20 13 65438+ 10/0/After the implementation of the newly revised Civil Procedure Law, grassroots legal service workers and lawyers are classified as the first kind of litigation agents, and they are also professional litigation agents, which makes grassroots legal workers see the dawn of judicial system reform and feel the hope and space for the survival and development of grassroots legal services. However, in the specific implementation, influenced by the reply of the Department of Law [2002]12, the people's courts with jurisdiction still have discriminatory views on the litigation behavior of grassroots legal workers. The most representative is Mr. Wu, director of the Civil Division of the Supreme People's Court Research Office and doctor of law. He has many views on the understanding and application of the revised provisions of the Civil Procedure Law. It is precisely because of Dr. Wu's point of view that the author was rejected when he represented the parties in Beijing and other places in Shenzhen Futian District Court.
This paper discusses the background and theoretical basis of the official reply. No [2002] 12 issued by the Ministry of Justice. The author found that the reply was a major retrogression in the reform of the judicial system, which refers to ministerial regulations that have expired or need to be revised. Its appearance has embarrassed countless grassroots legal workers who have made achievements and can provide quality services to parties outside their jurisdiction.
In order for the colleagues engaged in legal services at the grass-roots level to normally carry out litigation agency business outside the jurisdiction, and for the top level of the Ministry of Justice to hear the lowest voice, the author gives suggestions from four aspects, hoping that the decision-making level of the Ministry of Justice can respond in time to eliminate the shadow brought by the reply of Si Fu [2002] 12.
First, from the different practices of Shenzhen two-level courts in representing grass-roots legal workers in civil litigation, we can see that the judges of the two-level courts have different implementation of the provisions of Article 58, paragraph 2, item 1 of the Civil Procedure Law.
Since March, 20 1 1, the author has been practicing in Cheng Nan Law Service Office, Yuanping City, Shanxi Province, and started to be a lender mainly from Beijingers 17, and went to two courts in Shenzhen, taking three private companies in Shenzhen as defendants to undertake 54 cases of private lending disputes, involving a total amount of 9.86 million yuan. Due to the particularity and complexity of the case, the author conducted four lawsuits in two basic courts in Shenzhen. By May, 13, 17, all four judgments came into effect. Two batches of 17 cases have been suspended, and they are going to apply to Shenzhen Intermediate People's Court for bankruptcy and debt repayment.
On September 2, 20 13, when the author walked into the filing building of Futian District People's Court in Shenzhen, Guangdong Province again with the power of attorney issued by the clients of Beijing, Inner Mongolia Autonomous Region and other five provinces and cities, she was told by the female judge in charge of the execution window that she refused to accept the case because grassroots legal workers could not represent cases outside the jurisdiction.
Previously, in the courts of Futian District and Luohu District of Shenzhen, no matter whether I filed the original lawsuit on behalf of the court or filed a lawsuit in court, including the application for execution of the first two batches of cases 17, I was not rejected because I was a grassroots legal service worker (hereinafter referred to as a legal worker).
The author has repeatedly explained to female judges that it is not the first time to come to Shenzhen to represent these parties, and the co-entrusted agent in these 37 effective judgments is himself. However, the judge still insisted that she was implementing the first item of the second paragraph of Article 58 of the new Civil Procedure Law.
The author's point of view is just the opposite. The author thinks that since the National People's Congress Standing Committee (NPCSC) has established its legal representative status through legislation, it should not look at outdated old almanac and use invalid reply as a shield. Besides, how can a reply from the Ministry of Justice ten years ago contradict the provisions of the legislature? No matter how to explain it, it will be of no help. The judge also suggested that the litigant can recommend the litigant to file a case in court in person, so as to solve the problem of limited agency rights of legal workers.
As the first two batches of 17 cases represented by the author in Futian and Luohu district courts have been suspended and are about to enter bankruptcy and debt repayment procedures, the author came to Shenzhen Intermediate People's Court for consultation with the drafted relevant litigation documents. When discussing with the reception judge of the filing court whether the legal workers who enter the bankruptcy and debt repayment procedure can enjoy the right of agency, the reception judge will give a clear answer after asking the leader, and the legal workers' right of agency is not restricted.
In Shenzhen, a highly open city, there are two completely different ways for judges to represent legal workers, which shows that the comrades of Shenzhen Intermediate People's Court have a correct understanding of the provisions of Article 58, paragraph 2, item 1 of the Civil Procedure Law and have a good professional quality. At the same time, it reflects that law enforcers still have different understandings of the newly implemented laws.
In order to fight for the agency right in the execution stage of 37 cases, the author once again returned to Futian court to negotiate with the judges. The presiding judge thinks that he has no right to decide and asks the leader in charge of filing the case for review. This leader is very responsible. He not only communicated with the author, but also called the Shenzhen Intermediate People's Court to find out the agency rights of legal workers. After confirming that the situation reflected by the author was true, he called other basic courts to find out how to deal with similar situations. In the end, the female judge replied that the Intermediate People's Court was the practice of the Intermediate People's Court, and the grass-roots courts all did so, and refused on the grounds that the courts in Longgang and Luohu District all did so.
The author asked if he could give a written reply, and the judge replied yes, but the leader gave the number. After waiting for a long time, the judge told the author that he had asked the leader not to give a written reply and refused to accept the relevant litigation documents. In order to convince the author, the judge also took out "Understanding and Application of the Revised Provisions of the Civil Procedure Law of People's Republic of China (PRC)" edited by Xi Xiaoming, Vice President of the Supreme People's Court (hereinafter referred to as "Understanding and Application of the Revised Provisions of the Civil Procedure Law") as the basis for rejection.
The direct consequence of the stalemate between the two sides is to affect the realization of the rights of the parties. In order to save resources and time, with the consent of the representatives of the parties, the author signed an agency contract with a large law firm in Shenzhen to hand over the execution of these 37 cases to local lawyers.
Few litigation cases represented by the author really meet the conditions of "this jurisdiction" and have not been rejected. This is the first time that the author himself was deprived of the right of litigation by the court because of the implementation of Article 24, Item 4, of the Detailed Rules for the Work of Township Legal Service Offices of the Ministry of Justice.
Second, in fact, when the Ministry of Justice issued a reply. [2002] 12, the terms cited at that time were invalid, but they still prevailed in the next ten years, which restricted the healthy development of the whole industry to some extent.
The reply of the Ministry of Justice [2002]12 ignored the fact that legal workers had entered the legal service market at that time, and listed the outdated, ineffective and technically defective working rules of township legal services. The main questions are:
1. Article 6 of the General Regulations on Township Legal Services promulgated by the Ministry of Justice 199 1 year on September 20 stipulates that "township legal service offices shall be based on the grassroots level and mainly provide legal services to government organs, mass autonomous organizations, enterprises and institutions, social organizations, contracted business households, individual industrial and commercial households, individual partnership organizations and citizens within their respective jurisdictions. However, in Item 4 of Article 24 of the Specific Provisions, there is a restrictive provision that "one party is located within its jurisdiction".
From the perspective of legislative technology, the provisions of the specific provisions violate the provisions of the general provisions and should be regarded as invalid. However, in the absence of legislative guidance at that time, coupled with the lack or negligence of the legal theory of drafters and examiners, such loose provisions were made. Because the legal service industry itself includes litigation agency services. In fact, there was no shortage of legal talents in China at that time, and the Ministry of Justice should have a group of legal experts and legal professionals. If someone can realize its side effects and the technical defects in legislation at that time, it is only necessary to delete the provision that "one party is located in the jurisdiction" in Item 4 of Article 24 before the publication of the Detailed Rules for the Work of Township Legal Service Offices.
Of course, we can't forget that the historical background of this provision is that legal workers still take government salaries, use government funds, wear the same police uniforms as public security and judicial assistants, and also engage in non-legal services, which has a certain administrative nature.
At the same time, it should be affirmed that the grass-roots legal services in China were in the ascendant at that time, and most of the legal services were still in the stage of "crossing the river by feeling the stones". The promulgation of the Working Rules did play a certain role in a specific period.
II. The Detailed Rules for the Work of Township Legal Service Offices are based on the Interim Provisions on Township Legal Service Offices issued by the Ministry of Justice on May 30th, 1987. According to the "Interim Provisions" ninth township legal services implemented by the "paid services, appropriate fees" principle. ..... At that time, the "two noes and four selfs" had not been fully implemented.
As can be seen from the above provisions, the original intention of the Ministry of Justice has always been to encourage and support the development of this industry, not to suppress and limit its survival and development space.
Later, the Ministry of Justice advocated "no occupation of establishment and no occupation of funds" and put forward the road of "independent practice, self-support, self-management and self-development" in order to create conditions for legal services to enter the market. At that time, the litigation business represented by legal services was restricted, and more concerns may come from concerns about the professional ability of legal workers.
On March 3, 2000, Kloc-0, Article 51 of the Measures for the Administration of Grassroots Legal Services issued by the Ministry of Justice stipulated that "these Measures shall come into force as of the date of promulgation. The 1987 Interim Provisions on Township Legal Service Offices issued by the Ministry of Justice on May 30th shall be abolished at the same time. Then, after April 30, 2000, the Interim Provisions on Township Legal Service Offices, a ministerial regulation that once guided the construction and development of China's grassroots legal service industry, will lose its foundation.
The most epoch-making measure of the newly formulated ministerial regulation "Administrative Measures for Grassroots Legal Service Offices" is to change "township legal service offices" into "grassroots legal service offices". The difference between the two words is indeed an improvement. According to common sense and development vision, the detailed rules and explanations that have been matched with the Interim Provisions on Township Legal Service Offices will be invalid if they are not revised and reissued.
Regrettably, just nine months after the promulgation and implementation of the new regulations, the Ministry of Justice inappropriately cited the Working Rules of Township Legal Service Offices, which have yet to be determined, and on February 10, 2002, it issued the Reply that the civil economic administrative litigation case that grassroots legal service workers cannot represent any party is not within their jurisdiction.
This reply is "According to Item 4 of Article 24 of the Detailed Rules for the Work of Township Legal Service Offices, one of the parties is located in this jurisdiction, which is one of the conditions that grassroots legal service workers should have to represent civil, economic and administrative cases."
According to the basic principle that logic makes a big mistake in advance and its conclusion is bound to be wrong, in the case that the effectiveness of the Detailed Rules for the Work of Township Legal Services is to be determined or its existence foundation is lost, it is made that "therefore, grassroots legal service workers cannot represent civil, economic and administrative litigation cases where both parties are not within their jurisdiction." The conclusion must be wrong.
However, it is precisely because of this reply that it has affected the development of China's grassroots legal service industry for more than ten years, but it has brought disastrous consequences to grassroots legal workers with excellent work and great social influence, which has bound the hands and feet of capable grassroots legal workers. In the meantime, Jiangsu Provincial Department of Justice's "Request for Instructions on whether grassroots legal service workers can represent civil, economic and administrative litigation where one party is not within their jurisdiction" (Su Si Ban (2002) No.69) has played a role in fueling the situation.
Kong Weike, a member of the Chinese People's Political Consultative Conference (CPPCC), found through long-term and in-depth investigation that "the new Civil Procedure Law, which was implemented from 2065438 to 1 year, clearly defined the status of grassroots legal agents for the first time, and clearly stipulated that grassroots legal service workers can be entrusted as legal agents to represent cases. However, the Working Rules for Township Legal Services formulated by the Ministry of Justice in 199 1 for government-funded legal services have not changed, and are still implemented by today's self-supporting partnership legal services. " Commissioner Kong Weike also believes that "this restrictive provision is contrary to the legislative spirit of the Civil Procedure Law, which lists grassroots legal workers as litigation agents."
Comprehensive evaluation of this reply not only failed to standardize the legal service market, but also brought convenience to grassroots legal workers. On the contrary, it leaves room for others who are not qualified to represent the lawsuit. From a practical point of view, its existence will restrict the smooth implementation of the newly revised civil procedure law, become a stepping stone for legal workers to represent litigation, and is a major retrogression in the reform of the judicial system.
Third, Dr. Wu's views on the scope and nature of legal workers' representation in civil litigation neither consider the historical background of legal workers, nor find the defects in the working rules of township legal services, nor ignore the contribution made by mature legal services to society, nor face up to the new provisions made by the civil procedure law with a development perspective. His remarks are quite negative, which has a far-reaching impact on legal workers to carry out litigation agency business outside their jurisdiction. I hope that Wu Lao can renew his ideas and reposition the position of legal workers in civil litigation activities.
Mr. Wu, director of the Civil Affairs Department of the Supreme People's Court Research Office, doctor of law, and author of chapter 11 of Understanding and Application of Amendments to the Civil Procedure Law (hereinafter referred to as "the main business of grassroots legal workers includes acting as agents in civil, economic and administrative litigation activities, but the business scope of grassroots legal workers is limited to a certain extent. The official reply of the Ministry of Justice (the first reply [2002] 12) stipulates that grassroots legal service workers cannot represent civil and economic administrative litigation cases in which any party is not in their jurisdiction. According to Item 4 of Article 24 of the Detailed Rules for the Work of Township Legal Service Offices, one party is located in their jurisdiction and is a grassroots legal service worker representing civil, economic and administrative affairs. Therefore, grassroots legal service workers cannot represent civil, economic and administrative litigation cases where both parties are not within their jurisdiction. " This is the main difference between grassroots legal service workers and lawyers representing litigation business. (See lines 20 to 28 of Wu P 1 17)
In my opinion, Dr. Wu may not have carefully studied the development history of grassroots legal service industry in China, ignoring the official background of replyNo. Si Fu [2002] 12 did not even carefully sort out the relationship between the new law and the old law, and the different effects of the upper law and the lower law did not even question whether the official reply was compliant and effective, and directly quoted Si Fu [2002] 12.
Dr. Wu also pointed out in the article that "before the revision of the Civil Procedure Law, grass-roots legal service workers represented civil litigation as a form of citizen agency other than lawyer agency." (see Wu Wen P 1 17, penultimate line 1 to p 11).
The author believes that this view is debatable. Before the amendment, the scope of "citizen agency" was not clearly defined in the Civil Procedure Law. However, under the premise that the regulations promulgated by the Ministry of Justice are clear, insisting on classifying grassroots legal workers as "a form of citizen agency other than lawyer agency" is obviously a disrespect for the practice of grassroots legal workers who have obtained professional qualifications, or a discrimination against the whole industry of grassroots legal services, and a lack of attention to the Practice Certificate for Legal Service Workers issued by judicial administrative organs.
At the end of the article, Dr. Wu pointed out that "the revised Civil Procedure Law lists grassroots legal service workers and lawyers as litigation agents. As far as its litigation legal status is concerned, whether it is a citizen agent or an independent agent type needs further study. (See Wu P 1 18 from line 1 to line 4) "
The author believes that it can be seen from Dr. Wu's statement that Dr. Wu obviously has no confidence in NPC legislation. Since the highest legislature lists grassroots legal service workers and lawyers as litigation agents at the same level, it shows that both parties have equal status and the same role in litigation, and there is no distinction between high and low. The difference is that a lawyer is a lawyer, a grassroots legal service worker or a grassroots legal service worker. Just because the channels and conditions for obtaining qualifications are different, the issuing departments are different, and the titles are different. However, the license issuing agencies are two working agencies under the leadership of judicial administrative organs at all levels. If grassroots legal service workers are regarded as "civil agents", it obviously violates the provisions of Article 58, paragraph 2, item 1 of the Civil Procedure Law and the legislative intent.
Imagine, if the Ministry of Justice, the State Council Legislative Affairs Bureau and the highest legislature really adopt the above opinions put forward by Dr. Wu, and really incorporate their opinions when their superiors revise the Measures for the Administration of Grassroots Legal Service Offices, the Measures for the Administration of Grassroots Legal Service Workers or the Regulations on the Administration of Grassroots Legal Service Offices and the Law on Grassroots Legal Service, then in the next 10 to 20 years, grassroots legal workers will have no future. The most direct consequence is that the status of civil agency litigation made by the highest legislature, in which grassroots legal workers and lawyers are juxtaposed, has become a dead letter.
Therefore, I hope that Dr. Wu can really consider the practical difficulties faced by grassroots legal workers, make appropriate adjustments to the contents of Chapter 11 of the Second Edition of Understanding and Application of Revised Provisions of the Civil Procedure Law, and stop spreading misinformation, which will become a shield for court judges at all levels to hinder grassroots legal workers from "cross-regional" litigation.
Fourth, to change people's prejudice, we should finally start with top-level design and cancel these inappropriate regulations. In the case that the new regulations are difficult to be promulgated for a while, the most convenient way is for the Ministry of Justice to abolish the official reply of Si Fu [2002] 12 in the form of official reply, so as to clear the obstacles for the healthy development of grassroots legal services.
Since the Ministry of Justice implemented the Measures for the Administration of Grassroots Legal Service Offices and the Measures for the Administration of Grassroots Legal Service Workers on March 3, 2000, the grassroots legal service industry has been on the right track and the ranks of legal workers have achieved unprecedented development. As Dr. Wu said, "From June 5 to June 38, 2000, the Ministry of Justice organized the first national unified examination for the qualifications of grassroots legal service workers. By the end of 2000, the total number of grass-roots legal service workers in China reached 12 1904, an increase of 2 182 compared with the end of 1999, and the number of grass-roots legal service workers with college education or above reached 5756 100, accounting for 40% of the total number of grass-roots legal service workers. (See lines 6 to 2 of Wu P 1 17)
However, the reply given by the Ministry of Justice on June 5438+February 65438 +00, 2002 was that grass-roots legal service workers could not represent civil economic administrative litigation cases where the parties were not in their jurisdiction, which was a blow and put a "tight spell" on the developing legal service industry.
It is such a huge service group that most comrades are fully qualified to engage in civil litigation agency business. However, they are allowed to go their own way and can only engage in agency litigation business within the jurisdiction of the practice institution determined by their own practice certificates.
In this regard, Ma Yufeng, a lawyer in Henan, believes that the official reply is wrong. [2002] 12 restricts the practice area of legal workers, that is, "one party is located in this jurisdiction". If both parties are not in the jurisdiction where legal workers practice, they have no right to represent the case. Then, grassroots legal workers were explicitly prohibited from handling cases nationwide, which became the use of many lawyers and judges.
The author believes that in today's urban-rural integration, grassroots legal services in towns and urban streets should adapt to market demand and provide services according to customers' needs if they want to develop and survive. As the main body of the market, grass-roots legal service offices should not refuse the service requests of non-local parties, and there is no reason to refuse to provide services to non-local parties. This will inevitably deprive legitimate consumers of their right to choose independently. Nowadays, with the development of transportation and communication, it is actually impossible to limit the "practice area" of grassroots legal services.
In addition, the legal service office is neither an administrative agency, nor a police station, nor a court-dispatched agency, nor does it have any funding. Will not shut out customers with service needs and send them to your door.
In my opinion, this provision has no practical significance, on the contrary, it limits the business source of the service office and brings survival pressure to the sluggish legal service. Needless to say, there is no law firm with good business that does not cross this "red line" to practice. Legal workers who are unable to represent litigation and have low credibility are afraid to use legal services even if they are located at the door of the parties.
If the author's legal service office strictly abides by the official reply. [2002] 12, it may have closed down long ago and found another way to make a living. In fact, courts in most parts of the country, including Beijing, have not restricted legal workers from appearing in court because of cases entrusted by parties without jurisdiction, even the two-tier courts in Shenzhen. Therefore, it is of no value and necessity to stipulate that "one party is located in this jurisdiction".
Over the years, for the survival and development of law offices, countless lawyers, journalists and legal experts have been calling for articles to try to change the current fate of legal workers. The list is as follows:
On June 4th, 2008, Zhang Peng, a reporter of Reporter Watch magazine, pointed out in the article "65,438+10,000 grassroots legal service workers are facing the dispute of keeping or abolishing" that "legal workers believe that since the state has issued a birth permit to grassroots legal service workers, they should be allowed to provide legal services to the society. This is the most basic right of survival and work for grassroots legal service workers! "
After June 2008 1, grassroots legal service workers in some provinces asked for a dialogue with the top officials of the Ministry of Justice on the issue of "litigation rights of grassroots legal service workers in China", but so far there has been no follow-up. Because lawyers don't have their own trade associations, they can't express their demands to the top of the Ministry of Justice through superior associations.
On April 3 of that year, Li Shuangde, director of Han Shu Legal Service Office in Wuhou District, Chengdu, Sichuan Province, and Jiang Jianfeng, director of Grassroots Legal Service Office of Notary Lawyers' Work Guidance Department of the Ministry of Justice, as representatives of grassroots legal service workers, discussed the litigation rights of grassroots legal service workers and the legislation of grassroots legal service law. However, up to now, the Ministry of Justice has not fundamentally solved the obstacles for grassroots legal service workers in China to handle litigation business in court. On the contrary, because the court quoted an inappropriate reply from the Ministry of Justice, legal workers were turned away.
Ma Yufeng, a lawyer of Henan Li Guang Law Firm who has obtained the qualification of a lawyer in a legal service office, objectively commented, "Legal workers come from rural areas. Because they are born in rural areas, they have a strong sense of responsibility in representing cases, are loyal to the law and the legitimate rights and interests of the parties, and have low agency fees. Some excellent lawyers are as good as lawyers. Because legal workers serve the grassroots, take root at the grassroots level, and the case source business continues to expand, grassroots legal service workers play a role in the construction of socialist rule of law. "
In order to make the grassroots legal service industry have a healthy development space, Kong Weike, a member of the CPPCC National Committee, pointed out at this year's CPPCC meeting that "grassroots legal workers have to face the dilemma of' weaning' and' breaking food' because their agency rights are often unreasonably restricted." Therefore, it is suggested that "the Ministry of Justice should abolish the working rules of township lawyers formulated in September 199 1, and formulate new business management methods for legal workers to adapt to the new legal environment, expand the service scope and fields of grassroots legal service workers, so that this group can be trained and improved in cross-regional competitive services and provide more choices for grassroots people".
Wang Weishen, director of Pingba Law Service Office in jingshan county, Hubei Province, was deeply touched. "In rural areas, economic activities without legal constraints are full of contradictions and rarely succeed; There are many problems in reform without legal guidance, and most of them have failed. Therefore, in the article "Discussion on the Predicament and Outlet of the Current Rural Grassroots Legal Service Industry", it is called upon that "the Ministry of Justice should learn from the experience of drafting and promulgating the Lawyers Law and the Notarization Law, and take the form of legislation as soon as possible to amend some outdated orders 59 and 60 of the Ministry of Justice into administrative regulations or laws to ensure that grassroots legal service workers can practice according to law. Or the Ministry of Justice will ask the National People's Congress Standing Committee (NPCSC) to amend Articles 14 and 46 of the Lawyers Law, and then make a legislative interpretation to raise the litigation agency business of grassroots legal workers to the scope permitted by law, which is also a top priority for the current grassroots legal system construction. "
Zhu, a master student of China University of Political Science and Law, once participated in the investigation of the current situation and countermeasures of grassroots legal service workers in Beijing by the Haidian District Judicial Bureau of Beijing and the Lawyers Research Center of China University of Political Science and Law, and published a monograph, proposing to formulate the Law on Grassroots Legal Service Workers. ……
Of course, the voice of wanting to abolish the legal service office is endless.
On April 8, 20 13, the grassroots legal service office of the Ministry of Justice released the revised draft of the Measures for the Administration of Grassroots Legal Service Offices and the Measures for the Administration of Grassroots Legal Service Workers, which made the author very excited. The era when the stairs rang and no one came down may be over.
According to the arrangement of the superior judicial administrative organ, the author wrote the article "Only by becoming the main body of the market will there be more room for survival and development". The leaders of Xinzhou Municipal Bureau of Justice came to the hospital for investigation, and affirmed the author's formulation and some practices. The author's point of view may be helpful to high-level legislation.
According to the relevant provisions of the Legislative Law, the promulgation of a new regulation may go through too many procedures or steps. In order to eliminate the shadow caused by the Ministry of Justice's reply [2002] 12, the author suggests that the Ministry of Justice of a province can ask the Ministry of Justice for instructions on whether to continue to implement the fourth item of Article 24 of the Working Rules of Township Legal Services, and the Ministry of Justice will revoke the reply12 in the form of reply.
If the Ministry of Justice can issue such a new reply in time, it can solve the "cross-regional" litigation agency problem of grassroots legal workers and clear the obstacles for grassroots legal workers to carry out civil litigation agency smoothly.