Abstract: Unfair competition in the legal profession is an increasingly prominent problem in the current legal profession. This paper deeply analyzes the causes of unfair competition in the lawyer industry and discusses the necessity and feasibility of prohibiting unfair competition in the lawyer industry.
Keywords: the necessity and feasibility of unfair competition among lawyers
As a legal concept, unfair competition first appeared in the Paris Convention for the Protection of Industrial Property (1883), which stipulated: "Any competition that violates honest management in industrial and commercial activities constitutes unfair competition." In China's Anti-Unfair Competition Law, unfair competition is defined as an act by which an operator damages the legitimate rights and interests of other operators and disrupts the social and economic order. Unfair competition in the legal profession mainly refers to the behavior that lawyers or their practice institutions (law firms) violate the principles of fairness, equality, honesty and credibility, hinder the normal business development of other lawyers or law firms by means of false propaganda, slander, low-cost charges, damage their legitimate rights and interests, disrupt the legal service market and disrupt the judicial order. There are both connections and differences between the unfair competition of lawyers and the unfair competition of general market subjects. Lawyers are also market subjects from a certain point of view, with the general attributes of market subjects, but they are significantly different from general market subjects. Lawyers not only have the obligation to safeguard the legitimate rights and interests of the party who signed the entrustment contract with them, but also have the obligation to safeguard the correct implementation of socialist laws. Therefore, the unfair competition in the lawyer industry is not only related to the standardization of the legal service market, but also related to the realization of the goal of the rule of law in China.
Firstly, the reasons and characteristics of unfair competition in the lawyer industry are analyzed.
The deep-seated reason of unfair competition in China lawyer industry is the change of lawyer's legal status. 1980 The Provisional Regulations on Lawyers in People's Republic of China (PRC) (hereinafter referred to as the Regulations) adopted at the15th meeting of the Standing Committee of the Fifth NPC on August 26th defines lawyers as national legal workers, and their practice institutions are legal advisory offices, which belong to public institutions. Under the planned economy system, there is no real exchange and circulation, no conflicts and disputes, and everything is arranged in advance. Enterprises or producers do not have their own independent identity, independent consciousness and independent business rights and interests, and do not have independent legal personality. It is impossible for the laws or rules under this system to have the equivalence of rights and obligations, because the laws or rules here are actually the embodiment of the commander-in-chief's will, the tool to carry out the commander's intention, and its purpose and function are to fix the relationship with authority and obedience. In the planned society, there is almost no independent legal service demand for social subjects. Because the executive order killed it.
Lawyers and their practice institutions only exercise state functions and do not participate in market competition. Their funds depend on the national financial allocation and are included in the national business budget, so there is no problem of fair competition and unfair competition under the market economy. After the 14th National Congress of the Communist Party of China, China began to enter the period of socialist market economy construction. 1993 and 16. In February, the State Council approved the "Program of the Ministry of Justice on Deepening the Reform of Lawyers' Work", which clearly stated that the overall goal of the reform of lawyers' work in China is to no longer define the nature of law firms by the mode of ownership of the means of production and administrative management, and to establish a voluntary, self-supporting law firm that meets the needs of the socialist market economic system and international exchanges. The legal role of lawyers and their practice institutions has gradually changed from the executor of state functions to the market subject, and the lawyer industry has gradually entered the ranks of the socialist market economy. Lawyers provide legal services to clients through their own knowledge and skills, and clients pay lawyers by paying money. This two-way social contract between lawyers and clients is essentially a commercial act. Lawyers and their practice institutions are no different from the general market players. In a sense, lawyers are also producers and operators of goods, but the goods they provide are intangible and an intellectual achievement. As a subject driven by market interests, in order to maximize interests, competition between lawyers and their practice institutions is inevitable, and unfair competition is also inevitable. With the promulgation of 1996 Law on Lawyers, the legal status of lawyers in the market economy system is further clarified, that is, lawyers are practitioners who provide legal services to the society. Lawyers are no longer the executors of compulsory functions relying on the state power machine, and the way lawyers perform their duties is a way of legal help based on non-compulsory two-way choice. Therefore, from the above analysis, it can be seen that the deepening of the lawyer industry from non-existent competition to unfair competition is due to the changes in the legal status of lawyers caused by the transformation of China's socialist economic system. In addition to the above-mentioned deep-seated reasons, the internal and external mechanisms of the lawyer industry and its environment have also contributed to unfair competition in this industry. These internal and external mechanisms mainly include the following points: (1) The existence of part-time and invited lawyers is one of the main reasons leading to unfair competition in the lawyer industry at this stage. In China, due to the shortage of lawyer resources, part-time and specially invited lawyers appear and coexist with full-time lawyers for a long time. At present, most of the part-time or invited lawyers in China are retired law teachers and judicial staff in some universities, and these people are inextricably linked with the judicial organs. (For example, law teachers in colleges and universities often have teacher-student relationships with some judges. Retirees from judicial organs often hold important positions in the original judicial organs). Their dual or multiple special identities make them have more cases and "winning" opportunities than other lawyers. In addition, compared with full-time lawyers, part-time and invited lawyers are more casual and difficult to be strictly regulated by professional management, which also causes disorder and confusion in the management of lawyer service market to some extent. Judging from foreign lawyers, most lawyers in western countries are professional lawyers, and other forms are not allowed. To this end, some scholars put forward the idea of canceling part-time jobs and inviting lawyers, which the author agrees with; (2) The relevant laws and regulations lack unified and clear norms on the unfair competition behavior of lawyers and their practice institutions, and there is no unified organization to supervise and manage their unfair competition behavior, which leads to the existence of unfair competition in the lawyer industry on a large scale, but it has not received enough attention. (3) Unreasonable external related systems lead to unfair competition in the lawyer industry. For example, in the tax and fee system, when taxing law firms, they tend to characterize enterprises and implement high tax rates, while when formulating charging standards, they tend to characterize institutions and implement low fees. Due to the difference of tax and fee standards in different places, some law firms take the means of evading the law to implement unfair competition. That is, first register in areas with low tax rates, and then set up branches in areas with developed economy and high tax rates to avoid tax; (4) The overall orientation of society and the value orientation of the parties urge lawyers to pursue winning the case. The general orientation of society is that a lawyer who can win a lawsuit is a good lawyer, and it is based on this value orientation that the parties choose to entrust a lawyer. In order to win the lawsuit, some lawyers and law firms have to use various means to conduct unfair competition through various channels; Therefore, unfair competition in the lawyer industry also has a great relationship with the current social atmosphere.
At present, unfair competition in the lawyer industry mainly has the following characteristics: (1) unfair competition mainly occurs in some economically developed large and medium-sized cities and coastal areas; In these places, due to the concentration of lawyers and law firms, many lawyers and law firms will inevitably use various unfair means to compete for business and crowd out their peers in order to compete for limited sources of cases; (2) The means of unfair competition are diversified and hidden. 1995 although the Ministry of justice has promulgated several provisions on opposing unfair competition in the legal profession (hereinafter referred to as the "provisions"), due to the unclear definition of unfair competition in the legal profession, some unfair competition behaviors in reality have not been included in the list of unfair competition, and the means of unfair competition in reality are also diversified. For example, the "Regulations" lack detailed regulations on the advertisements of lawyers and law firms, which leads to many cases of unfair competition in the lawyer industry by using various advertisements. Some false and exaggerated propaganda confuses the audience, misleads the parties, seriously damages the image of lawyers in the eyes of the broad masses of the people and disrupts the order of the legal service market. The above-mentioned unfair competition caused by the existence of part-time and specially invited lawyers is more concealed. [Page]
Second, the necessity of prohibiting unfair competition in the legal profession.
(a) is the need to standardize the legal professional order.
As a part of the market economy system, the lawyer industry must follow the market rules, which require market participants to follow the principles of fairness, equality, honesty, credit, openness and efficiency in the process of commodity exchange, otherwise it will inevitably lead to chaos. The socialist market economy maintains and promotes equal and fair competition and opposes unfair competition and monopoly. As an inevitable companion of legitimate competition, unfair competition will objectively cause resources.
Distribution deviates from the law of value, resulting in unreasonable flow of resources,
As a result, the market mechanism can not function normally. As far as the lawyer industry is concerned, some unfair competition behaviors of lawyers and law firms,
If there is no justifiable reason, it is a serious departure from the law of market value to attract customers on the condition of charging below the prescribed standard, and the law of market value requires goods to be exchanged at the same value. Some misleading false propaganda behaviors are essentially
Theoretically, it is also a deceptive transaction, which will cause confusion in the legal service market and make the parties unable to make the right choice.
Did choose legal services, their legitimate rights and interests due to the lack of correct legal guidance and can not be timely legal maintenance, the other
On the one hand, some high-quality lawyers can't get enough cases and opportunities to display their talents because of unfair competition.
In order to survive the competition in the legal service market, it may eventually embark on the road of unfair competition, leading to lawyers.
The decline of professional quality has damaged the overall image of lawyers among the broad masses of the people. Therefore, the legal profession prohibits unfairness.
Competition is the need to standardize the legal professional order, ensure the rational allocation of legal service resources and improve the overall professional quality of lawyers.
(two) is to maintain the correct implementation of the law, to ensure the realization of the goal of the rule of law in China.
The 15th National Congress clearly stated that the goal of socialist rule of law in China is to govern the country according to law and build a socialist country ruled by law.
The realization of justice and the rule of law depends on the implementation of the principles of observing the law, strictly enforcing the law and prosecuting criminals. Jiu lawyer office
Professionally speaking, although lawyers are no longer the executors of national legal functions, they still undertake the fundamental task of maintaining the correct implementation of laws.
The fundamental task of lawyers has two meanings: (1) lawyers and their practice institutions must act in strict accordance with the law; (2) lawyers have the responsibility to
Supervise law enforcement agencies and parties to act in strict accordance with the law. Realizing the fundamental task of lawyers is an important link to realize the goal of China ruled by law.
Festival. Therefore, if a lawyer deliberately denigrates the reputation of other lawyers or law firms during his practice, it is intentional.
It is illegal to create disputes and other unfair competition between agents and their agents, which is not only impossible to achieve.
The fundamental task of lawyers is to seriously undermine the construction of socialist legal system. In addition, lawyers use the other two.
Status (for example, having held a leadership position in the administrative and judicial departments or having a special relationship with the current leaders of the administrative and judicial departments)
Unfair competition in the legal service market will seriously interfere with the independent exercise of judicial power and procuratorial power by judicial organs in China.
The right of inspection violates the rule of law principle of "there are laws to follow, laws to be followed, law enforcement to be strict, and violators to be prosecuted", so it is prohibited.
Unfair competition in the legal profession requires lawyers and their practice institutions to act in strict accordance with the law, which is determined by the fundamental task of lawyers.
The prohibition of unfair competition in the legal profession is conducive to the judicial organs to eliminate interference, handle cases independently according to law and ensure the correctness of the law.
The use is of great significance. Fundamentally speaking, prohibiting unfair competition in the legal profession is the need to ensure the realization of the goal of China ruled by law.
(3) It is necessary to participate in international competition.
Market economy is an open economy, which requires the establishment of a unified and open domestic market system on the one hand and the state on the other.
Internationalization of the internal market, joining the international economic cycle, realizing the rational allocation of social resources on a global scale, thus promoting the whole society.
The development of productive forces. From the legal service market,1June 26th, 992, Ministry of Justice, State Administration for Industry and Commerce.
The Interim Provisions on the Establishment of Offices of Foreign Law Firms in China jointly promulgated stipulates that foreign law firms
Without the approval of the Ministry of Justice and the registration of the State Administration for Industry and Commerce, it is not allowed to set up an office or engage in business activities in China.
Move; Do not evade the law and engage in legal service activities in the name of consulting companies, business companies or other names; Foreign lawyers are not allowed
Directly set up a law firm in China or jointly set up a law firm in China with China. In addition, handle affairs
China lawyers shall not be hired, and China legal affairs shall not be handled. These regulations actually restrict the external market of legal services.
Open. However, starting from 1986, China formally put forward an application to restore GATT seats in order to obtain the right to "re-enter GATT".
199 1 In July, China took the first step to open to the world, including banking, advertising and tourism.
The initial commitment of six professional service industries 1992 officially began to allow foreign law firms to set up offices in China.
Pilot work in the office. During the negotiation process of applying to join the WTO, China submitted a commitment to open the service trade market.
According to the commitment, once China joins the WTO, the legal service market as a part of professional service trade will be gradually opened.
With the opening up, the restrictions on foreign lawyers' business will be gradually lifted, and the competition between domestic and foreign lawyers will be intensified. As far as their strength is concerned,
Domestic law firms are inferior to foreign law firms in terms of service concept, management mode and soft and hard working environment.
In this case, if domestic lawyers and law firms do not pay attention to improving their own quality and soft and hard service environment, but still focus on unfair competition behaviors such as pulling relationships, entering through the back door and charging low fees, the result will inevitably be lost in the market.
Competitiveness was eventually eliminated by the market.
Second, the feasibility of prohibiting unfair competition in the legal profession.
The key to the feasibility of prohibiting unfair competition in the lawyer industry lies in how to implement the norms or regulations prohibiting unfair competition.
Put it into practice. It should be said that China's legal theorists and practitioners have asked about unfair competition in the lawyer industry earlier.
As early as 1995, the Ministry of Justice formulated "Several Provisions on Opposing Unfair Competition in the Lawyer Industry".
Set ",defines the acts of unfair competition, and stipulates the legal responsibilities and disciplinary institutions that unfair competition should bear.
However, the performance of this provision in practice is not good, and the unfair competition in the lawyer industry has not been curbed, but
Is spreading, and today, the issue of unfair competition in the lawyer industry has once again become the focus of discussion in the theoretical and practical circles of law.
Point, its core problem is still the feasibility problem, the author believes that the prohibition of unfair competition in the lawyer industry can start from the following aspects:
(1) The prohibition of unfair competition in the lawyer industry should be adjusted by the legislature to formulate legal norms; Functions of China Lawyers Association
It is very different from foreign lawyers' associations. For example, the American Bar Association (ABA) has legislative power, and American lawyer legislation is formulated by the Bar Association.
It is not implemented by the legislature of the government, and its laws and regulations are passed by the parliament or high court of the state government.
General compulsion. China Lawyers Association is a legal entity and a self-regulatory organization of lawyers. It has no legislative or legislative power.
Rules do not have mandatory normative function, but only have general normative and guiding function in the industry. Therefore, in China, only
In the absence of compulsory protection, it can only be an expedient measure to prohibit unfair competition in the lawyer industry through self-discipline or industry norms.
In the long run, only by raising the level of adjustment to the level of legislation, that is, formulating universally mandatory legal norms [page]
Can realize the prohibition of the order; Because of the moral justice of legal norms, the clarity and stability of form and content,
The universality and authority of the whole society in effectiveness are incomparable to other social norms. (2) in the prohibitive norms
We should accurately define the connotation and extension of unfair competition behavior and try to clearly define unfair competition behavior by enumerating 2.
That kind. China 1995 "Regulations" of the Ministry of Justice have little effect, which is unfair competition to a great extent.
The definition of disputed behavior is unclear, and the extension of enumerated behavior is too wide. For example, regarding advertisements in the lawyer industry, its provisions do not
Propaganda that conforms to reality is unfair competition, but it is difficult to grasp which behaviors are not in line with reality in practice; In fact,
Some propaganda, even if it is realistic, may constitute unfair competition, for example, a lawyer has a relationship with a judge or something special.
Relationship, lawyers have served as the president of the court or other leadership positions, these facts are in line with reality and reality.
The main way or method of unfair competition, but it is obviously inappropriate to exclude it from unfair competition in the Regulations. (3)
We should improve the legal supervision mechanism of unfair competition in the lawyer industry, improve the lawyer punishment institution and establish the lawyer punishment system.
Committee office. Strengthen the functions of the Lawyers' Disciplinary Committee, and investigate and punish lawyers who engage in unfair competition in strict accordance with the law.
And the legal responsibilities of its practicing institutions. 1995 After the promulgation of the Regulations, unfair competition in the lawyer industry not only disappeared.
To curb it, it will often spread, mainly because of the lack of corresponding internal and external supervision mechanisms and imperfect disciplinary mechanisms, such as
Lawyers' disciplinary institutions are not perfect, and the functions of lawyers' disciplinary committees have not been strengthened. Unfair competition in lawyer's practice
There are obvious disputes, such as relationship cases and human cases, but there are many problems in practice because of the lack of effective internal and external supervision mechanism.
There are few reports of unfair competition in the lawyer industry, which leads to few cases of unfair competition in the lawyer industry.
The legal responsibility and legal sanctions of Guan can not be implemented, and the mandatory and authoritative nature of the law can not be reflected. Legal norms are just
It will only be effective if it is implemented. Therefore, it is necessary to prohibit unfair competition in the lawyer industry and ensure the healthy development of the lawyer industry.
The focus of the work should be how to implement the corresponding norms or regulations.
References:
Liu Ruifu, editor-in-chief: Encyclopedia of China Economy and Law.
China University of Political Science and Law Press 1992, p. 635.
Xie Youping: Social Order and Lawyer Profession-Social Orientation of Lawyer Role, Law Press, 1998, p. 220.
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