民初律师惩戒制度论析——以惩戒案例为中心

A Discussion of the Institution of Disciplinary Punishment of Lawyers in the Early Republican Period—— Centering on the cases concerning disciplinary punishment

律师惩戒制度对维持律师队伍的道德水准和专业素质起着规范和监督作用。在本质上这一制度反映出律师行业的自治性和国家对这一行业监督、管理和控制的互动关系。民初北洋政府时期在律师惩戒领域实行的是两级两审制由高等审判厅推事组成的律师惩戒会是初审机构,由大理院推事组成的复审查律师惩戒会是复审机构。这一时期的律师惩戒事宜几乎完全被司法机构所垄断,律师公会被排除在外。就制度渊源而论,北洋时期的律师惩戒制度是对大陆法系中日本制度的借鉴,而有别于德国的相关制度。

The institution of disciplinary punishment of lawyers aims to maintain the integrity of the profession. Essentially, it refleets the interrehtionship between the legal profession and the state power. In the early republican period under the Beiyang government, the institution of inflicting disciplinary punishment upon lawyers consisted of two bodies, namely, the commission for the disciplinary punishment of hwyers at the provincial level, which was composed of five judges from a high court, and the commission for the review of eases of disciplinary punishment of ;awyers at central government level, which was composed of judges of the supreme court. In terms of disciplinary control, of hwyers, it appears that supervision and discipline were in the hands of the judiciary bureaucracy, rather than in the hands of the bar association. From the perspective of legal transplant, the institution of disciplinary punishment of lawyers was borrowed directly from Japan without any modification, and was different from the German system to certain extent.