律师分级出庭检视——以分工为视角

On Lawyers' Practicing before Courts by Ranking:From the Perspective of Division of Labor

分工能够把事情做得更好,但分工同时也受制于市场的需求和规模,以市场为导向的分工才能够更好地满足社会需求。律师分级出庭是一种等级分工。与市场竞争相比,政府主导的等级评定在信息收集、质量担保、满足多样性需求、减轻当事人经济负担、提升律师整体服务水平等方面,并不具有优势。英法美三国的实践表明,律师分级是特定时代的产物,不具有普世意义;消除政府在律师行业内部设置的壁垒,建立统一开放的律师服务市场,促进律师公平竞争和自主分工、分类,保障当事人自由选择律师的权利,是当今律师制度发展的趋势。因此,开展由律师自主选择的专业认证和专业分类是可行的,但推行强制性的律师分级出庭则要谨慎。

Although division of labor facilitate better completion of tasks, it is always constrained by the demand and scale of market. Thus, division of labor shall be market-oriented to better satisfy social demands. That lawyers practice before courts by ranking reflect a kind of hierarchical division of labor. Compared with market competition, the ranking system led by government has no advantages in collecting the information, guaranteeing the quality, meeting diverse social demands, alleviating the disputants＇ economic burden and improving the overall service of lawyers. The experience in the UK, France and the USA shows that lawyers＇ practicing before courts by ranking is ad hoc in the times and not universal, and this trend for the current development of lawyers in- volves eradicating the barriers in lawyers＇ practicing areas made by government, establishing an open and uni- form legal service market, improving the fair competition as well as independent division of labor and classifica- tion among lawyers, and guaranteeing the disputants＇ rights of freely choosing a lawyer. Therefore, it is supposed to be cautious to enforce such a compulsory system of ordering lawyers to practice before courts according to their ranks though it is feasible to carry out the professional certification and classification out of the lawyers＇ free choice.