Abstract: Unfair competition in the legal profession is an increasingly prominent problem in the legal profession at present. This paper deeply analyzes the causes of unfair competition in the lawyer industry.
The necessity and feasibility of prohibiting unfair competition in the lawyer industry are also discussed.
Keywords: the necessity and feasibility of unfair competition among lawyers
Unfair competition, as a legal concept, first appeared in 1883, accompanied by the emergence of commodity economy competition.
Paris Convention for the Protection of Industrial Property, which stipulates: "Any competitive behavior that violates honest management in industrial and commercial activities constitutes improper behavior.
When competitive behavior. "China's" Anti-Unfair Competition Law "defines unfair competition behavior as the operator's damage to the legitimacy of other operators.
Rights and interests, disrupting social and economic order. Unfair competition in the legal profession mainly refers to lawyers or their practice institutions (law firms).
Violation of the principles of fairness, equality, honesty and credit, obstruction of other lawyers or lawyers' affairs through false propaganda, slander, low-cost charges, etc.
The normal business of the firm has damaged its legitimate rights and interests, disrupted the legal service market and disrupted the judicial order. Violations in the legal profession
When there are both connections and differences between the competition of general market subjects and unfair competition, lawyers are also market subjects from a certain point of view and have a market.
The general attribute of the subject, but it is significantly different from the general market subject. Lawyers not only protect the party who signed the entrustment contract with them.
The obligation of legitimate rights and interests is also the obligation to safeguard the correct implementation of socialist laws. Therefore, there is unfair competition in the lawyer industry.
It involves not only the standardization of the legal service market, but also the realization of the goal of the rule of law in China, which is unfair to the lawyer industry.
It is necessary to discuss this controversy.
Firstly, the reasons and characteristics of unfair competition in the lawyer industry are analyzed.
The deep-seated reason of unfair competition in China lawyer industry is the change of lawyer's legal status. 65438+August 0980
On 26th, at the15th meeting of the Standing Committee of the Fifth NPC, the Provisional Regulations of People's Republic of China (PRC) were discussed and adopted.
The Regulations (hereinafter referred to as the Regulations) position lawyers as national legal workers, and lawyers' practice institutions are legal advisory offices.
Public institutions. Under the planned economy system, there is no real exchange and circulation, no conflicts and disputes, and all the problems are
Is pre-arranged, enterprises or producers do not have their own independent identity, independent consciousness and independent management rights, and do not have independence.
This kind of legal personality, laws or rules under this system can not have the equivalence of rights and obligations, because the laws here
In other words, rules are actually the embodiment of the commander-in-chief's will, a tool to carry out the commander's intention, and its purpose and function are to combine.
The relationship between authority and obedience is fixed. In the planned society, there is almost no independent legal service demand for social subjects. Because of the lines.
Political order stifled it. Lawyers and their practice institutions only exercise state functions and do not participate in market competition.
In the past, its funds were allocated by the state finance and included in the national business budget, so it would not be justified under the market economy.
Competition and unfair competition. After the 14th National Congress, China began to enter the period of socialist market economy construction. 1993.
In February, 65438, the State Council approved the Plan of the Ministry of Justice on Deepening the Reform of Lawyers' Work, which clearly stated: the reform of lawyers' work in China.
The overall goal is to define the nature of law firms without adopting the ownership mode of means of production and administrative management mode, and to establish
Adapt to the needs of the socialist market economic system and international exchanges, with China characteristics, and implement voluntary combination and self-support.
A lawyer system of support, self-development and self-restraint. The legal role of lawyers and their practice institutions is gradually implemented by state functions.
Transition to the market, the law firm has gradually incorporated into the ranks of the socialist market economy, lawyers through their own knowledge,
Skills provide legal services for clients, and clients pay their lawyers by paying money. Lawyers and clients
The social contract behavior reached between lawyers is essentially a commercial behavior. From this perspective, lawyers and their law enforcement
There is no difference between industrial institutions and general market players. In a sense, lawyers are also commodity producers and operators.
However, the goods it provides are intangible and an intellectual achievement. As a subject driven by market interests, in order to pursue profits.
In order to maximize the benefits, the competition between lawyers and their practice institutions is inevitable, and the competition is inevitably accompanied by injustice.
Competition. With the promulgation of 1996 Law on Lawyers, the legal status of lawyers in the market economy system has been further improved.
Obviously, lawyers are practitioners who provide legal services to the society. Lawyers are no longer a compulsory job that depends on the state power machine.
The way for competent executors and lawyers to perform their duties is a way of legal help based on non-mandatory two-way choice.
Therefore, from the above analysis, it can be seen that the deep-seated reason why the lawyer industry has intensified from non-existent competition to unfair competition is because of me.
The transformation of China's socialist economic system has led to the change of lawyers' legal status.
In addition to the above-mentioned deep-seated reasons, the internal and external mechanisms of the lawyer industry and its environment are not suitable for the industry.
When competition also plays a certain role in fueling the flames, these internal and external mechanisms mainly include the following points: (1) part-time job and special invitation law.
The existence of teachers is one of the main reasons leading to unfair competition in the lawyer industry at this stage. In China, due to the shortage of lawyer resources,
The tension led to the emergence of part-time and invited lawyers, and coexisted with full-time lawyers for a long time. At this stage, China's
Part-time or invited lawyers are mostly law teachers in some universities and retirees from judicial organs, and they are related to judicial organs.
There are countless ties between organs, such as the teacher-student relationship between law teachers and some judges in colleges and universities, the separation of judicial organs,
Retirees often hold important positions in the former judicial organs), and their dual or multiple special identities make them more
Other lawyers have more sources of cases and chances of winning. In addition, part-time and invited lawyers have advantages over full-time lawyers.
Because of its looseness and randomness, it is difficult to get strict and standardized professional management, which also causes lawyer service to some extent.
Market management is chaotic. From the perspective of foreign lawyers, most lawyers in western countries are professional lawyers, aren't they?
Allow other forms to exist. To this end, some scholars put forward the idea of canceling part-time jobs and inviting lawyers, which the author agrees with.
Same; (2) The relevant laws and regulations lack uniform and clear norms on the unfair competition behavior of lawyers and their practice institutions.
There is no unified organization to supervise and manage its unfair competition, which leads to unfair competition in the lawyer industry.
Although it exists on a large scale, it has not been paid enough attention. (3) The laws of external related systems are unreasonable.
The existence of unfair competition in teachers' profession. For example, in the tax and fee system, when taxing law firms, they tend to be qualitative and practical.
The tax rate is high, and when setting the charging standard, it tends to be characterized by public institutions and implement low fees, and because all localities are
There is a gap in tax and fee standards, which leads some law firms to implement unfair competition by evading the law. That is, implement it first.
Register in areas with low tax rates, and then set up branches in areas with developed economy and high tax rates to avoid tax; (4) society
The overall orientation of society and the value orientation of the parties urge lawyers to pursue victory as the goal of handling cases, and the society as a whole guides them
A lawyer who can win a lawsuit is a good lawyer, and it is based on this value orientation that the parties choose to entrust a lawyer. for
Winning the case, some lawyers and law firms have to use various means to conduct unfair competition through various channels; Therefore, law firms
The unfair competition in the industry also has a lot to do with the current social atmosphere.
At present, unfair competition in the lawyer industry mainly has the following characteristics: (1) unfair competition mainly occurs in
Some economically developed large and medium-sized cities and coastal areas; In these places, due to the concentration of lawyers and law firms, many lawyers
In order to compete for the limited source of cases, law firms will inevitably use various unfair means to compete for business and crowd out their peers; (2) Improper
The means of competition are diverse and hidden. 1995 Although the Ministry of Justice issued the Opinions on Opposing Unfair Competition in the Lawyer Industry,
Several Provisions on Behavior (hereinafter referred to as the "Regulations"), but due to the unclear definition of unfair competition behavior in the lawyer industry,
In reality, some unfair competition behaviors are not included in the list of unfair competition, and there are various means of unfair competition in reality.
Cultural characteristics. For example, the Regulations lack detailed regulations on advertisements of lawyers and law firms, which leads to various types of lawyers.
Examples of unfair competition in advertisements abound, and some false and exaggerated propaganda confuses the audience and misleads the parties, which is serious.
It has damaged the image of lawyers in the eyes of the broad masses of the people and disrupted the order of the legal service market. And because of the part-time job mentioned earlier,
The unfair competition caused by the existence of special lawyers is very hidden.
Second, the necessity of prohibiting unfair competition in the legal profession.
(a) is the need to standardize the legal professional order.
As a part of the market economy system, the lawyer industry must follow the market rules, which requires the market subject.
In the process of commodity exchange, we should follow the principles of fairness, equality, honesty and credibility, openness and efficiency, otherwise it will inevitably lead to chaos.
Chaos. The socialist market economy maintains and promotes equal and fair competition and opposes unfair competition and monopoly. unfair competition
As an inevitable companion of legitimate competition, it will objectively cause the allocation of resources to deviate from the law of value and cause the unreasonable flow of resources.
As a result, the market mechanism can not function normally. As far as the lawyer industry is concerned, some unfair competition behaviors of lawyers and law firms,
If there is no justifiable reason, it is a serious departure from the law of market value to attract customers on the condition that the fees are lower than the prescribed fees.
Law and market value law require goods to be exchanged at equal value according to their value. Some misleading false propaganda behaviors are essentially
Theoretically, it is also a deceptive transaction, which will cause confusion in the legal service market and make the parties unable to make the right choice.
Did choose legal services, their legitimate rights and interests due to the lack of correct legal guidance and can not be timely legal maintenance, the other
On the one hand, some high-quality lawyers can't get enough cases and opportunities to display their talents because of unfair competition.
In order to survive the competition in the legal service market, it may eventually embark on the road of unfair competition, leading to lawyers.
The decline of professional quality has damaged the overall image of lawyers among the broad masses of the people. Therefore, the legal profession prohibits unfairness.
Competition is the need to standardize the legal professional order, ensure the rational allocation of legal service resources and improve the overall professional quality of lawyers.
(two) is to maintain the correct implementation of the law, to ensure the realization of the goal of the rule of law in China.
The 15th National Congress clearly stated that the goal of socialist rule of law in China is to govern the country according to law and build a socialist country ruled by law.
The realization of justice and the rule of law depends on the implementation of the principles of observing the law, strictly enforcing the law and prosecuting criminals. Jiu lawyer office
Professionally speaking, although lawyers are no longer the executors of national legal functions, they still undertake the fundamental task of maintaining the correct implementation of laws.
The fundamental task of lawyers has two meanings: (1) lawyers and their practice institutions must act in strict accordance with the law; (2) lawyers have the responsibility to
Supervise law enforcement agencies and parties to act in strict accordance with the law. Realizing the fundamental task of lawyers is an important link to realize the goal of China ruled by law.
Festival. Therefore, if a lawyer deliberately denigrates the reputation of other lawyers or law firms during his practice, it is intentional.
It is illegal to create disputes and other unfair competition between agents and their agents, which is not only impossible to achieve.
The fundamental task of lawyers is to seriously undermine the construction of socialist legal system. Besides, lawyers take advantage of their other advantages.
Status (for example, having held a leadership position in the administrative and judicial departments or having a special relationship with the current leaders of the administrative and judicial departments)
Unfair competition in the legal service market will seriously interfere with the independent exercise of judicial power and procuratorial power by judicial organs in China.
The right of inspection violates the rule of law principle of "there are laws to follow, laws to be followed, law enforcement to be strict, and offenders to be prosecuted", so it is prohibited.
Unfair competition in the legal profession requires lawyers and their practice institutions to act in strict accordance with the law, which is determined by the fundamental task of lawyers.
The prohibition of unfair competition in the legal profession is conducive to the judicial organs to eliminate interference, handle cases independently according to law and ensure the correctness of the law.
The use is of great significance. Fundamentally speaking, prohibiting unfair competition in the legal profession is the need to ensure the realization of the goal of China ruled by law.
(3) It is necessary to participate in international competition.
Market economy is an open economy, which requires the establishment of a unified and open domestic market system on the one hand and the state on the other.
Internationalization of the internal market, joining the international economic cycle, realizing the rational allocation of social resources on a global scale, thus promoting the whole society.
The development of productive forces. From the legal service market,1June 26th, 992, Ministry of Justice, State Administration for Industry and Commerce.
The Interim Provisions on the Establishment of Offices of Foreign Law Firms in China jointly promulgated stipulates that foreign law firms
Without the approval of the Ministry of Justice and the registration of the State Administration for Industry and Commerce, it is not allowed to set up an office or engage in business activities in China.
Move; Do not evade the law and engage in legal service activities in the name of consulting companies, business companies or other names; Foreign lawyers are not allowed
Directly set up a law firm in China or jointly set up a law firm in China with China. In addition, handle affairs
China lawyers shall not be hired, and China legal affairs shall not be handled. These regulations actually restrict the external market of legal services.
Open. However, starting from 1986, China formally put forward an application to restore GATT seats in order to obtain the right to "re-enter GATT".
199 1 In July, China took the first step to open to the world, including banking, advertising and tourism.
The initial commitment of six professional service industries 1992 officially began to allow foreign law firms to set up offices in China.
Pilot work in the office. During the negotiation process of applying to join the WTO, China submitted a commitment to open the service trade market.
According to the commitment, once China joins the WTO, the legal service market as a part of professional service trade will be gradually opened.
With the opening up, the restrictions on foreign lawyers' business will be gradually lifted, and the competition between domestic and foreign lawyers will be intensified. As far as their strength is concerned,
Domestic law firms are inferior to foreign law firms in terms of service concept, management mode and soft and hard working environment.
In this case, if domestic lawyers and law firms do not pay attention to improving their own quality and improving the soft and hard service environment, they will still.
Focus on cracking down on unfair competition behaviors such as pulling relationships, entering through the back door and charging low fees, and the result will inevitably be lost in the market.
Competitiveness was eventually eliminated by the market.
Second, the feasibility of prohibiting unfair competition in the legal profession.
The key to the feasibility of prohibiting unfair competition in the lawyer industry lies in how to implement the norms or regulations prohibiting unfair competition.
Put it into practice. It should be said that China's legal theorists and practitioners have asked about unfair competition in the lawyer industry earlier.
As early as 1995, the Ministry of Justice formulated "Several Provisions on Opposing Unfair Competition in the Lawyer Industry".
Set ",defines the acts of unfair competition, and stipulates the legal responsibilities and disciplinary institutions that unfair competition should bear.
However, the performance of this provision in practice is not good, and the unfair competition in the lawyer industry has not been curbed, but
Is spreading, and today, the issue of unfair competition in the lawyer industry has once again become the focus of discussion in the theoretical and practical circles of law.
Point, its core problem is still the feasibility problem, the author believes that the prohibition of unfair competition in the lawyer industry can start from the following aspects:
(1) The prohibition of unfair competition in the lawyer industry should be adjusted by the legislature to formulate legal norms; Functions of China Lawyers Association
It is very different from foreign lawyers' associations. For example, the American Bar Association (ABA) has legislative power, and American lawyers' legislation is formulated by ABA.
It is not implemented by the legislature of the government, and its laws and regulations are passed by the parliament or high court of the state government.
General compulsion. China Lawyers Association is a legal entity and a self-regulatory organization of lawyers. It has no legislative or legislative power.
Rules do not have mandatory normative function, but only have general normative and guiding function in the industry. Therefore, in China, only
In the absence of compulsory protection, it can only be an expedient measure to prohibit unfair competition in the lawyer industry through self-discipline or industry norms.
In the long run, only by raising the level of adjustment to the level of legislation, that is, formulating universally mandatory legal norms.
Can realize the prohibition of the order; Because of the moral justice of legal norms, the clarity and stability of form and content,
The universality and authority of the whole society in effectiveness are incomparable to other social norms. (2) in the prohibitive norms
We should accurately define the connotation and extension of unfair competition behavior and try to clearly define unfair competition behavior by enumerating 2.
That kind. China 1995 "Regulations" of the Ministry of Justice have little effect, which is unfair competition to a great extent.
The definition of disputed behavior is unclear, and the extension of enumerated behavior is too wide. For example, regarding advertisements in the lawyer industry, its provisions do not
Propaganda that conforms to reality is unfair competition, but it is difficult to grasp which behaviors are not in line with reality in practice; In fact,
Some propaganda, even if it is realistic, may constitute unfair competition, for example, a lawyer has a relationship with a judge or something special.
Relationship, lawyers have served as the president of the court or other leadership positions, these facts are in line with reality and reality.
The main way or method of unfair competition, but it is obviously inappropriate to exclude it from unfair competition in the Regulations. (3)
We should improve the legal supervision mechanism of unfair competition in the lawyer industry, improve the lawyer punishment institution and establish the lawyer punishment system.
Committee office. Strengthen the functions of the Lawyers' Disciplinary Committee, and investigate and punish lawyers who engage in unfair competition in strict accordance with the law.
And the legal responsibilities of its practicing institutions. 1995 After the promulgation of the Regulations, unfair competition in the lawyer industry not only disappeared.
To curb it, it will often spread, mainly because of the lack of corresponding internal and external supervision mechanisms and imperfect disciplinary mechanisms, such as
Lawyers' disciplinary institutions are not perfect, and the functions of lawyers' disciplinary committees have not been strengthened. Unfair competition in lawyer's practice
There are obvious disputes, such as relationship cases and human cases, but there are many problems in practice because of the lack of effective internal and external supervision mechanism.
There are few reports of unfair competition in the lawyer industry, which leads to few cases of unfair competition in the lawyer industry.
The legal responsibility and legal sanctions of Guan can not be implemented, and the mandatory and authoritative nature of the law can not be reflected. Legal norms are just
It will only be effective if it is implemented. Therefore, it is necessary to prohibit unfair competition in the lawyer industry and ensure the healthy development of the lawyer industry.
The focus of the work should be how to implement the corresponding norms or regulations.
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