Research On The Regulation Of Lawyers’ Out-of-court Speech In China

In China’s judicial practice,it is a common phenomenon for lawyers to speak outside the courtroom,and it is necessary to make reasonable regulation of lawyers’ out-of-court speech because of its double value.However,at present,the boundary of lawyers’ out-of-court speech in China is blurred,and the existing regulation lacks the necessary principles and standards for guidance,and the specific rules cannot effectively deal with the problem of "when" and "why" of lawyers’ out-of-court speech in judicial practice.At the same time,the introduction of the National Lawyers Association’s "Rules on the Prohibition of Irregular Speculation Cases(for Trial Implementation)" in October 2021 further confirms that China is progressively vigilant in its scrutiny of lawyers’ out-of-court speech,and currently shows a tendency to strictly regulate it in its attitude.However,the regulation should be limited,and should be wary of the over-expansion of the regulation policy that lacks tolerance,which restricts lawyers’ out-of-court speech to a relatively narrow field or even makes afraid to voice.Based on this,this paper aims to analyze the problems and theoretical dilemmas behind the regulation of lawyers’ out-of-court speech in China,clarify the regulation ideas,construct clear and explicit regulation principles and judgment standards,and improve the specific rules.The first part of this paper is a superficial examination of the situation of lawyers’ out-of-court speeches in China.Firstly,we start from the phenomenon to reveal that lawyers’ out-of-court speech is not only in the form of speculation on cases,but also in the form of academic commentary,which has become the main expression nowadays.Secondly,we define the connotation and classify the types of lawyers’ out-of-court speech,and point out that the diversified forms of expression and the richness and complexity of the content of speech determine that the study of lawyers’ out-of-court speech in China should not start from an overly narrow level.Finally,based on the dual value of lawyers’ out-of-court speech,it shows the necessity and rationality of regulation.The second part analyzes the problems of the existing regulations in China from the normative level.Through sorting out the existing regulations in China and analyzing the "Zhou Ze’s case" and "Zhang Lei’s case",it is concluded that at present,China mainly lacks the corresponding principle guidance on the issue of "when lawyers can speak" outside the courtroom.In addition,the law also provides for the protection and relief of lawyers’ out-of-court speech.The third part explores the theoretical dilemma behind the regulation of lawyers’ out-of-court speech.There are two different models of regulation,the strict restriction model and the bottom-line model,on the issue of the attitude of regulation.The purpose of lawyers’ out-of-court speech is closely related to their identity,and the priority of different identities affects the attitudes and principles of regulation.At a deeper level,the fundamental problem lies in the inevitable value conflict between lawyers’ out-of-court freedom of expression and trial justice,but there is no solution to the value conflict itself,and a balanced choice needs to be made by combining China’s judicial context,and the freedom of expression of lawyers needs to be guaranteed through proper rule design,while its negative impact on fair trial needs to be reduced.The fourth part explores the problems of regulation in China and the theoretical dilemmas behind it,and explores the appropriate way of regulation.First,based on the judicial context in China,and based on the consideration of the identity of lawyers and the balance between the value of freedom of expression and trial justice,we establish different speech principles at different stages of trial.Secondly,by examining and learning from the U.S.experience,we establish that the standard of regulation in China should be "substantial likelihood of significant harm".Finally,from the level of restriction and protection,we design the rules of prohibiting excessive pretrial disclosure,safe harbor rules,and necessary response rights to provide specific guidelines for lawyers’ out-of-court speech.