律所分裂的制度因素——基于活法理论的个案研究

Institutional Factors in the Division of Law Firm——A Case Study Based on Living Law Theory

采用实证研究的方法,从非正式制度视角分析一家普通合伙律师事务所分裂的原因,发现其所实行的名为承包制的经营管理制度是导致事务所分裂的重要因素.这一内部制度原本是为解决合伙人之间的观念分歧与利益冲突而产生的,但它实行的结果则在事务所内部形成了两个相对独立的利益集团.当合伙人之间的无限连带责任不可免除而彼此的“人合”又难以为继时,正式制度对律师事务所的内部自治便形成了强力挤压,于是承包制之类有局限的非正式制度便成了合伙人所能选择的较不坏的生存方式.由于连带责任的存在,分属不同利益集团的合伙人之间不信任的问题不仅难以消除,彼此的矛盾反而因事务所的发展而日益加深了.当各利益集团所积累的利益足够大、所积聚的矛盾足够深时,分裂便不可避免.律所承包制的局限性及其所导致的分裂反映了这类社会组织治理的困境,是法治社会建设中一个需要直面的现实问题.

Using the method of empirical research,this paper analyzes the reason of the division of a general partnership law firm from the perspective of informal system and finds out that the management system called contract system is an important factor leading to the division of the firm. The internal system was originally designed to solve the conflict of ideas and conflicts of interest among the partners, but the result of the implementation of the internal system in the internal form is the two relatively independent interest groups. When the infinite joint liability between the partners can not be removed and the "people together" can not be continued either, the formal system formed a strong squeeze on the internal autonomy of law firms,so the contract system has become the less bad way of life that partners can choose. Due to the existence of joint and several liability, it is not only difficult to eliminate the distrust between the partners of different interest groups, but the contradiction between each other is deepened by the development of the firm. When the interests of each group is large enough, the accumulation of contradictions is deep enough, the split is inevitable.The limitation of the contract system of law firms and the split caused by it reflect the dilemma of governance of social organizations,which is a realistic problem to be faced in the construction of the rule of law.