the origin of the lawyer system
the earliest germination of the lawyer system appeared in ancient Rome in the second and third centuries BC. With the development of social economy, there are more and more lawsuits. Some litigants entrust their relatives or friends to represent them for various reasons. This kind of situation is increasing day by day, and the word Advocatus appears. This word means relatives or friends who accompany the defendant to the court and give advice to the defendant during the trial. At first, Advocatus could only give opinions to the defendant in court, but did not speak to the court. Later, it developed into expressing opinions to the court instead of the defendant and refuting the allegations of the other party.
The first century BC was a period of the evolution of the Roman Republic and the Roman Empire, and the social contradictions were extremely acute. The Roman ruling class made many laws, decrees and regulations to maintain its ruling order. In line with this, a class of jurists who study and study law has emerged in society. These people are inextricably linked with the ruling class, and they often give advice to judicial and administrative officials on how to enforce the law. Some of their research results and writings were recognized as laws by the rulers. In society, they answer legal questions to ordinary people, provide advice to litigants and represent them in litigation. Because the activities of these people are conducive to the stability of the ruling order, in the third century BC, the Roman emperor determined the profession of "great education couples" in the form of imperial edicts to "consult legal matters for civilians". At the same time, it is also allowed to entrust others to represent litigation, so "professional lawyers" officially appeared.
The form of litigation in ancient Rome was debate. Both parties have equal status in litigation. They can fully state their opinions in court and refute the other party's claims. The judge makes a judgment according to the results of the debate. This litigation structure makes it possible for professional lawyers to appear. In inquisitorial litigation, the parties have no litigation rights, so there will be no professional lawyers to represent the parties in litigation. Litigants enjoy litigation rights, which is a necessary prerequisite for the emergence and existence of lawyers.
The evolution of China's lawyer system
During the Spring and Autumn Period, Deng Xi, a native of Zheng, was not only knowledgeable in law, but also eloquent. He could "argue ambiguously, set up infinite words" and "hold on to the reason, and make sense". He once gathered people to give lectures, impart legal knowledge and litigation methods, and also help others in litigation. In the Spring and Autumn Period, there was also an agency system, in which the husband and wife did not have to go to court in person, and their subordinates or children could represent them in litigation. In the Yuan Dynasty, if the litigants were old, weak, sick and disabled, they could also be represented by their relatives.
In ancient China, a lawsuit had to be filed with officials and the case was stated first, but most people were illiterate, so some literati in the society started their business of writing complaints and other documents for others, and a "Mr. Knife and Pen" appeared among the people. These "Mr. Knife and Pen" are not necessarily familiar with legal knowledge, but only rely on the advantages of reading and literacy and the experience of "being well informed", but some will give the parties some ideas on how to go to court.
all of the above seems to be a small bud of the lawyer system, but it is far from a strict lawyer system. Because only a relatively complete litigation agency (defense) system is combined with professional lawyers, can lawyers and lawyer systems be produced. Therefore, although there were some phenomena of "agent litigation" and people who helped others to litigate in ancient China, the former did not further develop into an agency system, while the latter did not form a class of professional lawyers, and they were never combined in the litigation field. Therefore, China finally introduced the lawyer system from abroad.
Shen Jiaben, a famous jurist in the late Qing Dynasty, presided over the formulation of the Criminal and Civil Procedure Law of the Qing Dynasty, which was drafted in 1911, and stipulated that lawyers could participate in litigation. However, due to the outbreak of the Revolution of 1911, it was not promulgated.
in 1911, the Nanjing government drafted the draft lawyer law, which was the first draft statute law on the lawyer system. After Yuan Shikai seized power, it was not announced and implemented.
In 1912, the Beiyang warlord government formulated the Provisional Regulations for Lawyers and the Provisional Regulations for Lawyers Registration, which was the first written legislation on the lawyer system in China. After the articles of association were published, the lawyer profession in China rose slowly. By the end of the Beiyang warlord government, there were 3,111 lawyers.
the development of the lawyer system in new China
The General Principles of People's Courts promulgated by the Government Affairs Bureau of the Central People's Government in July, 1951 stipulated that the people's courts should guarantee the defendant's right to defend himself and ask others to defend him.
On July 31th, 1954, the Ministry of Justice of the Central People's Government issued the Notice on Several Issues in the Organizational System of Trial Courts, and decided to carry out lawyer work on a trial basis in big cities such as Beijing, Shanghai and Tianjin.
The first Constitution and the Organic Law of People's Courts promulgated by New China in September, 1954 stipulate that the defendant may entrust a lawyer to defend himself.
In October, 1956, the State Council approved the Request for Instructions on the Establishment of Lawyers by the Ministry of Justice.
On July 21th, 1956, the Interim Measures for Lawyers' Fees was promulgated.
in the first half of 1957, the draft provisional regulations on lawyers was released.
in the second half of 1957, the construction of lawyer system was interrupted.
In 1979, the CPC Central Committee decided to rebuild the lawyer system.
In April, 1979, the the National People's Congress Standing Committee (NPCSC) Legal Committee set up a special group and began to draft the lawyers' regulations.
On August 26th, 1981, the 15th meeting of the Standing Committee of the Fifth National People's Congress passed the Provisional Regulations on Lawyers of the People's Republic of China.
in 1986, the national unified examination for lawyers' qualification was implemented.
all china lawyers association was founded in July, 1986.
On May 5, 1996, the 19th meeting of the Standing Committee of the Eighth National People's Congress passed the first lawyer code of New China-the Law of the People's Republic of China on Lawyers, which came into effect on October 1, 1997.
By 1998, there were more than one million lawyers in China, and there were nearly 9,111 law firms.
Second, the different fates and significance of litigators and lawyers
The 2112 century is an important historical period for both China and Britain, because during this period, not only China's judicial tradition reflected the light of intellectual rationality through the influence of litigators and litigators, but also impacted the ethical defense line since the Han and Tang Dynasties, and even provided an opportunity to transform to the modern judicial tradition to some extent. At the same time, Great changes have taken place in the British judicial tradition during this period, which provided rich historical resources for the modernization of the judicial tradition. Among them, the formation and rise of lawyers played an important role. The problem is that China's classical judicial tradition, based on human relations and rationality, was once ahead of Britain and its western European countries at that time, and it was given the opportunity to transform into modern times in the Song Dynasty. However, why is this opportunity fleeting, even falling behind Britain with a low starting point in the subsequent historical process? This can't be said to be a heavy and interesting problem. Perhaps, we can't find the answer from the differences between lawyers and litigators and their different historical fates. Then, what are the major differences between litigators and lawyers in their different judicial traditions?
first, different cultural backgrounds and different values. Although there is only one word difference between lawyers and litigators, they are very different in appearance and spirit, and the values they depend on are also very different. Among them, how people view order, how to evaluate the law and how to view their role in litigation activities will directly affect their value and status in their respective judicial traditions, which is the first problem to be identified.
what is the basis of order and what is the position of law in order? Although there are similarities in the reform of judicial tradition between China and Britain around the 2112 century, their answers to the above questions are still quite different. In China's ancient cultural tradition, since Confucius and Mencius, people in China have believed that order should be based on the ethics of "benevolence, righteousness, courtesy, wisdom and faith". This is because, in the eyes of China people, the biggest difference between people and animals lies in people's courtesy and righteousness, while animals are at a loss. Therefore, people's life and order should be based on morality. Although law is important, it is the second thing compared with morality. Because law is no matter how important it is, it is just an external norm that restricts people's behavior and regulates social relations, and an ideal and harmonious social order can only be completed by accumulated moral cultivation, not based on law. Mr. A. Gulevich, a famous scholar who studied medieval culture and law, said: "The attitude of China people towards law in the Middle Ages was completely different from that of Europeans. Their attitude towards law can essentially show a Chinese way of understanding things, and law has not been interpreted as the basis of social structure. " In the Song Dynasty, if the commodity economy consciousness and utilitarianism thought under the deepening of private ownership had greatly impacted the above-mentioned traditional moral concepts of human relations, and to a certain extent, people's expectations of order and legal concepts had changed, then this impact did not fundamentally shake the moral defense line of society, and the litigator was still a villain with moral corruption in people's minds. Cai Jiuxuan, a well-known judicial official in the Southern Song Dynasty, said in his verdict: "Zhang Menggao, an apprentice (a kind of litigator), is the son of the official Ren Jinmei, who assumed the surname of Zhang, inherited the aunt's practice of official rape, and transferred rape and fraud for a living." Mr. Fei Xiaotong, a famous contemporary scholar, also said: "In rural society, when we talk about' litigators', people will think of evil deeds such as' provoking right and wrong'. As a knife and pen collector, there is no position in this social history. However, in the city, a big character should be added to the lawyer, and the cover of the newspaper may be the whole list of city lawyers. "
Britain is different. Although there were not many achievements in order and respect in Britain before the 21th century that China admired at the same time, after the middle of the 2nd century, with the unification of central judicial power and the struggle between royal power and religious power, the concept of secular society based on law has been deeply rooted in the British mind. People's use of law to win power is not only a universal value concept, but also a real action and social practice in British history. The promulgation of Magna Carta in 1215 is the best illustration. A. Gulevich said: "Law is the foundation of human society, and the country is established on the basis of law. If there is no law, the country will perish." Since law is the foundation of people's life, of course, social order must be based on law. In this way, lawyers who engage in all kinds of litigation activities with legal knowledge as their major have become bosom friends who safeguard legitimate rights and interests in people's lives, and thus being respected by people is the same concept of all western Europeans, including the British. The words of the Roman emperors Leo and Andromeda are typical expressions of this concept. They said in the letter of Iliklatti: "Those lawyers who dispel the doubts arising from litigation and often defend themselves in public and private affairs to help others avoid mistakes and help the tired recover their energy will help mankind as much as those who save their motherland and parents by fighting and injury. Therefore, for our empire, we not only regard people wearing armor and armed with swords and shields as soldiers, but also consider lawyers as soldiers. Because those defenders who defend the voice of glory and protect the hopes of worried people, life and future generations are fighting! " Second, the litigation power structure is different. The so-called power structure refers to who enjoys the status of subject rights in the litigation activities in a country's litigation mode. As far as the history of China and Britain is concerned, although litigators and lawyers participate in litigation activities at the same time, their status in their respective judicial traditions is not the same. As far as China is concerned, although the litigators around the 2nd century were very active in civil life, the decrees and government of the Song Dynasty never formally recognized their legal status, and the litigators not only could not enter the trial court in an open manner, but also did not have the qualification of the subject and legal rights in the litigation system of the Song Dynasty. Because in the proceedings at that time, agency and defense were not the legal links, and the litigators always lived in the dark side of society, and could not become the reserve force of the literati who were engaged in judicial activities. Litigants' help to the parties is only a kind of litigation assistance activity in China's classical judicial tradition, and it is not an essential element in the judicial process.
lawyers are different. British lawyers who came into being after the middle of the 2nd century, although at the beginning, their subject status was not clearly defined by law, but because lawyers were inextricably linked with judges and special courts at the beginning of their formation, their subject qualification in litigation was quickly recognized by law, and lawyers also moved towards the road of "lawyer-judge" integration, becoming the reserve team of judges, and defense became an indispensable legal link in the British judicial tradition. Tiger Levy, a western scholar, said: "The profession of lawyer appeared in the late 13rd century in the sense that it is a group of regulated and formally trained practitioners. The monarchs of Britain and France have legislated for this profession, limiting that they can only engage in legal work with the approval of judicial officials. This method-the UK was in 1292, and the judges were in 1274 and 1278. "
thirdly, the litigation mechanism is different. In the Song Dynasty in China, although the judicial mode under the impact of commodity economy was quietly changing, the central position of the scholar-officials as judges in the litigation was still unshakable. The operating mechanism of criminal trial and litigation was centered on punishing crimes and controlling society, so it goes without saying that defense could not be a link in criminal cases. Is a civil lawsuit, because the service provided by the litigator to the parties is only a kind of litigation assistance activity, and it has no legitimate status, so its litigation assistance will inevitably not change the tradition of the judge's authority under the "inquisitorial" trial, and the litigation activities under this mechanism will naturally not provide a broad space for the growth, development and talent of the litigator.
Britain is different. The growth and development of lawyers is accompanied by the defense mechanism in the litigation mode. In the history of Britain, whether a junior lawyer or a senior lawyer, their functions (such as appearing in court instead of an agent and handling legal affairs; Defending on behalf of others, etc.), can not be separated from the writ system with strong knowledge and technology, so "procedure takes precedence over rights" is not only an ancient maxim of British justice since the middle of the 12 nd century, but also the practice of British lawyer life. One of the biggest functions of lawyers in litigation activities is to protect the rights and interests of the parties and defend. Whether it is a criminal case or a civil case, when lawyers use their knowledge and talents to defend both parties to the lawsuit, the weak to strong counterbalance mechanism has become a beautiful scenery in the history of British justice. According to the research of British legal historian Millson, there has been a defense function in British history for a long time, when the plaintiff filed a complaint with the defendant: asking the defendant to return this illegally occupied land. It is enough for the defendant to say that this land is not illegally occupied, but only a gift from the defendant's father. As for whether it is true or not, in the early years, it was only left to God to cut the plate or neighbors to testify. After the middle of 12 century, the situation happened.