作者：金颖波律师     2016-12-28

内容摘要 改革开放促进了法律服务市场的飞速发展，但当前法律服务市场的的割据及混乱无序等问题也严重影响了市场的健康有序的发展，造成上述问题有多方面的原因，而其中最突出的原因是法律服务市场的准入制度不规范完善所造成的。正确面对这一问题，在制度及管理上进行完善是建立统一规范有序的法律服务市场的重要保障。

关健词 法律服务市场 准入 割据 无序和有序 监督制度

我国法律服务市场从恢复、全面建设到逐渐发展，对我国的民主与法制建设起到了重大的推动作用，特别是改革开放后的二十多年间，我国的法律服务市场进入了一个新的发展阶段。作为法律服务市场主导力量的律师和法律工作者，两者的数量均大幅增加，法律服务质量有明显提高，业务领域不断拓宽，受到了当事人的好评。从整体上来看，我国法律服务市场取得的巨大成绩是得到人民群众和社会各界的充分肯定，但是，在我国法律服务市场发展的过程中也存在一些严重影响其继续发展的矛盾和问题，造成了法律服务市场的割据和混乱无序状况，而造成该状况的主要原因在于法律服务市场的准入制度的缺陷。本文拟就该问题探讨其产生的原因、危害及改变该状况的一此看法。

一、 法律服务市场的割据、混乱无序的原因分析

1、法律服务市场准入制度的缺陷，是导致法律服务市场分割、混乱的主要原因。

《民事诉讼法》第58条规定：“律师、当事人的近亲属有关的社会团体或所在的单位推荐的人，经人民法院许可的其他公民，都可以被委托为诉讼代理人”；《刑事诉讼法》第32条规定：“下列的人可以被委托为辩护人；（一）律师；（二）人民团体或者犯罪嫌疑人、被告人的监护人、亲友；”《行政诉讼法》第29条规定：“律师、社会团体、提起诉讼的公民的近亲属或者所在单位推荐的人，以及经人民法院许可的其他公民，可以接受委托为诉讼代理人。”《仲裁法》第二十九条规定：“当事人、法定代理人可以委托律师和其他代理人进行仲裁活动。”《企业劳动争议处理条例》第十九条规定：“当事人可以委托一至二名律师或其他人代理参加仲裁活动。” 从以上三大诉讼法和两类仲裁程序法的规定可以看出，我国在诉讼过程中还是仲裁过程中的法律服务市场中对其市场服务主体的准入是没有实质性限制的，而是向整个社会开放的，只要是具备了一定条件的人都可以介入到这一市场中来，成为这个市场的直接参与者。

我国在立法上之所以不确定律师为法律服务市场唯一主体，有其历史与客观上的因素。在立法的初期主要是考虑到我国律师队伍数量严重不足，以及人民生活水准参差不齐，并不是所有诉讼参与人都能请得起律师的客观现实，应当说这些法律规定是与社会经济发展水平相适应的。但从我国经济发展的现状及加入WTO后与国际法律服务市场接轨的今天来说，这种立法不能不说存在着重大问题，它造成最严重的不良后果是将法律服务市场人为地分割，使不具备法律服务能力的主体大量涌入市场，鱼目混珠，良莠不分，与建立完善的法律服务市场体制，创造规范化的法制环境，推进国家的法制建设来说是相违背的。因此，我国法律服务市场被分割的根源在于三大诉讼法和两类仲裁程序法对公民可以代理诉讼及其他法律事务的规定，没有从法律上取消或限制公民参与代理或辩护。

2、滥设专业执业资格是造成法律服务市场严重混乱状态的另一个重要原因。

在法律服务市场上，滥设专业执业资格的现象十分普遍，已造成立法上的冲突。根据《律师法》产生的律师资格制度，现变更为法官、检察官、公证、律师执业的统一司法资格授予制度，律师可以办理七大项法律事务，是法律事务市场中的最高层次。而同时根据部门规章制度还产生了法律工作者资格、企业法律顾问资格、专利代理、商标代理等九种资格制度。如法律工作者产生的法律根据是《基层法律服务所管理办法》（2000年3月31日司法部颁布）、《基层法律服务工作者管理办法》和《乡镇法律服务业务工作细则》（1991年9月20日司法部颁布）；企业法律顾问产生的法律根据是《企业法律顾问执业资格制度暂行规定》及《企业法律顾问执业资格考试实施办法》（1997年3月12日人事部、国家经贸委、司法部联合下文）。虽然法律工作者业务范围不包括刑事辩护和代理，仅可以参与代理的民、行、经案件及法律顾问也须一方在本辖区之内；企业法律顾问是经全国统一考试合格后，由企业聘用，专职从事企业法律事务工作并经注册，本企业内部的专业人员，业务范围在企业的内部。但应当说法律工作者、企业法律顾问等执业资格产生的法律依据──各种部门规章，已经与《立法法》和《律师法》的规定相抵触，尽管全国人大代表中曾有律师代表联合提案质询，但遗憾的是没能解决该问题。

3、行业管理滞后与相关部门协调管理中的漏洞也是重要的原因

退一步讲，即使按照现在的各种规章制度确定法律服务市场主体，如严格执法检查落实，问题的严重性还是不大的，但由于各种历史和客观存在的原因，司法等行政机关管理滞后或疏于管理等因素，律师事务所中非律师人员的执业、法律工作者超范围和跨地区办案，公民个人从事有偿法律服务等行为均已见怪不怪，虽然各地有关司法部门对此类违规、违法的行为也进行了有关的处理，但不能从根本上进行杜绝。

而更重要的是法律服务市场的主要场所法院、检察院、公安、仲裁委等部门没有对法律服务市场主体的管理权，不了解相应的规章制度，致使无资格人或有资格的人超范围进行法律服务，而有管理权的司法行政等部门又不了解律师、法律工作者和公民在诉讼或仲裁中违法违纪情况，因而又无法行使管理权，致使这部分人有可乘之机。

二、法律服务市场割据及无序状况的危害。

由于大量的未经任何职业训练的公民代理诉讼，有的甚至冒充律师执业；本是法律工作者今天却能明目张胆地以律师的名义来大范围地开展律师业务；法律服务所也改造成了法律事务所、法制事务所，门面上、名片上到处是律师的标识和文字，而法律服务质量不能达到应有的水平，造成了了严重的危害。

首先，法律服务市场的割据和混乱状态已严重损害了律师的形象，律师是公民、企业和其他组织权益的职业代表，是国家法治建设的主要参与者和推进者，对促进经济、社会发展具有十分重要的作用，损害律师形象就是损害国家的法制。

其次，严重扰乱了审判和仲裁秩序，由于公民、法律工作者等的业务水平与律师不可同日而语，存在着巨大差距，法院审理案件已由过去的职权主义向当事人主义转变，庭审的进程主要靠当事人及其代理人来推动，没有专业律师参与的庭审效果将大打折扣。更有甚者个别非律师人员颠倒黑白、搬弄是非、混肴是听，使庭审无法正常有效地进行，极大地损害了我国法律的严肃性。

第三，更成为我国法律服务市场与国际法律服务市场接轨的障碍。中国加入WTO之后，国内法律服务市场已与WTO其他成员国的法律服务市场相互开放，中国律师业急需扩大规模，加快发展，如市场的混乱局面不改变，中国律师业要有大的发展，那将是一句空话。因此，我国法律服务市场亟待整治，使其规范化。

三、在制度及管理上进行完善是建立统一规范有序的法律服务市场的重要保障。

1、应当实行律师为主，法律工作者为补充的市场准入制度。即通过立法确立法律服务只能由律师、法律工作者提供，公民个人代理和辩护仅限于近亲属，该近亲属应参照《婚姻法》的规定，限制在直系血亲或者三代以内旁系血亲。在公民、法人或其他组织需要法律帮助时，只能聘请律师、本辖区（农村地区）的法律工作者或法律援助人员，为其提供法律服务，如果非律师、法律工作者或法律援助人员从事法律服务即为违法，如果法律工作者超范围、跨地区经营则为违纪，应受到惩戒。对法律服务市场，除律师、法律工作者或法律援助人员外，其他任何人不得涉足，律师应是法律服务市场的主角。农村基层法律服务机构“基于农村经济、社会和文化发展的进程及其特点，农村基层法律服务仍将存在和发展，但是我们应当看到农村法律服务仍然带有过渡性，同时对农村基层法律服务也要合理定位，明确其发展方向”，①因此应允许其作为律师的必要补充而过渡性地存在，并由律师行业协会统一管理。而对公民个人非法从事有偿法律服务应予坚决取缔和打击，对冒充律师从事法律服务的行为公安机关和司法行政机关应在各自范围内对该类行为予以处罚。而现在企业法律顾问、法院、检察院离退休人员、政府法制办等部门有关人员非法从事有偿服务已经泛滥，严重扰乱了法律服务的市场秩序。

2、司法行政机关应与法院、检察院、仲裁委等有关部门协调分工，联合管理，堵塞法律服务市场的漏洞。 法律服务的场所在法庭、仲裁庭，因此，法庭和仲裁庭应严格审查代理人或辩护人的各种手续，包括律师事务所和法律服务所。而从源头上堵塞漏洞的有效办法是审查执业证，并从立法的高度规定将执业证的复印件作为材料之一订入案卷。公函，授权委托书和本人执业证三样缺一不可，这样就会使那些无执业证的人彻底不能进行代理或辩护，对清洁法律服务市场将具有实质性的作用。

3、尽快建立科学合理的、与我国经济发展水平相适应的律师收费制度。律师收费制度不健全是我国目前法律服务市场混乱的一个重要原因。如前文所述要建立律师业务垄断制度，首先遇到的一个问题就是律师的收费问题，因为，目前我国律师的收费暂时还没有形成一个科学合理的收费办法，在1990年的《律师业务收费管理办法》和《律师业务收费标准》作废以后，还没有一部统一的律师收费标准方面的规范文件，各地均是根据本地的情况作出了相应的规定。在收费没有基本标准的情况下，实行律师业务垄断无疑是强制性地向当事人收取律师代理费，这显然对当事人有失公正。因此，建立科学合理的律师收费办法是实行律师业务垄断的配套措施，也是规范法律服务市场的一项必要步骤。

4、建立健全律师执业的监督机制。律师要自觉履行执业中的义务，这是由我国律师权利和义务的一致性决定的。律师自觉履行执业义务不仅有利于律师权利的实现，而且会促进整个律师制度的发展。但仅仅依靠律师本身的自觉性来约束自己的行为，对规范法律服务市场的目标来说是远远不够的。“法律服务的规范和监督，要适应新形势、新任务，不断探索新的手段、方法和措施。”，②“要积极推行执业公示制度，将律师执业活动置于社会监督之下”。③因此建立健全律师自身之外的履行义务的监督机制，如律师执业机构对律师执业的评价机制、律师的诚信制度、律师违规违法的投诉、记录、披露制度等等，对促进法律服务市场的清洁具有了重要的作用。只有这样，才能达到由规范律师自身最终规范法律服务市场的目标。

注释：

①《中国律师》2003年第9期，“拓展和规范法律服务需要重点研究解决的几个问题”段正坤

②《中国律师》2002年第4期，“进一步完善‘两结合’管理体制”段正坤

③《中国律师》2002年第4期，“进一步完善‘两结合’管理体制”段正坤

                                                              金颖波律师整理

Author: Lawyer Jin Yingbo, December 28, 2016

Summary: The reform and opening up have promoted the rapid development of the legal service market, but the current fragmentation and disorder of the legal service market have also seriously affected the healthy and orderly development of the market. There are various reasons for the above problems, and the most prominent reason is the non-standard and perfect access system of the legal service market. Facing this issue correctly and improving the system and management is an important guarantee for establishing a unified, standardized and orderly legal service market.

Key Words: Legal Service Market Access, Separation, Disordered and Orderly Supervision System

The recovery, comprehensive construction, and gradual development of China's legal service market have played a significant role in promoting democracy and legal system construction, especially in the more than 20 years after the reform and opening up, China's legal service market has entered a new stage of development. As the leading force in the legal service market, the number of lawyers and legal workers has significantly increased, the quality of legal services has significantly improved, and the business field has continuously expanded, receiving praise from the parties involved. Overall, the tremendous achievements made in China's legal service market have been fully recognized by the people and various sectors of society. However, there are also some contradictions and problems that seriously affect its continued development in the process of development, resulting in a fragmented and chaotic legal service market. The main reason for this situation is the defects in the access system of the legal service market. This article aims to explore the causes, hazards, and changes in the situation of this issue.

1、 Analysis of the reasons for the fragmentation and disorder of the legal service market

1. The defects in the legal service market access system are the main reasons for the segmentation and chaos of the legal service market.

Article 58 of the Civil Procedure Law stipulates: "Lawyers, individuals recommended by social organizations or units related to the close relatives of the parties, and other citizens approved by the people's court may be appointed as litigation agents; Article 32 of the Criminal Procedure Law stipulates: "The following persons may be entrusted as defenders; (1) lawyers; (2) people's organizations or guardians, relatives and friends of suspect and defendants;" Article 29 of the Administrative Procedure Law stipulates: "Lawyers, social organizations, close relatives of citizens who initiated litigation or persons recommended by their units, as well as other citizens with the permission of the people's court, may accept the appointment as agents ad litem." Article 29 of the Arbitration Law stipulates that "parties and legal representatives may entrust lawyers and other agents to participate in arbitration activities." Article 19 of the Regulations on the Handling of Enterprise Labor Disputes stipulates that "parties may entrust one to two lawyers or other persons to participate in arbitration activities." It can be seen from the provisions of the three major litigation laws and two types of arbitration procedure laws mentioned above, There are no substantive restrictions on the access of legal service entities in the litigation or arbitration process in China, but rather they are open to the entire society. Anyone who meets certain conditions can intervene in this market and become a direct participant in this market.

The reason why China is not certain in legislation that lawyers are the sole subject of the legal service market is due to historical and objective factors. In the early stages of legislation, the main consideration was the serious shortage of lawyers in China, as well as the uneven living standards of the people. Not all litigation participants could afford to hire lawyers, which is an objective reality. It should be said that these legal provisions are in line with the level of social and economic development. However, considering the current situation of China's economic development and the integration with the international legal service market after joining the WTO, there are significant problems in this legislation. The most serious adverse consequences it causes are the artificial division of the legal service market, causing a large number of subjects without legal service capabilities to enter the market, mixing fish and fish, good and bad, and establishing a sound legal service market system to create a standardized legal environment, Promoting the country's legal system construction is contrary. Therefore, the root cause of the segmentation of China's legal service market lies in the three major procedural laws and two types of arbitration procedural laws, which stipulate that citizens can represent in litigation and other legal affairs, without legally canceling or restricting citizens' participation in representing or defending.

2. The abuse of professional qualifications is another important reason for the serious chaos in the legal service market.

In the legal service market, the phenomenon of abusing professional qualifications is very common, which has caused legislative conflicts. According to the Lawyer Law, the lawyer qualification system has been changed to a unified judicial qualification granting system for judges, prosecutors, notaries, and lawyers. Lawyers can handle seven major legal affairs, which is the highest level in the legal affairs market. At the same time, according to departmental rules and regulations, nine qualification systems have emerged, including legal worker qualifications, enterprise legal advisor qualifications, patent agency, and trademark agency. The legal basis for the emergence of legal workers is the "Management Measures for Grassroots Legal Service Stations" (issued by the Ministry of Justice on March 31, 2000), the "Management Measures for Grassroots Legal Service Workers", and the "Detailed Rules for the Work of Township Legal Service Businesses" (issued by the Ministry of Justice on September 20, 1991); The legal basis for the emergence of enterprise legal advisors is the Provisional Regulations on the Qualification System for Enterprise Legal Advisers and the Implementation Measures for the Qualification Examination for Enterprise Legal Advisers (jointly issued by the Ministry of Personnel, the State Economic and Trade Commission, and the Ministry of Justice on March 12, 1997). Although the business scope of legal professionals does not include criminal defense and agency, only civil, commercial, economic cases and legal advisors who can participate in agency must also be within their jurisdiction; Enterprise legal advisor is a professional who has passed the national unified examination and is hired by the enterprise to work full-time in enterprise legal affairs and is registered. The scope of business is within the enterprise. However, it should be said that the legal basis for the qualification of legal practitioners, corporate legal advisors, and other practitioners - various departmental regulations - has already contradicted the provisions of the Legislative Law and the Lawyer Law. Although there have been joint proposals and inquiries from lawyer representatives among the National People's Congress, unfortunately, this issue has not been resolved.

3. The lag in industry management and loopholes in coordinated management among relevant departments are also important reasons

To put it a step further, even if the legal service market entities are determined according to various current rules and regulations, such as strict law enforcement inspections and implementation, the severity of the problem is still not significant. However, due to various historical and objective reasons, the management of judicial and other administrative agencies lags behind or neglects management, the practice of non lawyer personnel in law firms, and legal workers handling cases beyond the scope and across regions, Individual citizens engaged in paid legal services and other behaviors have become commonplace. Although relevant judicial departments in various regions have also dealt with such violations and violations, they cannot fundamentally eliminate them.

And more importantly, the main venues of the legal service market, such as courts, procuratorates, public security, arbitration commissions, etc., do not have the management power over the legal service market entities and do not understand the corresponding rules and regulations, resulting in unqualified or qualified individuals exceeding the scope of legal services. Moreover, the judicial administration and other departments with management power do not understand the illegal and disciplinary situations of lawyers, legal workers, and citizens in litigation or arbitration, As a result, they are unable to exercise their management power, which gives these individuals an opportunity to take advantage of it.

2、 The harm of fragmented and disorderly legal service market.

Due to a large number of untrained citizens representing litigation, some even impersonate lawyers to practice; Originally a legal worker, today they can openly carry out their legal business on a large scale in the name of lawyers; The legal service office has also been transformed into a law firm and a legal firm, with lawyers' logos and text everywhere on the facade and business cards. However, the quality of legal services cannot reach the expected level, causing serious harm.

Firstly, the fragmented and chaotic state of the legal service market has seriously damaged the image of lawyers. Lawyers are professional representatives of the rights and interests of citizens, enterprises, and other organizations, and are the main participants and promoters of the country's rule of law construction. They play a very important role in promoting economic and social development. To damage the image of lawyers is to damage the country's legal system.

Secondly, it seriously disrupts the order of trial and arbitration. Due to the significant gap between the professional level of citizens, legal workers, and lawyers, the court's trial of cases has shifted from authoritarianism to partisanism. The trial process is mainly driven by the parties and their agents, and the effectiveness of the trial without the participation of professional lawyers will be greatly reduced. Moreover, some non lawyer personnel confuse black and white, gossip, and mix food to listen, making the trial unable to proceed normally and effectively, greatly damaging the seriousness of China's laws.

Thirdly, it has become an obstacle to the integration of China's legal service market with the international legal service market. After China's accession to the WTO, the domestic legal service market has been mutually open to the legal service markets of other WTO member countries. The Chinese legal industry urgently needs to expand its scale and accelerate its development. If the chaotic situation in the market does not change, it will be empty talk that the Chinese legal industry needs to have significant development. Therefore, the legal service market in China urgently needs to be regulated and standardized.

3、 Improving the system and management is an important guarantee for establishing a unified, standardized and orderly legal service market.

1. A market access system should be implemented with lawyers as the main body and legal professionals as supplements. By legislation, it is established that legal services can only be provided by lawyers and legal workers, and the personal representation and defense of citizens are limited to close relatives. Such close relatives should refer to the provisions of the Marriage Law and be limited to direct blood relatives or collateral blood relatives within three generations. When citizens, legal persons, or other organizations need legal assistance, they can only hire lawyers, legal workers from their jurisdiction (rural areas), or legal aid personnel to provide legal services. If non lawyers, legal workers, or legal aid personnel engage in legal services, it is illegal. If legal workers operate beyond the scope or across regions, it is illegal and should be punished. For the legal service market, no one other than lawyers, legal workers, or legal aid personnel is allowed to enter, and lawyers should be the protagonist of the legal service market. Based on the process and characteristics of rural economic, social, and cultural development, rural grassroots legal services will still exist and develop. However, we should see that rural legal services still have a transitional nature, and at the same time, it is necessary to have a reasonable positioning and clear development direction for rural grassroots legal services. Therefore, it should be allowed to exist as a necessary supplement to lawyers in a transitional manner, And it is uniformly managed by the Lawyer Industry Association. The illegal engagement of paid legal services by individual citizens should be resolutely banned and cracked down on, and the public security organs and judicial administrative organs should punish such behavior within their respective scope by impersonating lawyers to engage in legal services. Nowadays, illegal paid services provided by legal advisors, retired personnel from courts, procuratorates, and government legal offices have become rampant, seriously disrupting the market order of legal services.

2. Judicial administrative organs should coordinate and divide labor with relevant departments such as courts, procuratorates, arbitration commissions, etc., jointly manage and block loopholes in the legal service market. The venue for legal services is in courts and arbitration tribunals, therefore, courts and arbitration tribunals should strictly review various procedures of agents or defenders, including law firms and legal service agencies. The effective way to plug loopholes from the source is to review the practice certificate and stipulate from a legislative perspective that a copy of the practice certificate should be included as one of the materials in the case file. Official letters, power of attorney, and personal practice certificates are indispensable, which will completely prevent those without practice certificates from representing or defending, and will have a substantive impact on the clean legal service market.

3. Establish a scientific and reasonable lawyer fee system that is suitable for China's economic development level as soon as possible. The imperfect lawyer fee system is an important reason for the current chaotic legal service market in China. As mentioned earlier, the first issue encountered in establishing a monopoly system for lawyer services is the issue of lawyer fees. Currently, there is no scientific and reasonable charging method for lawyer fees in China. After the abolition of the "Lawyer Service Fee Management Measures" and "Lawyer Service Fee Standards" in 1990, there is no unified normative document on lawyer fee standards, Each region has made corresponding regulations based on local conditions. In the absence of basic standards for fees, implementing a monopoly on the legal profession is undoubtedly a mandatory way to charge lawyer agency fees to the parties, which is obviously unfair to the parties. Therefore, establishing a scientific and reasonable method for lawyer fees is a necessary measure to implement monopoly in lawyer business and also a necessary step to regulate the legal service market.

4. Establish and improve a supervision mechanism for lawyer practice. Lawyers should consciously fulfill their obligations in practice, which is determined by the consistency of the rights and obligations of lawyers in China. Lawyers consciously fulfilling their professional obligations is not only conducive to the realization of lawyer rights, but also promotes the development of the entire lawyer system. However, relying solely on the lawyer's own self-awareness to constrain their behavior is far from enough for the goal of regulating the legal service market. The standardization and supervision of legal services should adapt to new situations and tasks, and constantly explore new means, methods, and measures. ② "We should actively promote the practice disclosure system and place lawyer practice activities under social supervision Therefore, establishing and improving a supervision mechanism for lawyers to fulfill their obligations outside of themselves, such as the evaluation mechanism of lawyer practice institutions for lawyer practice, the integrity system of lawyers, and the complaint, record, and disclosure system of lawyer violations and violations, plays a crucial role in promoting the cleanliness of the legal service market. Only in this way can we achieve the goal of regulating the legal service market by regulating lawyers themselves.

Comment:

① Chinese Lawyer, Issue 9, 2003, "Several Issues that Need to be Focused on Research and Solution in Expanding and Regulating Legal Services" by Duan Zhengkun

② Chinese Lawyer, Issue 4, 2002, "Further Improving the 'Two Combinations' Management System" by Duan Zhengkun

③ Chinese Lawyer, Issue 4, 2002, "Further Improving the 'Two Combinations' Management System" by Duan Zhengkun

Organized by Lawyer Jin Yingbo