民国初年律师制度研究

发布时间：2018-01-20 09:05

本文关键词： 律师制度讼师会审公廨传统文化　出处：《郑州大学》2011年硕士论文　论文类型：学位论文

【摘要】：律师制度起源于古代欧洲,它可以说是个人权利本位的产物。近代律师制度更是注重对个人权利的维护。中国法制文明数千年,但一直持续到19世纪末,中国的法律制度体系中始终没有出现过律师制度。中国古代虽不曾出现过律师职业,但不乏与法律相联系的“讼师”群体的出现。讼师是中国封建社会的特殊产物,在“息讼”、“厌讼”、“官本位”、“国家本位”的文化环境下,讼师的社会地位低下,统治阶层和民众对其认可度不高。 20世纪初,随着近代欧风美雨的侵袭,律师制度被引进。沈家本起草的《大清刑事民事诉讼律草案》中首次规定了律师制度,虽然由于种种原因,清末律师制度并没有推广,但律师制度却因此被人们所知悉。辛亥革命后,北洋政府援用清末新律,在清末律师制度的基础上相继颁布了《律师暂行章程》、《律师登录暂行章程》、《律师惩戒会暂行规则》、《律师考试令》一系列法律法规,开始在近现代确立了律师制度。民国初年律师制度作为一种新生的事物,其发展受到各种因素的阻碍与制约。首先,受到官方的遏制。一方面,民国初年大小军阀盘踞一方,军事势力随意干涉司法活动,正常的诉讼活动无法展开。另一方面,北京政府以法令的形式确认了县知事兼理司法的体制,这种体制与律师参与诉讼的制度相悖而行。其次,在地域上受当时中国经济、文化发展不平衡的限制。我国幅员辽阔,东南沿海地区由于地理环境的优势,经济文化繁荣,律师制度在这些区域发展态势良好。但是广大的内陆地区由于经济发展滞后的制约、社会成员文化水平的限制,导致律师工作无法开展。最后,律师制度在中国的实施还受到传统“耻讼”、“息讼”文化的干扰。但即便如此,民国初年律师制度开创中国近现代辩护制度之先河,是近代法律制度的组成部分,无疑它在中国律师制度史上,乃至是中国法制史上留下了浓墨重彩的一笔。其中对律师资格、律师监管体制、律师自由职业的界定等规定对现代律师制度依然具有借鉴意义。
[Abstract]:The lawyer system originated in ancient Europe, it can be said to be the product of individual rights standard. Modern lawyer system pays more attention to the protection of individual rights. China's legal system civilization for thousands of years, but continued until the end of 19th century. There has never been a lawyer system in Chinese legal system. Although there was no lawyer profession in ancient China. However, there is no shortage of the emergence of the group of "litigators", who are the special products of Chinese feudal society, in the cultural environment of "litigation", "antilitigation", "official standard" and "state standard". The social status of the barrister was low, and the ruling class and the people did not have a high degree of recognition for it. In 20th century, with the invasion of modern Europe, the lawyer system was introduced. Shen Jiaben drafted the draft of Criminal Civil procedure Law of Qing Dynasty for the first time, although for various reasons. The lawyer system was not popularized in the late Qing Dynasty, but the lawyer system was thus known. After the Revolution of 1911, the Beiyang government used the new law of the late Qing Dynasty and promulgated the Provisional Charter of lawyers one after another on the basis of the lawyer system in the late Qing Dynasty. A series of laws and regulations, such as the Provisional rules of lawyers' entry into the Bar, the Provisional rules of the Bar Disciplinary Association and the Law examination order, began to establish the lawyer system in modern times. As a new thing in the early years of the Republic of China, its development was hindered and restricted by various factors. First, it was restrained by the government. On the one hand, the warlords and warlords of the early years of the Republic dominated one side. Military forces interfere in judicial activities at will, normal litigation can not be launched. On the other hand, the Beijing government has confirmed the system of county governor and administration of justice in the form of decrees. This system runs counter to the system of lawyers' participation in litigation. Secondly, it is restricted by the unbalanced development of Chinese economy and culture at that time. China has a vast territory, and the southeast coastal areas have the advantage of geographical environment. Economic and cultural prosperity, the lawyers system in these regions development situation is good, but the vast number of inland areas due to the constraints of economic development lag, social members of the cultural level of restrictions, resulting in the lawyer work can not be carried out. Finally. The implementation of the lawyer system in China is also interfered with by the traditional "shame litigation" and "interest litigation" culture. But even so, the lawyer system in the early years of the Republic of China created the first modern defense system in China. It is a part of the modern legal system, it undoubtedly in the history of China's lawyer system, and even in the history of China's legal system, left a strong color, including the qualifications of lawyers, lawyer supervision system. The definition of the lawyer's free profession and other regulations still have reference significance to the modern lawyer system.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5;D929

【相似文献】