民初律师惩戒制度论析——以惩戒案例为中心

律师惩戒制度对维持律师队伍的道德水准和专业素质起着规范和监督作用.在本质上这一制度反映出律师行业的自治性和国家对这一行业监督、管理和控制的互动关系.民初北洋政府时期在律师惩戒领域实行的是两级两审制:由高等审判厅推事组成的律师惩戒会是初审机构,由大理院推事组成的复审查律师惩戒会是复审机构.这一时期的律师惩戒事宜几乎完全被司法机构所垄断,律师公会被排除在外.就制度渊源而论,北洋时期的律师惩戒制度是对大陆法系中日本制度的借鉴,而有别于德国的相关制度.     

谨慎地看待法律职业化

法律职业化是国家法治化的内在要求。从历史考察和理性分析的视角来看 ,现代社会中的法律职业阶层首先是一个利益集团 ,其次才是一种“职业” ,是一个知识、思维方式和信仰共享的共同体。因此 ,在我们积极主张和推动法律职业化发展的同时 ,也应当看到职业集团与生具有的利己本能 ,在法律职业阶层同样根深蒂固。如果没有社会不同分工的普遍职业化以及法律职业本身对集团利益的超越 ,我们就有理由对法律职业化持一种谨慎的态度。     

民国上海女律师的执业困境与自我成就

随着民国女律师的出现,中国女性参与法律职业的空白状态终于被打破,成为中国男女在法律职业上平等之起点。由于“赋权”式执业资格的实现方式,女律师执业权利实现后的经营面临着诸多的困境。初入职场的女律师备受时人瞩目,但旧有的律师评价体系仍用“女流之辈”这类标签,高傲地认为妇女与法律职业是相矛盾的。民国女律师在执业过程中要同时克服来自时代、自身以及同业男性律师的三重困境。面对既存的男性律师关系网带来的压力,她们没有甘心屈居“他者”的地位,而是调动一切资源开展业务,试图跻身民国律师中的佼佼者行列。     

当代中国法律职业化路径选择——一个比较法社会学的研究

我国现代司法制度尚处在建立和发展过程中,法律职业化的目标不仅需要依赖法律职业自身的努力,也取决于社会条件及公众认同。基于我国司法体制的特殊性和历史背景,西方社会法律职业及其共同体的历史作用及高度自治不可能在我国重现。针对多层次的法律需求与法律职业单一化、同质化目标的矛盾,需要重新审视我国法律职业化的目标,选择一种接近于大陆法系但具有中国特色的模式与路径。法律职业在接受国家及社会的监督与规制的同时,应积极回应社会与公众的诉求,注重司法独立与司法民主的共同推进,并不断提高自治与自律程度。     

The Professional Model of Law vs. The Business Model of Law: A Critical View of Opposing Trends in the United States of America and the People��s Republic of China

This study begins by reflecting on the literature characterizing the nature and function of a profession qua profession. It continues by arguing that based upon commonly used indicia of a profession that the practice of law in the US is de-professionalizing in significant ways and morphing towards a functioning business model. The related advantages of such a development for American society, its lawyers and their clients, including especially criminal defendants are critically discussed. It then traces the emergence and ascendancy of the rule of law in China and corresponding quest to institutionalize the practice of law in China as a profession. The study concludes by exploring the alternative advantages of applying the business model to Chinese legal practice. It recommends that embracing a paradigm shift away from the professional model towards a business model, comparable to what is happening in the US, would be to the greater advantage of Chinese lawyers in terms of enhanced authority, increased self-regulation, as well as providing greater leverage in advocating client interests.     

From refuge to trap: formalist misadventures of Poland’s postsocialist legal profession

ABSTRACT

Since 2015 the populist government of the Law and Justice Party in Poland has spearheaded a highly effective campaign against the country’s lawyers, encountering relatively muted social opposition. Using Bourdieuan lenses, the article traces the roots of that remarkable institutional weakness of the Polish legal profession to the highly formalist approach to law and legal thinking that Poland’s lawyers espoused. Prior to the fall of communism, and in democratic Poland, the role of lawyers in society was to act as guardians of “neatness” of the legal system – or that system’s internal clarity, cohesion, and completeness. Such a sterile approach to legal practice was initially attractive, among other reasons, because it protected the legal profession from difficult legitimacy challenges stemming from that profession’s pre-1989 coexistence with the communist regime. With time, however, the refuge that formalism offered became a trap that undermined lawyers’ political and economic power.     

职业化视野下的法官特质研究

为解决法官大众化问题 ,中国正在进行法官职业化建设。法官职业化是中国司法改革的一项重要目标 ,是实现司法公正的基本保障 ,也是建设社会主义法治国家的内在要求。本文提出 ,法官职业特质是法官职业化所追求的目标 ,法官职业特质以法官职业化为外观 ,以法官思维为内在要求 ,法官职业特质必须通过系统的法官职业教育才能实现。并具体分析了法官职业及法官职业化的标志 ,法官思维的特征 ,法官职业教育的改革等问题     

The making of the Canadian legal profession: a hybrid heritage

The Canadian legal profession emerged from the confluence of two distinct traditions: the American and the English. The colonies of British North America followed the pre-revolutionary American model of a unified legal profession, according to which all lawyers could practise as barristers and solicitors. American and Canadian lawyers pursued a client- and market-driven, eclectic type of practice that was receptive to innovations – such as the large law firm, the contingency fee, and university legal education – that were strongly resisted in England. On the governance side, however, Canadian lawyers created an indigenous but English-inflected model whereby professional self-governance was delegated to a statutorily-created body that had the power to compel all lawyers to join if they wished to practise law. With their commitment to client-centred service and strong governance, Canadian lawyers long enjoyed a cooperative and productive relationship with provincial governments, unlike the adversarial one characteristic of the United States or the long benign neglect of the legal professions by the English state. It is argued that this historical pattern may help to explain the continuing strength of the self-governance model in Canada at a time when it is being questioned and radically reformed elsewhere in the common law world.     

Gendering the Legal Complex: Women in Sri Lanka's Legal Profession

Drawing upon feminist standpoint theory and interviews with pioneering women lawyers in Sri Lanka, I argue for a focus on women as a distinct category in ‘legal complex theory’. I consider the following questions in making this claim. What were the internal structures of the legal profession that the older generations of women lawyers encountered as they entered the profession and as they took up positions of leadership? In what ways, if at all, was the ‘culture(s)’ within the profession patriarchal? In what ways, if any, did the entry and advancement of women impact these internal structures of the profession and its culture(s)? And what can we learn from these experiences in predicting the future trajectory of the legal profession? The analytical expansion that I propose reveals gender-based dynamics within the legal complex, such as gender-stereotyped perceptions about women lawyers within the profession, the ‘feminization’ of the profession, and ‘gender segmentation’ within its different spheres.     

传统与转型：坚守正义、守护良知和维护荣誉

律师是法律职业共同体中的一员,既要代表和维护委托人的利益,又要看重正义和司法公正。律师应当成为社会的一个阶层,构成一个重要的社会群体,构成公民社会一个最成熟的层面,成为反对专制和建设民主的重要社会力量。新世纪初,中国律师随社会政治转型再次面临新的转型,律师将从传统职业角色中走出来．部分地转向社会公共事务和政治生活。律师职业转型应当适度保持传统本色,以实现社会正义为根本使命,以守护社会良知为职业本分,以维护共同体的荣誉为最高利益。     

Legal Professionals and Development Strategies: Corporate Lawyers and the Construction of the Telecoms Sector in Brazil (1980s–2010s)

This study explores the role of corporate lawyers in the construction and operation of a key area of the Brazilian economy over a thirty‐year period. It looks at three periods in the history of the Brazilian telecoms sector: the fall of state monopoly; global restructuring, neoliberalism, and privatization; and the recent resurgence of state activism. In the first two periods, lawyers worked to facilitate privatization and to create a lightly regulated market for telecoms services that attracted foreign capital. Things changed, however, when the industry was faced with new industrial and social policies. In this period, lawyers oscillated between resisting government intrusion and negotiating engagement with regulators. This sequence of events encompasses changes in the field of state power, hierarchies in the legal profession, and core‐periphery relations, which invite new syntheses of existing theoretical traditions about law, lawyers, and capitalist development in emerging economies.     

律师执业精神初探

具有中国特色的社会主义律师文化,是律师行业的精神支柱,而律师执业精神是律师文化的核心。加强律师文化建设,必须形成符合社会主义法治理念要求和律师职业特征的律师执业精神,并以此作为整个律师行业的价值追求取向。本文提出了律师应注意培养的十种执业精神,希望对律师文化建设有所裨益。     

Lawyers, Legislation and Social Welfare

Efficiency considerations have played an increasing role in the development of legal doctrine over the last decades. Our paper investigates the consequences of the efficiency doctrine for the long run allocation of human resources between the legal profession and other professional activities. It is argued that a short run pursuit of the efficient scope of legislation may create an inefficient oversupply of lawyers under free entry into the legal profession. Self-regulation of entry into the legal profession by the bar association may provide higher aggregate welfare. Liberalization of professional entry can explain both the expansion of legislative activity and the unprecedented growth rate of the legal profession in many countries.     

Disability and the legal profession in the United States

There are more people with disabilities than any other minority group in the United States. However, little attention is paid to lawyers and potential lawyers with disabilities. This article examines difficulties faced by people with a disability as law students through to participation in the legal profession. Aspects of discrimination and issues relating to discipline of lawyers and disabilities are canvassed. The legal profession in the United States is taking steps to increase representation of people with a disability in its ranks but it is a slow process.     

再论法律职业化与法律职业共同体

随着法律职业化进程的推进,我国现阶段基本形成了法律职业阶层,但并未出现一个法律职业共同体。即便如此,鉴于法治信仰并未真正被培育,现有法律职业阶层仍然存在被异化为“物化”法律职业利益集团的风险。因此,法治信仰的培育既是法律职业化的基本要求,也是形成法律职业共同体的核心元素。     

Changes in Lawyers' Earnings: The Impact of Differentiation and Growth in the Canadian Legal Profession

The relatively greater numbers of young, female, and salaried lawyers are said to have diminished the legal profession's control of the market for its services, and hence of its income and status. This article examines the effects on lawyers' real earnings attributable to the rapid change in size and composition of the legal profession in Canada during the 1970s. An analysis of the components of inter-temporal earnings differences, which takes account of changes in composition and in the remuneration or pay structure, shows that the unprecedented growth in lawyer supply was responsible for most of the decline in lawyers' real earnings. But lawyers who were young, female, salaried, or in government service avoided this negative market effect, while lawyers who were male, self-employed, or outside the major financial centers, bore most of the negative economic impact of the rapid supply growth.     

DATA ANALYSIS OF PROFESSIONALIZATION OF LEGAL WORKERS IN CHINA

Since the reform and opening up, the legal profession in China has changed dramatically. In terms of both quantity and quality, the legal profession has stepped into a new phase. A tendency towards widespread litigation and more professionals.＂ judges, lawyers and law students, can be clearly evidenced. Along with the development of the legal profession, other types of legal workers including business arbitrators, grassroots paralegal service workers （grassroots paralegals）, and mediators have experienced great changes. To a certain extent, they have become more marginalized than before. The development of the legal profession is extremely unbalanced. Whether in terms of the number of lawyers or the income generated by lawyers, the inter-provincial gap in China is huge. The development of the legal profession also brings out the issue of judicial corruption. From the number of letters and visits related to lawsuits and the National People＇s Congress deputies ＇votes on the reports of the Supreme People＇s Court and the Supreme People＇s Procuratorate, the level of legal corruption can be noted. This＂ problem has become a crucial challenge to the reputation of the legal profession and the judicial creditability of the country. The same amount of attention should be paid to judicial corruption as to the quality of legal services.     

The Financial Rewards of Elite Status in the Legal Profession

This article focuses on the role of intergenerational status attainment for legal careers. By decomposing the earnings gap between elite and nonelite lawyers at two points in their careers, we find that inherited cultural capital produces an earnings advantage as soon as lawyers begin their careers and that this gap persists over time. We further find that the processes underlying this gap change as lawyers make their way through the profession. While in early careers, the elite advantage is due to stronger starting endowments, the advantage for junior lawyers results from a more complex process, which combines starting endowments, professional capital gained during the first years of practice, and the rate at which endowments are differentially rewarded in the profession. Elaborating on work that identifies the importance of maintaining and concentrating diverse forms of capital in the legal profession, we explain the process through which elite lawyers gain and retain their advantage over time.     

Lawyers and Politics in France, 1814–1950: The State, the Market, and the Public

Throughout the 19th century, lawyers in France were deeply involved in political action to pursue an overriding goal–to become recognized as spokesmen for the public. This strategy governed their history; it explains their brilliant social ascent and their subsequent slow decline. As long as the conflict between state and civil society raged, lawyers were able to we assets–political mobilization, the power of the word, the esteem enjoyed by law–which had allowed them faithfully to embody public opinion in its struggle to limit state powers. From this embodiment of public ideals they derived independence, prestige, and a dominant position in the state. But when the nature of the political regime ceased to be a bone of contention and when public life became organized around other cleavages, lawyers were gradually deprived of their representative function. This marked the beginning of a social decline that became visible between the two world wars and lasted until the 1950s.     

The Number and Earnings of Lawyers: Some Recent Findings

The number of lawyers in a society may depend on the level of real income and on the scope of government regulation. Cross-national data and time-series data suggest that the growth in the number of lawyers in the United States during the past 50 years can be better explained by increases in real income than by increases in government regulation. Other tests also suggest that regulation is of lesser importance. The combined share of memberships in American Bar Association Sections more closely allied with government regulation has not increased over time. The share of billings by the legal service industry to firms is found to be relatively stable throughout the post-World War II period, suggesting that the scope of government regulation has not caused business firms to use the legal service industry more intensively over time than individuals have. An examination of the earnings of lawyers over time suggests that members of the legal profession experienced relative prosperity during the 1920s and early 1930s and during the 1960s and early 1970s. The length of these prosperous periods is traced to the slow adjustment in the number of places in law schools.