试论律师业不正当竞争

Improper Competition in Lawyer Industry

律师业法律服务兼具市场性和公益性。律师行业不当竞争具有主体限定性、行为隐蔽性和地域显著性。不当竞争行为以不当宣传、低价竞争或者高价竞争、滥用优势地位和竞业贿赂为代表,但已出现利用算法和网络技术施行的“新变种”;不当竞争行为玷污律师业的公众形象;青年律师或将陷入不当竞争的“死循环”。美国律师业具有精细化的专业分工并严格实行律师执业申请制度的特征,职业伦理考试成绩比重较高。其严谨且系统化的律师业惩戒制度,包括职业惩戒责任、程序性制裁责任和刑事责任。我国应该强化法律职业伦理学科在司法考试中的考核比重,建立专业律师执业考核制度,同时建立行业自律与社会他律有效衔接机制。

The legal service of lawyer industry has both market nature and public welfare nature.The improper competition of lawyers has the characteristics of subject limitation,concealment of behavior and regional significance.Improper competition behaviors are represented by improper publicity,low-cost competition or high-cost competition,abuse of dominant position and bribery,while new variants using algorithms and network technologies have already emerged.Improper competition behaviors taint the public image of the legal profession,and young lawyers may fall into the"dead cycle"of it.American lawyers have refined professional division of labor and strict application system for lawyer practice with high proportion of professional ethics examination,and a rigorous and systematic legal disciplinary system has been established,including professional disciplinary responsibility,procedural sanction responsibility and criminal responsibility.China should strengthen the proportion of legal professional ethics in the judicial examination and establish a professional lawyer practice assessment system.Meanwhile,there is an urgent need to build a lawyer culture and establish an effective linkage system between industry self-discipline and social heteronomy.