当代中国政法生态下的维权律师 = A study on the rights defence lawyers under the current political & legal ecology in China
- Publication Type:
- Thesis
- Issue Date:
- 2015
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近十多年来，中国律师职业中形成了一个带有“维权”标签的松散律师群体：维权律师。维权律师群体的形成，在中国当代社会、法律和政治现实运作中引起了相当的争鸣和反思，甚至制度性冲突和对抗。党国体制和依法治国的宏观理论指导与微观社会实践都已经面临从“不争论”到“讲清楚”的临界点。
本论文试图从实证研究的角度出发，以法律社会学为主要理论框架，尽可能通过个案案例分析来了解，厘清中国维权律师群体的概念和实质。与此同时，本论文也介入法律政治学和比较法学的的研究方法，既把维权律师的法律职业行为放在一个现今中国政法生态环境下来进行互动性思考，也通过具体案例参照对比，对中澳的法治现实和维权律师的共性和差异有一个同平台的显性认识和案例分析。本论文还相应地关注了网络信息技术兴起所带来的新的维权形态和趋势。
本论文的研究结论揭示出中国维权律师作为民权代理人与国家统治阶层间的互动过程是一种“以法为信”的博弈。对中国维权律师现象的研究表明，律师以法维权，考验政权的信用。“以法为信”共识的缺失，在中国维权律师是个体所遭受的磨难，而对于政权统治者会以社会统治根基的动摇和政治信用、执政合法性的崩塌为终极代价。
Over the past decade the legal landscape of China has been characterised by the formation of a loosely defined group of “rights defence lawyers”, largely equivalence of human rights lawyers in the West, causing considerable contention and reflection on contemporary Chinese social, legal and political realities and even leading to institutional conflicts and confrontation. For both theoretical concern and practical consideration, the tension between the system of the party-state and the rule of law has reached the point that a clear line needs to be drawn.
Applying multidisciplinary frameworks from sociology of law, politics of law and comparative legal studies, this thesis is an empirical research aiming to provide an indepth analysis on the emergence of Chinese rights defence lawyers and their interaction with the party-state and the wider community. It examines the fate of Chinese rights defence lawyers under the broad political and legal ecology of contemporary China and the new enrironment where the Internet and social media are playing an increasingly important role. It also seeks to achieve insights and greater clarity through a comparative study on legal theory and practice in China and Australia.
The findings of this thesis demonstrates that the Chinese rights defence lawyers’ professional lawyering for and legal advocacy of the lawful rights of the ordinary people in China is a serious test of legitimacy and credibility of the party-state. The lack of consensus on law-based credibility has dire consequences for the fate of rights lawyers and the survival of the regime, namely the unbearable suffering on the part of individual rights defence lawyers and the declining or ultimate collapse of political credibility and ruling legitimacy on the part of the communist regime.
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