“磕出”中国法治“进步”?——死磕派律师的制度角色与中国司法的策略选择

死磕派律师是"北海案"和"小河案"中因"死磕"法院后,活跃起来的一批律师。死磕派律师将法院作为对抗的对象,把法条作为较真的目标,以"苦肉计"、网络直播、举报投诉和行为艺术为常用手段,将"个案正义"作为终极追求。虽然"死磕"有助于促使司法自律,但"死磕"的做法背离了司法制度的理性设计,极端化了法条主义,并大幅拉高了诉讼成本,事实上是在以"较真"程序的方式,追求有利的实体结果,同时,外部化了诉讼成本,造成了更大范围的非正义。中国司法面对"死磕",需要在反思原有的常见方案的基础上,加入新的应对元素,并根据案件具体情形,对所有方案进行有效整合,以有效处置"死磕"行为。

＂Knock out＂ Rule of Law in China？ --Seriously Lawyers＇ Roles and Chinese Judicial System＇s Strategies

Seriously Lawyers are a group of lawyers, which is active after against court in ＂North Sea Case＂ and ＂riverlet case＂. Seriously Lawyers will fight the court as an object, take serious of the law article as the goal, ＂desperate＂, webcast, complaints and performance art as common means, and pursuit the ＂Case Justice＂ as the ultimate objective. Although the ＂run wild in court＂ helps to promote judicial discipline, but it deviates from the rational design of the judicial system, become extreme doctrine of the law, and pushed up the cost of litigation significantly. In fact, They pursuit a favorable result entities by knocking out procedures, while the behave leads to that other people bear the costs of the litigation and result in a greater range of injustice. China justice, facing running wild in court, need to reflect on the original basis of a common scheme, adding new elements to deal with, and integrate all programs effective in order to handle the behavior of ＂run wild in court＂ effectively according to the specific circumstances of the case.