There are public interest law firms (or public service departments in private law firms) and public interest lawyers in the United States, and there are similar specialized lawyers in Germany. In fact, public interest lawyers are the leaders and commanders of public interest litigation. Although they are not victims in most cases, it is through their participation and efforts that public interest litigation not only realizes the relief of private rights, but also becomes an opportunity and place for dialogue with the government and enterprises, thus having a far-reaching impact on their future decision-making and becoming a banner calling on people to pay attention to and safeguard their vital interests. The dominant consciousness and behavior of public interest lawyers are rooted in the unique social status, professional characteristics and professional ethics of the lawyer industry, as well as the objective needs of society. In China, when the public interest problem has just been recognized by Chinese people and the social function of public interest litigation has just appeared, it is undoubtedly of great significance for lawyers to set foot in the field of public interest litigation as soon as possible, to realize the real value of public interest litigation, to establish a good social image of the lawyer industry and to promote the better development of the lawyer industry.
Second, the inevitability of the emergence and development of public interest lawyers
(1) The democratic system is the fundamental attribute of the lawyer system, and lawyers should be the spokespersons of civil rights.
In modern society ruled by law, the lawyer system has been established as an important mechanism to protect citizens' rights. Because the lawyer industry does not belong to the state power system and specializes in legal activities, it is more suitable for supervising and confronting the abuse of power than the administrative and judicial organs and their personnel; The inherent importance of the legal profession itself makes it have a greater impact on the public than other professions. Lawyers' laws in many countries regard "safeguarding human rights" as an important duty of lawyers. The mission of lawyers is to safeguard human rights and realize social justice. Therefore, even if there is no specific client, lawyers should and can become fighters to advocate and safeguard the public interest, so that the long-neglected "public interest" can return to people's vision. Lawyers who can keep asking questions from the standpoint of public interest are called "public interest lawyers". Through their activities and influence, the influence of public interest litigation on the formulation and operation of systems and policies has been greatly enhanced. Therefore, public interest litigation aimed at protecting the private rights of unspecified majority is an important place for lawyers to fully display their roles as defenders and fighters of civil rights.
(two) the professional and technical characteristics of the lawyer profession meet the requirements of public interest litigation.
Public interest litigation is not only similar to private ordinary civil, economic or administrative litigation, but also requires litigants to have higher comprehensive ability in litigation skills, legal knowledge and information acquisition. However, the lack of knowledge and the inability to pay litigation fees are the biggest obstacles for ordinary people to file public interest litigation, which is the key point for lawyers to reflect their value and status. In addition, because the infringers in public welfare issues are often powerful big companies, large enterprises or state organs, the litigation confrontation ability of ordinary people cannot be compared with them. Therefore, from the perspective of litigation equality, whether lawyers participate in public interest litigation is very important to balance the confrontation ability of both parties. The participation of public interest lawyers, through their professional operation and the special position and influence of lawyers in social life, is conducive to the realization of the purpose of influencing future public decision-making through public interest litigation. Moreover, because public welfare work also belongs to the professional work of lawyers, it is easier for lawyers to overcome the influence of sentimentality and subjectivism and operate public welfare litigation with a professional neutral attitude, so that public welfare litigation will not deteriorate due to abuse.
The internal development of the legal profession has also promoted the emergence of public interest lawyers.
Due to institutional and historical reasons, lawyers in China mainly focus on litigation and some economic affairs. On the one hand, due to the shortage of lawyers, the competition in the industry will become more and more fierce, but on the other hand, not only many areas that should be served by lawyers lack the intervention of lawyers, but even areas where lawyers have started their own businesses, it may not be said that the work of lawyers has been very in-depth and extensive. Therefore, some lawyers began to look for, or had to look for new business areas or develop in depth, and develop legal services that meet people's needs. Survival pressure is only one of the reasons why public interest litigation enters the lawyer's field of vision. More importantly, due to the increasing influence of law on public and private affairs, more and more lawyers are aware of the independence of lawyer's role, eager to integrate their professional life into social undertakings, and demand to get rid of the neutral and conservative position of lawyers since ancient times and seek to play a more active role in social change. It is under the impetus of this new consciousness that public interest litigation has won the favor of some lawyers. The increasing proportion of law school students among lawyers is the most important reason why lawyers pay more and more attention to public interest litigation and public interest litigation. Because such lawyers are often more enthusiastic and dedicated to social welfare issues than lawyers who have worked for many years, and have a more emotional understanding and pursuit of people's rights. At the same time, they also need such opportunities to realize their legal ambitions, exercise and demonstrate their abilities, and cultivate their self-confidence. Especially among young and middle-aged lawyers who have begun to emerge, this trend is more obvious. In addition, because the demand for lawyers is included in the social demand for law, the constant emergence of public interest issues will also prompt the emergence of lawyers specializing in public interest litigation in the internal division of labor of the lawyer industry.
(4) Public interest lawyers meet the requirements of lawyers' professional ethics, which is a necessary condition for lawyers to establish their professional image and status. The existence of professional ethics is one of the signs of the existence and appearance of legal profession, which can protect lawyers from public criticism or ridicule and maintain good professional reputation and dignity. For lawyers in China, it is undoubtedly more practical to have professional ethics and establish a good professional image. Because many lawyers gradually ignore the social responsibility of lawyers in the process of pursuing self-interest under the pressure of survival; Due to their superior social status, some lawyers are dismissive of the daily trivial disputes of citizens. The increasing specialization of lawyers and the emphasis on technical rationality have also created a gap between the public and lawyers. All these make lawyers in China face a double crisis: the image crisis in society and the trust crisis in the hearts of ordinary people. The characteristic of the lawyer industry is to provide intermediary services. If we lack social trust and public support, we will fall into a relatively isolated state of society and have a worrying future. Therefore, lawyers are looking for opportunities for change. Now it is time for lawyers to improve their prestige and reshape their image by taking on public welfare issues that they have long neglected.
Third, how to guarantee and realize the function of public interest lawyers.
(1) is the first step for lawyers to get rid of the shackles of ideas.
In order to participate in public interest litigation and play its role, lawyers must first get rid of the shackles of ideas, which come from both society and industry. At the beginning of establishing the social system, western countries regarded the lawyer system as an important mechanism to protect citizens' rights and made arrangements for it. As an important force in the social and political structure, lawyers directly participate in and actually influence the operation process of democratic political systems in western countries, and public interest litigation is their ideal stage. In contrast, when designing the lawyer system in China, we lack a deeper understanding of all the roles that lawyers should play and the development trend of the lawyer industry. We regard it as a symbol of democracy and the rule of law, a product of social division of labor, and its formal significance is far greater than its substantive significance. Such a system and cognitive basis can not give strong support to lawyers' desire to make great efforts in the social field, especially in the political field. Nowadays, many lawyers' indifference to public interest litigation has something to do with China's failure to establish a lawyer system as a civil rights protection mechanism. Moreover, due to the influence of this concept, the legal profession has insufficient understanding of its proper social and political orientation. But public life is a stage for lawyers; Lawyers' activities are based on the needs of citizens. This requires lawyers to pay more attention to public interest litigation, actively participate in public interest litigation, strive to narrow the distance with the public, lower the threshold of law firms, and strive to take the initiative to go to the public and become "people's lawyers." (3) Only in this way can they gain people's understanding and trust, and realize the real value return and function remodeling of the legal profession in China.
(2) Plaintiff qualification is the biggest obstacle for lawyers to carry out public interest litigation.
The stipulation of plaintiff qualification in China's procedural law is the biggest obstacle for lawyers to carry out public interest litigation. Sometimes it is not difficult to find a qualified plaintiff. At this time, the lawyer's job will be relatively easy. He only needs to concentrate on litigation, but his role is limited, because lawyers are not allowed to dominate the parties. If he interferes too much, it will also lead to the distrust of the plaintiff, dampen the enthusiasm of the people to participate in public interest litigation, and even make them feel resistant. Only in rare cases, the parties obviously do not have normal decision-making ability, and public interest lawyers can take on the heavy responsibility of leading litigation. However, more often, qualified people are unwilling to file a lawsuit for various reasons, or it is difficult to determine a qualified plaintiff. Therefore, it is quite difficult and unrealistic for lawyers to find qualified clients and persuade them to participate in litigation. Then, when the above measures fail, lawyers can only stand up and make themselves "victims" first, that is, to qualify themselves as plaintiffs, so as to file public interest litigation. At this time, lawyers are often the protagonists of public interest litigation. Their responsibility is not only to win the lawsuit, but also to influence the formulation of relevant policies in this field. This method has been adopted by "professional counterfeiters" and some lawyers, and has achieved initial results. But after all, this is a "compromise" under the "plaintiff qualification requirements", and lawyers can't be "victims" in some tort. Then, if the eligible parties are unwilling to file a lawsuit, the lawyer can only watch the public infringement but can do nothing. Therefore, how to solve the problem of plaintiff qualification is still the biggest problem for public interest lawyers to play a better role.
(3) The operational difficulty of public interest litigation itself challenges lawyers.
Compared with ordinary individual litigation, the complexity and extensiveness of public interest litigation require more superb professional knowledge and skills and more capital investment. Lawyers often find that their grand imagination of trying to realize social justice through public interest litigation is slowly being eroded by a lot of tedious and boring professional work. The social pressure and losing risk of public interest litigation also make public interest lawyers bear greater pressure than other lawyers, which makes public interest litigation no longer an attractive ideal for many lawyers, and public interest litigation requires a lot of capital investment, which makes lawyers hesitate. Because China has not established the minimum compensation and two or three times compensation provisions for infringement claims like the United States, and there is no perfect economic foundation system for lawyers to enable lawyers to advance high litigation costs. Therefore, it is not difficult to understand that some lawyers are powerless to public interest litigation in the case of serious polarization of the lawyer industry in China. Then, while we hope that lawyers will pay attention to and actively support public welfare issues, we should also consider a realistic question: what kind of incentive mechanism or system should be established to stimulate and maintain lawyers' enthusiasm for public welfare issues; What measures should be taken within the industry to balance and protect the economic interests of lawyers engaged in public welfare work?
Four. conclusion
In China, lawyers participating in public interest litigation should not only solve the above problems, but also overcome other difficulties, such as administrative protectionism, social traditional prejudice, limited lawyer's power and so on. However, the development of China's lawyer industry essentially depends on the spontaneous and conscious behavior within the lawyer industry, and we can't wait for the promotion of various external factors to go forward, so can lawyers' participation in public interest litigation. When social welfare issues are increasing and becoming an important issue in social life, it is undoubtedly of great significance for lawyers to attach importance to and actively participate in them, so as to establish a good professional image of the lawyer industry, enhance lawyers' social and political status and expand their influence, and realize the expansion of lawyers' business field.