Compared with the management of law status between China and America

"Chinese law" in 2011 third

In 2010 October, the author took part in the lawyer Management Cadre Organization by the Justice Department of University of Illinois in America short-term training programs. In the meantime, listened to the law school professor explained the lawyer law firm management, organization and structure of the criminal defense lawyer, role, disciplinary punishment of lawyers and other content, visited the state, county courts and the police department, and the court trial, the exchange and the judges, prosecutors and police officers, visit the firm, including the world's largest USA Beck Mckenzie, visited a number of departments America Justice Department Education and training center, the American Bar Association and the Association disciplinary committee, had the preliminary understanding to the America judicial system, the lawyer management etc.. The current management mode and makes a comparison between China and the United States attorney.

A lawyer, concept and nature

Our definition of lawyer successively three. In 1980, the "Provisional Regulations" lawyer "lawyers said the state of legal workers", 1996 "lawyer law" definition "refers to the lawyer has acquired a lawyer's practice certificate, to provide legal services to the public." Revised in 2007, "said the lawyer is to obtain the lawyer's practicing certificate according to law, authorized or designated, to provide legal services for a client practitioners." From the definition of lawyer of change, it is not difficult to see that our country from planned economy to market economy, shift from dictatorship to democracy and legal society trajectory. But the definition of lawyer regardless of how the changes, the socialist nature of our lawyer system has not changed, now positioning "China socialism legal workers."

American is a judicial system, a sound legal system in advanced countries, but not a legal concept of law are clearly defined. The American Bar Association in 2010 "professional guidance manual" of a book called "lawyers are legal occupation with a group of people, is an agent of the customer, is to safeguard the legal system, has a special responsibility and excellent sense of justice." America lawyer, is not only to provide legal services to the public, including the appointment in other department employees, such as prosecutors in all levels of governments are lawyers, America Justice Department more than ten thousand employees are lawyers. In fact, the law occupation called America lawyer, that is to say everyone this legal occupation in the group can be called a lawyer engaged in this occupation, but also many people. America 3 hundred million population, engaged in lawyer occupation was 1200000, average every 300 people have a lawyer. While China's 1300000000 population, has 194000 lawyers, an average of 7000 people to have a lawyer, even with the 500000 judges and prosecutors, nearly 2000 people in China have a legal occupation personnel.

Two, the social status of lawyers

The lawyer system in China during the early recovery period, "lawyers are legal workers" countries, in the preparation of the government, is to let people admire very much to law firms or the legal advisory office work. With the continuous reform and law system, the vast majority of lawyers resigned from the public, from bondage to "free" people's lawyer, economic income is greatly improved, with the ideal and belief, moral values and the behavior standards are constantly changing, society with evaluation of cause, attorney's social image greatly.

In American this freedom is very high country, lawyer's status is also very high, this is not only because of America lawyer economy far higher than the income of civil servants, mainly because America is a case law country, the legal system and the legal provisions are very complicated, not everyone can grasp and understand the. People in the political, economic and social affairs, the various problems encountered, all need the services of a lawyer. Whether it is the government, enterprises, social groups or individuals, in making important decisions, must seek legal advice. It is because of USA social status of lawyers and high, the 44 presidents American, 23 with a lawyer occupation experience, more than 60% of the members of Congress who served their duties as lawyers, judges, prosecutors are held by possessing the qualification as a lawyer.

Three, lawyers system

In China, if the lawyer occupation, first through the judicial qualification examination, candidates are loose. To obtain judicial qualifications, can be engaged in the judges, prosecutors, lawyers and notaries, occupation, but because the other three occupation threshold higher, so every year to obtain judicial qualifications, the majority of lawyers to enter. In recent years, along with the judicial qualification through rate rising, lawyers also rapid expansion. In 2010 the new lawyer 28000 people, growth of 16.8%. The lawyer in some economically developed regions are overcrowded, caused by malicious competition continuously, while the backward areas lawyers lack, society not corresponding legal services.

In American, due to different specific provisions of state law, a lawyer is different, but in general you must have the following conditions. One must have a bachelor's degree in law. General undergraduate must be approved by the American Bar Association law school reading. The two is to be adopted by the state bar exam, exam appointed by the state Supreme Court is responsible for. The content includes America federal and state laws. The three is to pass the bar association scrutiny. Applicants are required to submit the written materials, such as 18 years old adult after all the address, including the landlord's name. To provide all related to the legal aspects of the report, to arrest, small to have for speeding fines. If unmarried children, must submit financially to prove maintenance etc.. The above materials such as a false, will be considered as dishonest. In America, speeding fines, illegal drug use, drug or alcohol such mistakes can be forgiven, but dishonest and unethical behavior once the investigation out will be lawyers association refused to go without qualification certificate. Qualified as a solicitor in a state, can be engaged in the occupation of lawyers in the state. If you want to practice in another state, but also through another state bar exam.

Four, management system

Our country from the judicial qualification examination organization, the qualification file management, personnel of to apply for a practicing certificate from practice, from the establishment of a law firm to investigate illegal behavior, the lawyer has to deal with the judicial administrative organs, all practice in the judicial administrative organs of the administration supervision. In 1993, the State Council approved the "the Justice Department lawyers work on deepening the reform scheme", first proposed the judicial and administrative authorities and industry associations "two combination" lawyer management system. But the present situation, mainly to the judicial administrative organs. Lawyers Association called the new social organization, the name is a self regulatory organization of the industry, but actually attached to the judicial administrative organ. Secretary General of the association are basically served by the judicial administrative organs of the staff. "Two combination" of the biggest change is the lawyers association management system by the administrative organ of leadership is a lawyer.

In USA, is very easy to lawyer management, the government has no lawyer management department, the lawyer is free occupation. In addition to state court master registered lawyer in the state, no government department or organization has many law firms in the state. The government also without any supervision and guidance of the responsibility of industry associations such social autonomous organizations. The management function of lawyers lawyers association is also very limited, because most states American lawyers association are by the law voluntarily join and the composition of the. The American Bar Association lawyer added only 2/3. America Lawyers Association no subordinate relationship, also does not have the leadership or guidance, there may be a number of Lawyers Association in an area, the local lawyers association, corporate lawyers association, the Asian Lawyers Association, the name is different, the members are also different. A lawyer as long as the membership fees may also participate in several lawyers association. Membership fee is very low, annual fee not exceeding $100, some County Bar Association annual fee is only $40. Each bar association have their respective functions. The American Bar Association is mainly responsible for Law School Certification, formulate normative practice manual, organize business training, developing legal aid lawyer, publishing journals. According to the National Association of State Bar Association lawyer manual formulate its own code of conduct, the organization of the state bar examination, issued a lawyer's qualification certificate, shall be responsible for the district attorney complaint investigation. Each county and City Bar Association is the main organization for lawyers to carry out the communication and entertainment activities.

Five, institutions and business scope

In our country, law firm has three kinds, namely, partnership and individual country. According to the "law" and regulations, by the provincial judicial administrative organs responsible for establishment of law firm, the procedures more cumbersome and complex. If a lawyer to open a law firm, the declaration of materials to the judicial administrative organ the examination, qualified and then reported to the provincial judicial administrative organs audit, after approved by the Department of justice to name. The lawyer to get approval to seal engraving, to the provincial government for the location of the organization code certificate, back in to apply for tax registration, opening a bank account, to permit fees, if any problem with the program will delay time. The establishment of law firms from start to finish, the fast three or four months, half a year or even longer slow.

In American, lawyer as long as there is a practicing certificate, you can set up their own law firm, does not need any department for examination and approval. Only when the establishment of a limited liability company law firms, the government needs to city hall to register, equivalent to report to the government or to the public, the firm is limited, the future Bankruptcy Liquidation Liability limited. If not registered, that no matter your firm is what kind of, want to assume unlimited liability.

From the business perspective, the lawyer system in China during the early recovery period, lawyers in criminal defense, then gradually civil case, extending from the field to the non litigation procedure. And America lawyer business after several years of development, has been involved in various fields, and the finer points of legal profession, the emergence of a number of patent law, maritime law, tax lawyers and other professional qualification of lawyers. There are some special study a law, specifically for certain types of lawyer. Some large law firms also specifically for the government to provide legal services, government money to buy services are particularly prominent in the legal profession.

Six, penalties and punishment          

In our country, in violation of "law" the conduct of lawyers to receive administrative punishment in violation of articles of association, "" to receive the industry measures. The lawyer's head while hanging two swords, rarely but generally punished and punishment. The main complaints are often provide no complaints were lawyers or discipline illegal evidence, so in the processing of complaints, administrative authorities and industry associations have to give up the punishment. In addition, Bar Association disciplinary committee members are formed by practicing lawyers, they may face in their law firms or their body appeared over the issue, not a knife leather own life.

In America, because there is no standard practice for lawyers law, so American lawyer would not be subject to administrative penalties, but American lawyers to face the court for their punishment. Although the laws of each state and the practice is different, but each state courts have lawyers disciplinary committee, the majority of States to the Committee on the State Bar Association, complaints to be lawyers to investigate the lawyers' association. Lawyers association to receive from the court, procuratorate, the complaint, through the investigation and collection of evidence, the final decision on whether to enter the trial procedures. To hear similar court proceedings, by the association as "the Disciplinary Commission," complained the lawyers as "the defendant", can also entrust a lawyer as agent. "The trial" in the Bar Association disciplinary committee office, "the presiding officer" is the Disciplinary Commission outside the law. After the trial if that constitute violations, the punishment opinions to the state Supreme Court, only the Supreme Court has the right to decide whether to give the lawyer punishment. Penalty types and our little difference, the most serious is revoked license.

Seven, public welfare activities and publicity

Our lawyers have the duty of legal aid, every lawyer to accept the local legal aid center assignment of legal aid cases. Lawyers for legal aid cases, can be obtained from the government of symbolic subsidies. At the same time, the lawyer also participate in all levels of Government Petition reception, to participate in the law into the community, into the factory, the law to the countryside, publicity day, workers rights, women's rights activities. America lawyers participate in social welfare activities have two kinds, one kind is the Legal Aid Association, mainly for those who labor disability or because of labor disputes and does not have the lawsuit of assistance. The other is on important matters such as relates to human rights, racial discrimination cases of this kind of assistance. The American Bar Association also requires every lawyer a year to have legal assistance for 50 hours, but not mandatory. There was a state judge asked counsel to provide free legal aid for the parties, by lawyers at low.

Our lawyer propaganda has two kinds, the official organization is a kind, namely by the judicial administrative organs or industry associations, the selection of "top ten", "excellent" or "good" lawyers, propaganda through a typical. Another is the law of self promotion, through advertising media. Our country has no from the legal level of lawyers and publicize the provisions, so the lawyer advertising everywhere. USA lawyer propaganda also has two kinds, one is from the media launched the American Bar charts. First by the media release announcement and the questionnaire, the law firm voluntarily participate in the, questionnaire including number of lawyers, the scope of business and income, customer groups, industry evaluation and many other content. Secondly, the media will be verified according to the contents and the data it provides, carries on the investigation to the customer. Finally, integrated indicators, to the law firm list list is announced to the society. Although not an official list or not very accurate, but also has certain representativeness, can be recognized by the society. Another is the lawyer advertising, newspapers have, some for a few published full page ads, but basically the professional field for many, rarely see the "one size fits all" type of advertising.

Eight, the attorney rights

Our lawyers "rights and interests are not guaranteed even violated It is often seen. To the meeting with the criminal suspect or defendant, may run several times not see. To industry and commerce, taxation, banking, real estate, land and other government departments of investigation and evidence collection, will hear the lawyer was difficult. Although the amended law, added a number of safeguards, such as "entrusted lawyer according to the case of need, can apply forThe people's ProcuratorateThe people's court to obtain evidence, collection, or apply to the people's court to inform the witnesses to testify in court. Attorney to investigate the evidence, with lawyers and law firms practicing certificate to prove, to investigate relevant units or individuals undertaking legal matters with the situation." But in most cases not implement. The lawyer to court, and the parties to accept the security line, a lawyer and judge for several defense by the bailiff handcuffed. Therefore, lawyers association set up to protect the rights and interests of lawyers Committee, NPC deputies and CPPCC members have suggestions or proposals, reflect the lawyer.

In American, because of social status and occupation dignity lawyer, the lawyer's rights will be effectively protected. The lawyer in court has exclusive access, without any examination. When we USA Lawyers Association reception staff put lawyers rights are infringed, association to to adults, American counterparts feel should not have this problem, in their view, how will the lawyer's rights are violated, if infringed he should to institute legal proceedings, the court will support. The legal consciousness of citizens America is also very strong, investigation and evidence collection of lawyers are actively cooperate to testify truthfully, and, if there is a false testimony, will face perjury charges. So in the America lawyer to the investigation of any unit, are all the privileges, not be unreasonably refused.

Through the above eight aspects of American law comparison, it is not difficult to see that, as a result of the management system, cultural background and the practice environment is different, there are great differences between the Sino American lawyer in all aspects of organizational structure, management system etc.. But no matter how much difference, as a lawyer or legal occupation, advocating the law, to ensure the correct implementation of law, safeguard social fairness and justice, is China and the United States Attorney occupation moral standards and lineAs the criterion.