| The contemporary lawyer system in China originated from the west,which is essentially the product of legal transplantation.Legal transplantation has its positive significance,but it is very difficult for the process of legal transplantation to give overall consideration and practical attention to the actual situation in China.When this situation is reflected on the practice of grassroots litigation lawyers in underdeveloped areas of China,it brings a serious rupture between the "expected role" given to lawyers by the institutional setting and the "practice role" actually presented by lawyers in the specific judicial operation process.From the perspective of "expected role",the relevant institutional setting of Chinese lawyers' judicial role has possessed the normative,systematic,abstract and symbolic characteristics required by the "Legal modernization paradigm".From the perspective of "practical role",in specific judicial practice,the judicial role of lawyers is reconstructed through various informal judicial operation methods.Therefore,Therefore,during the whole process from the initial judicial preparation to the final trial defense,the judicial roles actually presented by lawyers are far from the system setting and social expectation,or even quite different,and there is an obvious "deviation between practice and expression".At the same time,to summarize the researches on the judicial role of lawyers in the legal research field since the reform and opening-up in China,the relevant research results can be divided into two categories generally: "problem-countermeasure" model from the perspective of normative jurisprudence and "state-society" model from the perspective of positive jurisprudence.The analytical results of normative jurisprudence have played a positive role in promoting the judicial system reform since the reform and opening up in China,at the same time,it presents the characteristics and limitations of “transplantation " and "non-practicality".Especially for the basic people's courts in many underdeveloped areas,the academic research results often become a kind of "castle in the air" in the basic-level judicial practice due to the lack of practical conditions;On the other hand,the research process of positive jurisprudence is highly dependent on the in-depth observation of a certain micro-social structure.Therefore,for the grassroots judicial system in underdeveloped regions,the objective situation of the absence of lawyers in a fairly long period of history leads to the infeasibility of relevant research propositions from the perspective of empirical research.Therefore,although since the reform and opening up,China's academic circles carried out a very rich research around the topic of"judicial role of lawyers",but for a long time,there is very little literature can deeply describe,explain and reflect on the judicial role of lawyers in less developed areas.Data show that in recent years,the situation of lawyer vacancy in the underdeveloped areas of northwest Yunnan has been significantly reversed,and more and more lawyers in regular practice have appeared in the trial process of the basic people's court,playing an increasingly important role.This paper is an attempt to connect the two theoretical propositions of "modern legal planning” and "local practice experience" around the topic of "lawyer's judicial role" in this new era background.Through the in-depth analysis of the role of grassroots litigation lawyers,on the one hand,we present and reflect on the problems of grassroots judicial construction in China's underdeveloped minority areas.On the other hand,the paper makes an in-depth discussion on the concrete mechanism of the role construction process of grassroots litigation lawyers by the phenomena of "local culture",such as "relationship trust,common sense standards,and doctrine of the mean",so as to contribute to the exploration of the road of"localization" rule of law construction that truly conforms to China's national conditions.Based on this,the author select the W county of Dali bai minority autonomous prefecture of Yunnan province as the field observation area,take the local lawyer as the main samples to study.Firstly,the paper analyzes the social field and the composition of lawyers in W county,Secondly,the paper presents the objective realistic distance between lawyers' "expected role" and "practical role" from “the preparation back-stage,the fighting front-stage,and the process of actual court games” in turn.The aim is to reveal the rift between "planning on paper" and "law in action".Then,the paper analyzes the specific factors that lead to the realistic distance between the two judicial roles of lawyers from five aspects in detail.Finally,based on deeply discussing the important proposition of "the relationship between local culture and modern rule of law",this paper explores the reconstruction path of lawyers' judicial role from the perspective of"macroscopic directional level" and "practical operation level".At the same time,the survey shows that in the less developed minority areas,some special ethnic languages,national characters,local customs and local rules and regulations also make some disputes show significant "ethnic" and "local" characteristics.Therefore,the process of dispute resolution and the path of role construction of grassroots litigation lawyers have been branded with specific "national" and "local" brands.Article analyzes believed that the rupture between the "expected role" and "practical role" of lawyers in underdeveloped areas is essentially the parallel,conflict and coordination problems between modern "rule of law" order which is as a formal social control mode and the local social order guided by the other diverse social control mode in the process of judicial operation at the grassroots level.Among many local orders,there are two types of local orders have the most significant influence on the process of the construction of lawyer's judicial role.The first kind refers to the order of the interaction of interpersonal roles at the grass-roots level guided by local cultural phenomena such as "relationship trust,common sense standard and the principle of the mean" rooted in the blood of local people.The analysis shows that although the above local culture has no clear "normative" characteristics,it actually as a "silent order" and influences and leads to the rupture of the judicial role of lawyers.In view of this kind of phenomenon,this paper starts from the basic path of character trust and analyzes around the local cultural phenomenon of "relationship".By analyzing and dividing the "relationship" between the two dimensions of "general trust" and "special trust",this paper discusses the relationship between the local culture and the rule of law in China.And points out that,for the construction of the rule of law in China,the social order guided by the above-mentioned "local culture" actually has both "constructive" and "destructive" functions.Moreover,the complex situation with the combination of the above two functions is one of the important causes for the repeated challenges and rebirth of the legal construction in China(including the construction of the role of lawyers),and it is a unique problem that must be faced when exploring the road of the legal construction in China.The second kind of order,which has an important influence on the construction process of lawyer's judicial role,refers to the local judicial operation order under the control of the power game pattern of grassroots public departments(including administrative departments and judicial departments).The analysis shows that at present,the judicial operation order at the grassroots level in China is deeply embedded in the framework of local policy implementation objectives,so the local political power has a serious effect on the judicial operation order.At the same time,In the judicial profession circle at the grassroots level,not only the power allocation structure among the three organs of " public security bureau,procuratorate and court" is unreasonable,but also the power allocation structure between the above three organs and lawyers also has a big problem.In judicial practice,the superposition effect of the above various abnormal power structures actually places lawyers at the bottom of the whole judicial power structure at the grassroots level.This situation has caused a serious rupture of the judicial role of lawyers.In view of this kind of phenomenon,this paper holds that,as a transitional arrangement in the transitional period,both the guidance of policies to the judiciary and the compliance of the judiciary to the policy have presented certain practical value(especially from the perspective of pragmatism and instrumentalism in maintaining local stability).However,in the long run,in order to maintain the normal operation of judicial order,it is necessary to carry out the necessary political "burden reduction",so as to adjust the judicial order through the reconstruction of the power relationship between local "politics and justice".At the same time,it is necessary to promote the judicial system reform with "trial as the center" actively.So as to straighten out the role relations among various judicial subjects through the reconstruction of the power relations among the grassroots judicial professional circles.Only in this way can we gradually reverse the subordinate and dependent status of lawyers in the whole judicial system at the grassroots level,so that they can carry out their duties with ease and display their talents.Further analysis of the article points out that,at least for a long time to come,the situation of multiple social order at the grassroots level will continue to exist.For the construction of the rule of law in a country,the important thing is not to eliminate such differences in order,but to explore the values and hidden problems inherent in these informal orders deeply.We should study the connection between the two sides on the basis of fully affirming its realistic value;at the same time,to find the appropriate way to solve the problem under the premise of fully understanding it's difficult.Since the pluralistic order of the grass roots,society objectively constitutes a complex network of relations among cultures,powers and interests.Therefore,the article analyzes that the adjustment of the overall judicial order and the solution of the problem is not an overnight achievement,but must be placed in the whole reform and opening up process and the change of The Times,through the development and progress of the whole society to solve the problem.Of course,from the perspective of practical operation,in the overall situation of development,we can also explore some practical solutions and carry out some partial order fine-tuning.Because this kind of fine-tuning is necessarily only small-scale and gradual,and its adjustment process will be restrained by various realistic orders,so its function will be limited accordingly,but in fact,it is the only way to the overall adjustment of the judicial order.Finally,the author believes that lawyers are deeply embedded in the established legal order,and at the same time,lawyers are deeply embedded in the pluralistic local order of a particular society.Therefore,only when there is a consensus between the rule of law and the pluralistic local order of a specific society,can the distorted state of the judicial role of lawyers be changed and the position of "Chinese lawyers" be restored.Therefore,only when there is a consensus between the rule of law and the pluralistic local order of a particular society,can it truly change the distorted state of the judicial role of lawyers and make lawyers return to the position where they should be.Specifically,this paper is divided into three parts: introduction,text and conclusion.The text is divided into six chapters.The introduction first points out the theme of the research,and then sorts out the evolution of the judicial role of Chinese and western lawyers.Then,this paper reviews and evaluates relevant research literature from the perspective of "normative jurisprudence" and " positive jurisprudence".After that,the research approach and framework,research methods and materials are introduced in turn.The first chapter analyzes the social field and the composition of lawyers in W county.According to the analysis,In terms of social development,W county is rich in natural resources but remote in geographical location,it has a vast mountainous area and it is underdeveloped in industry and commerce.The W county is generally an agricultural county and it just took off the poverty county label at the end of 2018.In terms of national culture,W county is a region with a majority of bai nationality population and mixed residence of multiple ethnic groups.Therefore,the folk still retains a relatively strong bai nationality flavor.At the same time,the local bai nationality ethnic group is deeply influenced by the traditional Confucian ideology and culture,and the degree of "hanization" is relatively high.In daily life,the bai ethnic group and the local people of other ethnic groups are friendly to each other and get along well with each other.In terms of social change,based on the fieldwork of W county,through the comparative analysis of nine factors of "population mobility,the formation of the rules,the establishment of interactive order way,community structure,the core culture,family structure,family,keep the power of social work,the relationship between local governance and dispute mediator".It is found that the rural society of W county is in the process of transformation and change from the "ritualistic society" to the "legal society" at present.On the one hand,the "etiquette and custom" order on which the original feudal small-scale peasant economy operated and developed gradually lost its authority.On the other hand,the new legal order is still in the process of exploration and development,and it has not completed its construction completely.The status quo of this macro social change is projected to the judicial field,and the most typical features are the "anomies",frequent contradictions and the transformation of disputes in the grass-roots society.Thus,it also has an important impact on the case structure of W county at the micro level,making it increasingly present the characteristics and trends of type complexity.The above changes objectively require more lawyers to invest in judicial practice at the grassroots level,which in turn has a profound impact on the process of the construction of lawyer's judicial role.In terms of the specific composition of lawyers,the investigation shows that there are currently 3 law firms and 12 regular practicing lawyers(including 3 public lawyers)in W county.Although there are not many lawyers in regular practice,they are typical.The experience and personal choices of these lawyers are deeply embedded in the impact of society and the imprint of The Times,which can serve as a microcosm of our effective observation of relevant issues.The second chapter focuses on the distance between the lawyer's "expected role" and "practice role" in the back-stage.In the judicial preparation stage,the "back-stage" of the individual lawyer's role action is the social space outside the formal judicial system,and the object of the role interaction with the lawyer is mainly the grassroots residents of W county.The analysis shows that at this stage,the first expected role of lawyers given by the system setting is "defender of fairness and justice".However,in fact,in a remote and backward county like W county,lawyers,as a pioneer in the industry,shoulder the entrepreneurial responsibility of "expanding the territory".As a result,lawyers have to prioritize many practical issues over the ideal of "fairness and justice" in making decisions.Therefore,its practical role is actually "the knowledge entrepreneur in the bitter game between the ideal and the bread".The second expected role given to lawyers by institutional Settings is that of "skilled Forensics experts".However,in fact,in the rural social environment,lawyers rarely have the opportunity to use a variety of professional forensics skills,instead,he is constantly confronted with a large number of descriptions of the parties,a variety of arbitrary case modification,and the twisted testimony under the influence of multiple "human relations".Therefore,in the forensics stage,the lawyer's practical role is more like a difficult grassroots "detective".The third expected role given to lawyers by the institution is "conscientious dispute solver".But in fact,in a rural society,lawyers need to combine a variety of dispute resolution skills,occasionally taking advantage of legal and policy loopholes,and consistently making "relationship skills" an important part of their survival.Therefore,the lawyer's practical role is actually "the judicial generalist who rises and falls in the dispute vortex".The analysis shows that the special and complex interaction order of interpersonal roles at the grass-roots level reconstructs the practical role of lawyers under the restriction of specific socio-economic and cultural environment.Therefore,in this stage,the fracture is serious between lawyers' "expected role" and "practice role".The third chapter mainly analyzes the realization distance between the lawyer's "expected role" and "practical role" objectively from the static perspective in the front-stage.In this stage,the "front-stage" for lawyers to carry out their individual role action is mainly the various formal judicial institutions,and the objects of role interaction with lawyers are mainly the relevant staff and the parties in the three organs of "public,public and legal".The objects of role interaction with lawyers are mainly the relevant staff in the three organs of "public security bureau,procuratorate and court" and the litigants.The analysis shows that at this stage,the first expected role given to lawyers by the system setting is "defender of litigation interests".In fact,the protection of litigants' litigation interests is relate to the protection of lawyers' rights closely.However,the investigation shows that there are still a lot of practical problems in the protection of personal rights and practice rights of lawyers in W county.Moreover,as a freelancer,lawyers often feel "isolated" because they lack the protection of a strong organization behind them.Therefore,in many cases,even if the lawyer is willing to defend the interests of the litigant,he will often appear "willing but unable".The lawyer's practical role is actually the "isolated freelancer".The second expected role of the lawyer in the institutional setting is "the eloquent man".Since the judicial cases in W county are mainly civil cases,and the people's court actually implements a civil case handling mode of "combination of mediation and trial",therefore,in the process of dispute resolution,the "right and wrong standards based on folk reason" and"judicial standards" are equally important and play a synergistic role.Thus,the duty of the lawyer in the trial stage is mainly to “judge between right and wrong” rather than “eloquence ",its practical role is to be a member of the judicial neighborhood committee at the grassroots level.The third role expected of lawyers in institutional Settings is that of "equal opponent."This role expectation is the desire of the client for the criminal defense lawyer to fully play the game with the prosecutor in the court and ultimately win.In fact,under the current judicial mode of "investigation center",the adjudication function of the court is blurred seriously,which leads to a significant "sense of routine" in the court proceedings.At the same time,under the dual restraint of administrative power and judicial power at grassroots,the criminal defense lawyers are actually at the bottom of the judicial power allocation structure.The lawyer's space for defense rights is very narrow,and the process of case representation is very difficult.Its practical role is actually "the judicial pathfinder who struggles to survive behind the routine trial process." In a word,the rupture of lawyers' judicial role in this stage not only objectively reveals the distress and difficulty of lawyers' actual situation,but also shows the embedding and shaping process between lawyers as individual actors and various "structural" factors such as grassroots local culture,local administrative structure and judicial structure.Chapter four focuses on the re-examines of the realistic distance between lawyers' "expected role" and "practical role" in the process of "dynamic" trial game.In the process of court game,we can actually observe the confrontation and collision of various explicit or implicit factors mentioned in the previous two chapters.At the same time,the author found there is a remarkably "balanced" force that governs all judicial bodies in the whole process of court battle.As a result,the role of lawyers has been significantly fractured and rebuilt.After the detailed analysis of the two classic cases,the author abstracts the judicial connotation of "golden mean",which is a special cultural phenomenon with Chinese characteristics.The author thinks that,as a principle of doing things rooted in the blood of the local people,the secular thought of "the golden mean" is actually hidden in the subconscious choices and judgments of various judicial subjects,and it objectively shaped a kind of deep Chinese characteristics,very unique grassroots judicial court appearance.This kind of "golden mean" atmosphere in the trial takes a variety of specific "matters of common sense" as the carrier,takes a variety of explicit or implicit interests balance as the main feature,and takes the "reconciliation" of disputes and contradictions as the main goal.At first,it relies on the guidance and balance of the judge,but in the end,it shows as a kind of judicial culture atmosphere jointly created by the wrestling among various judicial roles in the trial process.In the grass-roots civil judicial model of "combination of mediation and trial",this "doctrine of the mean" requires both parties to "make reasonable concessions" and take a step back to reach an agreement.In the grass-roots criminal justice model of "guilty verdict",this "doctrine of the mean" requires the three parties of “The prosecution,the defense,the judge” to show appropriate "modesty",so as to give due consideration to the interests of the three parties in a reasonable range.The analysis shows that this kind of power has the social and cultural characteristics of the grass-roots level,which is conducive to the resolution of disputes and the parties' obedience to the judgment.At the same time,the secularized principle of "the golden mean" will produce invisible dissolving force on both rules and institutions,thus showing another side of its destruction of the fundamental spirit of "rule of law".The analysis shows that under the comprehensive influence of multiple structural factors including the "golden mean" atmosphere in the trial,the judge deviated from his "neutral" position and the role of dispute adjudicator.In fact,the judge dominates and leads the settlement of disputes.At the same time,the lawyer is not completely faithful to the side of the client,but according to the specific situation from side to side,and shows the speculative tendency of "cooperating" with the judge.In a word,the rupture of lawyers' judicial role in this stage not only objectively reveals the subordinate and dependent status of lawyers in the judicial system at the grassroots level,but also shows the embedding and shaping process between lawyers as individual actors and various "structural" factors such as grassroots local culture,local administrative structure and judicial structure.Chapter five focuses on the analysis of the relevant factors that lead to the realistic distance between lawyers' "expected role" and "practical role".The analysis shows that although China's legal system has a relatively complete system design for the structure of the trial,the mode of litigation and the judicial role of lawyers.However,in practical judicial practice,the judicial role of lawyers is reconstructed through various informal judicial operation ways.In these informal judicial processes,the relevant factors are complex.The author generally divided these factors into five categories to discuss in detail.Of course,if the specific action mechanism of these influencing factors is further analyzed,the author believes that the common mechanism of these influencing factors can be roughly summed up into two categories from the general direction.The first category can be summarized broadly as problems arising from inadequate regional development.This kind of problems include the relatively backward social and economic development status of W county,the underdeveloped educational and cultural environment and the narrow and utilitarian legal awareness of the local people and so on.The second category can be reduced to problems of conflict of order roughly.In the author's opinion,when lawyers,as a symbol of the modern "rule of law",carry out their actions in detail,their actions are actually bound by both the Modern legal order and the pluralistic local order.Therefore,the role dilemma encountered by lawyers in the grass-roots practice is actually the result of the above two kinds of order conflict.Among many local orders,there are two types of local orders have the most significant influence on the process of the construction of lawyer's judicial role.The first kind refers to the order of the interaction of interpersonal roles at the grass-roots level guided by local cultural phenomena such as "relationship trust,common sense standard and the principle of the mean" rooted in the blood of local people.The second kind of order,which has an important influence on the construction process of lawyer's judicial role,refers to the local judicial operation order under the control of the power game pattern of grassroots public departments(including administrative departments and judicial departments).The analysis shows that in the process of grassroots judicial operation,the rupture of lawyers' "expected role" and "practical role" is not only related to the quality of lawyers themselves,but also reflects the reality of grassroots judicial structure and even the whole grassroots social structure.Therefore,we must go beyond the lawyer's role dilemma to analyze the causes and seek answers.Chapter six focuses on the reconstruction of the judicial role of lawyers.In view of the above two kinds of problems,the author thinks that we should focus on the overall social development and the overall adjustment of the judicial order to find the specific answer to the problem.Of course,before this,we must first explore and solve the propositional problem of the "relationship between local culture and modern rule of law".Based on this,we can understand the unique problems faced by the construction of the rule of law in China.In order to solve the above problems.Starting from the basic path of character trust,the author focuses on the special local cultural phenomenon of "relationship" to analysis.The analysis shows that the relationship of "general trust" caused by people's familiarity plays a "silent order" in traditional rural society.The relationship of "general trust" in modern sense also helps to simplify the complexity of interpersonal communication,so it has a positive meaning.Similarly under normal circumstances.local culture such as "the principle of the golden mean and the standard of common sense",which plays an important role in daily life at the grassroots level,as the social and cultural basis for "general trust",is actually subtly adjusting social contradictions and maintaining the effective operation of social order.It presents the "construction" value of local culture.On the contrary,in the context of social transformation,since the relationship of "special trust" is often closely related to "major events" in people's life course,it is more likely to induce people's utilitarian goals,so it also objectively presents its "destructive" function to social order.In fact,in real life,the complex situation of the above two levels of "trust relationship" interwoven with each other is one of the important reasons why China's rule of law construction(including the reconstruction of the role of lawyers)has been repeatedly challenged and reborn.It' also the unique problem that China's rule of law construction must face.Therefore,the author believes that when we try to explore the reconstruction path of lawyers' judicial role by relying on the road of "rule of law",we must keep enough vigilance and awe for the local original local culture and potential interpersonal order.We must find out the actual situation of China's local land and explore the construction road suitable for the characteristics of judicial operation at the grassroots level in China.On this basis,the author proposes to explore the reconstruction path of lawyer's judicial role from two aspects.In the macro direction,the reconstruction of the judicial role of the lawyer must depend on the overall improvement of the economic,cultural and education levels of the minority ethnic groups in the northwest Yunnan province,and the overall innovation of the legal awareness.In other words,we must put the reconstruction of lawyers' judicial role in the background of the reform and opening up and the changes of The Times,and solve it through the development and progress of the whole society.In this process,we should focus on the relationship between economic development and the construction of the rule of law.From the specific practical operation level,we can start from the three levels of "individual,system and society" to explore some practical methods of partial fine-tuning of judicial order.In the last part of this chapter,the author focuses on the unique value of "intelligent justice" in the construction of the lawyer's judicial role.In the author's opinion,on the one hand,it represents an important direction of judicial development in the future.On the other hand,the author thinks that under the background of information society,there may be some important opportunities to solve some thorny problems in the development process of intelligent judicature.Finally,in the concluding part,the author reviews the main content and core issues of the paper,and points out that although the rupture of the judicial role of lawyers has different emphases and specific manifestations in different role situations.However,in the final analysis,the practical distance between the two roles of lawyers can be essentially attributed to the coexistence,conflict and coordination between the "rule of law" order as a formal social control mode and the local order guided by other pluralistic social control modes under the restriction of specific economic and social development degree.Therefore,the author believes that only when there is a consensus between the rule of law and the pluralistic local order of a specific society,can the distorted state of the judicial role of lawyers be changed and the position of "Chinese lawyers" be restored. |
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