阴影下的正当性——清末民初的律师职业与律师制度

发布时间：2018-06-25 23:58

本文选题：律师职业 + 律师制度　；参考：《法学》2012年12期

【摘要】：近代中国人与西方律师制度最早发生实际接触的事例,至少可以追溯至19世纪初,而1860年代以来更有外籍律师在中国的租界内执业,其后也不乏国人聘请外籍律师为其办理事务。晚清时期的不少报刊,亦透过其涉及律师的一些报导,在社会中扮演着观念启蒙的角色。近代中国律师职业在国法层面的正当性,直到清末正式颁行《法院编制法》(1910年)时才最终确立,而专门颁布单行法规对律师制度予以规范,则更是迟至《律师暂行章程》于民国元年(1912年)颁行之时。对晚清民初律师职业和律师制度之发展史的细致梳理发现,从某种意义上说,其在近代中国所确立的始终只是一种"阴影下的正当性"。而造成这种状况的主要原因,除了明清以来盛行的恶讼师形象刻画之影响外,还在于律师制度初建之时,职业准入实践方面的宽滥,不可避免地导致产生恶马害群之弊,进而影响到这一新职业的社会形象。
[Abstract]:The earliest instances of actual contact between Chinese and Western lawyers in modern times can be traced back at least to the beginning of the 19th century. Since the 1860s, foreign lawyers have been practicing in China's concessions. After that, many Chinese hired foreign lawyers to handle their affairs. Many newspapers and periodicals in the late Qing Dynasty also played the role of enlightenment in the society through some reports about lawyers. The legitimacy of the modern Chinese lawyer profession at the level of national law was not finally established until the formal promulgation of the Law on the Establishment of the Court (1910) in the late Qing Dynasty, and the system of lawyers was regulated by special laws and regulations. It was later than the first year of the Republic of China (1912) when the Provisional Charter of lawyers was promulgated. The detailed analysis of the history of the profession of lawyers and the system of lawyers in the late Qing Dynasty and the early Republic of China shows that, in a sense, what it has established in modern China has always been "legitimacy under the shadow". In addition to the influence of the image portrayal of the evil advocate that has prevailed since the Ming and Qing dynasties, the main reason for this situation is that when the lawyer system was first established, the wide and indiscriminate practice of professional access inevitably led to the harm of evil horses and harmful groups. Then affect the social image of this new occupation.
【作者单位】：中国人民大学法学院;
【分类号】：D929;D926.5

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