民国律师执业活动研究

发布时间：2018-02-07 12:18

本文关键词： 民国律师执业活动　出处：《华东政法大学》2011年博士论文　论文类型：学位论文

【摘要】：法律职业是任何一个运转正常的社会必不可少的组成部分,而律师是法律职业群体中非常重要的成员。在某种意义上,可以说律师职业是法律职业的起点,律师的执业活动奠定了一个国家法律职业的基础,这一点在英美法系国家尤其明显,掌握国家司法权的法官是从长期的律师执业活动中获得了法律实践的经验。因此,研究分析一个国家或地区某一历史阶段司法制度的运作情况,其重要途径之一就是考察律师执业活动情况。论文在前人研究近代或民国时期律师现象的基础之上,借鉴此前学界关于近代或民国律师制度、律师职业发展历程以及某一区域律师活动情况的研究成果,考察民国律师在司法活动中的具体表现和实际发挥的作用,透视民国律师制度的实际运用效果。研究内容围绕民国律师执业活动的社会经济文化环境、法律适用和律师行业法律规制等制度环境,民国律师执行职务的范围及其演变,民国律师在执行职务中的具体表现,影响民国律师执业活动的职业群体如司法人员、讼师以及外籍律师等,主要以档案文献为研究基础,分析民国律师执行职务的能力以及民国律师执业活动的特点、影响及其原因。论文由导论、第一至六章和余论三部分组成。在导论部分,介绍了选题的缘起与研究意义、国内外研究状况、所使用的资料、研究思路和研究方法以及创新和不足之处,并对文中相关概念进行了界定。正文前五章研究了民国律师的执业环境、执业范围、执业行为、执业能力以及影响民国律师执业的群体,第六章是对民国律师执业活动的评述与总结。在余论部分,阐述了与本文研究内容有关的两个话题。正文第一至六章的主要内容如下: 第一章围绕民国律师执业的社会环境、律师行业的法律规制以及律师执业活动的法律适用等问题,阐述了清末民初社会、经济发展以及民众的权利意识和诉讼观念变化,并梳理了律师制度的确立及其修订情况,介绍了民国不同时期律师执业活动适用的法律以及司法机关和审级制度等内容,分析了民国不同时期的法律状况对律师开展执业活动的影响。第二章围绕民国律师的法定职务范围及其演变展开。通过考察民国不同时期法律规范对律师职务的相关规定,透视民国时期律师职务的具体内容及其变化情况,并阐述了民国政府对律师职务的种种限制,这种限制涉及到律师执业的地域、具体职务类型以及律师介入诉讼案件的不同阶段,律师为了拓展职业生存空间进行了不懈的努力。第三章围绕民国律师的执业行为展开,重在考察民国律师执行职务时的具体表现。按照律师执行职务时的通常顺序,首先阐述了律师招揽业务的手段以及接受委托、收取律师费用等与律师获得代理权和辩护权有关的问题。在研究律师如何办理诉讼案件时,选取了1935年轰动北平的刘景桂杀害滕爽一案的审判档案,详细考察了民国律师如何开展诉讼案件开庭前的准备工作以及律师在庭审中的地位和作用。第四章采用实证分析的方法,以司法档案文献为资料透视民国律师的执业能力,主要内容涉及律师对个案的掌控、对法律适用的把握以及对诉讼结果的影响等三个方面,具体分析了民国律师如何根据委托人的利益需求引导诉讼进程,影响诉讼结果。民国时期编辑出版的优秀律师法律文书是律师执业活动的成果之一,论文选取了文辞情理俱佳的民国律师法律文书范例,分析律师对法律文书的运用情况。文中还阐述了律师在法庭之外的司法实践活动,包括积极参与律师公会工作、参与立法和司法改革以及精英律师的学术研究活动等。第五章对影响民国律师执业活动的相关群体构成及其司法活动进行了研究。民国时期,司法官吏、讼师以及外籍律师共同构成了广义上的法律职业共同体,审判人员及其辅助人员的素质和履行职务情况对律师执业活动均有一定的影响;讼师的活动在民国禁而不绝,讼师与律师呈现出竞争与合作并存的特殊关系;清末出现在租界的外籍律师活动,在民国时期逐渐得到规范,并随着中国律师业的发展走向衰落。第六章为民国律师执业活动的评述与总结。首先阐述了各界对民国律师执业活动的认识与评价:民国政府对律师基本上是持歧视态度;民众的评价则是褒贬不一;至于律师群体而言,基本上没有法律职业价值认同感。作为全文的总结,还分析了民国律师执业活动的特征、地位和影响。律师活动在民国初年呈现出蓬勃发展之势;到1930年代律师的执业能力普遍提高,执业行为较为规范;在南京国民政府后期,律师执业活动整体表现为消极和逐步没落,律师执业的积极性呈现出下降的趋势,诉讼案件中有律师出庭参与的比率下降,而且对律师执业活动的管理较为混乱。民国时期律师执业活动是当时国家司法活动的重要组成部分,在一定程度上,律师通过履行职务监督了国家司法权的实施,民国律师主流群体表现出法律人的专业性和敬业精神,也体现了中国知识阶层的进步性。民国律师执业活动的具体表现形态及其所能发挥的作用受到了传统法律文化、法律改革、新文化运动以及民国时期动荡的政治局势、频繁的战争等多种因素的交互影响,在各种不利因素的制约之下,民国时期的律师执业活动所能发挥的作用与影响是有限的。民国律师制度的确立奠定了律师作为自由职业者的身份,法律制度的渐趋完备为民国律师执行职务提供了必要的司法环境。但民国时期的政治民主和司法环境并不尽如人意,律师执业活动受到各种制约,难以发挥应有的社会作用,尤其是到了南京国民政府后期,律师执业活动的积极性和正当性均有明显的弱化。
[Abstract]:The legal occupation is an indispensable part of any one of the normal functioning of the society, and the lawyer is a very important member of the legal occupation group. In a sense, can be said that the lawyer occupation is the starting point of legal occupation, the practice of law laid the foundation for the legal profession of a country, especially in the UK master of law countries, national judicial judge is from long-term lawyers get legal practice experience activities. Therefore, to analyze the operation of a historical stage of the judicial system of a country or region, it is one of the important way to study the lawyer practice.
Based on previous research on modern law phenomenon or the Republic of China, referring to previous studies on the modern lawyer system, researches the lawyer occupation development process as well as a regional law activity, study specific performance of the lawyers in the judicial activities and play a role in the results of the practical application perspective of the lawyer system in the Republic of China research content around the bar activities in Republic of China's social economic and cultural environment, the law and lawyers legal system environment, the scope of the lawyers to perform their duties and their evolution, the specific performance of National Lawyers in performing duties, occupation groups influence Republican lawyer activities such as judicial personnel, as well as foreign lawyers and other major litigation. The archives based on the characteristics analysis of the ability of lawyers perform their duties and in practice of law, influence And its reasons.
The thesis consists of introduction, chapter one to chapter six and conclusion of three parts. In the introduction part, introduces the origin and significance of the topic, research status at home and abroad, the use of materials, research ideas and research methods and innovations and shortcomings, and the related concepts are defined. The first five chapters of practice the environment of the lawyer's scope of practice, practice, practice ability and Republican lawyer group, the sixth chapter is the summary and review of the bar activities in Republic of China. In the last part, this paper expounds the two topics related to the research content of this dissertation. The main contents of the first chapter to the six chapter are as follows:
The first chapter is the social environment around the Republican lawyer, lawyer and lawyer of the legal regulation of the industry activities in the legal application, elaborated the Qing Dynasty society, economic development and people's awareness of rights and litigation concept, and analyzes the establishment and revision of the lawyer system, introduces the legal and judicial organs and the trial level system other contents in different periods of the Republic of the lawyer practice, analyzes the influence of legal status in different periods of the Republic for lawyers to carry out business activities.
The second chapter on the lawyer's legal position and its evolution. By studying the different periods of the Republic legal norms on the post of lawyer of the relevant provisions, specific content and change of perspective in the period of Republic of China lawyer office, and expounds the government of the Republic of China a restriction on their duties as lawyers, this limitation relates to the lawyers in the region, different stages of concrete the type and position of lawyers involved in litigation cases, lawyers have made unremitting efforts in order to expand the living space occupation.
The third chapter on the lawyer's practice, focuses on the specific performance of duty execution. According to the usual order of duty execution, first elaborated the law means to attract business and accept the Commission, charged attorney fees and lawyer to get the agent right and right of defense related issues in research on how to handle the lawyer. Litigation cases, selected the 1935 blockbuster murder of Peking Teng Shuang by Liu Jinggui trial records, detailed examination of the status and role of the lawyers to carry out pre-trial preparation and lawyers in the trial.
The fourth chapter uses the empirical analysis method, the judicial archives data to examine the lawyer's practicing ability, mainly concerning the lawyer control of the case, on the three aspects of the law applicable to the grasp and the influence on the outcome of the lawsuit, the specific analysis of the law according to the interests of the client needs to guide the litigation process, impact litigation results. Excellent lawyer legal documents published during the period of Republic of China is one of the lawyers' practice results, this paper selects examples of the lawyers legal documents and the reason analysis of the language of legal documents, the use of the case. The paper also discusses the judicial practice lawyers outside the court, including active participation in the work of the bar association. To participate in the legislative and judicial reform and elite law academic research activities.
The fifth chapter studies the Constitution and judicial activities related groups influence the bar activities in Republic of China. The Republic of China, judicial officials, foreign lawyers and Songshi constitute the legal occupation community in general, judges and assistant personnel and the quality of his duty to practice activities have certain influence the situation of lawyers in Songshi activities; the ban has Songshi and lawyers showing the special relationship between competition and cooperation; in the late Qing Dynasty appeared in the settlement of foreign lawyers, has been standardized in the Republic of China, and with the decline of Chinese lawyer industry development trend.
The sixth chapter is the summary and review of the bar activities in Republic of China. First elaborated the understanding and evaluation on the practice of law from all walks of life: the government of the Republic of China on law basically is a discriminatory attitude; people's evaluation is mixed; as for lawyers, there is no legal occupation value basically. As a conclusion, the characteristics of in the practice of law is analyzed, the status and influence. The lawyer activities show a booming trend in the early years of the Republic of China; by 1930s the lawyers' practice ability is generally improved, more standardized; in Nanjing national government period, the lawyer practice for the overall performance of negative and declining, the enthusiasm of lawyers declined the trend of decreasing rate of lawsuit in lawyers involved, and the lawyer activity management is in disorder. The period of the Republic of China Lawyer Practice Was an important part of the national judicial activities, to a certain extent, the lawyer supervision of the implementation of national jurisdiction by performing their duties, the lawyers of the mainstream groups showed the legal person's professionalism and dedication, but also reflects the progress of knowledge. China class specific form in lawyer practice and play the role is the traditional legal culture, legal reform, the new culture movement in the Republic of China and the turbulent political situation, many factors such as frequent war, under the restriction of various unfavorable factors, the activities of Republican lawyers can play a role and influence is limited.
The establishment of lawyer system in the Republic of China established the lawyer as a free occupation of the identity of the legal system of the Republic of China to become complete lawyers perform their duties to provide the necessary judicial environment. But the period of the Republic of China's political democracy and legal environment is not satisfactory, the lawyer practice by all kinds of constraints, it is difficult to play its due role in society, especially in Nanjing the national government period, the lawyer practice enthusiasm and obvious legitimacy has weakened.

【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D926.5;D929

【引证文献】