The significance of lawyers' independent practice according to law

In the early 1980s, when China's lawyer system was just restored, the professional orientation of lawyers was "national legal workers". 1996 After the promulgation of the Lawyers Law, lawyers were redefined as "practitioners who have obtained lawyer's practice certificates according to law and provided legal services to the society". Professor Peking University Chen Xingliang further pointed out 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 bound by 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 social fairness and justice. China's current "Judges Law" stipulates: "Judges are not subject to interference from administrative organs, social organizations and individuals when trying cases according to law." The Procurator Law also has corresponding provisions: "Prosecutors shall perform their procuratorial duties according to law and shall not be interfered by administrative organs, social organizations or individuals." This legally determines the professional independence of judges and prosecutors. Although the current Lawyers Law does not explicitly give lawyers professional independence, it is the mainstream trend of the international community. For example, Article 1 of the German Federal Lawyers Regulations stipulates: "Lawyers' position in the judiciary is independent 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 solicitor in the Supreme Court is an official of all courts in Canada's autonomous territory." Therefore, the independence of the lawyer profession should also become the proper meaning of our lawyer system. One article should be added to the new Lawyers Law: "Lawyers practice according to law and are not subject to interference by 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 the lawyer 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 the law 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 according to 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 violated by state power, not to mention the abuse of power and dereliction of duty of 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 exists between the parties independent of state public power. By providing legal services to the parties, illegal rights can be restricted and the legitimate rights and interests of the parties can be safeguarded. Lawyers are the representatives of this power. With its unique professional independence, 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. This independence is manifested in two aspects: first, lawyers are relatively independent from the government, judges and prosecutors, have the courage and ability to fight against 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 their clients in their practice. Lawyers are defenders or agents of clients, not submissive vassals and spokesmen who lose their independent personality. Lawyers have the obligation to protect the legitimate rights and interests of clients and keep their secrets, but they also have the right to refuse the improper demands of clients that violate the law, exercise their defense rights independently according to facts and laws in criminal defense and express their defense opinions.

Because the interests pursued by the parties are not always consistent with the legal provisions and social fairness and justice, and sometimes even conflicts of opposites occur, individual lawyers will increase their income based on the realization of the improper interests of the parties, making lawyers blindly cater to the parties, deviate from the facts and distort the law, which is bound to shake the credibility of the whole lawyer industry in society.

In order to get rid of the fetters of fame and fortune and resist the corrosion of money, it is very important for lawyers to ensure that they abide by an independent system in addition to their own "conscience" and "morality". We should not only cherish the independence of lawyers as much as 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.

First, the diversification of lawyer types is not conducive to the independence of lawyers.

In most countries in the world, lawyers, judges and prosecutors are all legal professional groups, but they have different division of labor and no distinction between high and low positions. The original intention of establishing the lawyer system in these countries is to let 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 has a clear meaning at the beginning: "Lawyers take it as their duty to protect basic human rights and realize social justice." Article 1 of the Lawyers Law of Taiwan Province Province, China stipulates: "The task of lawyers is to protect human rights, realize social justice and promote democracy and the rule of law. "Therefore, the basic mission of lawyers is to safeguard human rights and social fairness and justice.

Faced with such a solemn and sacred mission, all lawyers should be in the same situation under the constraint of a lawyer law. However, there is a trend of diversification of lawyers in China at present. Some provinces, autonomous regions and municipalities, some central state organs and large enterprises in China have set up public lawyers and corporate lawyers. When the National Lawyers Association was changed in June 2005, many of them became representatives and directors publicly. In this way, together with the existing military lawyers, they have formed 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 great impact on the independence of lawyers' profession.

A public lawyer refers to a public official who has the qualification of lawyer or legal profession, works in a government functional department or is recruited to the above-mentioned department to engage in legal affairs full-time. On one occasion, a deputy director of the Policy and Regulation Department of a state organ excitedly told reporters after receiving the first batch of public lawyers' practice certificates 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 illustrates the three basic characteristics of public lawyers: first, the duality of identity, public lawyers are not only national civil servants, but also government employees and lawyers; Second, customers are fixed. Public lawyers can only provide legal services for service departments, not for the society. No part-time job in a law firm or social legal service institution, and no litigation or non-litigation cases outside the unit as a lawyer. The third is the fixed salary system, in which public lawyers receive a fixed salary directly from the service department.

Let's take a look at the five responsibilities of public lawyers stipulated in normative documents: first, as a government legal adviser, provide legal opinions and legal suggestions 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 believes that although public lawyers mainly deal with the micro-legal affairs of the government, they are not essentially different from some functions of the government's legal affairs office. It seems to be overkill to set up a type of lawyer to compete with social lawyers just for the convenience of government workers to check the case files. 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. From June 5438 to February 2002, the Ministry of Justice promulgated the Opinions on the Pilot Work of Corporate Lawyers (hereinafter referred to as the Opinions). The Opinions stipulate the responsibilities of the company's lawyers, in which non-litigation business includes providing legal advice for the company's production and operation decisions, participating in the drafting and revision of corporate legal documents, reviewing corporate rules and regulations, reviewing and managing corporate contracts, making corrections and suggestions on corporate violations, and carrying out legal publicity and education work and arbitration affairs within the enterprise; Litigation business includes handling litigation business related to this enterprise. It is exactly the same as 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 1997 in May.

Company lawyers have been on trial for nearly three years, and nearly 700 company lawyers have served 150 large and super-large enterprises, including China Life Insurance and China FAW. According to an administrative official who praised the corporate lawyer system, corporate lawyers have the advantages of "closeness, responsiveness, professionalism, large amount of information, quick response and good confidentiality". According to the author, only the first two items are practical, because the company's lawyers are employees of the company, and they must be cronies, and they must act according to the face of the "boss". Of course, "one phone call should be enough". As for the other four items, there is no conclusive fact that they are better than social lawyers.

If the "two public" lawyers are legally confirmed, 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 service scope of corporate lawyers is narrower, depending on the face of a "boss", not to mention professional independence.

If a person wants to do something independently, he must have at least two conditions: freedom of thought and judgment and economic independence from others. A lawyer can be independent because his practice is selective, and he can refuse to defend or represent his clients' improper demands. In layman's terms, a lawyer's "parents" are uncertain, and there is no need to bend over for a specific "boss". But the "two public" lawyers can't do it.

There is also a theory that the establishment of corporate lawyers is in line with international standards. Let's not say whether only a few countries have this system here. There are still many doubts. Take the United States, the most economically developed country, where corporate lawyers have a history of more than 80 years and a large number. But what is certain is that corporate lawyers in the United States are only a highly socialized professional division of lawyers, as well as immigration lawyers, marriage lawyers, patent lawyers and so on. Some lawyers are full-time engaged in legal affairs of companies because of various social divisions of labor under the extremely developed American economy, in other words, regardless of national conditions, they are not promoted. Some people unilaterally think that the introduction of the company lawyer system is an international road. This view is naive and taken out of context. China's national conditions and the status of lawyers are far from those of American lawyers. The American system is not suitable for China's national conditions at present. Relying on one more type of lawyer to connect with the international community is actually "pulling out the seedlings to encourage them", which will inevitably bring many problems that cannot be solved by the current system. The establishment of corporate lawyers seems to be a retrogression, which will inevitably affect the overall competitiveness and cohesion of China's lawyer industry, slow down the pace of international integration, and lead to the result of "haste makes waste".

In short, the construction of the rule of law is not perfect at this stage, and the construction of lawyers is still in the primary stage. Simply refining the division of labor in the lawyer industry 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 criminal cases and marriage and family cases. The result can only be sectarian opposition between 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 their lifestyles are different. Lawyers who lack the ability to live independently cannot have the personality and freedom of 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, and social lawyers can also be hired to perform them. There is no need to establish two new categories of lawyers.

The author appeals to the legislature and the judicial administrative department to conduct a more rigorous investigation and scientific analysis on the issue of not setting up public lawyers and corporate lawyers for the time being. I also hope that 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.

Two, lawyers engaged in business activities other than their own jobs is a response to the independence of lawyers.

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 15 years or more, have good conduct and have no bad records. An aspiring lawyer will certainly practice cautiously 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 draw a reasonable conclusion on a matter or dispute.

How to form a stable professional identity among lawyers, prosecutors, judges and jurists? The first is institutional guarantee. How do lawyers improve their social status? From itself, it must meet 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 are not allowed to engage in other business activities on a part-time basis except for paid legal services permitted by the Lawyers 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 in investigating these lawyers engaged in business activities. It is difficult to purify the profession of lawyers without solving the problem of lawyers taking part-time jobs for profit.

The so-called "occupation" refers to the work that individuals do as their main source of life in order to serve others or society. A 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 lawyers is to safeguard human rights and social fairness and justice. He only abides by the law and protects the rights and interests of the client within the scope permitted by law, not just the client. This determines that the basic attributes of the lawyer profession do not include commercialization, and lawyers should not and cannot be driven by economic interests.

In the process of pursuing fairness and justice, money is a double-edged sword for every lawyer's morality. If there is not enough income, lawyers can't maintain a stable life and can't do anything in the face of temptation; If we just blindly pursue money, it can only become a tool to make money, which is really a waste of money. If lawyers want to gain a foothold in society, in the final analysis, they should strengthen the training of "professionalism" and practice their excellent skills in order to provide better services and be recognized in social competition.

For some time, there has been a misunderstanding in society that the value of lawyers is measured by their income. Lawyers' extreme pursuit of economic interests will greatly damage the image of lawyers, especially individual lawyers, and even leave their jobs to engage in various commercial activities in society, which will directly lead to public resentment and dissatisfaction with the lawyer industry.

Take Xi 'an as an example. There used to be experienced practicing lawyers who engaged in business activities part-time outside, took advantage of their positions and legal expertise to take state-owned assets for themselves, and finally they were jailed and discredited. There are also a few lawyers who are engaged in hotels, restaurants, entertainment places, real estate and auction houses. , causing adverse effects in society.

In my opinion, it is necessary to increase the ban on practicing lawyers from engaging in other business activities during the revision of the new Lawyers Law. There are at least two reasons for this requirement. First, a lawyer is a noble profession, just like a doctor, which needs social recognition of its own value, but it should not only aim at money, but also have a strong business atmosphere; Secondly, lawyers may know or be exposed to many personal privacy and business secrets because of their special occupation. If you participate in other business activities, you may use this convenience to serve yourself or even harm the interests of the parties, which should be prohibited. Moreover, engaging in other business activities will inevitably affect the independence of lawyers' profession, make them take advantage of the loopholes of the law and obtain greater profits, which deviates from the original intention of the lawyer system.

In addition, it is necessary to strictly implement the procedures and contents of the initial investigation and annual inspection of lawyers in the new Lawyers Law. Take lawyers practicing in Xi 'an as an example. As far as I know, there are not less than 5% registered lawyers who wear "two skins". They are either national civil servants or bosses and employees of enterprises. They use personal relationships or forge some archival materials, send personal relationships to the talent exchange center for a turn, and get the identity of lawyers. Neither delay their fixed work or business activities, but also solicit lawyer's business and activities everywhere in the name of "lawyer" This situation has seriously damaged the independent image of lawyers and legal professionals and must be resolutely curbed. The author suggests that the new "Lawyers Law" should authorize the judicial administrative organs to formulate stricter lawyer admission procedures and strengthen the investigation of personal identity; For the management of lawyers' files, judicial administrative organs and lawyers' associations should also establish their own management systems. Strive to maintain the purity and professional independence of the lawyers.

Brandeis, a famous American lawyer, worriedly pointed out in his book The Opportunity of Lawyers: "There is no doubt that the status of lawyers in people's minds today is not as prominent as it was 75 years ago or indeed not as prominent as it was 50 years ago; However, the reason is not the lack of opportunities. On the contrary, lawyers don't abide by the independence between the rich and the public-they indulge themselves as vassals of big companies to the maximum extent, while ignoring the obligation to use their rights to protect the public. " Perhaps China's lawyers are also facing the same dilemma. In the face of power and money, please choose independence. Finally, I ended this article with the words of a lawyer in Beijing: "What lawyers advocate should be to act according to law; Lawyers should pursue the dignity of the law; What lawyers are persistent should be the realization of judicial justice. "