《律师暂行章程》《律师章程》与民国律师制度的确立 PROVISIONAL REGULATION OF...
一、南京临时政府积极促成民国律师制度的确立
1.Nanjing Provisional Government Actively Promoted the Establishment of Lawyer System in the Republic of China
1911年10月10日武昌起义爆发，由此拉开了辛亥革命的序幕，清末预备立宪及蕴含其中的司法改革也随之中断。1912年1月1日，中华民国南京临时政府成立。以孙中山为代表的资产阶级革命派在废除封建专制制度、打破旧的国家机器的基础上，仿效西方资本主义国家，建立了现代意义上的共和国。同时，临时政府还仿照西方国家的法治原则，确定了全面建设新型法律制度的蓝图，其中就涉及司法审判体制改革，并且特别重视律师辩护制度的建立。
On October 10, 1911, Wuchang Uprising broke out, which opened the prelude of the Revolution of 1911, and the preparatory constitutionalism and judicial reform in the late Qing Dynasty were also interrupted.On January 1, 1912, Nanjing Provisional Government of the Republic of China was established.The bourgeois revolutionaries represented by Sun Yat-sen, on the basis of abolishing the feudal autocratic system and breaking the old state machine, imitated the western capitalist countries and established the republic in the modern sense.At the same time, the Provisional Government modeled on the rule of law principle in western countries, and determined the blueprint for building a new legal system in an all-round way, which involved the reform of the judicial trial system, and paid special attention to the establishment of the lawyer defense system.
在民国律师制度的确立过程中，前清修律大臣、南京临时政府司法总长伍廷芳发挥了重要的作用。他不仅积极主张效仿西方，建立新的法律体系，而且利用司法总长的身份，在审理素有“民国第一案”之称的姚荣泽案中率先实行了律师辩护制度。
Wu Tingfang, former Minister of Law Revision and Minister of Justice of Nanjing Provisional Government, played an important role in the establishment of lawyer system in the Republic of China.He not only actively advocated following the example of the West and establishing a new legal system, but also using the identity of the director of justice, in the trial known as the “first case of the Republic of China”, said Yao Rongze case took the lead in the implementation of the lawyer defense system.
姚荣泽本为前清江苏省山阳县（今属淮安市）知县，辛亥革命后任该县司法长。在地方势力的支持下，他杀害了回乡发动独立起义的周实丹和阮式，之后逃匿于南通。在沪军都督陈其美的要求下，临时大总统孙中山电令江苏都督庄蕴宽和南通民军总司令张謇将姚荣泽解送到沪军都督府，并令陈其美“秉公讯办”。
Yao Rongze was originally the Magistrate of Shanyang County (now Huai'an) in Jiangsu Province in the former Qing Dynasty, and served as the magistrate of the county after the Revolution of 1911.With the support of local forces, he killed Zhou Shidan and Ruan Shi, who returned home to launch an independent uprising, and then fled to Nantong.At the request of Chen Qimei, the Shanghai Military Governor,Sun Yat-sen, the interim president, sent a telegram to Zhuang Yunkuan, the Jiangsu Governor, and Zhang Jian, the commander-in-chief of Nantong Civil Army, to deliver Yao Rongze to the Shanghai Military Governor's Office, and ordered Chen Qimei to “do justice”.
伍廷芳
Wu Tingfang
伍廷芳得知此事，于1912年2月18日致电孙中山，称：“廷以为民国方新，对于一切诉讼应采文明办法，况此案情节重大，尤须审慎周详，以示尊重法律之意。拟由廷特派精通中外法律之员承审，另选通达事理、公正和平、名望素著者三人为陪审员，并准两造聘请辩护士到堂辩护，审讯时任人旁听。如此，则大公无私，庶无失出失入之弊。”3月2日，伍廷芳又致信陈其美，称：“先由辩护士将全案理由提起，再由裁判官动问原告及各人证，两造辩护士盘诘。俟原告及人证既终，再审被告，其审问之法与原告同。然后由两造辩护士各将案由复述结束。”3月19日，伍廷芳在第四次致陈其美的信中强调说：“法庭之上，断案之权在陪审员；依据法律为适法之裁判，在裁判官；盘诘驳难之权，在律师。”在姚荣泽案中，伍廷芳司法独立、陪审制、律师到庭辩护以及无罪推定的思想与实践为民国司法的变革树立了良好的开端。最终，在多数陪审员和承审官的认可下，姚荣泽案报请临时大总统减刑，并由袁世凯下令特赦，改判死刑为监禁十年，附加罚金一万元而结案。
When Wu Tingfang learned about this, he sent a telegram to Sun Yat-sen on February 18, 1912, saying: “Ting thought that the Republic of China was new, and civilized methods should be adopted for all lawsuits.However, the circumstances of this case are serious, and it is especially necessary to be careful and thorough to show respect for the law.It is proposed that the court should appoint a person who is proficient in Chinese and foreign laws to take the trial, and choose three people who are sensible, fair, peaceful and famous as jurors, and allow the two companies to hire defenders to defend in court, who will attend the trial.In this way, it is selfless, and there is no malfeasance.” On March 2, Wu Tingfang sent a letter to Chen Qimei, saying: “First, the defender raised the reasons of the whole case, then the magistrate questioned the plaintiff and the witnesses, and the two defenders cross-examined.When the plaintiff and the witness are finished, the defendant will be interrogated in the same way as the plaintiff.Then two lawyers will make a final statement.” On March 19, Wu Tingfang emphasized in his fourth letter to Chen Qimei: “Above the court, jurors are responsible for clarifying the facts of the case; judges are responsible for making judgments according to law; lawyers are responsible for defense.” In Yao Rongze's case, Wu Tingfang's thought and practice of judicial independence, jury system, lawyer's defense in court and presumption of innocence set a good beginning for the judicial reform of the Republic of China.Finally, with the approval of most jurors and judges, Yao Rongze's case was submitted to the interim president for commutation of sentence, and Yuan Shikai ordered an amnesty, which was commuted to ten years' imprisonment with a fine of 10,000 yuan.
在姚荣泽案实践中，孙中山也十分支持律师辩护制度。他不仅迅速回复伍廷芳的来电，称“所陈姚荣泽案审讯方法极善，即照来电办理可也”，同意伍廷芳的建议，而且明确批复内务部警务司司长孙润宇所拟定的《律师法草案》，称“查律师制度与司法独立相辅相成，夙为文明各国所通行。现各处既纷纷设立律师公会，尤应亟定法律，俾资依据，合将原呈及《草案》发交该局，仰即审核呈复，以便咨送参议院议决。切切！此令”，积极促成《律师法》的制定，以确立民国的律师制度。此外，南京临时政府的各个部门也纷纷行动，从官制、立法、舆论等角度为律师制度的确立创造条件。《司法部官职令（草案）》第二条即拟订了“关于律师之身份事项”的规定。
In Yao Rongze's case, Sun Yat-sen also supported the lawyer defense system.He not only responded to Wu Tingfang's telegram quickly, saying that “he said that the method of judging Yao Rongze's case is very good, and the trial can be conducted according to the telegram”, agreeing with Wu Tingfang's suggestion, but also explicitly replyed to the Lawyers Law Draft drafted by Sun Runyu, Director of Police Department of the Ministry of Internal Affairs, saying that “the lawyer system and the judicial independence complement each other, which are very popular in many civilized countries.Now bar associations are being set up everywhere, and relevant laws and basis should be formulated.So I handed them the submitted official letter and the Draft, and they should review the reply immediately, so that they can submit the submitted official letter and the Draft to the Senate for resolution ”,actively promoted the formulation of Lawyers Law, in order to establish the lawyer system of the Republic of China.In addition, various departments of Nanjing Provisional Government had also taken actions to create conditions for the establishment of lawyer system from the angles of official system, legislation and public opinion.Article 2 of the Official Order of the Ministry of Justice (Draft) drawed up the provisions on “matters concerning the status of lawyers”.
伍廷芳
Wu Tingfang
二、《律师暂行章程》的出台及其特征
2.The Promulgation and Characteristics of the Provisional Regulation of Lawyers
1912年3月，袁世凯就任中华民国临时大总统，民国历史从此进入北洋时期。这一时期虽然政局不稳，但在司法领域基本保留了清末司法改革的诸多重要成果，也沿袭了许多南京临时政府的相关政策，为民国律师制度的确立打下了一个良好的基础。1912年6月17日，参议院审议通过了《司法部官制》。这项制度虽然对原南京临时政府拟订的《司法部官职令（草案）》有所修改，但仍然保留了管理律师业务的内容。
In March 1912, Yuan Shikai became the interim president of the Republic of China, and the history of the Republic of China entered the Beiyang Period.Although the political situation was unstable during this period, many important achievements of judicial reform in the late Qing Dynasty were basically retained in the judicial field, and many relevant policies of Nanjing Provisional Government were also followed, which laid a good foundation for the establishment of lawyer system in the Republic of China.On June 17, 1912, the Senate deliberated and adopted the Official System of the Ministry of Justice.Although this system has modified the Official Order of the Ministry of Justice (Draft) drawn up by the former Nanjing Provisional Government, it still retains the contents of managing lawyers' business.
1912年9月16日，北洋政府司法部以行政命令的形式颁布了《律师暂行章程》，并在第三十七条中规定：“本《章程》于《律师法》及其施行法颁布后即行废止。”这部《暂行章程》是中国历史上第一部通行全国的律师法规，虽然在民国成立九个月后即告完成，但由于它仿照《日本辩护士法》修订而成，因此并不显得粗糙。《律师暂行章程》的出台标志着民国律师制度的确立。
On September 16, 1912, the Ministry of Justice of Beiyang Government promulgated the Provisional Regulation of Lawyers in the form of administrative orders, and stipulated in Article 37: “This Regulation shall be abolished upon the promulgation of the Lawyers Law and its implementation law.” This Provisional Regulation is the first law for lawyers in China's history.Although it was completed nine months after the founding of the Republic of China, it is not rough because it was revised in imitation of the Japanese Defender Law.The promulgation of the Provisional Regulation of Lawyers marks the establishment of lawyer system in the Republic of China.
（一）律师自由职业者身份的确立
(a) The Establishment of the Status of Lawyers as Freelancers
律师自由职业者身份的确立是《律师暂行章程》的重要内容之一。该《章程》第十四条规定：“律师受当事人之委托或审判衙门之命令，在审判衙门执行法定职务，并得依特别法之规定，在特别审判衙门行其职务。”这里提到了律师履行职务的两种情况。第一种，律师以个人身份独立接受当事人委托，在法庭诉讼或非讼业务中，基于其自身对受委托事件具体情节的了解以及对相关法律条款的理解，提出对委托人有利的法律要求。第二种则是对于因贫穷而无力聘请律师，法庭又认为有必要让律师参与诉讼的当事人，法庭将指派律师为其提供法律服务。虽然律师在这里必须服从法庭指派，承担辩护任务，但在诉讼过程中，律师行为的依据依然是法律本身，依然是独立行使法定职务。因此，无论是以上哪种情况，律师的身份都是自由职业者。
The establishment of the status of lawyers as freelancers is one of the important contents of the Provisional Regulation of Lawyers.Article 14 of the Regulation stipulates: “Lawyers are entrusted by the parties or ordered by the adjudicative office to perform their statutory duties in the adjudicative office,and may perform their duties in the special adjudicative office according to the provisions of the special law.” Two situations in which lawyers perform their duties are mentioned here.First, lawyers independently accept clients' entrustment in their personal capacity, and in court litigation or non-litigation business,based on their own understanding of the specific circumstances of entrusted events and relevant legal provisions, they put forward legal requirements beneficial to clients.The second is that the court will appoint lawyers to provide legal services for those who are unable to hire lawyers because of poverty and think it necessary for lawyers to participate in litigation.Although lawyers here must obey the court's assignment and undertake the defense task, in the process of litigation,lawyers' behavior is still based on the law itself, and they still exercise their statutory duties independently.Therefore, no matter which of the above situations,lawyers are freelancers.
（二）司法机关与律师公会的双重监管体制
(b) The Dual Supervision System of the Judiciary and the Bar Association
作为自由职业者，律师既没有主管机关的直接监管，也没有推选机关的民意监督，因此《律师暂行章程》设立了以登录和惩戒为主要形式的司法机关与行业团体的双重管理监督体制。律师获得资格后，若要正式执业，首先要到省级高等审判（检察）厅进行登录，以确定其资格的真伪。登录过程分两步：第一，向司法总长领取律师证书，而司法总长在发放律师证书时，也将该律师列入总名簿；第二，已领取证书的律师到准备执业区域内的高等审判（检察）厅登录律师名簿。律师开展业务的区域一般以省为单位，登录后，该省高等审判（检察）厅会通知辖区内的各级审判（检察）机构准予该律师执行职务，同时开始对该律师的监督和管理。(https://www.daowen.com)
As a freelancer, lawyers have neither the direct supervision of the competent authorities nor the supervision of the public opinion of the elected organs.Therefore, the Provisional Regulation of Lawyers has established a dual management and supervision system of judicial organs and industry groups with registration and punishment as the main forms.After a lawyer has obtained the lawyer qualification,if he wants to practice formally, he must first register with the provincial high adjudicative (procuratorial) office to determine the authenticity of his qualification.The registration process is divided into two steps: first, get the lawyer certificate from the Minister of Justice, and when the Minister of Justice issues the lawyer certificate, he also lists the lawyer in the general directory;second, lawyers who have received certificates should register the directory of lawyer in the high adjudicative (procuratorial) office in the area where they are going to practice.The area where lawyers conduct business is generally in the province.After registration, the provincial high adjudicative (procuratorial)office will notify the judicial (procuratorial) institutions at all levels within its jurisdiction to grant the lawyers permission to perform their duties, and at the same time begin to supervise and manage the lawyers.
民国国庆纪念日里的北京中央司法部
Beijing Central Ministry of Justice on the National Day of the Republic of China
登录审核之外，司法机关对于律师最重的处罚就是实施律师惩戒。依据《律师暂行章程》，对于律师的惩戒，必须依法提起诉讼。地方检察长对于执业律师，如认为其行为有违反法律规定、应予惩戒者，即可依其职权，呈请高等检察长，提起对该律师的惩戒诉讼；律师公会对于律师惩戒的声请，也必须经由地方检察长呈请，不得径自呈请。
Apart from registration and auditing, the heaviest punishment for lawyers by judicial organs is to punish lawyers.According to the Provisional Regulation of Lawyers, the punishment of lawyers must be brought according to law.If the local procurator-general thinks that lawyer's behavior violates the law and should be punished, he can petition the high procurator-general according to his authority and file a disciplinary lawsuit against the lawyer.The bar association's request for disciplinary action by lawyers must also be petitioned by the local procuratorgeneral, and it is not allowed to petition all the time.
三、《律师暂行章程》的修订与律师法律体系的初步建立
3.Revision of the Provisional Regulation of Lawyers and Preliminary Establishment of Lawyer's Legal System
北洋军阀统治时期，内阁频繁更迭，时局动荡，战争不断，不过民国大势已定，制定各类新式法律制度的势头有增无减，律师制度建设也从未停止过。以《律师暂行章程》为例，其实施不到一年时间，就进行了两次修订。此后，北洋政府又对《律师暂行章程》进行了多次修订，并相继颁布了一系列法令法规，其中包括《律师应守义务》《律师登录暂行章程》《律师考试规则》《律师惩戒会暂行规则》《复审查律师惩戒会审查细则》《无领事裁判权国律师出庭暂行章程》《律师甄别章程》等法律及修订案，初步确立了包括资格、条件、考试、职责、义务、惩戒等多方面内容的律师法律体系。
During the reign of the Northern Warlords, the cabinet changed frequently,the current situation was turbulent, and wars continued.However, the general trend of the Republic of China was set, and the momentum of formulating various new legal systems continued unabated, and the construction of lawyer system never stopped.Take the Provisional Regulation of Lawyers as an example, it has been revised twice in less than one year.Since then, the Beiyang Government has revised the Provisional Regulation of Lawyers for many times, and successively promulgated a series of laws and regulations.These include Lawyers' Obligations,Lawyers' Registration Provisional Regulations, Lawyers' Examination Rules, Lawyers'Disciplinary Committee Provisional Rules, Re-examination Lawyers' Disciplinary Committee Review Rules, Provisional Regulation of Lawyers in Countries without Consular Jurisdiction, Lawyers' Screening Regulations and other laws and amendments,which have initially established the lawyer's legal system including qualifications,obligations, examinations, duties, obligations, punishments etc.
1915年7月，司法部又专门制定并颁布了《律师应守义务》五条，并于1916年10月加以修订。《律师应守义务》主要从三个方面限制律师的职业行为：一是律师与当事人的利益关系；二是律师的疏忽责任；三是诚实、信用原则。《律师应守义务》的制定，重在加强对律师执行职务的管理，强化律师执行职务过程中应承担的义务，对于初建时期律师队伍的净化以及律师良好社会形象的树立，起到了积极的作用。
In July 1915, the Ministry of Justice specially formulated and promulgated five articles of Lawyers' Obligations, which were revised in October 1916.Lawyers' Obligations mainly restricts lawyers' professional behavior from three aspects: first, the interest relationship between lawyers and parties; second, the negligence responsibility of lawyers; third, the principle of honesty and credit.The formulation of Lawyers' Obligations focuses on strengthening the management of lawyers in performing their duties, and strengthening the obligations that lawyers should bear in the process of performing their duties, which has played a positive role in the purification of lawyers and the establishment of a good social image of lawyers in the initial construction period.
四、《律师章程》与律师法律体系的完善
4.Regulation of Lawyers and Perfection of Lawyer's Legal System
南京国民政府成立以后，北洋时期的律师制度被继续援用，同时综合当时社会的需要，提出了众多修改意见，颁布了新的法律法规。
After the establishment of Nanjing National Government, the lawyer system in Beiyang Period was continuously used.At the same time, considering the needs of the society at that time, many amendments were put forward and new laws and regulations were promulgated.
1921 年北洋政府司法部关于请变通《无领事裁判权国律师出庭暂行章程》的批复
Reply of the Ministry of Justice of Beiyang Government in 1921 on the modification of the Provisional Regulation of Lawyers in Countries without Consular Jurisdiction
1927年7月23日，南京国民政府司法部公布并施行了《律师章程》，也就取代了北洋政府时期的《律师暂行章程》，随后又相继颁布了《甄别律师委员会章程》《高等考试司法官律师考试条例》《律师惩戒委员会规则》《律师公会标准会则》等法律法规。
On July 23, 1927, the Ministry of Justice of Nanjing National Government promulgated and implemented the Regulation of Lawyers, which replaced the Provisional Regulation of Lawyers during the Beiyang Government.Later, it successively promulgated laws and regulations, such as the Statutes of the Screening Lawyers Committee, the Examination Regulations of Higher Examination for Magistrates and Lawyers, the Rules of the Lawyers Disciplinary Committee, and the Standards Rules of the Bar Association.
南京国民政府公布并施行的相关法律，大体以1926年北洋政府修订的《律师暂行章程》为基础，同时添加了许多新的内容。《律师章程》不仅延续了律师的自由职业者身份，而且进行了一系列调整，包括增加律师消极资格的条款；具体规定了律师的检核制度，律师登录限定于两个地方法院和高等法院；增加了新的律师惩戒特别程序，增设了惩戒复审委员会；增加了关于外国律师执行职务的相关规定。
The relevant laws promulgated and implemented by Nanjing National Government were generally based on the Provisional Regulation of Lawyers revised by Beiyang Government in 1926.At the same time, many new contents were added.The Regulation of Lawyers continued the status of lawyers as freelancers.In addition, a series of adjustments had been made in the Regulation of Lawyers, including the provision of increasing the negative qualifications of lawyers; the lawyer's verification system was specified, and the lawyer's login was limited to two district courts and the high court; a new special disciplinary procedure for lawyers had been added,and a disciplinary review committee had been added; the relevant provisions on the performance of duties by foreign lawyers had been added.
1932 年河北高等法院的批复
Reply of Hebei High Court in 1932
1937 年7 月上海中国银行付蔡汝栋律师费凭证
Voucher of lawyer fee paid by Bank of China in Shanghai to Cai Rudong in July 1937
相较于《律师暂定章程》，律师资格的变化是《律师章程》的一个显著特色。《律师章程》将律师应具备的资格修改为“中华民国人民满二十一岁以上者”，从而放开了女性从事律师职业的限制，具有相当大的进步意义。
Compared with the Provisional Regulation of Lawyers, the change of lawyer qualification was a prominent feature of the Regulation of Lawyers.The Regulation of Lawyers changed the qualifications that lawyers should have to be“people of the Republic of China who are over 21 years old”, thus liberalizing the restrictions on women's engagement as lawyers, which was of great progressive significance.
《律师章程》及相关法律法规的颁布标志着南京国民政府律师法律体系整体架构的完成，也意味着民国律师制度的完全确立以及逐步完善，并由此促进了民国律师业的发展。
The promulgation of the Regulation of Lawyers and related laws and regulations marked the completion of the overall framework of the lawyer legal system of Nanjing National Government, and also means the complete establishment and gradual improvement of the lawyer system in the Republic of China, thus promoting the development of the lawyer industry in the Republic of China.