Part-time lawyers on the abolition of the system I see

It is understood that China's relevant depArtments under way <<Counsel Law "> modification Research. In this process, whether to retain pArt-time Lawyers abolition of the system there are two views. I believe that the system is not only pArt-time Lawyer before the Lawyer an important component of the system, but also for the future development of our legal system and in building the country's democratic and legal system will continue to play an important role. Therefore, we should continue to preserve and to perfect, not abolished it.

First, the Lawyer system of pArt-time status of the origin and early fifties of last century, our legal practice, Law, University of teachers have been designated as the defender of the phenomenon, but the production of the legal system as a pArt-time lawyer system is Beginning in the early 80s of last century, the Third Plenum is made to "carry forward socialist democracy and building a socialist legal system," the strategic task of recovering the product of the lawyer system. the production of its legal basis in August 1980 five 15th NPC Standing Committee, adopted by the Conference <<Interim Regulations of the PRC Law> "(hereinafter referred to as <<Bar Interim>> the relevant provisions.

Recover the beginning of the lawyer system was mainly established system of part-time lawyers because after 20 years of political killing the one hand, when the country needed after the legal professionals, on the other urgent lack of legal professionals. In view of this, "<lawyer Interim> > restore law system in establishing the beginning of the actual situation in the light of the solicitor is not set too high at the same time, also provides that "the Bar are unable to leave their own, and can serve as part-time lawyers", thus the creation of part-time lawyer system As an important supplement to full-time lawyers. In order to encourage eligible but unable to leave their staff to work part-time lawyer, "<Ordinance>> In addition to the provisions of the" People's Court, People's Procuratorate, the people serving the public security organs may not act as counsel work ", the special emphasis on" part-time lawyers should be given support unit. "

At the same time, the Justice Department also created a special counsel with the characteristics of the system in China, those from the public, prosecutors, and judicial organs away, retired, who meet certain conditions related to the legal profession are also absorbed in the In 1984, 1986 Ministry of Justice and has issued a <<part-time lawyers and special counsel management practices> "and" The <part-time lawyers and special counsel management approach to the supplementary regulations>> to make part-time lawyer and special counsel system was further standardized. Based on these provisions not only a considerable part of the legal departments, Research institutions, professionals as part-time lawyer, and a large number of government agencies, social organizations, enterprises and institutions serving staff and some from retired personnel into the part-time, special counsel team.

May 15, 1996 <<PRC Lawyers Law "> at the Eighth National People's Congress passed the 19th meeting, which still retains a part-time lawyer system. In the same year in November the Ministry of Justice issued a <<part-time lawyer personnel management practices>> and clear that in 1984, released in 1986 on part-time lawyers and special counsel "above" Management Measures> "and" <Supplementary Regulations>> the same time abolished. This new system provides for part-time lawyers an important adjustment, the part-time lawyer who clearly defined the scope of the conditions in conformity with the relevant "law schools (department, law Research unit engaged in teaching and Research staff."

However, due to various reasons, the Justice Department's new regulations is not being strictly enforced. At the same time the wide variety of sources, overcrowding, the uneven quality of the business, the management of difficult and other reasons, part-time lawyers there have been some issues, such as Some part-time staff undermines the image of national staff, and some part-time staff of the host government agencies, enterprises and work units caused some impact, and some part-time staff and poor quality of legal services. To this end, in 2003 Justice Department in accordance with the new regulations on part-time lawyers in the country had a clear specification. According to the statistics, clear specification before, there were 10,738 part-time lawyers to clean up after the specification was reduced to 6850, accounting for 6.4% of the total number of lawyers.

Can be seen that the development of part-time lawyers experienced a number of people on from the encouraging to the restrictions, from the broad to the strict conditions in the career part-time from a variety of professions can to limit the legal institutions, Research institutions, professionals only may be part of the process.

Second, the foreign part-time part-time lawyer profile lawyer system was not our original system, the foreign long with them. Some people call the "No public official part-time lawyers with international practice. Throughout the international community, most countries have implemented full-time management of lawyers, very few allow other public officers in part-time lawyer. Even the teaching and research institutions are no exception (full-time lawyers in a foreign country can be part-time teaching and research positions, but not full-time to part-time teaching and research staff attorney. "[i] The prohibition on foreign public officials that part-time lawyers is really true, but on "teaching and research institutions are no exception," the claim does not meet the actual situation.

The United States is the world's most developed law system, lawyers, the largest number of countries. According to statistics, 290 Americans in 2003 had a lawyer. [Ii] in the United States, the law school part-time teaching and research staff lawyers The lawyer system is an important feature, and in the lawyer system plays an important role. In many Chinese people know of intentional homicide in the United States Simpson, as the defender of the eight famous lawyers in America, where AIDS came from Harvard University�׵�Фά�� professor is part-time professor and Beilijinke lawyer. [iii] the number of lawyers in Germany and the proportion of the population in 2003 was 1:679. [iv] Similarly, law schools, research institutions, professors, associate professors can work part-time lawyers .2004 June, and the author Max-Planck Institute for Foreign and International Criminal Law visit, the owner of the reception for the visiting professors have three part-time lawyers.

In Italy, the <<lawyers and prosecutors Law "> Article 30, with certain qualifications University law professor and more than 3 years of higher Education colleges have the same qualifications and the qualifications to obtain free lecturers engaged in teaching duties for at least 8 years , and its related teaching and legal profession who have the right to a lawyer the court in its roster of residence registration, part-time lawyer. In addition, under the provisions of section 34, a professor of Law at the University and the University College in 5 years similar teaching faculty and instructors in the post-qualification for free at least 8 years in teaching, the teaching and legal profession about who can work in a law by the National Commission in charge of the special register on the registration, which allowed the Supreme Court , the Supreme Administrative Court, Court of Audit, higher courts in the legal services of public water.

Qualified Japanese lawyers are generally very difficult to obtain, but according to the Japanese <<Counsel Law "> requirement to meet certain conditions of university departments, special training course or the University Institute of Law professors, associate professors, can be made without judicial examination lawyers qualified and part-time lawyer. In Greece, a university professor can also serve as lawyers, can appear in the Supreme Court and Court of Appeal.

The existing common law countries, there are civil law countries, both European and American countries, there are Asian countries, countries in the legal system, including lawyers, although there are considerable institutional differences, but they set up a system of part-time lawyers, and the main legal universities, research institutions engaged in law teaching, research and academic status to obtain certain professionals engaged in the work of part-time lawyers. Obviously this is not due to causal factors or simply the product of the subjective will, but are intrinsically bound to cause or objective the development of the lawyer system law dictates. worthy of our consideration and reference.

Third, China should keep the reasons for the current system of part-time lawyers, in discussing the changes <<Counsel Law "> in the system part-time lawyers who advocate the abolition of the main reasons are: (1 of the existing law has reached 12 thousand people, need part-time lawyers social and historical conditions are long gone, (2 part-time lawyers have their own work, and the source of dispersion is not conducive to management, is not conducive to the formation of a lawyer specialization, scale of operations is not conducive to the core of our legal overall improvement of the competitiveness, (3 part-time lawyers and more to "earn extra money" and engaged in the practice of law will result in corruption, damage to the dignity of the law, (4 part-time lawyers have a stable source of income, and then handling money, not fair to the staff attorney, is unfair competition , (5 and some part-time lawyers, "and" the name of the "special" as the real, the surest of their jobs, have a negative impact to the host unit, and so on.

For the above reasons can not say that does not make sense, but some of the system due to the existence of part-time lawyers lack a deep understanding of the necessity, as the first (1 point reason, some part-time lawyers should be preserved just to justify the system should be abolished as a miscarriage of justice basis, where subsection (2 points reasons. For this later in this article focuses on two points. As for (3 (4 (5 reason, it is exaggerated to an individual phenomenon, an overstatement. For example, the impact of the work of the unit problem, after After the clean-up specifications, institutions, enterprises and institutions who can not work part-time lawyers, the impact of their own work problems no longer occur. and legal Education, the researchers are not usually imprisoned, can coordinate the relationship between their own and part-time. In addition, the management of a unit responsibility. In short, the above can not be the full and compelling reason to cancel the system of part-time lawyers.

The author argues that China should continue to retain part-time lawyer system, the specific content of the Ministry of Justice insisted November 1996 <<part-time staff lawyer Regulations>> the provisions of the spirit, the part-time staff lawyer qualified to meet certain conditions in the School of Law School (Department of Law legal research units engaged in teaching and research work related professionals, government agencies, enterprises, institutions or other person who no longer part-time lawyer. As for the legal Education, the researchers engaged in part-time lawyers, "certain conditions "you can learn foreign practices, and according to the actual situation of our country, especially the number of existing part-time lawyers, composition and projections of future development, from Education, degree, job title, experience, and the relationship between the lawyer made a reasonable setting, so that the negative effects of part-time lawyer system to minimize, maximize the positive meaning of the play.

The above propositions of the reasons I put forward the following two main aspects:

(A lawyer system in China, lawyers industry as a whole, the significance of long-term development

1. The status of our country to make up for the role of lawyers

After 20 years of history, our lawyers has grown to 12 million people. It is precisely because of this, some people say, "Today, our public officials to allow the social and historical conditions of part-time lawyers have long ceased to exist", and push and extensive that "A country has the rule of law in the early start, lawyers, human resources under conditions of extreme deprivation, will allow other sectors of public officers in part-time lawyer." [v]. In fact, just as beginning of this article said, our part-time lawyers early establishment of the system is indeed mainly to solve the problem of lack of personnel law, but this is only the surface reasons for short-term needs, not to establish a state system of the root causes of part-time lawyers. otherwise we can not explain the U.S., Germany and other developed countries, the lawyer system has been one or two hundred years of history, hundreds of lawyers have reached the level of individuals there is a lawyer, why there are part-time lawyer system.

Although the lawyer is now 12 thousand people, but no matter now or in the long term view, does not mean that the number of lawyers in China have been satisfied. From the front, China's uneven distribution of existing law, except for some economic development faster city lawyers are concentrated, most of the region, particularly in remote and backward areas, or shortage of lawyers in the. More importantly, our existing law of more than 120,000 troops from composition, the quality point of view, the whole or uneven , and a considerable number of lawyers have lower Educational attainment, experience shallow, with little experience to be a professional lawyer. by a legal education, research professionals as the main part-time lawyers into the team can largely compensate for these deficiencies.

2. By mass, to help with, the overall quality of the impact of law and improve

Although the small number of part-time lawyers, but are active in the legal departments of experts, academics, learn a director, with some special, and then spread up to all law firms, in addition to the legal system of a single unified nation, to practice free movement of lawyers to handle cases across the country, which makes them the same as the planter, up where, wherever handling cases where the lawyers of the lawyer and the lawyer handling the case to play an important pass, to help with the role. In particular, along with the rapid development of market economy and the growing trend of globalization, in developing and teaching a number of new lawyers business, part-time lawyers can play an important pioneering role model.

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3. Meet the social needs of the culture enough to competent counsel the important value of Talent

At present, China has formed mainly by the law graduates enter the legal profession through the judicial examination entry system. This is the development of our legal system, a major step forward. I engaged in legal education, research, more than 10 years, and had engaged in full-time lawyer for 10 years, but also proposition as the National Judicial Examination Committee, aware of legal education and past the bar exam and began the judicial examination in recent years, and train legal professionals in human resources, including lawyers play a very important role. but also clearly feel that our trained professionals go to work as a lawyer after a considerable period and competent lawyer can not meet the needs of the community, "Gaofendineng" widespread. The main problem lies in the goals of legal education and to develop ideas , content, methods, and on the faculty. quite a number of full-time faculty of law had little contact with legal practice, lawyers and even some specialized system of teaching, legal practice that teachers have no Bar do not have had the case. To improve this situation needs to be done One important measure is to allow law schools (Department of full-time teachers to work part-time lawyers. First of all make their own lawyer to understand and master the basic skills of lawyers, lawyers familiar with strategies and techniques, and then go to teaching students, training lawyers reserve personnel. Otherwise, hard to imagine, lawyers do not understand business, not access to a lawyer to train teachers in practice meet the social needs of qualified lawyers talent!

In fact, this problem the Ministry of Justice has long been recognized, and is beginning to establish part-time lawyer system, 95 years of development <<Counsel Law "> retained lawyer system, 96 am <<part-time lawyer who Regulations>> 2003 in the country part-time lawyers to carry out clean-up specification of the important reasons. In my opinion, this is the system to establish and retain the most important reason for part-time lawyers.

Not only China that, I believe that this is the United States, Germany and other developed countries, economic and legal system has also retained an important reason for part-time lawyers. Japan in May 2004 and by modifying the Code of Criminal Procedure Enactment of the law, introduced a wide-ranging, content is very important judicial reform program, including the speeding up of legal personnel with personnel training is an important measure for lawyers. Since 2004, government departments confirmed that 68 universities in the country established Law School (the equivalent of the Graduate School of Law, specializing in the judicial examination staff training work. and in order to meet the judicial examination of the characteristics and future actual work, absorb and employ a considerable part of the serving judges, prosecutors, lawyers to the of Law School of who has been teaching. [vi] Its purpose is to strengthen the theory and practice combination cultivate more talents to meet the needs of the community. China because of institutional, financial and other reasons not to do so, to retain part-time lawyer system is an effective means.

4. Self-development of the lawyer system, and improve the positive role

Law System in China only 20 years to establish a real time, but also need to constantly develop and improve. And the development of the lawyer system, improve not only the legal profession or the judicial and administrative organs within their own affairs, but also depends on the attention and support of the whole society , including legal institutions, research institutions, experts and scholars of the attention and support. Meanwhile, the development of our legal system, perfect faces conceptual, institutional, resource, and many other difficulties. law schools , research institutions, experts and scholars as detached, familiar with the law, part-time work of a lawyer by the lawyer system can understand the problems and practical difficulties, both in the system level or in the technical and operational level, through the books, said a researcher, comments or participate in legislation, providing advice, will be the development of the lawyer system, improve play a positive and unique role.

(Two pairs of the meaning of democracy and legal system

1. Training of judicial personnel on the positive role

China has a unified judicial examination, newly appointed prosecutors, judges of the sources and ways to achieve the qualification the same as with lawyers, which specializes in the legal reserve personnel training both incentive and a challenge to law schools. If the law faculties of the teachers do not understand the judicial practice, do not know how to handle cases, it is difficult to train much-needed judicial practice "Nengwennengwu" legal talent. to allow law schools (Department of full-time teachers work part-time lawyers, no doubt for the training of qualified judicial personnel have a positive effect.

2. Research on the promotion of legal theory with practice, and building a socialist legal system with Chinese characteristics, the positive role

Legal institutions (departments and research institutions to undertake legal research, for the building of a socialist legal system with Chinese characteristics and ideas of the important mission. To achieve this, theory must contact the judicial practice, otherwise the results will come up divorced from the realities in China, can not play due legal and social benefits. In recent years, national legislation, judicial and education, research management, increasing emphasis on use of open competition published research projects, research tasks assigned to complete the national legislation and judicial practice some important research projects. law schools (the relevant departments and research institutions can be part-time lawyers who work to understand their actual situation in China closely the reality of China research provides an important way, and thus research play an active role in promoting.

3. On the interests of justice, to achieve a direct role in promoting social justice

Legal institutions (departments, research institutions engaged in part-time lawyer on staff, can directly participate in handling cases, deep into the first line of the administration of justice. And because most of them are experts in particular fields of law, in general, the social impact of certain force, and thus undertake judicial practice in cases of mostly large, or complex cases, difficult, new types of cases. through direct handling of cases, not only to maintain the legitimate rights and interests, but also for the maintenance of the correct implementation of law, improve the judicial handling of cases have a direct role in promoting quality.

In addition, China is exploring and promoting judicial reform, the judiciary from the central to local levels attach great importance to listen to the views of legal experts, and some advisory committees or hire them as consultants, direct participation in decision making or providing advice. A part-time lawyers work experience to enable them to acquire a greater voice, played the role of expectations of the judiciary.

4. On the role of national legislation to promote

As China's democracy and legal construction of the continuous progress of the state legislature in recent years, increasing emphasis on the State Department and absorption of the various ministries involved in national legislative and legal experts, administrative regulations, administrative rules and regulations formulated and some have been institutionalized, standardized operation mechanism. This will be their knowledge of legal experts and research results contribute to the country's democratic and legal system is undoubtedly a valuable opportunity. This requires them to work through part-time lawyers and other channels to learn more about judicial practice, to understand China's national conditions and practical problems, put forward constructive suggestions, not doctrinaire, and even advocated a simple analog copying of foreign things.

To sum up, the lawyers, according to the existing number of staff, that "part-time lawyer of social and historical conditions are long gone" point of view is the emergence and existence of part-time lawyers need the system lacks a comprehensive and profound understanding of the one-sided knowledge. matter of law from the perspective of the development system itself, or from the building of democracy and legal system of China's role in terms of production, part-time law system is not only our legal system in the past, an important part, and in the future development of our legal system and State building democracy and legal system will continue to play an important role. Therefore, China should continue to retain part-time lawyer system. At the same time part-time lawyer for the current problems that exist in the system reform and improve, Advantage avoid




Notes:
[I] See Chen Xinyu: "No part-time lawyers is imperative", in Guangming Wang July 27, 2004 Home - "Guangming Wang evaluation."

[Ii] Quoted from: <<2004 White Paper on Japanese lawyers>> on page 34.


[Iii] See the king of people, who Yuexing: <<Justice demands: the case of the United States and China Du Peiwu Simpson case, the comparison>>, Law Press, 2003 edition, p. 36.


[Iv] Quoted <<2004 White Paper on Japanese lawyers>> on page 34.


[V] Chen Xinyu: "No part-time lawyers is imperative", in Guangming Wang July 27, 2004 Home - "Guangming Wang Review."

[Vi] See Gu Yongzhong such as: "Japan recently amended Criminal Procedure Law and the reform of the Criminal justice system", contained <<Comparative Law RESEARCH "" -2005 No. 2.

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