“规制治理”下的律师职业规制改革——以英国的实践为例

Reform of Lawyers Professional Regulations under“Regulatory Governance”—Take British Practice as an Example

通过分析我国目前的律师职业规制体系,可以发现我国律师协会的自我规制未能发挥应有的作用,自我规制、行政规制与司法规制的界限不清,规制手段多为事后的行为罚等问题。职业主义的自我规制在西方国家遭遇了商业化、全球化带来的危机,新的“规制治理”理念被引入了律师职业规制。在英国实践中,对于整体规制框架采用了“元规制”的方式,事务律师规制局改革将职业伦理规制范围由行为规则转向原则与专业标准的结合,运用事前事中的风险合规沟通替代事后的惩戒手段。我国应该吸收上述“规制治理”理念的转变,将职业主义的自我规制与原有的公共规制相结合,完善律师协会、行政机关、法院的规制范围,改革现有的执法专项检查,实现职业与国家、社会、市场之间的互动规制。

Through the analysis of the current professional regulation system for lawyers in our country,we can find that the self-regulation of our lawyers association fails to play its due role,the boundary between self-regulation,administrative regulation and judicial regulation is not clear,and the regulatory means are mostly ex-post behavior punishment.Self-regulation under professionalism has been confronted with the crisis brought by commercialization and globalization in western countries,and the new concept of“regulatory governance”has been introduced into the professional regulation of lawyers.In practice of the United Kingdom,the“meta-regulation”approach was adopted for the regulatory framework,and the Solicitors Regulation Authority reformed the scope of professional ethics regulation from the rules of conduct to the combination of principles and professional standards,and used risk compliance communication in the ex-ante instead of ex-post behavior punishment.China should absorb the change of“regulatory governance”,combine the goals of self-regulation under professionalism with the public regulation,clarify the scope of regulation of lawyers associations,administrative organs and courts,reform the existing special inspection of law enforcement,and realize the interactive regulation between profession and the state,society and market.