《律师法》的实施与民国律师制度的最终完成 THE IMPLEMENTATION OF THE LA...
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》，以代替北洋政府时期的《律师暂行章程》，加之随后颁布的《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》和《律师公会标准会则》，从而形成了更具规范化的民国律师制度。不过，随着社会的发展，《律师章程》已不能适应社会发展的需要，于是国民政府司法行政部于1935年完成了《律师法草案》，几经修改，终于在1940年12月24日由立法院审议通过。1941年1月11日，国民政府公布实施了全新的《律师法》，《律师章程》也就此废止。不久以后，《律师登录规则》《律师惩戒规则》《律师检核办法》《律师公会平民法律扶助实施办法大纲》《外国人在中国充任律师办法》等法律法规相继出台，共同构建起20世纪40年代的律师制度，也标志着民国律师制度的完备，并进入了一个相对稳定的成熟时期。
On July 23, 1927, the Ministry of Justice of Nanjing National Government promulgated and implemented the Regulation of Lawyers to replace the Provisional Regulation of Lawyers of Beiyang Government.In addition, with the subsequent 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 formed a more standardized lawyer system of the Republic of China.However, with the development of society,the Regulation of Lawyers can no longer meet the needs of social development.Therefore, the Ministry of Justice and Administration of the National Government completed the Lawyers Law in 1935, which was revised several times and finally passed by the Legislature on December 24, 1940.On January 11, 1941, the National Government promulgated and implemented the brand-new Lawyers Law, and the Regulation of Lawyers was abolished.Soon after, laws and regulations such as Rules for Lawyers Registration, Lawyers' Disciplinary Rules, Measures for Examining Lawyers,Outline for the Implementation of Bar Assistance for Civilians of Bar Association and Measures for Foreigners to Serve as Lawyers in China were promulgated one after another, which jointly established the lawyer system in the 1940s, and also marked the perfection of the lawyer system in the Republic of China and entered a relatively stable mature period.
一、律师自由职业者身份的强化
1.Strengthening the Status of Lawyers as Freelancers
从民国初年《律师暂行章程》开始，律师的自由职业者身份就已被确立，直到《律师法》的出台，这一身份特征又得到了较大幅度的提升。《律师章程》第一章“职务”中规定：“律师受当事人之委托或法院之命令得在通常法院执行法定职务，并得依特别之规定，在特别审判机关行其职务；律师得受当事人之委托，为契约、遗嘱之证明或代订契约等法律文件。”反观《律师法》第二十条规定，律师受当事人之委托或法院之命令，得在法院执行法定职务，并办理其他法律文件。由此可见，《律师法》扩大了律师办理法律文件的范围，丰富了律师的执业内容，从而进一步强化了律师自由职业者的身份。
The lawyer's status as a freelancer has been established since the Provisional Regulation of Lawyers in the early years of the Republic of China.Until the promulgation of the Lawyers Law, this identity has been greatly improved.The first chapter of the Regulation of Lawyers stipulates, “Lawyers may perform statutory duties in ordinary courts when entrusted by the parties or ordered by the courts,and may perform their duties in special judicial organs according to special regulations.Lawyers may be entrusted by the parties to prove contracts, wills or contract and other legal documents.” On the other hand, Article 20 of the Lawyers Law stipulates that lawyers may perform their statutory duties and handle other legal documents in the court when entrusted by the parties or ordered by the court.It can be seen that the Lawyers Law expands the scope of lawyers' handling of legal documents, enriches lawyers' practice content, and further strengthens the status of lawyers as freelancers.
二、律师资格的获取
2.The Acquisition of Lawyer's Qualification
关于获取律师资格，《律师法》第一条规定了两种方式：一是通过律师资格考试，二是通过检核。不过，在《律师法》颁布后，真正通过考试获取律师资格的仅一人，而通过检核获取的有2284人，足见二者在实践中的差别。
With regard to obtaining the lawyer's qualification, Article 1 of the Lawyers Law stipulates two ways: one is to pass the lawyer's qualification examination, and the other is to pass the examination.However, after the promulgation of Lawyers Law, only one person actually obtained lawyer qualification through examination,while 2284 people obtained lawyer qualification through examination, which shows the difference between them in practice.
根据《律师法》的规定，曾任推事或检察官，或毕业于公立大学、经立案之私立大学、独立学院之法律专业，讲授主要法律科目满两年以上的教授（满两年）、副教授（满三年）、讲师（满五年），办理民刑案件满四年以上且成绩优良的司法行政官等都可通过检核，直接获得律师资格。随即出台的《律师检核办法》又具体指出，推事或检察官也包括候补推事和候补检察官，而主要法律科目则指民法、商事法规、刑法、民事诉讼法、刑事诉讼法、强制执行法、破产法和国际私法。
According to the provisions of the Lawyers Law, professors (full two years),associate professors (full three years), lecturers (full five years) who have served as judges or prosecutors, or graduated from legal profession of public universities,private universities and independent colleges, who have taught major legal subjects for more than two years, and judicial administrators who have handled civil and criminal cases for more than four years and have achieved excellent results can pass the examination and obtain the lawyer qualification directly.The Measures for Examining Lawyers, which was promulgated immediately, specifically pointed out that judges or prosecutors also include alternate judges and alternate prosecutors,while the main legal subjects refer to civil law, commercial regulations, criminal law, civil procedure law, criminal procedure law, enforcement law, bankruptcy law and private international law.
相较于《律师章程》，《律师法》不再允许只取得毕业证书的普通学生直接获得律师资格，更强调了律师要求学历与司法实践并重的职业特征。
Compared with the Regulation of Lawyers, the Lawyers Law no longer allowed ordinary students who have only obtained graduation certificates to obtain lawyer qualifications directly, and emphasized the professional characteristics that lawyers require equal emphasis on academic qualifications and judicial practice.
与此同时，《律师法》还明确规定了七种不能获得律师资格的情况，包括背叛国家且证据充足者，曾经被判处有期徒刑及以上者，受律师惩戒处分中除名处分者，担任公务员而受到开除惩戒者，亏空公款者，破产宣告还未复权者以及吸食鸦片或其代用品者。这些新规弥补了《律师章程》的不足，也有助于提升律师队伍的整体形象。
At the same time, Lawyers Law also clearly stipulated seven situations in which lawyers could not be qualified, including those who betray the country and have sufficient evidence, those who have been sentenced to fixed-term imprisonment or above, those who have been removed from the disciplinary punishment of lawyers, those who have been dismissed and punished as civil servants, those who have lost public funds, those who have not been reinstated after bankruptcy declaration, and those who smoke opium or its substitutes.These new regulations made up for the shortcomings of the Regulation of Lawyers and helped to enhance the overall image of the lawyers.
1945 年8 月的律师收费收据
Receipt of lawyer's fees in August 1945
三、律师应履行的义务
3.Obligations of Lawyers
律师的义务是指律师在执业过程中应遵守的禁止性规定和职业道德规范，《律师法》对此类义务进行了更加丰富的阐释。
The obligations of lawyers refer to the prohibitive regulations and professional ethics that lawyers should abide by in the course of practicing.The Lawyers Law provides a richer interpretation of such obligations.
（一）忠于职守的义务
(a) The Obligation to Be Loyal to One's Duties
律师与委托人之间事实上是一种契约关系，为使律师在履行契约的过程中承担更多的义务，《律师法》作出了律师应忠于职守、尽职尽责的规定。
In fact, the relationship between lawyers and clients is a contractual relationship.In order to enable lawyers to assume more obligations in the process of fulfilling the contract, the Lawyers Law stipulates that lawyers should be loyal to their duties and perform their duties.
《律师法》第二十二条规定，律师没有正当理由，不得推辞法院的指令。第二十三条规定，律师在接受委托后，应该忠实的搜求证据，深入了解案情。第二十四条规定，没有正当理由，不得随意终止与当事人的契约；如果律师有正当理由需与委托人解除契约的，必须于审期前十日通知委托人，并且必须在委托人同意的情况下，才能正式解除契约。这些条款要求律师对于法院的指令和当事人的委托必须做到尽职尽责，没有正当理由，不得推脱。
Article 22 of the Lawyers Law stipulates that a lawyer shall not resign the court's order without a valid reason.Article 23 stipulates that after accepting an entrustment, a lawyer should faithfully search for evidence and gain a thorough understanding of the case.Article 24 stipulates that the contract with the client shall not be terminated without justified reasons; if the lawyer has a justified reason to terminate the contract with the client, he must notify the client ten days before the trial period, and the client must agree to officially terminate the contract.These clauses require lawyers to be responsible for the court's orders and client's entrustment, and cannot shirk without justified reasons.
对于没有履行好忠于职守义务而造成委托人损失的律师，《律师法》要求其对委托人进行赔偿，即第二十五条所规定，律师如果因为懈怠或疏忽，导致委托人受损害的，需负赔偿责任。同时，该律师还可能遭到惩戒的处分。
For lawyers who fail to perform their duty of loyalty and cause losses to their clients, the Lawyers Law requires them to compensate their clients, that is, as stipulated in Article 25, if lawyers suffer damages to their clients due to their slack or negligence, they shall be liable.At the same time, the lawyer may also be punished.(https://www.daowen.com)
（二）诚实信用的义务
(b) The Obligation of Good Faith
诚实、讲信用是律师执业的基本原则，也是《律师法》对律师应尽义务作出的重要规定。其中第二十八条规定，律师对于法院及委托人，不得有蒙蔽或欺诱行为；第二十九条规定，律师不得有足以损及自身名誉或信用之行为。这是《律师法》对律师道德的约束，要求律师具有良好的执业操守。不过，这两条规定有许多模糊的概念，很难执行，不似法律条款，只能说代表了立法者的一种美好企盼。
Honesty and trustworthiness are the basic principles of lawyers' practice, and they are also important provisions of the Lawyers Law on the obligations of lawyers.Among them, Article 28 stipulates that lawyers shall notdeceive the court and their clients.Article 29 stipulates that lawyers shall not conduct acts that would damage their reputation or credibility.This is the restriction on lawyers' ethics under the Lawyers Law and requires lawyers to have good professional ethics.However,these two provisions have many vague concepts and are difficult to implement.They are not like legal provisions.They can only be said to represent a good hope of legislators.
（三）禁止兼职的义务
(c) The Obligation to Prohibit Part-time Jobs
关于律师的兼职，《律师法》第三十条和第三十一条规定，律师不得兼任公务员，但可出任学校的教员或者中央与地方的民意代表或者中央与地方的特定的临时职务；也不得兼营商业，但可在所登录的高等法院或分院的许可下，兼营与职务无碍的商业项目。
Regarding the part-time job of lawyers, Article 30 and Article 31 of the Lawyers Law stipulate that lawyers shall not serve as civil servants, but they may serve as school teachers or representatives of the central and local public opinion or specific temporary positions at the central and local levels; they are not allowed to work concurrently Commercial, but with the permission of the registered high court or branch, it can concurrently operate commercial projects that are not hindered by the position.
在律师经手的业务中，有不少涉及公务机关对当事人权益的侵害。如果兼任公务员，难免会影响律师活动的公正性，因此《律师法》规定律师不能兼任公务员。至于兼营商业，律师所受委托常与商业活动有关，既涉及商业秘密，也涉及商业利益。如果律师以兼营商业的身份接受他人委托，就难免会与委托人发生利益上的冲突；同时，兼营商业还会分散律师执业的精力，因此《律师法》又规定律师不能随意兼营商业。
Many of the businesses handled by lawyers involve infringements on the rights and interests of clients by public agencies.If they serve as civil servants, it will inevitably affect the fairness of lawyers' activities.Therefore, the Lawyers Law stipulates that lawyers cannot serve as civil servants.As for concurrent business operations, the entrustment of lawyers is often related to commercial activities, involving both commercial secrets and commercial interests.If a lawyer accepts the entrustment of others as part-time business, it is inevitable that there will be conflicts of interest with the client; at the same time, part-time business will also distract lawyers from practicing.Therefore, the Lawyers Law also stipulates that lawyers cannot freely engage in business .
（四）回避的义务
(d) The Obligation to Avoid
为保证律师能够公正地执行任务，《律师法》规定律师必须履行回避义务。这种回避包括事务性回避与职务性回避两种。
In order to ensure that lawyers can perform their tasks fairly, the Lawyers Law stipulates that lawyers must perform the obligation of avoidance.This kind of avoidance includes two types: transactional avoidance and official avoidance.
《律师法》第二十六条规定，有以下三种情形的，不得提供法律服务，如果有委托人请求的，律师也应当拒绝：第一，曾接受委托人的相对人的委托的，或者接受过委托人的相对人的赞助的；第二，在担任推事或检察官时处理的案件；第三，在仲裁程序中，以仲裁人的资格处理的案件。第三十二条又规定，律师不得与执行职务区域内之司法人员往还应酬。由此可见，凡是案件中能够引起律师与其私下交易、暗箱操作的人都应被列入事务性回避的名单中，从而尽可能地保证司法公正。
Article 26 of the Lawyers Law stipulates that in the following three circumstances, legal services are not allowed.If the client requests, the lawyer should also refuse: First, he has accepted the entrusts of client's counterparts,or has accepted the supports of the client's counterparts; Second, cases handled while serving as judges or prosecutors; Third, cases handled as arbitrators in arbitration proceedings.Article 32 also stipulates that lawyers are not allowed to repay the judicial personnel in the area where they perform their duties.It can be seen from this that all persons who can cause private transactions and black-box operations with lawyers should be included in the list of transactional avoidances,so as to ensure judicial justice as much as possible.
职务性回避则多为律师自身的人际关系所致。《律师法》第三十七条规定，司法人员在离职后三年内，不得在曾经供职的法院管辖区域内从事律师职业；第三十八条规定，律师在注销登录后一年内，不得在曾经执行律师业务的区域内的法院充任司法官；第三十九条规定，与法院院长或首席检察官有配偶、五亲等内血亲或三亲等内姻亲关系的律师，不能在该法院登录。这三条是对律师有过特殊从业经历或与特殊人员有亲属关系，需进行回避的规定。
The duty-based avoidance is mostly caused by the lawyer's own interpersonal relationship.Article 37 of the Lawyers Law stipulates that within three years after resignation, judicial personnel shall not engage in the profession of lawyers within the jurisdiction of the courts where they once served.Article 38 stipulates that within one year after logging off, lawyers shall not be allowed to engage in judicial officer within the region where they once served as lawyer.Article 39 stipulates that lawyers who have a spouse, blood relatives within the five relatives, or in-laws within the three relatives with the president of the court or the chief prosecutor cannot be registered in the court.These three articles are requirements for recusal for lawyers who have special experience or have kinship with special personnel.
（五）消极诉讼的义务
(e) The Obligation for Negative Litigation
《律师法》第三十四条规定，律师不得挑唆诉讼，或以不正当的方法招揽诉讼；第三十五条规定，律师不得代理当事人为显无理由之起诉、上诉或抗告。这就意味着律师不能采取积极主动的态度去开展业务，只能被动地履行职责，履行消极诉讼的义务。
Article 34 of the Lawyers Law stipulates that lawyers shall not instigate litigation or solicit litigation by improper methods.Article 35 stipulates that lawyers shall not represent the client for unreasonable prosecution, appeal or protest.This means that lawyers cannot take a proactive attitude to conduct business, but can only passively perform their duties and perform passive litigation obligations.
事实上，律师的使命在于保护当事人的合法权益，防止其他团体或个人对当事人造成侵害；而在侵害发生的情况下，则帮助当事人通过合法程序，要求赔偿或补偿，并以其对于法律条款及法律程序的熟悉，保护当事人的诉讼权益，防止司法机构在审判中的偏颇。然而《律师法》要求律师必须履行消极诉讼义务的规定，无疑是在“开倒车”。
In fact, the mission of a lawyer is to protect the legal rights of the client and prevent other groups or individuals from infringing upon the client; and in the event of an infringement, to help the client to pass legal procedures to claim compensation or salvation, and with his familiarity with legal terms and legal procedures protects the litigant rights and interests of litigants and prevents judicial institutions from being biased in trials.However, the requirement that lawyers must perform passive litigation obligations in the Lawyers Law is undoubtedly “reversing”.
四、1945年《律师法》对1941年《律师法》的修正
4.Amendments to the Lawyers Law of 1941 by the Lawyers Law of 1945
在《律师法》制定颁布后，鉴于抗战的特殊时期，其针对性囿于国统区之内。不过随着国际国内形势的变化，如美英等国与中国改定新约，宣布放弃领事裁判权；抗战迎来最后的大反攻阶段，全国即将光复，国民政府将还都南京等，国民政府遂于1945年对《律师法》进行了大幅度的改动，在调整立法体例、整理法条后，条文从四十八条增至五十一条。
After the Lawyers Law was enacted and promulgated, in view of the special period of Anti-Japanese War, its pertinence was limited to the Kuomintang Controlled Area.However, with the changes in the international and domestic situation, such as the United States, Britain and other countries amending the new treaty with China,announcing the abandonment of consular jurisdiction; Anti-Japanese War ushered in the final stage of the counter-offensive, the country is about to recover, the national government will return to Nanjing and so on.As a result, the National Government made substantial changes to the Lawyers Law in 1945.After adjusting the legislative style and sorting out the legal provisions, the provisions were increased from 48 to 51.
1945年修正案在第一条律师资格的规定中增加了第三款规定：具备《法院组织法》第三十三条第四款或第三十六条第五款资格的，也可通过检核直接获得律师资格。《法院组织法》第三十三条第四款为在专科以上学校修习法律三年以上毕业，曾担任荐任级别的司法行政官，办理民、刑事两年以上成绩优良的；第三十六条第五款为曾任立法委员三年以上的。据此，司法行政人员和立法委员也具备了参与检核而直接获得律师资格的条件。不过这样一来，政府官员就可以在毫无司法经验的背景下充任律师，实为《律师法》的一大倒退。
In the 1945 amendment, paragraph 3 was added to Article 1 of the Law on Lawyers' Qualification.Those who have the qualification of Article 33, paragraph 4, or Article 36, paragraph 5 of the Organic Law of the Court can also obtain the lawyer's qualification directly through examination.Referring to the Organic Law of the Court, the content of Article 33, paragraph 4, is that he graduated from a college or above to study law for more than 3 years, served as a judicial administrator at the recommendation level, and handled civil and criminal affairs for more than 2 years with excellent results.Paragraph 5 of Article 36 refers to those who have served as legislators for more than 3 years.According to these two paragraphs, judicial administrators and legislators also have the conditions to participate in the examination and directly obtain the qualification of lawyers.However,as a result, government officials can also act as lawyers without judicial experience, which is a great retrogression of the Lawyers Law.