In the early 1981s, when China's lawyer system was just restored, the professional orientation of lawyers was "national legal workers". In 1996, after the promulgation of the Lawyers Law, lawyers were redefined as "practitioners who have obtained lawyers' practice certificates according to law and provided legal services to the society". Professor Chen Xingliang of Peking University further suggested that lawyers' rights are not state power or social rights, but an extension of citizens' individual rights, and lawyers' professional orientation should be to provide legal services as freelancers.
I understand that the purpose of this "freelancer" is to emphasize the independence of the lawyer profession, that is, lawyers are only subject to the law. Under the law, lawyers are free, and any external intervention is not enough to make lawyers submit, so as to maximize the protection of lawyers' role in safeguarding human rights and maintaining social fairness and justice. China's current "Judges Law" stipulates: "Judges are not subject to interference from administrative organs, social organizations and individuals in trying cases according to law." The Procurator Law also has corresponding provisions: "Prosecutors shall perform their procuratorial duties according to law without interference from administrative organs, social organizations and individuals." This has legally determined the professional independence of judges and prosecutors. Although the current Lawyers Law has not clearly endowed lawyers with professional independence, this is the mainstream trend of the international community. For example, Article 1 of the German Federal Lawyers Ordinance stipulates: "Lawyers' position in the judiciary is an independent person of the judiciary, and lawyers' practice institutions are independent organs engaged in judicial work." Canada also clearly stipulates that lawyers and judges have equal status: "Every member of the Bar Association who is allowed to be a junior lawyer in the Supreme Court is an official of all courts in the autonomous territory of Canada." Therefore, the independence of the lawyer profession should also become the proper meaning of our lawyer system. In the new "Lawyers Law", one should be added: "Lawyers practice according to law without interference from administrative organs, social organizations and individuals." Only in this way can we truly establish the independence of the lawyer profession in our legal system.
the independence of lawyers' profession means that lawyers are not influenced by the public rights of the state and the private rights of the parties, and independently safeguard the correct implementation of laws and social fairness and justice. As an independent force, lawyers will check and balance power to a great extent, and try their best to prevent and reduce the infringement of power on citizens and legal persons. Citizens and legal persons of a country enjoy rights and perform obligations in accordance with the law. As counterparts managed and governed by the state, they have no direct legislative, judicial and law enforcement powers, but only the obligation to abide by the law. In the face of state power, they are always in a weak and inferior position, and their legitimate rights and interests are easily infringed by state power, not to mention the abuse of power and dereliction of duty by individual state organs. In real life, in addition to restricting state power through legislation and strengthening citizens' human rights and rights, we also need a social force that is independent of state public power and between the parties. By providing legal services to the parties, we can restrict illegal power and safeguard the legitimate rights and interests of the parties. Lawyers are the representative of this power. Lawyer, with his unique professional independence, will check and balance power to a great extent, and try his best to prevent and reduce the infringement of power on citizens and legal persons. This independence is manifested in two aspects: first, lawyers are relatively independent from the government, judges and prosecutors, have the courage and ability to confront the public rights of the state, and are not interfered by the state judicial organs, administrative organs, social organizations and individuals in their practice; At the same time, lawyers are independent of clients in their practice. Lawyers are defenders or agents of clients, not obedient vassals and spokespersons who lose their independent personality. Lawyers have the obligation to safeguard the legitimate rights and interests of clients and keep their secrets, but they also have the right to refuse the improper demands put forward by clients that are contrary to the law, and exercise their defense rights and express their defense opinions independently in criminal defense according to facts and laws.
because the interests pursued by the parties are not always consistent with the legal provisions and social fairness and justice, sometimes even conflicts of opposites will occur, and individual lawyers will increase their income based on the realization of the improper interests of the parties, so that lawyers will blindly cater to the parties, deviate from the facts and distort the law, which will inevitably shake the credibility of the whole lawyer industry in society.
to get rid of the fetters of fame and fortune and resist the corrosion of money, it is very important to ensure that lawyers abide by the independent system in addition to their own "conscience" and "morality". We should not only cherish the independence of lawyers as much as we cherish our own lives, "give me independence or give me death", but also need every lawyer to protect this independent "firewood" by himself. Below, the author talks about his own views on two practical problems that may affect the professional independence of lawyers at present.
1. The diversity of lawyers' types is not conducive to the independence of lawyers
In most countries in the world, lawyers, judges and prosecutors are one of the legal professional groups, only with different division of labor, and there is no distinction between high and low status. The original intention of establishing lawyer system in these countries is to make every citizen restrict the abuse of public power through the independent work of lawyers, thus giving great expectation and attention to the lawyer profession. For example, the first article of Japan's Lawyers Law begins with a clear meaning: "Lawyers take safeguarding basic human rights and realizing social justice as their mission." The first article of the Lawyers Law in Taiwan Province of China stipulates: "Lawyers' mission is to protect human rights, realize social justice and promote democracy and the rule of law." Thus, the basic mission of lawyers is to safeguard human rights and social fairness and justice.
In the face of such a solemn and sacred mission, the situation of all lawyers under a lawyer's law should be the same. However, at present, there is a trend of diversification of lawyers in China. In some provinces, autonomous regions and municipalities, some central state organs and large enterprises in China, public lawyers and corporate lawyers have been set up. When the National Lawyers Association was changed in June 2115, many of them became representatives and directors openly. In this way, together with the existing military lawyers, they will form the diversity of lawyers in China. If military lawyers have little contact with ordinary citizens, then with the establishment and development of the team of "two public lawyers", society will see them more and more and hear their voices. Because their duties are different from those of lawyers in the general sense (some people call them social lawyers), their appearance will definitely have a huge impact on the independence of lawyers' profession.
a public lawyer refers to a public servant who has the qualification of lawyer or legal profession, works in a government functional department or is recruited to engage in legal affairs in the above-mentioned department. Once, a deputy director of the Policy and Regulation Department of a State Administration told reporters excitedly after obtaining the first batch of practicing certificates of public lawyers in the system: "If the American negotiator asks me what I do again, I will tell him that I am a lawyer in China." In fact, this also shows the three basic characteristics of public lawyers: first, the duality of identity, public lawyers are both national civil servants or government employees and lawyers; Second, the clients are fixed. Public lawyers can only provide legal services for the service departments, but not for the society. They are not allowed to work part-time in law firms or legal service institutions in the society, and they are not allowed to handle litigation and non-litigation cases outside their own units as lawyers. The third is the fixed salary system, in which public lawyers receive fixed salary directly from the service department.
Let's take a look at the five job responsibilities of public lawyers stipulated in the normative documents: 1. Being a government legal adviser, providing legal advice and legal advice for government decision-making; Two, according to the requirements of the government, to participate in the drafting, review and revision of government regulatory documents; Three, to provide special legal services or organize expert argumentation for major interests and disputes involving the government and the public; 4. Acting for the government to participate in litigation and arbitration activities; Five, other government work should be undertaken by public lawyers. Most of the above five duties are still carried out around the "will of the chief executive", and the independence of the work of public lawyers is difficult to reflect.
the author thinks that although public lawyers mainly deal with the micro-legal affairs of the government, they are not fundamentally different from some functions of the government's legal affairs office. If it is only for the convenience of government staff to consult the case files, it seems to be overkill to set up a lawyer type that competes with social lawyers. Because the object of social lawyer service is all kinds of parties in the whole society, of course, including government functional departments.
A company lawyer refers to a practitioner who is qualified as a lawyer or a legal professional, engages in legal affairs within an enterprise, provides legal services for the enterprise and obtains a company lawyer's practice certificate according to law. In February, 2112, the Ministry of Justice promulgated the Opinions on Launching the Pilot Work of Corporate Lawyers (hereinafter referred to as the Opinions). The Opinions stipulate the responsibilities of the company's lawyers, among which non-litigation business includes providing legal advice on the company's production and operation decisions, participating in the drafting and revision of legal documents of the enterprise, reviewing enterprise rules and regulations, reviewing and managing enterprise contracts, putting forward corrections and suggestions for enterprises' violations of laws and regulations, and carrying out legal publicity and education work and arbitration affairs within the enterprise; Litigation business includes handling litigation business related to this enterprise. Compared with the provisions on the responsibilities of enterprise legal advisers in the Measures for the Administration of Enterprise Legal Advisers promulgated by the State Economic and Trade Commission in May, 1997, it is exactly the same.
Corporate lawyers have been on trial for nearly three years, and there are nearly 711 corporate lawyers serving 151 large and super-large enterprises, including China Life Insurance and China FAW. According to an administrative official who appreciates the corporate lawyer system, corporate lawyers have the advantages of "being close, being responsive, being professional, being informative, responding quickly and keeping secrets well". According to the author, only the first two items are in line with reality, because the company's lawyers are employees of the company, and they must be close, and they must act according to the face of the "boss", of course, "a call should be". As for the other four items, there are no hard facts to prove that they are better than social lawyers.
if "two public" lawyers give legal confirmation, it will definitely break the practice pattern of existing lawyers and make more and more lawyers, especially young lawyers, flow to the company.
Compared with public lawyers, the scope of corporate lawyers' services is narrower, and it depends entirely on the face of a "boss", let alone professional independence.
If a person wants to do something independently, he must have at least two conditions: freedom of thinking and judgment and economic independence from others. The reason why a lawyer can be independent is that his practice is selective, and he can refuse to defend or represent his clients' improper demands. In layman's terms, a lawyer's "food and clothing parents" are uncertain, and he doesn't have to bend over for a particular "boss". But "two public" lawyers can't do it.
There is also a theory that the establishment of corporate lawyers is in line with international standards. No matter that only a few countries have this system and there are still many doubts about it, take the United States, the most economically developed country, as an example. The number of corporate lawyers in the United States has been more than 81 years. However, it is certain that corporate lawyers in the United States are only a highly socialized professional division of lawyers, and there are also immigration lawyers, marriage lawyers, patent lawyers and so on. Some lawyers are engaged in legal affairs of companies full-time because of various social divisions of labor under the extremely developed American economy, in other words, they are not promoted by people regardless of national conditions. Some people unilaterally think that the introduction of the company lawyer system is to take the road of internationalization. This view is naive and out of context. The current situation of China's national conditions and the status of lawyers are far from that of American lawyers. The American system is not suitable for China's national conditions at present. It is actually "pulling out the seedlings to encourage" to rely on one more type of lawyers to connect with the international community, which will inevitably bring many problems that cannot be solved by the current system. The establishment of corporate lawyers seems to be a step backwards, which will inevitably affect the overall competitiveness and cohesion of China's legal profession, slow down the pace of international integration, and lead to the result of "haste makes waste".
To sum up, at this stage, the construction of the rule of law is not perfect, and the construction of lawyers is still in the primary stage. Simply refining the division of labor in the legal profession will inevitably break the practice pattern of existing lawyers and force lawyers, especially young lawyers, to flow to the company; In business, I have to choose to do criminal cases and marriage and family cases. The result can only be a sectarian opposition among lawyers, and it is difficult to unify professional ethics and practice standards, which will increase the distrust between different types of lawyers and degrade each other; The public is confused about all kinds of lawyers, unknown so. At the same time, it is not conducive to the unified management of the whole industry by administrative organs and lawyers associations. They are all lawyers, but they have different modes of life. Lawyers who lack the ability to live independently cannot have the freedom of personality and thought of freelancers, and their independence will be greatly reduced. Therefore, the duties and obligations of public lawyers and company lawyers should be completed by full-time civil servants or company employees, or social lawyers can be hired to perform them. There is no need to set up two new categories of lawyers.
The author has appealed to the legislature and the judicial administrative department for more rigorous investigation and more scientific analysis on the issue of not setting up public lawyers and corporate lawyers for the time being. I also hope that the lawyers can put forward specific suggestions and methods that are in line with China's national conditions and the characteristics of China's lawyer industry, but unfortunately they have not attracted enough attention.
Second, it is a reaction to the independence of lawyers for lawyers to engage in business activities other than their own jobs.
In the United States, the government employs some people from professional lawyers as prosecutors, and the judges of courts at all levels are also selected from senior lawyers who have been practicing for more than 15 years, have good conduct and have no bad records. A aspiring lawyer will certainly be cautious in his practice and keep an innocent record. At the same time, the benign interaction among lawyers, prosecutors, judges and even jurists has formed a good mechanism. Everyone uses legal norms instead of their respective powers as the criteria for judging, and uses the same way of thinking and evaluation system to reach a reasonable conclusion on a matter or dispute.
how can we form a stable professional identity among lawyers, prosecutors, judges and jurists? The first thing is institutional guarantee. How do lawyers improve their social status? From its own point of view, it must be in line with the standards of prosecutors and judges. The law stipulates that neither prosecutors nor judges can engage in paid business activities. This is specific to lawyers, that is, lawyers should not engage in other business activities on a part-time basis except for paid legal services allowed by the lawyer law. Although this is reflected in the lawyer's practice norms, it has not yet risen to the legal level, which has brought difficulties to the judicial administrative organs to investigate and deal with these lawyers engaged in business activities. Without solving the problem of lawyers taking part-time jobs for profit, it will be difficult to purify the profession of lawyers.
the so-called "occupation" refers to the work that individuals do to serve others or society and serve as their main source of livelihood. The lawyer's job is to provide legal services to the society, so his income should come from the process of providing legal services. The professional mission of a lawyer is to safeguard human rights and social fairness and justice. He only obeys the law and protects the rights and interests of the clients within the scope permitted by the law, not just the clients. This determines that the basic attributes of a lawyer's profession do not include commerciality, and lawyers should not and cannot be driven by financial interests.
in the process of pursuing fairness and justice, money is very important to.