(from season Weidong Law BlogHttp://jwd.fyfz.cn/blog/jwd/)

    Administrative penalty for a public interest lawyer, is becoming a public focus reexamine the law firm and the executive power of the relationship between.

  According to reports, the Beijing Haidian District Judicial Bureau recently ordered the Yi law firm to rectify the closure of six months, the reason is the violation of the Justice Department in 2004 promulgated the "illegal acts of the lawyers and law firms punishment measures" article ninth (19) regulations, take a letter of introduction to the way, provide convenience for has not obtained the certificate of practicing the illegal practice of law personnel. However, the object of sanctions that defy, and advocates have made lawyer license seized over the administrative measures of pile itself is clear. Here, with the non judgment, first of all depends on the lawyer license with and without.

   As we all know, Chinese's lawyer license system is very distinctive. Judicial examination candidates after practice to engage in business activities, but also by a law firm to the judicial administrative department to apply for the license, and must be updated every year for the formalities. This means not as autonomous groups of Lawyers Association, but the specific law firm lawyers in the implement of all compulsory membership system; and the judicial and administrative departments and the permit system to implement the management contract responsibility system for all law firm.

  This also means that the true sense of the individual firm is not established, otherwise any lawyer can solve the problem of self practicing certificate. This also means that the lawyer's boiler bowl stove must actually annual change, the supply -- Li Subin lawyers and Beijing Yitong law firms now face a non tongue, is from the right power administrative departments issuing certificates of nothing threat.

   From the comparative law perspective, the lawyer's qualification has been completely different value idea. Reflected in this instance, on the performance of each sticks to his argument for the party. Comprehensive Yitong law firm claims, the following points are worth noting: first, Li Subin had obtained a lawyer's practice qualification, if to revoke it, must be issued by the examination and approval organ or sanctions organization written notice, otherwise it is unavoidable sneaky. Second, the cause of Li Subin's lawyers documents confiscated that he once unfair charges on the local bureau of justice of the allegations and win the lawsuit, administrative department to take revenge. Third, the punishment is based on the administrative regulations, the new lawyer law fiftieth not its content and in 2008 the implementation of the agreement; in accordance with the law, subject of administrative punishment does not involve a practicing certificate.

   However, here it is necessary to clarify one point, in view of the special nature of lawyer's mission and functions, in order to maintain its quality and social reputation, and even if the law is not clear, can also be through the duty behavior of lawyers disciplinary or administrative sanctions shall be standardized, even to initiate judicial proceedings shall be investigated for legal responsibility. In this sense, the lawyer ethics has largely legalization, similar trends can be seen in Europe and the United States and japan. In other words, to a large extent, the main purpose Chinese lawyer management regulations and industry standard is to maintain the lawyer's occupation ethics, have no ground for blame. Even so, we still have to fully recognize, around the lawyer has completely different understanding, legal form and the content also will be changed.

   For example, in the modern legal theory, legal person of the judicial system and empirical law system of the duty of loyalty and duty of ethical standards in accordance with the following: to distinguish judge more emphasis on the independence and impartiality, the prosecutors emphasized as a whole to keep step with, lawyers more emphasis to the interests of customers on daoshan, under the flames have tremendous courage and wisdom. But in the current China, we also found that these differences were also differentiated the phenomenon: the judge instead emphasizes the integration principle, the prosecutor instead emphasizes the independence of lawyers, but more emphasis on the control of administrative legal supervision. In short, as if the pointer various evaluation are respectively made the displacement of one hundred and eighty degrees. Judges and prosecutors to receive remuneration from country to country, but the source of income in the folk, in the customer, in this job splitting pattern will continue to strengthen administrative control of lawyer's words, there seems to be a name is not correct, the words will not ring.

   From another point of view, in accordance with the principle of social division of labor, lawyers and judges, prosecutors, properties intermediary and service. This determines that they had a strong grassroots spirit, must be in different scenes were played apologist, negotiators, consultant, coordinator, brokers, appraisers and other different roles. Therefore, customers would like to think, urgent customer needs is the spirit of the law to win the foundation of social trust law firm, is also a prerequisite for the maintenance and development of the. If the lawyer is subject to administrative departments, these characteristics will weaken, as the obligation of client confidentiality and contrary interests agency regulations will become meaningless. While strictly conservative secret, prohibition of interest customers opposite agent, which is the core of law ethics. It also can be deduced: when the judicial administration department tries to arrest or revocation of license to suppress the dissident lawyer, even to speak boldly in defense of justice lawyers to take revenge, impossible to improve ethical lawyer, will further promote the ethics of the legal profession slippery slope.

   If we stop here, not to continue the discussion of values and legal logic, so only for violations of administrative rules of administrative sanctions, fundamentally solve the dispute clues to the Luoyang judicial bureau should move in search, search. Why is Li Subin a lawyer to 2000 the annual registration fee Sue? What is the judgment reason? In 2002 for qualification certificate inspection, Party's attorney documents seized the local judicial and administrative departments of the sequence of events how? Why he did not receive the written notice of suspension of lawyer qualification? To confiscate the license behavior whether he to other organs expressed against? Yitong law firms did not apply for a practicing certificate for Li Subin? As long as these doubts not dissipated, it is very difficult to resolve the dispute.

   In addition there is a solution to the problem is to provide clues, Yi Tong law firm, namely: step back and say, even the lawyer Li lost lawyer qualification, and no excuse me Haidian District Judicial Bureau to implement the administrative penalty to the employing unit. Because the law does not require China monopoly position of business lawyers, ordinary citizens have the right to meddle in the soup. But because Li Subin to Beijing, never in the name of the lawyer occupation alone, but as an assistant with the other lawyer's license action. So, in any case does not exist the so-called "illegal practice of" problem. Have a glib tongue. This is indeed a very "lawyer", is also very helpless, have a sense of sadness permeate out from between the lines.

   Since Yi Tong Law Firm refuses to accept the administrative penalties on Haidian District Judicial Bureau, if that failed to modify the relevant decisions, then to the superior judicial administrative departments for review, and may also initiate administrative trial procedure is proposed to cancel the action. It may be said that in a sense, there will appear a lawyer to and fro Huan between each part of the judicial system of self protection route, occupation group autonomous "owned by lawyers, lawyers, all by the management for the lawyer service" as the ultimate goal.

                          (Ji Weidong / Wen, "finance and economics" carrying 233rd)

   Ji Weidong introduction: born in 1957 in Nanchang city. In 1983 from the Peking University law school graduate study in Japan, earned a law degree from Kyoto University. 1990 as the associate professor of Kobe University law school, 1996 was promoted to full professor. During the period from 1991 to 92 years for the American visiting scholar in Stanford University law school. Has been selected as sociology, International Association of Sociology of Law Research Committee (RCSL) designated Director, Japan Law Society Association, the Asia Pacific Forum (Awaji Conference) Research Committee, International Research Institute for Advanced Planning Committee, Tokyo consortium Comparative Institutional Research Institute etc.. Since 2008 September has served as the Law School of Shanghai Jiao Tong University KoGuan professor and dean. The main research field of Sociology of law and comparative law.