社会弱势群体法律保护问题论纲

保护与救济社会弱势群体是实现社会公正和法律实质正义的基本要求,是构建和谐社会的题中应有之义。虽然法律机制因其局限性而无法解决社会弱势群体利益需求的全部问题,但是法律机制在保护社会弱势群体方面不可或缺、不可替代。社会弱势群体法律保护的基本内容应该围绕权利宣言和权利保障展开,核心问题应该是在给人以机会、给人以能力、给人以物质帮助三个方面寻求制度努力。     

Legal aid services in Spain within the migration industry debate. Public policy,business or social compromise?

ABSTRACT

The objective of this article is to examine the unexplored role of public defenders who provide legal aid services to immigrants within the debate on the migration control and rescue industries. Although these services are provided by bar associations, public organizations that group private professionals, they are paid for with government funds due to regulations guaranteeing the right to legal defence. The main argument and conclusion of this article is that although lawyers working in these services receive public compensation for the legal aid they provide, they generally become public defenders due to personal beliefs, such as a commitment to protecting the rights of foreigners.     

论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

“When They Come for You”: Legal Mobilization in New Authoritarian Russia

As of 2012, the Russian State Duma passed a string of repressive laws on nongovernmental organizations (NGOs), surveillance, and high treason. Under this “new authoritarian” regime, a growing number of Russians are investigated by the security services or put on trial for high treason. NGOs face selective prosecution and surprise inspections. While we know how lawyers use legal mobilization in democratic regimes where they can expect courts to be fair, legal mobilization remains understudied in regimes moving toward authoritarianism, where authorities pass repressive laws but enforce them erratically. Drawing on interviews with Russian lawyers, this article examines how lawyers represent two victim groups of state coercion: Russians under investigation for treason and prosecuted human rights NGOs. By examining how lawyers make strategic choices while coping with unfair courts, the random enforcement of laws, and shrinking resources, this article argues that state coercion does not deter lawyers from legal mobilization at domestic courts and the European Court of Human Rights. Instead, repressive laws push lawyers to reinvent their everyday practices to counter repressive legislation and conviction bias in the criminal justice system.     

"It's Darwinism – Survival of the Fittest:" How Markets and Reputations Shape the Ways in Which Plaintiffs' Lawyers Obtain Clients

The survival of a plaintiffs' lawyer's practice depends upon the generation of an ongoing flow of clients with injuries that the civil justice system will compensate adequately. If this requirement is not met, lawyers will leave this aspect of the legal market for more promising ones. If they do, legal services for injured people will be diminished as a result. In order to find out how this personal services legal market is defined and developed, we interviewed ninety‐five plaintiffs' lawyers in Texas. These lawyers use four major strategies to get clients: client referrals, lawyer referrals, direct marketing, and other referrals. What any particular lawyer does is shaped by the geographic market from which clients are drawn, and by the lawyer's reputation. Our findings provide fresh insights for the empirical literature on plaintiffs' lawyers, and they provide an empirical context for assessing the potential impact of changes in the civil justice system, like tort reform, on the ability of plaintiffs' lawyers to obtain clients.     

New Legislation in the Union Republics with Respect to the Legal Profession

The Soviet legal profession occupies a place of honor in the system of government and public organizations whose duty it is to protect the rights and liberties of Soviet citizens and to strengthen socialist legality and order. In performing the function of defense in criminal trials and in providing other legal services to citizens, enterprises, institutions and organizations, and by vigorous activity to educate the people with respect to Soviet law, lawyers promote the defense of the rights and legal interests of the citizenry, their training in a spirit of respect for Soviet laws, prevention of crime, strengthening of socialist legality, and proper administration of justice.     

Gender and Professional Values in the Criminal Bar

ABSTRACT

This study is a theoretical application and empirical test of difference theory in the context of private criminal law practice. Difference theory posits that gender is associated with variation in perspectives on justice and morality, and examination of mainstream professional values in the legal system reveals those values to emphasize what are thought to be masculinist values. Hence it is hypothesized that female lawyers will depart from male norms in their expressions of professional values. Results of a survey of practicing lawyers reveals limited support for these theoretical predictions; although male respondents express more extreme advocacy of due process and defendants' rights, women and men differ little in their attitudes toward punishment issues and cynicism regarding defendants.     

中国刑事辩护制度发展的命运——以建立中国控辩协商制度为视角

从立法的角度看,中国刑事诉讼法的修改,无疑是中国刑事司法改革的一个巨大进步,甚至有人把它说成是刑事诉讼立法科学化、民主化的“一个重要里程碑”也不为过。然而,在司法实践中,就刑事诉讼法的修改对中国刑事辩护制度所引起的实质性影响而言,不仅不是巨大进步,而且是严重倒退。中国的刑事辩护正面临着让立法者始料不及的艰难困境。中国目前的辩护制度状况尚无法满足辩诉交易中国化的基本要求。只有实现中国辩护律师队伍的专业化,赋予中国律师必要的辩护权利和执业保障权利,才能使得辩诉交易在中国移植后,被告人有适格的辩护律师提供帮助,以确保其在控辩协商中得到公平对待。     

法学意义上的社会弱势群体概念

对社会弱势群体概念的理解和认识不应当局限于社会学领域。因为那只是对社会弱势群体的多元化解释中的一种。既然法律是调控人类社会生活的主要规则 ,社会弱势群体就必然需要法律的调整、帮助和保护。那么 ,从法学的角度对社会弱势群体进行解释就并非毫无意义。在法学中 ,社会弱势群体是指由于社会条件和个人能力等方面存在障碍而无法实现其基本权利 ,需要国家帮助和社会支持以实现其基本权利的群体。因此 ,社会弱势群体概念的外延决定于现时社会中被人们认可的基本权利。同时社会弱势群体并不是严格意义上的比较性概念 ,而是身分性概念。     

SOCIALIZING THE LEGAL PROFESSION: Can Redistributing Lawyers' Services Achieve Social Justice?

Redistributing laywers' services is a principal focus of efforts to reform contemporary legal systems. Such reforms generally attempt to modify the market distribution in oneof two ways: by subsidizing lawyers for the unrepresented, or by rendering lawyers unnecessary through deprofessionalization. This essay analyzes the contribution that redistribution could make to social (rather than formal) justice by extrapolating the consequences of the greatest conceivable redistribution: a socialization of the profession that would withdraw lawyers from those who presently purchase lawyers' services, while simultaneously subsidizing lawyers for the unrepresented. It then turns to the political prospects forsocialization. Concluding that socialization appears either feasible nor likely to attainsocial justice if it were possible, the essay reflects on the implications of continued pursuit of reformist goals.     

法律援助制度的几个问题

中国法律援助经历了从 1 994年初起发展到今天的过程。法律援助的概念有广、狭二义之分 ;其性质是法律之助 ,即援助公民个人或者人民法院不向受援人收费或者少收、缓收从而在法律方面提供帮助以维护其合法权益的行为。法律援助的特别包括 :具有国家、社会承担援助的公助性 ;受援人享受法律援助的无偿性和优惠性 ;律师、公证员等提供帮助的法律专业性。法律援助的理论基础有四 :权利保障之要求 ;实现控、辩双方力度平衡之条件 ;司法公正之所需和扶贫助弱法制化发展之必然     

Predicting future litigiousness

Using a national sample of adults with various legal experiences, the current study examines the impact of prior legal experiences, general attitudes about lawyers and the legal system, and status characteristics on individuals' perceived likelihood of hiring a lawyer for resolving various personal problems in the future. Persons who have been involved in prior legal disputes, who have more positive attitudes about lawyers, and who hold more favorable views about the effectiveness of law in resolving conflict report significantly higher chances of hiring an attorney. Individuals' assessments of their future litigiousness, however, are largely independent of their status characteristics (e.g., gender, income, education, age) and the quality of treatment in their prior legal disputes (e.g., ratings of procedural justice, level of satisfaction with case outcome, and how their lawyer handled the case). The paper concludes by discussing the implications of these findings for improving the quality of legal services and for the future use of law as a method of conflict resolution.     

New Zealand lawyers and conveyancers disciplinary tribunal cases involving vulnerable clients, 2011–2017*

ABSTRACT

This research analyses disciplinary decisions of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (NZLCDT) from 2011 to 2017 that involve vulnerable clients. Increasingly, scholarship discusses vulnerability as an ethical concept, including in the legal context. Based on published decisions, the present study inquires whether some legal clients’ vulnerability warrants special attention. Twenty-five of the 193 clients in the NZLCDT decisions qualified as vulnerable based upon age, gender, mental health/neuro-disability or immigrant status. The results may inform disciplinary bodies and inspire preventive strategies by lawyers, educators and regulatory bodies. Ultimately, this evidence-based analysis magnifies the importance of client-centred approaches to risk reduction in legal practice.     

Lawyers’ wellbeing and professional legal education

Abstract

THIS PAPER examines the wellbeing and satisfaction levels of lawyers in the workplace. It argues that research suggesting a crisis in the legal profession in the United States is comparable with research on wellbeing and levels of satisfaction for lawyers in Australasia. Some reports in both jurisdictions are critical of conventional legal education and practical legal training programs, which do not encourage students to develop personal and interpersonal skills that can improve self‐awareness, communication skills and the capacity to manage stress and anxiety. Consequently, law students are allowed to assume that these “soft skills” are less important for lawyers compared with cognitive skills such as “knowing the law” and “thinking like a lawyer”.

The paper describes the preliminary results of research conducted with graduates of the School of Law at the University of Newcastle Australia. The results confirm existing research to show that clinical legal education programs that expose law students under supervision to clients with real cases may promote the development of interpersonal skills, which in turn may help them cope with stressors in legal practice, especially in the first few years post‐admission.     

Personal Data Protection in Nigeria: Reflections on Opportunities,Options and Challenges to Legal Reforms

The right to personal data protection is, without doubt, an important right in the jurisprudence of rights in the contemporary information society. It is becoming as crucial as other orthodox human rights and also attracting significant attention from academics, lawyers, human rights activists and policy makers. In spite of the growing attention data protection receives at international and regional levels, Nigeria is still lagging behind many competitor states like South Africa in establishing an effective legal framework to protect personal data. Individuals’ personal data is being collected and used without any serious form of control to check against abuse. This paper reflects on opportunities, option and challenges to legal reforms on data protection in Nigeria. It contends that certain legislative and practical challenges stand in the way of an effective legal regime on personal data protection. The paper suggests appropriate legal reforms that are needed to enable prevent the increasing risks of violating the right to data protection in a country that is making rapid advances in Information and Communication Technology but hamstrung by an outdated regulatory framework.     

From refuge to trap: formalist misadventures of Poland’s postsocialist legal profession

ABSTRACT

Since 2015 the populist government of the Law and Justice Party in Poland has spearheaded a highly effective campaign against the country’s lawyers, encountering relatively muted social opposition. Using Bourdieuan lenses, the article traces the roots of that remarkable institutional weakness of the Polish legal profession to the highly formalist approach to law and legal thinking that Poland’s lawyers espoused. Prior to the fall of communism, and in democratic Poland, the role of lawyers in society was to act as guardians of “neatness” of the legal system – or that system’s internal clarity, cohesion, and completeness. Such a sterile approach to legal practice was initially attractive, among other reasons, because it protected the legal profession from difficult legitimacy challenges stemming from that profession’s pre-1989 coexistence with the communist regime. With time, however, the refuge that formalism offered became a trap that undermined lawyers’ political and economic power.     

Balancing International Police Cooperation: INTERPOL and the Undesirable Trade-off Between Rights of Individuals and Global Security

With 194 members, INTERPOL is the most influential actor in matters of transnational policing. Regrettably, the organisation is vulnerable against cases of misuse. Certain states manage to exploit the tools of the organisation, to persecute and track political dissidents or non-aligned members of the media outside their borders. As such, INTERPOL has become a prime example on how non-democratic countries can exert their influence and expand their reach well beyond their domestic jurisdictions via their participation in international organisations. Not wanting to allow the proliferation of criminal havens in certain regions, the organisation has opted to connect with and bring together as many police forces of different states as possible. Evidently, such connections are created with little or no consideration of the state of criminal justice systems and forms of government of the countries involved, as well as any subsequent risks. Such a complex state of affairs demands a thorough reflection on whether it is acceptable to compromise between the need for security and the rights of individuals and procedural justice. The issue has vast legal and practical ramifications, and it is ultimately a question pertaining to the realm of global constitutionalism. Does INTERPOL have the legal authority to be in charge of finding a balance between security and procedural justice? If so, on what legal basis, and to what extent?

     

Toxic Torts, Public Interest Law, and Environmental Justice: Evidence from Louisiana*

Poor and minority communities facing environmental hazards have increasingly turned to legal strategies to seek redress but a divide has emerged in these cases and their outcomes. Some aggrieved communities turn to private injury lawyers, while others secure representation by public interest groups, such as Earthjustice, the Southern Environmental Law Center, or university law clinics. Is justice being equally served in these cases? We analyze the impact of toxic tort versus legal aid approaches in determining the outcome of environmental justice struggles using four landmark cases from Louisiana in the context of other factors that appeared important in determining how these cases resolved.     

传统与转型：坚守正义、守护良知和维护荣誉

律师是法律职业共同体中的一员,既要代表和维护委托人的利益,又要看重正义和司法公正。律师应当成为社会的一个阶层,构成一个重要的社会群体,构成公民社会一个最成熟的层面,成为反对专制和建设民主的重要社会力量。新世纪初,中国律师随社会政治转型再次面临新的转型,律师将从传统职业角色中走出来．部分地转向社会公共事务和政治生活。律师职业转型应当适度保持传统本色,以实现社会正义为根本使命,以守护社会良知为职业本分,以维护共同体的荣誉为最高利益。     

The “Right Paper”: Developing Legal Literacy in a Legal Self‐Help Clinic

Legal self‐help is the fastest‐growing segment of legal services in the United States, and a significant addition to the repertoire of programs aimed at opening up access to justice in the civil legal system. Few studies, however, have examined how such services work in practice. Through ethnographic research and analysis of meetings between unrepresented litigants and attorneys offering advice in a legal self‐help clinic, this article expands the empirical investigation of access to justice to consider what legal self‐help looks like in actual practice. In this article, I follow the concept of the “right paper” to analyze the process through which legal self‐help litigants develop legal literacy, including the role of lawyers in helping them to do so. The article concludes by discussing what such practices reveal about recent efforts to open up access to justice and also about the dynamics through which people come to think about law and, especially, how to use it.