公司以专利技术本身出资.     

回归法律规范:刑事值班律师制度适用问题再反思

目前我国刑事值班律师制度规范背后折射出有权机关抑制辩方权利的倾向。根据法律规范意旨,只要被追诉人没有辩护人,国家就应“强制指派”值班律师介入案件。将“约见”解读为国家指派值班律师需以被追诉人申请为前提,这混淆了律师会见与介入案件的关系,且将国家责任转嫁给个人,弱化了对被追诉人获得最低限度法律援助权利的保障。相关规范性文件将值班律师阅卷权能限定为“查阅”,但基于法律援助法第37条的文义、控辩平等之程序公正底线要求等因素,值班律师阅卷权能还应包括“摘抄”“复制”。《法律援助值班律师工作办法》第10条第2款规定,值班律师有量刑异议时,只要其认可犯罪嫌疑人认罪认罚的自愿性,就应在具结书上签字。这是对值班律师功能“见证化”的公开宣示,与2018年刑事诉讼法第201条的意旨以及值班律师实质性参与量刑协商的改革要求相矛盾。值班律师应被赋予拒绝签字的权利。“实质性参与”应是目前完善值班律师制度的基本方向。     

Understanding the Costs of Litigation: The Case of the Hourly-Fee Lawyer

What does it mean to talk about the “cost of civil justice”? What can be done to bring down that cost? This article addresses these two important questions. Drawing on data collected by the Civil Litigation Research Project, the authors first examine the components of cost and then present an extensive analysis of what is by far the dominant element of the cost equation-legal services. The analysis of the cost of legal services examines the amount of time lawyers devote to cases and the rates they charge for their time. The major factors influencing time include adversariness, stakes, litigant goals, and court (federal versus state); hourly rates appear to be determined primarily by the legal services market. The article closes with a discussion of the implications of the results of the analysis for reforms of the civil justice system that might seek to lower the cost of justice.     

刑事诉讼构造中的控辩关系与律师权利保护——司法改革语境下的分析

如何维持一种平衡的控辩关系是我国当前刑事司法制度改革的重要课题之一。我国当前刑事诉讼构造中主要呈现控辩失衡的态势。在司法改革进程中,应当以司法主体性理念为基础重塑控辩关系。通过加强对辩护律师权利的保障,建构控辩平衡的诉讼构造,以实现程序正义和人权保障。     

Does the Lawyer Matter? Influencing Outcomes on the Supreme Court of Canada

This article examines the impact of lawyer capability on the decisionmaking of the Supreme Court of Canada (SCC). Extending prior attorney capability studies of U.S. judicial decisionmaking, we test three lawyer variables: prior litigation experience, litigation team size, and Queen's Counsel designation. We find that the first two variables have a statistically significant and positive relationship with the SCC's decisions in non-reference-question cases from 1988 to 2000. Moreover, this relationship persists even after controlling for party capability, issue area, and judicial policy preferences.     

侦查阶段律师辩护工作的理性思考

律师参加刑事诉讼、介入侦查阶段,是现实需要,也有充分的理论根 据,但实际状况不尽如人意。如介入会见难;以“有碍侦查”、“国家秘密”而阻滞律师 介入;存在辩护风险,等等。因此必须对律师在侦查阶段的法律地位、单独会见权、讯 问在场权,以及辩护豁免权等问题进行研究,确保律师辩护的作用。     

The Lawyer, the Judge, the Historian: Shaping the Meaning of the Boston Massacre, American Revolution, and Popular Opinion from 1770 to the Present Day

Both the Kevelson Seminar topic, ‘Lawyers as Makers of Meaning,’ and the appearance of a highly-publicized television series in the United States dedicated to the life of President John Adams (1735–1826) invite inquiry into Adams’ role as a lawyer who shaped the meaning of the American Revolution (and his role in bringing it about). Three trials from Adams’ early legal career illustrate that he presented both himself and fellow resistance leader James Otis, Jr., as heroic loners struggling for the rights of Americans against British injustice. Although he did not call it that, in 1970 lawyer and future Massachusetts Superior Court Justice Hiller Zobel, in his book The Boston Massacre, undertook what we would consider a semiotic approach that investigated the relevant codes and contexts—both the legal complexities and the audiences, other lawyers, judges, and posterity about which Adams spoke, simplifying and minimizing their roles as he maximized his own (and Otis’s). Zobel’s own relationship with Adams’ legal career appeared in his own tenure on the bench, especially in the famous ‘Nanny’ (discussed by Denis Brion, in this issue) case in which he explicitly presented the Boston Massacre Trials as a relevant precedent. Despite Adams’ willingness to subordinate his clients’ welfare to the patriot cause early in his career, it can be argued that HBO television and historian David McCullough, by presenting him to the public only flawed by his outspoken, stubborn honesty, have nevertheless performed a public service. Their version of Adams offers Americans in the twenty-first century an alternative role model to the dishonest, ill-informed politicians who use public opinion polls rather than political theory, moral philosophy, and historical knowledge as the basis of their decisions.     

Learning to be A Peacemaking Lawyer: Law Student Perspectives on Building Peacemaking into Law School Curricula,Building Paths to Practice for New Lawyers,and Interdisciplinary Training

From our perspectives as students, we reflect on the teachings of Lawyer as Peacemaker, a Winter 2015 course taught at UCLA School of Law — the school's course devoted to peacemaking lawyering. Utilizing our newfound peacemaking worldview, we share our collective reactions to the Lawyer as Peacemaker course and the ten articles in the Family Court Review Special Issue on Peacemaking for Divorcing Families. We then advocate for integrating peacemaking into law school curricula and experiential learning offerings and make recommendations on how law schools today can prepare students to practice peace.

Key Points for the Family Court Community:
• This article is a collaborative work product of three students who come from an array of work experience, backgrounds and interests and from their newly founded peacemaking worldview, the three students collaboratively analyzed ideas presented in the Lawyer as Peacemaker course and the articles from this issue.
• The peacemaking mediation allows the parties more control over their legal disputes and allows the control of the costs that come with litigation.
• Peacemaking involves a holistic and collaborative method, involving mental health professionals to financial advisors as well as legal professionals.
• However, peacemaking skill courses are not readily available to many law students while studying in law school.
• This valuable asset should be made available more extensively to law students interested in family law.

     

Administrative Justice in the Penitentiary: A Report on Inmate Grievance Procedures

The majority of prisons today have an internal grievance mechanism that gives inmates an opportunity to air complaints and seek solutions to individual and institution-wide problems. This study reports on the way the mechanism functions at two Illinois state prisons—one minimum security and one maximum security. The main findings are: (1) that the mechanism is heavily and repetitively used by only a portion of the inmate population, (2) that the grievances filed range widely in type as well as in merit, although it is clear that there is much frivolous activity, (3) that inmates win only a small percentage of their cases, either at the first-instance level or on appeal, and (4) that among both line prison staff (at least at one of the prisons) and inmates there is considerable dissatisfaction with the process, although a minority of prisoners and the higher echelon prison administrators can be counted on for more favorable assessments. The article goes on to compare these findings with the generally articulated objectives of the grievance process and concludes with a series of suggestions that have been made for improving its workings.