The division of legal service market is a prominent problem in China's legal service market and has become the main obstacle to the standardization of China's legal service market. It needs the attention of every lawyer, the efforts of the lawyers' association, the promotion of the corresponding state public authority and the guarantee of the system. Therefore, in the case that the three major procedural laws have not been revised, China should pay attention to the market segmentation of legal services and solve it from the legislative source by amending the Lawyers Law.
Detailed:
Analysis on the current situation of legal service market segmentation;
1, China's litigation legal service market has no substantial restrictions on the access of market participants, resulting in artificial division of the legal service market from the source of legislation.
China's three major procedural laws all stipulate that "lawyers, close relatives of the parties, people recommended by relevant social organizations or units and other citizens permitted by the people's courts can be entrusted as litigation agents", that is, there is no substantial restriction on the access of market participants, which is open to the whole society. Anyone with litigation ability can get involved in this market, which does not reflect the "career slot" characteristics of the legal profession at all. Those who have not received legal professional training can come in and have a bite. The direct consequence is that subjects who do not have the legal service ability flood into the market in large numbers, and some even pretend to be lawyers, so the quality of legal services can not reach the due level, which has caused great harm to the lawyer's practice environment. According to the report of Beijing Youth Daily in February, 2004 12, 80% of civil cases do not require lawyers, and "black lawyers" occupy the legal service market. The existence of "black lawyers" has affected the normal order of the legal service market. First of all, this kind of behavior belongs to underground operation, and the quality of agency is difficult to guarantee, which will increase the litigation risk of the parties; Secondly, they not only occupied the legal service market, robbed lawyers of their market share, but also affected the overall image of lawyers.
Therefore, from a certain point of view, the root of China's legal service market segmentation comes from the provisions of the three major procedural laws and other laws that citizens can represent litigation and other legal affairs.
2. China's legal service market is managed by different government departments, and each department is divided into sectors, resulting in the division of the legal service market.
The service field of lawyers is oriented to the whole society, and there should be no field restrictions on lawyers' practice, otherwise it is not conducive to the establishment of a unified domestic legal service market. At present, China's legal service market is monopolized by different industries and departments to some extent. For example, industrial and commercial registration, patent agency, trademark agency, tax agency, corporate legal adviser and other legal service markets are all managed by corresponding "mother-in-law", which leads to the legal service market being divided by industries. The performance of industry division is mainly reflected in the unreasonable professional access system. In order to enter this field, many industries and departments set up qualification examinations at will, which makes the domestic examinations numerous and rampant. In order to enter a certain field, many lawyers have to work hard for all kinds of exams that are lower in level, level and difficulty than the law exam (now the judicial exam). As a result, the authority of the national unified judicial examination is questioned, and the scope of lawyers' practice is also limited. Fundamentally speaking, the reason for the division of legal service market is the insufficient development of market economy in the process of China's transition from planned economy to market economy. The solution should focus on accelerating the marketization process of the legal service market.
3. It is difficult for lawyers to handle cases in different places, and local protectionism is rampant, resulting in geographical division of the legal service market.
The social attribute of lawyers themselves determines the openness of their practice fields, that is, the scope and activities of lawyers should not be restricted by regions. However, it is quite common to divide the lawyer's legal service market by region at present. The rampant local protectionism makes it very difficult for lawyers to handle cases in different places, and it is not uncommon for them to be made difficult by public security and judicial organs and functional departments in different places. This has also intensified the destruction of the unity of the legal service market.
Some countermeasures to solve the problem of legal service market separatism
First, in some economically developed cities in China where lawyer services basically meet the legal needs, judicial administrative organs should actively promote the monopoly of lawyer business.
The legal service market is monopolized by lawyers, that is, the monopoly of lawyers on the legal service market is established through legislation. When citizens, legal persons or other organizations need legal help, they can only hire lawyers to provide them with legal services. It will be illegal for non-lawyers to run these businesses. From the practice of developed countries, the monopoly of lawyer business is generally realized in the process of natural development. Theoretically, the basic premise of the monopoly of lawyer's business is that the lawyer industry has at least the ability to meet the legal needs in reality. At present, the legal services provided by lawyers in our country have not reached this level as a whole, and the demand is still in short supply in some areas, so it is unrealistic to promote this work throughout the country. However, in some economically developed cities in China, such as Beijing, Shenzhen and Shanghai, it should be said that lawyers in these areas are generally able to meet the actual legal needs and can take the lead in promoting this work in the country. As the economic center of China, Shanghai has nearly 7,000 lawyers and more than 600 law firms. Every year, many lawyers join the industry, which can basically meet the demand of Shanghai's legal service market and the conditions of monopoly of lawyers' business. It is particularly emphasized here that due to the uneven allocation of power resources, judicial administrative organs should promote the monopoly of lawyer business. The reform in China is mostly from top to bottom, and it is not enough to rely on the strength of trade associations, but must be promoted by the government.
Second, the key to improving the overall quality of the legal profession and standardizing the legal service market is to speed up the marketization of legal services, cancel unreasonable restrictions on industry access, eliminate artificial division and establish a complete lawyer training system.
With the implementation of the Administrative Licensing Law, the relevant departments should delete the corresponding unreasonable clauses from the perspective of maintaining the unity of China's laws. Here, the judicial administrative organ, as the competent department of the legal service market, can take the lead in cooperating with other departments to clarify outdated departmental regulations and eliminate the division of the legal service market.
Third, the current lawyer law has too many restrictions on lawyers' practice and insufficient allocation of rights. Therefore, amending the Lawyers Law to get rid of the influence of administrative, managerial and authoritative thinking patterns shows the nature of China's lawyers law as a right protection law.
The current Lawyers Law sets many restrictive provisions on lawyers' practice. According to statistics, there are five clauses in article 53, paragraph 69 of the current Lawyers Law that lawyers are "necessary", eight clauses that lawyers are not allowed, and 1 1 clauses that lawyers are "necessary and should not be". To some extent, the Lawyers Law is a law of lawyers' obligations rather than rights, so the status of lawyers is not high, and it is difficult to put an end to the restrictions on lawyers' practice activities. Therefore, the revision of the lawyer law should clearly show the nature of the right protection law of our lawyer law. For example, the legislative purpose of Article 1 of the Lawyers Law can be revised as follows: This Law is formulated to improve the lawyer system, protect the lawyer's practice rights, standardize the lawyer's practice behavior, give play to the lawyer's social function, and develop the lawyer's career in China.