20 10 On April 8th, the Ministry of Justice promulgated the revised Measures for Punishment of Illegal Acts of Lawyers and Law Firms (hereinafter referred to as the Measures), which will take effect on June 10. Recently, our reporter interviewed the person in charge of the guidance department of lawyers' notarization work of the Ministry of Justice on related issues.
Q: Why should the Measures for Punishment of Illegal Acts by Lawyers and Law Firms be revised?
A: In order to further standardize lawyers' practice behavior, promote lawyers to practice strictly according to law, be honest and conscientious, and consciously practice the duties and missions of legal workers in Socialism with Chinese characteristics, the new Lawyers Law, which came into effect on June 1 2008, has made new adjustments and improvements to the legal responsibilities and punishment system that lawyers and law firms should bear for illegal acts. The Disciplinary Measures for Lawyers and Law Firms (Order No.86 of the Ministry of Justice) formulated by the Ministry of Justice in 2004 is based on the original Lawyers Law, and many contents are not suitable for the new Lawyers Law, which lags behind the practical needs of strengthening the supervision of lawyers' practice. Therefore, it is necessary to revise the original punishment method according to the provisions of the new Lawyers Law and the actual needs of strengthening the management of lawyers, so as to further standardize the implementation of administrative punishment for illegal acts of lawyers and law firms, strengthen the supervision and management of lawyers and law firms' practice activities, and at the same time, according to the central government's plan to deepen the reform of the judicial system and working mechanism, modify the original punishment method and improve the supervision system and mechanism of lawyers' practice, which is also an important content of the current lawyer system reform. In this context, we revised the Measures for Punishment of Illegal Acts of Lawyers and Law Firms.
Q: What principles have been followed in the revision of the Measures for Punishment of Illegal Acts by Lawyers and Law Firms?
A: The revision of the original punishment method mainly follows the following principles:
The first is strict legal principles. The revision of the punishment measures is strictly based on the legislative authority given to the department by the Administrative Punishment Law, the illegal acts that should be punished, the types and extent of punishment, and the newly created illegal accountability mechanism set by the new lawyer law, and makes specific provisions on its application. At the same time, it also pays special attention to coordinating and handling the relationship with relevant laws, regulations and rules, and coordinating and handling the relationship between administrative management and industry self-discipline, administrative punishment and industry punishment.
The second is strict management principles. Perfecting the practice supervision and punishment system is the basic guarantee for standardizing lawyers' practice behavior and maintaining the normal legal service order. At present, in the practice of lawyers, the phenomenon of individual lawyers' lack of professional ethics and violation of law and discipline occurs from time to time, and some seriously damage the interests of the parties and the public, and seriously disrupt the legal service order and even the judicial order. It is an important subject for lawyer management to standardize lawyer's practice behavior and put an end to violations of law and discipline. Therefore, according to the principle of strict management, revising and perfecting the original punishment method is an important measure to implement the new lawyer law and strengthen the construction of lawyers.
The third is to adapt to the principle of strengthening supervision. Although the new Lawyers Law supplements and perfects the original system of responsibility and punishment for illegal acts, the setting of illegal acts and the application of administrative punishment are still relatively principled. Therefore, according to the actual needs of strengthening the supervision of lawyers' practice and effectively implementing administrative punishment, on the basis of earnestly summing up the practical experience of lawyers' practice supervision, detailed and operable provisions have been made in accordance with the law on the determination of illegal acts of lawyers and law firms and the specific application of the types and extent of administrative punishment.
Q: What does the revised Measures for Punishment of Illegal Acts by Lawyers and Law Firms include?
A: The revised Measures consists of five chapters and 50 articles. The first chapter, General Provisions, stipulates the legislative purpose and basis, applicable objects and sentencing principles, and supplements the penalty supervision system. Chapter ii illegal acts that lawyers should punish and chapter iii illegal acts that law firms should punish. These two chapters mainly explain in detail the illegal acts that should be given administrative punishment as stipulated in Articles 47, 48, 49 and 50 of the new Lawyers Law from the perspective of application and identification, and basically cover all kinds of illegal situations that often occur in the practice activities of lawyers and law firms and are serious in nature and circumstances. The fourth chapter is the implementation of administrative punishment, which mainly stipulates the jurisdiction of administrative punishment, the implementation procedure of administrative punishment and the basic methods and requirements for its specific application. Among them, where the "Administrative Punishment Law" and ministerial regulations have clear provisions on administrative punishment procedures, only these measures are quoted or not; When imposing administrative punishment on lawyers and law firms, it is necessary to specify the specific applicable methods and requirements, such as jurisdiction issues, investigation methods, lighter punishment or no punishment, applicable conditions for heavier punishment and cumulative aggravated punishment, handling of illegal acts that constitute crimes, civil legal liability of the punished person, restrictive measures after suspension of business, and supervision mechanism for punishment execution, etc. These have been refined and improved. Chapter V Supplementary Provisions, mainly including the penalties for branches, the interpretation of the scope of application, and the effective provisions.
Q: What principles and methods are adopted in the revised Measures for Punishment of Illegal Acts of Lawyers and Law Firms to make a concrete and applicable explanation for the determination of illegal acts of lawyers and law firms?
A: According to the provisions of Articles 3 and 12 of the Administrative Punishment Law and the Lawyers Law, we have adopted the following methods to make specific and applicable interpretation provisions on the determination of illegal acts of lawyers and law firms in Chapters 2 and 3 of the Measures:
First of all, through further enumeration, the various manifestations of illegal acts set by the new Lawyers Law in practice are described and defined in detail, thus providing standards and basis for judicial administrative organs to accurately identify illegal acts. For example, the four main situations in Article 6, such as "contracting business by misleading, luring, threatening or making false promises", belong to the illegal behavior of lawyers "contracting business by improper means" as stipulated in Item 2 of Article 47 of the Lawyers Law.
Second, the revised "Measures" will clearly list various specific situations and manifestations that constitute illegal acts, and solve the problem that it is difficult for judicial administrative organs to identify and identify related illegal acts in management practice. For example, Article 12 stipulates that "the disputed property and rights between the parties and others are obtained by means of inducement, deception, coercion or extortion." Whether it belongs to the illegal act of lawyers "using the convenience of providing legal services to obtain the disputed rights and interests of the parties" as stipulated in Item 3 of Article 48 of the Lawyers Law.
Third, the specific manifestations of various illegal acts are listed to reflect and cover the most prominent or intractable illegal situations in the practice activities of lawyers and law firms, thus providing a strong basis and guarantee for judicial administrative organs to strengthen the supervision of lawyers' practice, clean up the order of legal services and strengthen the construction of lawyers.
For the special and individual illegal manifestations that may not be covered by the Measures, as well as new illegal situations that may arise in the future, the Ministry of Justice will solve the specific application problems of relevant provisions by means of reply. In addition, in order to coordinate the connection between administrative punishment and industrial punishment, some minor violations of the law are not included in this method and are transferred to the Bar Association for industrial punishment.
Q: How does the revised Measures for Punishment of Illegal Acts of Lawyers and Law Firms stipulate the jurisdiction of administrative punishment of lawyers and law firms?
A: Article 20 of the Administrative Punishment Law stipulates that "administrative punishment shall be under the jurisdiction of the administrative organ of the local people's government at or above the county level where the illegal act occurred. Except as otherwise provided by laws and administrative regulations. " As early as 1997, when the Measures for Punishment of Lawyers' Illegal Acts was formulated, according to the characteristics of the lawyer industry and management system and the principle of personal jurisdiction, the system of administrative punishment given to lawyers and law firms by local judicial administrative organs was established. This practice has continued to this day. This is not only in line with the characteristics of the lawyer industry, but also in line with the principle of "whoever permits, who supervises" established by the Administrative Licensing Law, which is conducive to clarifying the jurisdiction and responsibility of punishment and avoiding the problem of "anyone can manage, no one cares" because of the strong mobility of lawyers. The "Measures" clearly stipulate that the punishment for lawyers shall be implemented by the judicial administrative organs where their practice institutions are located, and the punishment for law firms shall be implemented by the judicial administrative organs where they are located. At the same time, according to the provisions of the new lawyer law, the division of punishment jurisdiction between municipal judicial administrative organs (including municipalities and counties directly under the central government) and provincial judicial administrative organs is clarified (Article 31). The implementation of administrative punishment on the illegal acts of branch offices of law firms and their lawyers shall be implemented by the judicial administrative organs where the branch offices are located in accordance with the provisions of the Lawyers Law and these Measures. The punishment decision shall be copied to the law firm that established the branch office and the judicial administrative organ at the municipal or municipal (county) level where it is located (Article 48).
Q: How does the revised Measures for Punishment of Illegal Acts by Lawyers and Law Firms stipulate the scope of administrative punishment?
A: Due to the unbalanced development of China's lawyer industry and the great differences in economic and social development in different places, it is not yet possible to formulate a national unified discretionary standard for the specific application of administrative punishment. Therefore, the revised Measures stipulate that the specific application of administrative punishment shall be decided by the judicial administrative organ in accordance with the Lawyers Law and the relevant provisions of these Measures, and according to the facts, nature, circumstances and degree of harm of illegal acts of lawyers and law firms (Article 37). At the same time, it clearly stipulates four situations that can be given a lighter or mitigated administrative punishment and the conditions for not being punished (Article 38), and stipulates five situations that should be given a heavier punishment (Article 39) and circumstances that should be given a heavier punishment (Article 40) within the scope of legal punishment, so as to guide and standardize the judicial administrative organs to correctly exercise the penalty discretion.