The earliest germination of the lawyer system appeared in ancient Rome in the second and third centuries BC. With the development of social economy, there are more and more lawsuits. Some litigants entrust their relatives or friends to represent them for various reasons. This situation is increasing day by day, and the word Advocatus has appeared. This word means relatives or friends who accompany the defendant in court and give him advice during the trial. At first, Advocatus could only express his opinions to the defendant in court, but did not speak to the court. Later, it developed into expressing opinions to the court instead of the defendant and refuting the other party's allegations.
The first century BC was the evolution period of the Roman Republic and the Roman Empire, and the social contradictions were extremely acute. In order to maintain its ruling order, the Roman ruling class has formulated many laws, decrees and regulations. In line with this, a number of jurists have emerged in the society to study and study law. These people are inextricably linked with the ruling class, and they often give advice to judicial and administrative officials on how to enforce the law. Some of their research results and works were recognized as laws by the rulers. In society, they answer ordinary people's legal questions, give advice to litigants and represent them in litigation. Because the activities of these people are conducive to the stability of the ruling order, in the third century BC, the Roman emperor determined the profession of "great religious couple" in the form of imperial edicts to "consult legal affairs for the common people". At the same time, it is also allowed to entrust others to represent the lawsuit, so the "professional lawyer" officially appeared.
The form of litigation in ancient Rome was debate. Both parties have equal status in litigation. They can fully state their opinions in court and refute each other's claims. The judge made a decision according to the result of the debate. This litigation structure makes the emergence of professional lawyers possible. In inquisitorial litigation, the parties have no litigation rights, so there will be no professional lawyer to represent the parties. Litigants enjoy litigation rights, which is a necessary prerequisite for the emergence and existence of lawyers.
The Evolution of Lawyer System in China
During the Spring and Autumn Period, Zheng Ren Deng was not only proficient in law, but also eloquent. He can "argue ambiguously and create infinite words" and "insist on reasons and be reasonable". He once gathered people to give lectures, impart legal knowledge and litigation methods, and help others in litigation. In the Spring and Autumn Period, there was also an agency system. Both husband and wife did not have to go to court in person, but their subordinates or children could represent them. In the Yuan Dynasty, if the litigants were old, weak and sick, they could also be represented by their relatives.
In ancient China, officials were required to file a complaint and state the case first, but most of them could not read, so some scholars in the society started the business of writing complaints and other documents on their behalf, and a "Mr. Knife and Pen" appeared among the people. These "Mr. Knife and Pen" are not necessarily familiar with legal knowledge, but only rely on the advantages of reading and literacy and the experience of "being well informed", but some will give the parties some ideas on how to go to court.
All of the above seems to be a small bud of the lawyer system, but it is far from a strict lawyer system. Because only a relatively perfect litigation agency (defense) system is combined with professional lawyers can lawyers and lawyer systems be produced. Therefore, although there were some phenomena of "agent litigation" and people who helped others in litigation in ancient China, the former did not further develop into an agency system, and the latter did not form a professional lawyer class, and they were never combined in the litigation field. Therefore, China finally introduced the lawyer system from abroad.
Shen Jiaben, a famous jurist in the late Qing Dynasty, presided over the formulation of the Criminal and Civil Procedure Law of the Qing Dynasty, which was drafted in 19 10, stipulating that lawyers can participate in litigation. However, due to the outbreak of the Revolution of 1911, it was not promulgated.
19 1 1 year, the Nanjing government drafted the draft lawyer law, which is the first draft statute law on the lawyer system. After Yuan Shikai seized power, it was not announced for implementation.
19 12, the Beiyang warlord government formulated the Provisional Regulations on Lawyers and the Provisional Regulations on Lawyers Registration, which was the first written legislation on the lawyer system in China. After the articles of association were published, the lawyer industry in China rose slowly. By the end of the Beiyang warlord government, there were 3000 lawyers.
The Development Course of New China Lawyer System
1950 In July, the General Principles of People's Courts promulgated by the Administrative Bureau of the Central People's Government stipulated that the people's courts should guarantee the defendant's right to defend himself and ask others to defend himself.
On July 3 1954 and 3 1, the Ministry of Justice of the Central People's Government issued the Notice on Several Issues Concerning the Organization System of Trial Chambers, and decided to try out lawyer work in big cities such as Beijing, Shanghai and Tianjin.
The first Constitution 1954 promulgated by New China in September and the Organic Law of People's Courts stipulate that the defendant may entrust a lawyer to defend himself.
1956 1 the State Council approved the Ministry of Justice's request for instructions on the establishment of lawyers.
On July 20th 1956, the Interim Measures for Lawyers' Fees was promulgated.
1957 in the first half of the year, the draft of the provisional regulations on lawyers was released.
1957 the construction of the lawyer system was interrupted in the second half of the year.
1979 The CPC Central Committee decided to rebuild the lawyer system.
1979 In April, the the National People's Congress Standing Committee (NPCSC) Law Commission set up a special group and began to draft the Lawyers' Regulations.
1980 On August 26th, the 15th session of the 5th the National People's Congress Standing Committee (NPCSC) passed the Provisional Regulations on Lawyers in People's Republic of China (PRC).
1986 implements the unified national lawyer qualification examination.
All china lawyers association was founded in July 1986.
1996 may 15 the 19th meeting of the 8th the NPC Standing Committee passed the first lawyer law of new China, the People's Republic of China (PRC) lawyer law, which came into effect on 10/997.
By 1998, there were nearly 9,000 law firms in China, and the number of lawyers exceeded 65,438+10,000.
Second, the different fate and significance of litigation lawyers and lawyers.
12 century is an important historical period for both China and Britain, because during this period, China's judicial tradition not only reflected the light of intellectual rationality through the influence of litigants and litigators, but also impacted the ethical defense line since the Han and Tang Dynasties, and even provided an opportunity to transform into modern judicial tradition to some extent. At the same time, great changes have taken place in British judicial tradition during this period, which provided conditions for the modernization of judicial tradition later. The problem is that China's classical judicial tradition, based on human feelings and rationality, was once ahead of Britain and its western European countries at that time, and it was not until the Song Dynasty that it got the opportunity to transform into modern times. However, why is this opportunity fleeting, even lagging behind Britain with a low starting point in the subsequent historical process? This can't be said to be a heavy and interesting problem. Perhaps, we can't find the answer from the differences between lawyers and litigators and their different historical fates. So, what are the major differences between litigators and lawyers in their different judicial traditions?
First, different cultural backgrounds have different values. Although there is only one word difference between lawyers and litigators, they are very different in appearance and spirit, and they rely on very different values. Among them, how people view order, how to evaluate the law and how to view their role in litigation activities will directly affect their value and status in their respective judicial traditions, which is the first problem to be determined.
What is the basis of order and what is the position of law in order? /kloc-Although there are similarities in the reform of Chinese and British judicial traditions around the 0/2nd century, the answers to the above questions are still quite different. In the ancient cultural tradition of China, from Confucius and Mencius, people in China believed that order should be based on the ethics of "benevolence, righteousness, courtesy, wisdom and faith". This is because, in the eyes of China people, the biggest difference between people and animals lies in their courtesy, while animals are at a loss. Therefore, people's life and order should be based on morality. Although law is important, it is secondary to morality. Because no matter how important the law is, it is only an external norm that restricts people's behavior and regulates social relations, and an ideal and harmonious social order can only be completed by accumulated moral cultivation, not based on law. Mr. A. Gulevich, a famous scholar who studied medieval culture and law, said: "The attitude of China people towards law in the Middle Ages was completely different from that of Europeans. Their attitude towards law can essentially show a way for China people to understand things, and law has not been interpreted as the basis of social structure. " In the Song Dynasty, if the commodity economy consciousness and utilitarianism thought under the deepening of private ownership had a great impact on the above-mentioned traditional moral concepts of human relations, and to some extent, people's expectations of order and legal concepts changed, then this impact did not fundamentally shake the moral defense line of society, and litigants were still morally corrupt villains in people's minds. Cai Jiuxuan, a well-known judicial official in the Southern Song Dynasty, said in the verdict: "Zhang Menggao, an apprentice (a kind of litigant), is the son of Ren Jinmei, an official, who inherited Zhang's surname and inherited his aunt's official treachery, taking treachery as his career." Mr. Fei Xiaotong, a famous contemporary scholar, also said: "In rural society, when we talk about' litigants', people will think of evil deeds such as' provoking right and wrong'. As a knife and pencil collector, there is no place in this social history. But in the city, lawyers should add a big word, and the cover of the newspaper may be the list of lawyers in the whole city. "
England is different. Although Britain before 1 1 century didn't have many achievements in order and respect that China admired at the same time, after the middle of12nd century, with the unification of central judicial power and the struggle between kingship and religious rights, the secular social concept based on law has been deeply rooted in the minds of British people. It is not only a universal value concept, but also a real action and social practice in British history, which was best illustrated by the promulgation of the British Magna Carta in 12 15. A. Gulevich said: "Law is the foundation of human society, and the state is based on law. Without law, the country will perish. " Since law is the basis of people's life, social order should of course be based on law. In this way, lawyers who engage in various litigation activities with legal knowledge as their major have become intimate friends who safeguard legitimate rights and interests in people's lives, thus being respected by people. This is the common concept of all Western Europeans, including the British. The words of the Roman emperor Leo and Andromeda are typical expressions of this concept. In their letter, Ilikrati said: "Lawyers who dispel the doubts arising from litigation and often defend themselves in public and private affairs to help others avoid mistakes and help the tired regain their energy will help mankind as much as those who save their motherland and parents by fighting and hurting. Therefore, for our empire, we regard not only people wearing armor and holding swords and shields as soldiers, but also lawyers as soldiers. Because those defenders who defend the voice of glory and protect the hope, life and future generations who care about the country and the people are fighting! " Second, the litigation power structure is different. The so-called power structure refers to who enjoys the status of subject rights in litigation activities in a country's litigation mode. As far as the history of China and Britain is concerned, although litigators and lawyers participate in litigation activities at the same time, their positions in their respective judicial traditions are not the same. As far as China is concerned, although litigants were very active in civil life around 12 century, their legal status was never formally recognized by the decrees and government of the Song Dynasty, and litigants not only could not enter the trial court in an open way, but also did not have the subject qualification and legal rights in the litigation system of the Song Dynasty. Because in the litigation at that time, agency and defense were not legal links, litigants always lived in the dark side of society and could not become the reserve force of literati engaged in judicial activities. The litigant's help to the litigant is only a kind of litigation assistance activity in China's classical judicial tradition, and it is not an essential element in the judicial process.
Lawyers are different. /kloc-British lawyers who came into being after the middle of the 0/2nd century, although there was no clear legal stipulation on their subject status at the beginning, were inextricably linked with judges and special courts at the beginning of their formation, so their subject qualification in litigation was quickly recognized by law, and lawyers therefore went to the road of "lawyer-judge" integration, became the reserve team of judges, and defense became the British judicial tradition. Tiger Levy, a western scholar, said: "The profession of lawyer appeared in the late13rd century. In a sense, it is a group of practitioners who are standardized and formally trained. The monarchs of Britain and France have legislated for this profession, restricting them from practicing law only with the approval of judicial officials. This method-Britain in 1292, judges in 1274 and 1278. "
Third, the litigation mechanism is different. In the Song Dynasty in China, although the judicial mode under the impact of commodity economy was quietly changing, the central position of the scholar-officials as judges in the litigation remained unshakable. The operation mechanism of criminal trial and litigation is centered on punishing crimes and controlling society, so it goes without saying that defense cannot be a link in criminal cases. It is a civil lawsuit, because the service provided by litigation lawyers to the parties is only a kind of litigation assistance activity, which does not have legal status, so its litigation assistance will certainly not change the tradition of judge's authority under the "inquisitive" trial, and the litigation activities under this mechanism will naturally not provide broad space for the growth, development and display of talents of litigation lawyers.
Britain, on the other hand, is different. The growth and development of lawyers will go to the future with the defense mechanism in the litigation mode. In the history of Britain, whether junior lawyers or senior lawyers, their functions (such as appearing in court instead of agents and handling legal affairs; Defend on behalf of others, etc ), it is inseparable from the writ system with strong knowledge and technology, so "procedure takes precedence over rights" is not only an ancient maxim of British judicature since the middle of 12 century, but also the practice of British lawyers all their lives. One of the biggest functions of lawyers in litigation activities is to protect the rights and interests of the parties and defend them. Whether it is a criminal case or a civil case, when lawyers use their knowledge and talents to defend the litigants, the balance mechanism from weak to strong has become a beautiful landscape in the history of British justice. According to Mearson, a British legal historian, there was a defensive function for a long time in British history. When the plaintiff filed a complaint with the defendant, he asked the defendant to return the illegally occupied land. It is enough for the defendant to say that the land is not illegally occupied, but a gift from the defendant's father. As for whether it is true or not, in the early years, only God cut the plate or neighbors testified. /kloc-after the middle of the 0/2 century, the situation has changed, and the trial needs a rational way and principle. The defense function needs to be strengthened, and lawyers play a more important role in it. In the same example above, if the defendant argues that his possession of this land is a gift from the plaintiff's father. But the fact is that the plaintiff's father was a mental patient at that time. Can his gift be effective? The plaintiff's defense of the defendant needs further defense, which requires the help of lawyers. In fact, Britain's defense function is gradually developed in the defense of lawyers. Of course, the judicial tradition of giving full play to the effectiveness of the defense mechanism in Britain also provides lawyers with far broader development prospects than in China.
Fourth, historical destiny is different. What kind of litigation mode a country's judicial system adopts is closely related to its cultural tradition, political system, geographical environment and social structure, but at the same time, we can't ignore whether legal professional groups can occupy a place in the power structure of litigation, especially whether the legal status of people with certain legal knowledge and familiar with litigation skills is recognized in the litigation operation mechanism, which will also play a decisive role in a nation's judicial tradition. Generally speaking, in the history of Britain, lawyers, like litigators in China, have been morally condemned by the society for pursuing profits. However, after 13 century, Britain standardized the duties, disciplines and qualifications of lawyers through legislation and judges' instructions, and cultivated their sentiments through the education of four law schools. Excellent lawyers not only enjoy special honor in society, but also are the reserve force of judges. As a professional group, lawyers not only help the parties to seek the most appropriate writ form to safeguard their legitimate rights and interests in specific cases, but also participate in litigation activities as a check and balance mechanism, thus giving judges greater authority in seeking, discovering and declaring laws, thus building a huge defense line to mediate social conflicts and ease social conflicts and a monument to justice and authority in people's hearts.
In China, when litigation and litigants flourished for the first time in the Song Dynasty, it isomorphically formed the mechanism of the transformation of China's classical judicial tradition to modern times with the above-mentioned other factors. At that time, China's ancient judicature was ahead of western European countries, and it also got roughly the same opportunities as Britain's at the starting point of historical transformation. If the Yuan, Ming and Qing Dynasties after the Song Dynasty had seized this opportunity and advanced along the direction of the Song Dynasty, China's classical judicial tradition would have completed its transformation to modern times. However, history cannot be preset. In the historical process after Song Dynasty, with the establishment of Neo-Confucianism and the strengthening of absolutism, litigants in Ming and Qing Dynasties had impressive professional knowledge and debating skills, but they always lived in the dark side of society, and their qualifications and income could not be recognized through proper channels. Therefore, they are always in an awkward position in litigation activities. On the one hand, in complex criminal cases and diversified interest disputes, the parties need the help of their professional knowledge, which is the most important reason why litigation lawyers were still active in the private sector in the Ming and Qing Dynasties, and even some knowledgeable literati strongly demanded that Hu Song be improperly banned; On the other hand, they have been condemned by the government both morally and legally. Among them, the biggest condemnation is the profit-seeking behavior of the litigants. It is justified for litigation lawyers to charge a certain fee in litigation activities. However, the ancient government of China had no legal provisions and no specific operating mechanism, which made the litigants have no fixed standards on what is justified and what is extortion. A good litigator is wronged by this, and a morally corrupt litigator has nothing to hide. The grayness of this income is the biggest fetter that litigants can't get rid of the responsibility of literati. Without the correct evaluation of society and law, the status of litigants will inevitably be unable to move in the right direction of justice. The litigant can only be the opposite of the scholar-bureaucrat, but not its reserve team. Therefore, the road of judicial professionalization was interrupted by the fate of litigation lawyers. The transition from classical to modern in Song Dynasty was quickly submerged in the deep mud pond of Neo-Confucianism and absolutism in Ming and Qing Dynasties because of the fate of litigants. The historical gap is widening here, and the historical opportunity is lost here!
China's understanding of the professional attributes of lawyers is closely related to the legal system construction in China, especially the process of lawyer construction, which has undergone several changes. After the founding of People's Republic of China (PRC), the lawyer system was initially established in 1950s, and lawyers were located in people's courts. China's normative documents do not clearly stipulate the professional attributes of lawyers, but from the political background at that time and the understanding of lawyers by judicial administrative departments, lawyers are regarded as an integral part of national judicial cadres: "The political and material treatment of lawyers shall be handled in accordance with the provisions on the treatment of cadres in state organs." 6. At the end of 1950s, the lawyer system, which had just started for several years, was abolished until the 15th session of the 5th the National People's Congress Standing Committee (NPCSC) passed and promulgated the Provisional Regulations on Lawyers in People's Republic of China (PRC), 1980. According to this regulation, lawyers are legal workers of the country. At that time, the legislation defined the professional attribute of lawyers as "national legal workers". Giving lawyers the same social and political status as public security and judicial personnel has played a positive role in the recovery and development of China's lawyer system. With the deepening and development of China's political and economic system reform.
Since 1986, some changes have taken place in the management system and organizational form of lawyers in China: first, some places began to pilot cooperative law firms, and then partnership law firms and private law firms appeared; Second, state-funded law firms (that is, State-run firms) gradually get rid of the administrative organization management mode and implement the management mode of independent operation, self-supporting and self-financing according to law. This situation makes the characterization of lawyers as "national legal workers" gradually lose the institutional basis and realistic rationality, and can not accurately reflect the professional characteristics of lawyers. During this period, lawyers and legal scholars had a heated debate on the professional attributes of lawyers, and three representative views emerged: national legal workers, social legal workers and freelancers.
65438-0993 The Ministry of Justice issued the Plan for Deepening the Reform of Lawyers. This plan clearly defines the professional attribute of Chinese lawyers as: professional workers providing legal services to the society for the first time, which was further confirmed in the Law of People's Republic of China (PRC) on Lawyers promulgated on May 25th. 1996. Article 2 of this Law stipulates that the term "lawyer" as mentioned in this Law refers to a professional who has obtained a lawyer's practice certificate according to law and provides legal services to the society. After the promulgation of this law, the legal profession and lawyers almost agreed that the content of Article 2 of People's Republic of China (PRC) Lawyers Law is qualitative, and that it is accurate, scientific and comprehensive. For example, some scholars believe that the lawyer law "is appropriate in defining lawyers, and it is not even necessary to deduce and prove them logically or empirically."
Development and reform of lawyer management system in China
Since the establishment of the lawyer system in New China, the lawyer management system in China has generally gone through three forms.
(a) a single administrative management system. Mainly in the early days of the founding of the People's Republic of China and the recovery period of the lawyer system. 1950 65438+In February, the Ministry of Justice of the Central People's Government issued the Circular on Abolishing Illegal Lawyers and Lawsuits, announcing the abolition of the lawyer system in old China. 1In July, 1954, the Ministry of Justice issued the Notice on Several Issues Concerning the Organization System of Trial Chambers, and designated Beijing, Shanghai, Tianjin, Chongqing, Wuhan, Shenyang and other big cities to take the lead in piloting legal advisory offices. During this period, large and medium-sized cities set up legal advisory offices, which were managed by lawyers associations and located in judicial administrative organs. At the same time, there is no national lawyers association, and lawyers are all state cadres. Formally, this management system, although the lawyers' association directly manages lawyers, is not self-disciplined industry management, but administrative management. 1979 In July, the Second Session of the Fifth National People's Congress passed the Criminal Procedure Law of People's Republic of China (PRC), which set a special chapter for defense and provided a legal basis for restoring the lawyer system. 1980 In August, the 15th meeting of the 5th the NPC Standing Committee passed the Provisional Regulations on Lawyers in People's Republic of China (PRC), which stipulated that lawyers' practice institutions should be legal advisory offices, organized and led by judicial administrative organs, set up according to administrative divisions, be state institutions, and lawyers should be state legal workers. The Provisional Regulations also made special provisions on lawyers' associations, which established the status, organization and role of lawyers' associations as professional organizations for the first time, and no longer followed the practice that lawyers' associations were subordinate to judicial administrative organs in the early days of the People's Republic of China. However, at that time, the lawyer system was in the period of restoration and reconstruction, the number of lawyers in the country was small, and the conditions for establishing a bar association were not yet mature. Most of the established lawyers' associations are located in the lawyer management department of the judicial administrative organs, and they are "one team and two brands" with the lawyer management department. Most of the leaders of lawyers' associations are concurrently led by the judicial administrative department, so they can't play the role of industry management independently. This system lasted until the mid-1980s.
(two) judicial administration as the leading factor, supplemented by the bar association. -By the mid-1980s, the restoration and reconstruction of the lawyer system was basically completed, and legal advisory offices (later renamed law firms) were generally established in county-level administrative regions throughout the country, and the ranks of lawyers had an unprecedented development. 1In July, 1986, the first national lawyers' congress was held in Beijing, and the all china lawyers association was formally established. The Articles of Association of all china lawyers association was adopted, which established that the lawyers' association has nine functions, such as guiding lawyers' business, exchanging work experience and safeguarding lawyers' legitimate rights and interests, and became an important milestone for the lawyers' association to participate in the management of the lawyer industry. Since then, the lawyer management system has increased the share of bar association industry management on the basis of the single administrative management model established in the Provisional Regulations on Lawyers. But in this period,
The substantive contents of management work, such as the examination and granting of lawyer's qualification, the issuance of lawyer's practice certificate, the examination and approval of law firms, and the formulation of lawyer's development policy, are still in the judicial administrative organs, and the main leaders of the lawyers' association are also concurrently led by the judicial administrative organs. Lawyers association is still in a subordinate position in the lawyer management system, and its industry management function is not obvious.
(three) the "two combination" management system under the supervision and guidance of judicial administrative organs. During the period from 1986 to 1993, local lawyers' associations made great progress, strengthened internal construction, became more active in lawyer management activities, and the role of industry management became increasingly apparent. Under the impetus of the new round of reform upsurge caused by Comrade Deng Xiaoping's southern tour speech, the General Office of the State Council approved the Plan of the Ministry of Justice on Deepening the Reform of Lawyers' Work in February 2003, 193. The "Proposal" makes the following statement on the lawyer management system: "Starting from China's national conditions and the actual work of lawyers, we will establish a management system that combines the administrative management of judicial administrative organs with the management of lawyers' associations. After a period of practice, it gradually transited to the bar association industry management under the macro-management of judicial organs. "Based on this, the functions of judicial administrative organs and lawyers' associations are divided. This "Proposal" proposes for the first time that "the lawyers' association shall be composed of practicing lawyers, and the leading members shall be elected by practicing lawyers. "1In July 1995, at the Third National Lawyers' Congress, the Ministry of Justice carried out a major reform of the National Lawyers' Association. According to the plan, all directors, executive directors, presidents and vice presidents shall be practicing lawyers, and the responsible comrades of judicial administrative organs shall no longer hold concurrent positions. As the office of the National Lawyers Association, the lawyers association implements the secretary-general responsibility system. The Bar Association has achieved a leap from theory to practice in fulfilling its industry management functions. 1In May, 1996, the Law of People's Republic of China (PRC) Lawyers passed at the 19th session of the Eighth the National People's Congress Standing Committee (NPCSC) further clarified that the judicial administrative organs "supervise and guide lawyers, law firms and lawyers' associations." And "Lawyers Association is a social group legal person and a lawyer self-regulatory organization", referred to as "two combination" for short. It should be said that this model has been explored since it was put forward, and the traditional concept of administrative management and the ideal concept of industry management have been arguing. Different people have different views, so the practices in different places are not consistent. In September, 2003, Zhao Dacheng, the director of the law firm of the Ministry of Justice (currently the Deputy Minister of Justice) conveyed the attitude of the Ministry of Justice to this issue at the training course for the directors of national lawyers management, pointing out that "China's lawyer management system is the' two combination' system", thus ending the transition to "industry management".