Research On Lawyers’ Cautious Obligation In Out-of-court Speech

Lawyers have the right to publish speeches out of court,which is the effective way to safeguard legitimate rights of the parties,protect the public’s right to know and supervise the fair judgment of the court.Meanwhile,part of the speech out of court is a kind of litigation strategy designed for obtaining the advantage position of the litigation.But some lawyers express their speeches on the cases of greater concern without bottom line,which seriously violated the right of personality of litigation parties and their close relatives and the right of criminal defendants to receive a fair trial,interfered the independent judgment of the court,and harmed the individuals and the society.A lawyer should be self-discipline,and should exercise caution in speech out of court.The first part of this paper is the discussion of the connotation and theoretical basis of the lawyers’ speech out of court.The connotation of the lawyers’ speech out of court is definite from the perspective of identification,space and time and method.Lawyers’ speech out of court is a reflection of exercising their right to free speech,and have vital function of supervising and restricting the judicial power.It’s a legitimate source of lawyers’ out-of-court speech.The second part is the legal analysis of the obligation of caution in speech for the lawyers.First,it introduced the reason of the vast existence of lawyers’ speech out of court in the social focus cases.Then,combined with the“Yao Jiaxin intentional murderer case”,“the rape case involving Li and other four person”and the relevant cases,analyze the damage caused by the improper lawyers’ speech out of court to the public interest(judicial independence and lawyer profession image),private interest(fair trial rights and right of personality of the defendants),and concluded that lawyers should exercise caution in speech out of court.The third part is to sort the standards of obligation of caution in speech for the lawyers in China,and reflect the shortage of the relevant standards.Because the direct regulation of lawyers’ speech out of court is less in the standards in China,by combining with the other practice principles(the duty of confidentiality,respect of other lawyers,the maintenance of judicial authority and social steady,etc.),this part discussed the regulation related to the caution obligation of lawyers in China and came up with the shortages in two aspects in the existing standards.The fourth part is about the investigation on the legislative and system construction of the lawyers’ speech caution out of the court of America,introduces the principle standards of the“high possibility of major prejudice”,the "safe harbor" rule,the right to reply the harmful speech for the lawyers,the regulation related to the behavior of“borrow other’s name”,and provides the reference for the improvement of the relevant legislation and system construction in China.In the fifth part,this author came up with the legislative suggestion on the made of standards including the practice behavior of the lawyers’ caution obligation in speech,the prohibition of the improper speeches influencing the fair judgments,the establishment of the principle of the safeguarding the legal interest of consignors and others.Meanwhile,this author also suggests to strength the education on lawyers’ professional ethics so that lawyers can remember the belief of law in their hearts.Besides,to establish the judiciary spokesman system as a supporting organizational system this can prevent the excessive move of the speech on the judgment.