First, state-owned enterprises crucial break new breakthroughs in the difficult stage
From 1999 onwards, we entered a crucial key to breaking the difficult period. State-owned economic front for a long low efficiency of state-owned enterprises and the state, from the Fourth Plenum of the 15th session of the convening of the recent Third Plenum of the 16th "Decision" The introduction of major policies have been identified and operational level in the policy of the State Council, the SASAC After the establishment have also introduced in general I think there is a breakthrough in the five initiatives.
1. Clearly put forward the strategic restructuring of state-owned economy principles, namely "Youjinyoutui, to be selective." State-owned economic layout adjustments is to hinder the development of productive forces to eliminate the relations of production factors. The past, we blindly on the statement made by the state-owned economic progress and better access to the areas, the bigger the better access to the area, the first initiative of talking about "retirement" word, it is a breakthrough.
2. Explicitly put forward the corporate governance structure of the corporate system is the core of this well-known thesis. From theory to solve the depths of the state-owned large and medium-sized enterprises Why must a standardized corporate reform. Private enterprises, private enterprises to do big and stronger, why must move towards the corporate system, it is because the corporate system as the main form of a modern enterprise system in an internal incentive constraints have a coordinated, decentralized structure of checks and balances of corporate governance: separation of powers The objective of mobilizing more staff motivation, the purpose of checks and balances to prevent the emergence of worst-case scenario; incentive priorities, constraints such as the accompanying video. This intrinsic incentive and restraint mechanisms to ensure that this is "company" in the carrier market competition in the relatively stable expand, this is the second breakthrough.
3. Explicitly put forward the need to establish and perfect a modern property rights system. The establishment of clear ownership, the right to select a clear, strict protection and smooth transfer of modern property rights system, is to protect vulnerable groups and the interests of the rich to create social stability mechanism and developing mechanisms: the interests of vulnerable groups must protect, and because it involves the To improve the situation of human rights, the right to subsistence and development related to the protection of the right, we should also protect the legitimate interests of the rich get rich, so that people can have investment enthusiasm, the purchase of philosophy, social pursuit of wealth will be generated the momentum , The creation of wealth created in the spirit in the pursuit of wealth most people on the road have become the middle class, the economic cornerstone of democracy it established. This transformation is mainly rely on modern property rights system to protect the.
4. Shareholding to the public ownership is the main form. Breakthrough significance lies in its answer to what is a real reform from the equity level to resolve the issue of the effectiveness of corporate governance. Third Plenum of the 16th National Party Congress stressed that SOE reform should be diversified equity as much as possible, mixed ownership, including the holding absolute and relative holding Holdings. Why should Holdings to make such a distinction? » Obviously that is relatively Holdings. » Because of the relative success of holding too many examples. When 100 percent owned by the state may not get a penny, in a relatively controlled with the time than the original I do not know how many times higher. This is the equity diversified, mixed ownership. This is good at outsiders dare to fertilizer into the field, also made his last big. The most points of the example is Bill »Gates, Microsoft's Bill Gates set up when 90 per cent stake, but most is a millionaire, moved back to a 10 percent stake in the following, but he is the world's richest man for many years.
5. Explicitly put forward by the laid-off restructuring streaming toward segregation. 859, promulgated by the state of the text "state-owned large and medium-sized enterprises Zhufufenli Des Voeux industry restructuring shunt placement of surplus staff to the implementation" of the central enterprises and enterprise reform is a weapon, divert laid-off workers to divert reform, by making access to both workers Status smooth into the market, and access to the benefits of reform became a subject of interest, is a major breakthrough.
In a new breakthroughs in reform of state-owned enterprises, it should be said that the country's major political breakthrough in principle have a breakthrough. We come from the operational level on the analysis of the strategic restructuring of state-owned economic policy.
Second, how to treat state-owned economic layout adjustments in the "retreat"
State-owned economic layout adjustments in the chin and a retreat in the economic, social, legal and political aspects of the problem. On this issue, we can not generally talk about "Guotuiminjin", which is distorted policies; Nor can the state-owned enterprises as an ideal form of enterprises so as to negate the general direction of the state-owned enterprise reform, reform of state-owned enterprises because of the emergence of some do not Standardize the issue and called for the suspension of property rights reform, which is Yinyefeishi. Differentiation should be viewed "retire" the word, and for that we need from the state-owned economy "Why retreated from the« "" Where retreat »" "Who is returned to the« "" How to retire »" four to elaborate further.
Has retreated from the state-owned economy, there are two main reasons, one reason is that the traditional state-owned enterprise system are flawed, the lack of state-owned enterprise reform in place the interests of the investor-led government and the main support. Is the inherent weaknesses in the system, acquired disorders, the general lack of competitiveness, the traditional state-owned enterprises are doing a good job, but the proportion of low and doing a good job in the past few years, a few years later can not, it flourishing Flourishing 35. Have deep-seated reasons for this » The answer is yes, we have long been the amendment to the Constitution clearly state the socialist market economy, and the market is efficiency, and therefore in the process of the market, as a prerequisite for the existence of the monopoly of state-owned enterprises will inevitably face an increasingly grim The challenge, they have efficiency, you also bear the burden of so many take part in the competition is not winning. This is very difficult to do a good job in one of the reasons why. Another reason is that the 16th CPC National Congress before the state-owned enterprise reform in place of the lack of investor-led, not the absence of clearance is the wrong offside, clearance led to a serious lack of internal control, the wrong offside led to a serious incentive and restraint mechanisms Distorted, ignored the complex operators and managers of the value of labor. The 16th National Party Congress put forward a clear, simple respect for both labor and respect for the complicated labor, while encouraging management, technology, etc., as factors in distribution. So, now the main guidelines has been very clear, how is a legitimate operation of. Based on these two aspects, the traditional state-owned enterprises to do a good job, which is state-owned economy retreated from the micro-level reasons, the state is on the macro-economic front is too long, the limited state capital increasingly difficult to support the huge The state-owned economy plate. Countries to do too many things, but its limited financial resources, we must withdraw from some areas.
The state-owned economy from the withdrawal from areas in which it » 15 of the Fourth Plenary Session of the 16th Plenary Session of the two decisions on large state-owned enterprises and restructuring norms, Zhufufenli, the transfer of state-owned property rights laws and regulations and the establishment of the State Council, SASAC director Li Rongrong of the speech, we can see very Clear. The next step in the four sectors (that is related to national security and economic security, natural monopoly industries, providing key public goods and services industry, resources sector) and two types of enterprises (pillar industries and high-tech industries in key enterprises ) Of the main part of the state-owned economy should continue to play its controlling power, influence, and driving force, that is, in restructuring the equity restructuring, the state-owned shares should at least account for a relatively Holdings. And the other areas of auxiliary enterprises are of a general industry competitive fields, the state-owned property rights of these enterprises through the sunshine law from operating norms recombinant. In the process of China's market-oriented economic layout and structure will be more reasonable. Of course, is not to say that Yuediyuehao, such as the Yangtze River Three Gorges Project, the Qinghai-Tibet railway, West-East Power Transmission, West-East Gas Pipeline project, and so are the basic form of state-owned assets, the Fourth Plenary Session of the 15th will be saying the very place, The total number of state-owned economy will continue to increase, but the proportion of the reduced accordingly. From the policy intention and market-oriented development, the total amount to progress, and the proportion of the number of state-owned enterprises to retire. At the same time the Third Plenum of the 16th also stressed that even in these areas, in addition to a very small number of wholly-owned, is holding a small part of a large stake in the reorganization should be relative to holding, controlling the relative control of the country to play a Mainstream way.
The state-owned economy to withdraw from the area who will enter it » "10th Five-Year Program" is very clear, to encourage non-state-owned enterprises, individuals and foreign investors to participate in the three main state-owned enterprises reform. Non-state-owned enterprises, and individuals including the operators due to strength, governance and cultural aspects of the reasons for holding a number of medium-sized enterprises more appropriate, but large enterprises, some of the offshore management, technology, capital and other areas have advantages in strategic investors Shares may be more appropriate. Of course, as China's private economy's development, by virtue of strength rather than空手套白狼participation of private enterprises holding large state-owned enterprises will be more and more, in addition to some pillar industries such as steel restructuring, in principle, allow foreign investment holding, the existing The state-owned enterprise reform policy is to include the operators of the transferee, the main put to a standard of measurement, and the key is to have strength.
The state-owned economy to retreat » Relying on word is to place the investor on behalf of the company that is superior enterprises and good corporate governance, property rights trading market by virtue of the securities market in accordance with the law and norms. State-owned economic layout adjustments now have the basic institutional guarantee and ensure that laws and regulations, promulgated the "the state-owned assets supervision and administration" Interim Regulations on the establishment of the SASAC, of course, the ultimate guarantee that the system as soon as possible in the existing "" Interim Regulations on the basis of Published on the authority of the state-owned asset management area of the law, the final system is the guarantee by the ad hoc body into the SAC statutory bodies. Through the authority of the legal guarantees and authority of the statutory bodies, the true sense of the boss may be shaping up, the system innovation of state-owned enterprises will take a key step.
Third, state-owned assets management system under the new system of "control"
16th National Party Congress pointed out the need to establish the assets and management of personnel, other affairs of unity, rights, obligations and responsibilities in line with the state-owned assets regulatory agencies. After the founding of the SASAC, the management of assets and the original one of the largest enterprises is the difference between what is actually from the State Council promulgated the "the state-owned assets supervision and administration" Interim Regulations on the provisions of this and the decision of the Third Plenum of the 16th See very clearly there. "Regulations" of the State Council to define the responsibilities of the SAC is very clear. The first is the establishment of the SASAC to promote the rational flow of state assets and optimize the preparation and promoting the state-owned economic layout and structure adjustment. And found that the Third Plenary Session of the decision on this issue repeatedly used the term "speed up" the word, why do » Not speed up the flow of property rights, can not be incremental increases rapidly, can not be quickly increased, the stock of the problem will be magnified, the crisis will deepen. Therefore, we said that this "pipe" has been very clear: investors in state-owned assets in place and the circumstances leading reform, speed up the rational flow of state assets and optimize the preparation and speed up the state-owned economic layout and structure adjustment. The original of the business is "all manner of a glance in the body," now we have to promote the flow of the reorganization, that is to care for the dying toward the ultimate care, and build ties of property rights, will not give you a blood transfusion breastfeeding . The flow of the carrier is the mainstream form of joint-stock companies. Why is it » Shareholding system is the main form of public ownership, has been restructuring to further improve the corporate governance structure. In short, from the State Council Guozijianguan the responsibilities of agencies, I think there are four main areas: There is no reform, enterprise restructuring to urge; has been restructuring, the investor must steering corporate governance; supervision of state-owned property rights transactions on the operators The implementation of performance appraisal.
It is thus clear that the 16th CPC National Congress held before the reform of state enterprises to promote the continuous deepening of the state-owned assets management system to establish the new system; after the 16th Party Congress, the SASAC will speed up the establishment of promoting the state-owned enterprises, especially large enterprise system the pace of innovation.
40, the SAC-led state-owned enterprises in the innovation system "to"
In the state-owned assets management system under the new structure, along with "regulating the work of the state-owned enterprise restructuring views," "Interim Procedures for management transfer of property rights" and "further regulate the restructuring of state-owned enterprises to inform the work of" some new rules introduced, the state-owned enterprise system innovation To speed up the pace. System Innovation many new models: the first is the overall corporate restructuring, while the introduction of public funding or foreign investment. This is also for this round of restructuring is a very important feature of «« restructuring and attract investment combined. The second is Zhufufenli, the main industry restructuring and listing, or in joint ventures. The third is Zhufufenli, Des Voeux industry restructuring segregation. Zhufufenli No. 859 on the text of a breakthrough significance is reflected in three aspects: First, if included in the industry as auxiliary, the state is to pay you can use the state-owned net assets of the dissolution of the labor relations of economic compensation, such as restructuring costs The second is not to change the land use can continue to use the allocation. Third, the three-year income tax exemption, as long as the restructuring of enterprises to employ after the original enterprises to achieve a certain percentage of workers such as most enterprises are 70 to 80 percent or more, if you diversified equity, mixed ownership, the largest shareholder of not more than 75 % Of the shares, etc., can enjoy the three-year income tax exemption. The fourth is the state-owned property rights transactions. Fifth is the MBO (management, including holdings) and employee stock ownership, and so on.
From a point of view, a real restructuring is actually six reorganization that property rights restructuring and reorganization of assets, debt restructuring, staff reorganization, restructuring, reorganization linkage process. Property rights over the past restructuring and reorganization of staff do not place or do not complete and did not synchronize the adjustment of labor relations. This round of the six reform linked to the reorganization.
From another point of view, the process of innovation system should be both for institutional and for the air. For the so-called system is that no matter how much the state-owned enterprises in at least 12, it is necessary to change into a state-owned sole proprietorship, the establishment of the Board of Trustees. Meanwhile, in order to solve the problem of state-owned sole proprietorship effectiveness of governance, the Board of Trustees to strengthen the external and independence. Conditional to achieve equity diversification, particularly in mixed ownership. To establish market-oriented employment system, management of technological innovation is also the same time. These are institutions for the content. The so-called-for-air synchronization to achieve is to update the concept, there are four main elements: that is to foster awareness of the shareholding system, and to create corporate governance culture, the idea of establishing a market economy, controlling shareholders or investors on behalf of the sense of equality. Four awareness of the shareholding system is unity. First, it is a right sense. Second, the joint-stock or a sense of awareness of the law. The exercise of rights must be incorporated into the orbit of the law, must be through legal procedures. Third, it is a financial sense, input-output sense, because it is the ties of equity, is a medium to long-term bonds. Fourth, the joint-stock or a sense of risk awareness. This is the same risks, while, sharing the proceeds of investment, this is not Bao Bao Bao dividend income of the fund-raising. At the same time to form corporate governance culture, a culture of corporate governance checks and balances to the separation of powers as the core of a harmonious culture. Comparing with the corporate governance culture, traditional culture is a leading state-owned enterprises and the leadership of the internal friction culture. After the innovation system, the separation of powers of checks and balances to use the corporate governance culture replace the culture of this leadership. Otherwise, we will be forever in the dark on the third son and three will address how in the end. Third Plenum of the 16th National Party Congress devoted a large section of the right words to define the source. The Board is the right from the shareholders and general manager of the rights from the Board of Trustees is the appointment, so you can no longer afford to send both the chairman also sent a general manager. Now, the source of the right direction is very clear, especially as the next manager of the talent market of sound, market-oriented employment mechanism for the establishment of the manager after the source of this right would be even more clear and more in place. At the same time, the concept of a market economy, market economy we all know there are two characteristics, is a specialized division of labor, is a competition. To win in the competition so you have to constantly strengthen the professional division of labor, so the market economy is the first final of a principle is the principle of specialized division of labor, you can only professional competitiveness. Therefore we say that the plate is not a great time, we must strengthen the professionalism of your division. Baosteel said it, even if done now, the strategy is very clear: an industry particularly strong, moderate-related diversification. In addition, it is necessary to enhance awareness of equality. With the accession to the WTO after the popularity of national treatment, with the forthcoming "Property Law", equal protection of state-owned property rights, private property rights, foreign investment to establish the concept of property rights, state-owned assets on behalf of investors at all levels and enterprises to Should firmly establish a sense of equality, equal treatment, sincere treatment, including business and trade unions, large and small investors.
Standardize restructuring "opinions" to establish a state-owned property rights "approach trading" principle, the provisions of the restructuring of state-owned enterprises norms of the nine procedures. Property rights transfer, "Interim Measures" based on four areas namely, the state-owned property rights transfer procedure and open to the entire process of transfer of state-owned property rights norms, to property rights as a link between the establishment of supervisory duties, the existing laws, regulations and policies and regulations From the interface between the operating level to give the details. Property rights transfer approach emphasizes the open, highlighted the procedures of equality, the introduction of competition, clearly the responsibility of the parties concerned. This series of laws and regulations introduced to make up for the past many of the policies of the loopholes. For example, methods of payment on the past does not require, for example merger with a bank loan acquisition of state-owned shares compared Most of now can not, legal policy must be oriented with Zhenjinbaiyin to buy their strength, General state-owned property rights, the transferee must first pay 30 percent of the funds and the remaining 70 percent in the prerequisite for the provision of security are paid in the next year; units for the transfer of property rights holders of the parent company of listed property which the state-owned shares of listed companies to change the nature of , The transferee must first funds are paid, with a full cash payment instruments for property rights may be effected. Sentence: to become real capitalists must have capital!
5, the state-owned enterprise system innovation after the "governance"
We are concerned that an interesting phenomenon, whether it is the world's top 500 or 1000, almost all all-stock companies. Since then engage in the market are economic, market economy there has the strongest call of a group of companies, certainly have a common law can be followed, this rule is that good corporate governance principles. Abroad there are many corporate governance principles, which is representative of the World Economic Co-operation (OECD) of "corporate governance principles." This is the dozens of the market economy developed countries to sit together under the auspices of the OECD, summed up the common law of the five: First, good corporate governance should be to protect the interests of the shareholders as a basic principle. A good corporate governance should be to protect the interests of investors or shareholders as the basic goal. All the time can not forget the investors and shareholders to the company board of directors to maximize the interests of the essence for the first, but the company is to maximize the protection of the interests of the shareholders interests as the basic values tend to maximize the interests of the company. Second, the equal treatment of all shareholders. This is the company we are now a number of listed companies in particular, has done enough. And the controlling shareholder of listed companies through non-standard not unfair affiliated transactions, emptied of listed companies, put it as a teller machines, in the past a lot of this vicious incident. Foreign provisions of the Companies Act was very clear, the general provisions of the shareholders of small and medium-sized shareholders of fiduciary duty. After the restructuring may be some major shareholders, some medium and small shareholders. Major shareholders of medium-sized and small shareholders must assume good faith obligations and responsibilities, otherwise they may be cheated once you, and you can not second the cooperation. Third, good corporate governance to protect the interests of stakeholders. These stakeholders, including employees, creditors, suppliers, consumers, community government, and so on. Fourth, increase transparency, strengthen information disclosure. Not only to listed companies, in fact the non-listed companies is also very important that white is also a word: to strengthen communication, the first people to support you in your understanding. Fifth, the norms of the obligations and responsibilities of the system. Foreign company law in this area have detailed provisions. For example, America's "Model Company Law," so one, a director should perform the duties as a director, include: 1. Cherished goodwill. 2. With normal caution. You have to take care of like a normal person in similar circumstances as to due diligence exercise. 3. Adopt appropriate manner. This is the way you have reason to believe that it is consistent with the best interests of the company. This is the director of the obligations and responsibilities, the general level of ethics at the request of directors to increase the mandatory provisions of law.
These are good corporate governance have to have the five core concepts.
Board of Trustees of the sound system of good corporate governance of the core substance, why such stresses » Because the great significance of corporate governance also called on the Board of governance, because the Board of Trustees of the shareholders to exercise obligations and constraints to the effective management of incentive, since a link between past and future role. From now been issued by the laws and policies, mainly from four areas: the first is the introduction of outside directors or independent directors, the establishment of an effective supervision mechanism. Board to gradually increase the external and independence, because there are a lot of directors are basically the original in-house operators and investors in place in the circumstances, the State Council, the SASAC will be on a global scale gradually expand the market of the nomination of directors And the proportion of executives, through legal procedures and elected to the board of directors. The vast majority of the large state-owned enterprises may step in implementing equity diversified, mixed-ownership does not have the conditions that first established the state-owned sole proprietorship, at least go forward step, the state-owned sole proprietorship is not the shareholders, but the Board of Trustees, is now Explicitly included in the pilot of the Board of Trustees of the proportion of outside directors general in more than 50 per cent is, in fact, to solve this problem. To play an independent director, the unique role of outside directors, it is necessary to solve them on the board after the function of the problem. Outside directors and shareholders how to properly deal with the relationship » Review of the transactions through supervision, to resist major shareholder, equal treatment of all shareholders, the protection of small shareholders, because only protect the interests of small shareholders to have more major shareholder and you bundle together to become strong. How to properly deal with outside directors and management relations, we must now look at the background of the corporate system of state-owned enterprises biggest problem is what » That is very conspicuous lack of incentives, lack of restraint also very prominent. However, lack of incentives is a major contradiction, therefore involvement of independent directors after the board remuneration committee, it is necessary to intensify the market at the forefront of the core business executives and technical backbone of the intensity of incentives. Third Participation in decision-making process supervision, and here we must properly handle the relationship between the board of supervisors, we know that the board of supervisors can only be conducted after the monitoring, supervision and decision-making process is very important, a project from the project could start there is a great risk. This intervention is not entered the supervisors, an independent director in the decision-making process through the supervision of the board of supervisors make up for deficiencies. The fourth is the relationship between directors and internal processing. If we are all one area, you simply do not need the nomination, outside directors make up the internal directors is due to focus on the cause of a lack of vision limitations. What are the company's board system defects, corresponding to nominate outside directors make up for this flaw. If targeted, this system is promising. The second is the establishment of the board decision-making mechanism within the Commission to establish strategic, remuneration, nominations and auditing committee of the Board of Trustees at the introduction of professional decision-making, decision-making to replace key people. The third is to improve the directors of the information disclosure system. For example, a listed company's directors, supervisors and senior management equity incentive plans of the accused should be honest and trustworthy, diligence, and safeguard companies and the interests of all shareholders; strictly in accordance with relevant regulations and the requirements of this approach to information disclosure obligations. Fourth is the responsibility of regulating the obligations of the system, improve the shareholders of directors of the litigation system. China's new "Company Law" greatly strengthened the director of the faithful and diligence obligations. Taken together, called the general fiduciary obligations. Main duties faithfully regulating conflict of interest under the directors, senior management staff, so the statutory strong; new "Company Law" 149 from the following aspects provisions of the company's directors, supervisors and senior managers loyal obligations: 1, not to misappropriate Company funds, 2, may not be the company in his own name or on behalf of other individuals to open accounts storage; 3, companies are not allowed to violate the provisions of the Constitution, without the shareholders, board of directors or shareholders of the General Assembly agreed that the company funds or loans to others Property companies to provide security for others, 4, are not allowed to violate the provisions of the Constitution or the company without shareholders, shareholders of the General Assembly agrees, and the Company entered into contracts or transactions; 5, shall not, without the shareholders or the shareholders meeting agreed that the advantage of his position to facilitate For himself or others belonging to companies seeking business opportunities, self-employed or for others by working with companies operating similar businesses; 6, and the company shall not accept a commission to the transaction have been 7, are not allowed to disclose company secrets 8, shall not be violated The company faithfully the obligations of other acts. And diligence obligations, the directors, senior management initiative to play the request that the letter should be made to pay attention to a reasonable, it is dereliction of duty. The attention of the so-called reasonable, based on their personal knowledge, experience and the nature and internal division of labor, companies such as the provisions of the statute should bear a rational general caution in the same circumstances as the obligation to act, so as to avoid damage occurred. Caution is the core of diligence obligations. For example, Mrs. Pritchard is a reinsurance broker a director of age, died after her husband had been a frustrating and often alcohol, almost not to participate in the board (in fact rarely open), never examined the company's financial report , Knew nothing about the company's affairs. During the two company directors (her two sons) misappropriated by the company as trustee of the trust accounts of others in the 12 million U.S. dollars, the final result, the company bankrupt. Court ruling: Mrs. Pritchard did not make her the company has a duty of care should be the amount of compensation due to the diversion caused by the loss. In this case, the measure is an objective that is a normal rational directors in her position held by a cautious approach as the basis, does not exist and enjoy the reputation of directors do not have to bear any responsibility for the "phantom of directors."
Corporate governance and corporate governance structure has very close relations, corporate governance in-house should have a corporate governance structure, a coordinated incentive constraints, the separation of powers of checks and balances of corporate governance structure, separation of powers aims to mobilize more people's initiative, The cake bigger, the purpose of checks and balances to prevent the emergence of worst-case scenario. This is the first level. The second level, corporate governance but also with an external control the market system, the governance of this market system, including the six major markets: the first is product market competition; second is the management talent market, you are the 50 people or of 5 Million people is 50,000 yuan with 500,000 yuan or with the » Finally management talent market will give you a reasonable price, this is a personnel switch reference line. The third is a director of the market. With the large number of state-owned enterprise restructuring for companies, private companies for enterprise restructuring, with its financial management capabilities and strategic vision but also stresses the integrity of the community of human capital will become more and more corporate enterprises chase the target, When more and more corporate enterprise with such demand, this market has been very realistic to give our eyes. Fourth is the creditor market. Loan-to-you, not loaned » The number of credits » Then you see this level of corporate governance, transparency opaque, irresponsible management of negative, when a large number of creditors have such demand, the market also formed a creditor. The fifth is the labor market. The sixth is the control of the market. Control of the market is a lot of time to get through the holding control. Although with the further development of diversified equity, through control of the proxy vote was more and more. Corporate governance mechanism of the third level also includes a system of laws and regulations. Is to company law and securities law at the core of the legal system of law. The old company law has seriously affected our country's core competitiveness of enterprises. Because of a national core competitiveness is the main component of the system's competitiveness. The establishment of companies and enterprises the threshold is too high, too much the difficulty of restructuring, after the procedure is too cumbersome, that competitiveness will certainly drop. The same market opportunities, they can be very convenient restructuring, the rapid capture, and now you in accordance with the Company Law of the cumbersome procedures are completed this reorganization, not a chance, and this is the system's competitiveness. Therefore, from global competition, the status of the economic system, the new "Company Law" The introduction of great significance. Therefore, corporate governance is a three-in-one product: the internal management structure, the management of external market system and system of laws and regulations.
6, corporate governance level of sustained and steady progress in the "supervisor"
The level of corporate governance depends on the level of the fundamental nature of equity and integrity of the hard-working skills. State-owned shareholding structure is not a fundamental change in the level of corporate governance it is very difficult in the sustained and steady progress. The State Council, the SASAC in the pilot's board of directors of state-owned sole proprietorship pilot, I think the direction of its objectives in addition to a very small number of medium and long-term involvement remains wholly-owned, or the majority stake in pluralism, a mixed-ownership, in good faith under the supervision of the director of equity diversification, mixed-ownership . SASAC, as investor of state-owned assets on behalf of the "supervision and management" are necessary to distinguish between "supervisor" (supervision) and "Governor" (steering) functions: the so-called "supervisor" (monitoring), means the property rights of state-owned enterprises must speed up the flow as a factor To achieve the state-owned economy to accelerate structural adjustment of the layout, and speed up the flow of property rights means that the investor on behalf of the increased regulatory responsibility, to strengthen supervision, especially for some of the property rights transfer plan involving major restructuring programme and the letter of approval, and other important matters, Caution is fulfilling its the core concept of the so-called "Governor" (steering), means the investor representatives, through their invested enterprises (state-owned sole proprietorship, and state-controlled or state-owned Asset Management Company Limited) of its Board Governance Wholly-owned, controlled shareholding enterprises, the integrity of hard-working skills directly affect the level of state-owned companies control the level of enterprises, state-owned companies and corporate governance standards of the level of state-owned assets directly related to preserve and increase the value and therefore should weaken the direct supervision of the SASAC, by Rights and obligations and responsibilities in line with other interest groups and stakeholders can be prosecuted and litigation relief in the market economy for centuries been proven effective in the treatment of direct supervision. As the SASAC mainly through the development of good corporate governance of state-guided and other regulations, such companies to encourage more use of management talent market, the market directors, creditors control of the market and market forces raise the level of corporate governance, the eventual adoption of the guarantee system, Ensure good corporate governance for corporate enterprises to further expand to provide a fundamental guarantee.
1 Aug 2008
Lawyers really miscalculated the lawsuit? » -- On a case of compensation for differences in judgement of lawyers
China Court Net December 8, 2006 published an article on a ruling lawyers compensation case. I see, feel a need Xiedianshime, although people Weiyan light, but if stems in jets, Butubukuai. To readers to understand the background of the author, following the first article content to make a simple introduction.
May 2006, Ms. Sui Wen in Beijing with the law firm commissioned by the agency agreement signed, the commission heard in the law firm in Beijing Acting accident damages case and agency fees paid 3,000 yuan, Wen Law Firm in Beijing assigned Lu lawyers contractors case. SUI President Roh told his lawyers, the rural accounts, but since 2004 has been married after living in Beijing's Dongcheng District. According to Sui, the rural household registration, Lu lawyers peasant family in accordance with the 2005 annual per capita net income of 7,860 yuan standards, developed by the schedule of compensation for Ms. Sui signature confirmation, to the courts.
September 2006, Ms. Sui received in Beijing Dongcheng District People's Court verdict that in accordance with their own living in the towns of the actual situation, can be calculated in accordance with the standards of urban residents, and the court in view of the plaintiff in accordance with the standards that farmers are not above the law, Support the judgement that the amount of the plaintiff. Calculated in accordance with the two different standards, with Ms. Sui degree of disability, loss of the middle post 39,172 yuan. Ms. Sui Suiyi not aware of the relevant provisions in the circumstances, Lu told her lawyers under the 2005 urban residents per capita disposable income of 17,653 yuan of the standard grounds that the prosecution of Wen Law Firm in Beijing, Lu lawyers that non-compliance Their duties, leading to its loss of 39,172 yuan for Beijing Wen Law Firm in compensation and the return of 3,000 yuan agency fees.
Beijing Dongcheng District People's Court judgement in Beijing Wen Law Firm Ms. Sui 39,172 yuan compensation. The court held that the defendant receive assigned counsel in the commission should be provided after the corresponding legal services, and because the parties ignore the actual situation, resulting in Sui, advocates on disability compensation for damage, so the lawyers did not fulfil its responsibilities, the defendant The plaintiff actual loss should be 39,172 yuan compensation. Because lawyers in the proceedings to pay the labour, should receive compensation, and assigned the case to the defendant's lawyer because of fault and liability have been dealt with, the plaintiff asked the defendant for the return of agency fees 3,000 yuan will not support the claim.
Lu contractors case lawyers the existence of fault » Not fulfill its responsibilities » From the Beijing Dongcheng District People's Court's judgement we can see that the Beijing Dongcheng District People's Court of Justice that there Lu lawyers fault, the failure to fulfil its responsibilities is Needless to doubt. However, the Beijing Dongcheng District People's Court of Justice is so sure how this point? » Chinese courts issued by the network at the end of the article had been scheduled, "the judge said," has provided us with a clear answer. Now read as follows:
"According to" People's Supreme Court on personal injury compensation cases before the law applicable to the interpretation of a number of issues ", disability compensation, dependent people living expenses, compensation for the death of calculation standards of urban residents are divided into branch was allocated income and rural residents The per capita net income family of two.
How to identify victims of the calculation standards, not simply based on the location of household registration, but should be based on their lives, closely related to the work of the premises. April this year, the highest on the calculation of standard hospital for further explanation that the case should be based on the actual situation in reference to the victim's residence, place of residence often, the main source of income, and other factors to determine the victim's calculation standards. "
On this, we can see that the Beijing Dongcheng District People's Court of Justice finds that there Lu lawyers fault, did not fulfil their duties according to two: one is "Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues The explanation, "another hospital is the highest of the so-called further explanation. This further explain what is it » Is a Chamber of the Supreme People's Court of Yunnan Province Higher People's Court in a case asked the reply, the Supreme People's Court to the Court of a "regular place of residence in the towns of the rural population due to traffic accident victims how to calculate compensation for the cost of reply" ( [2005] The word he No. 25) of the Yunnan Provincial Higher People's Court "will be on the five-man and Zhaotong in Yunnan transport passenger transport company in a contract dispute and understand the legal implications of the application of the instructions" to make the following Answer: "personal injury compensation cases, disability compensation, death compensation payments and living expenses for dependents, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable Income (per capita consumption expenditure), or the per capita net income of rural residents (annual per capita consumption expenditure) standards. In this case, the victim Tang Shun-liang Although rural accounts, but doing business in the city, living, their regular place of residence and the main source of income to both For the city, the cost of damages should be based on local urban residents in the relevant standard. "
"The Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues of interpretation" of Article 25 stipulates: "The disability compensation for the loss of the ability to work under the victim or the extent of disability levels, according to the seat of the Court of Appeal on an annual per capita of urban residents Or disposable income of rural residents per capita net income standard, since the residual 20 years from the date of the calculation. "Solely on the basis of the judicial interpretation, of course, can not be launched" personal injury compensation cases, disability compensation, damages and deaths were Dependants of the cost of living, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditure) or net income of rural residents per capita (per capita annual consumption of life Expenditures) standards. "
Well, let Beijing Dongcheng District People's Court of Justice judgement is the basis of the above-mentioned reply. According to the reply that can exist Lu lawyers fault? » Lu that lawyers can not perform their duties? » Writing from the main purpose of this paper is that the negative answer and make the necessary proof. Author reply through the demonstration effect, ruled out the reply generally binding, or the force of law, to permit legislation: reply that Lu can not be used as the basis for the fault of lawyers there can not be identified as Lu lawyers did not perform their duties basis.
"Constitution" 127th, paragraph 2: "The Supreme People's Court supervision of the local people's courts and special people's courts at all levels of judicial work, supervision of higher-level people's courts at lower levels of people's courts of justice" and "People's Court Organization Law" Article 17 stipulates: "The lower-level people's courts of justice by the higher level people's court supervision." Clearly, the Court's exercise of jurisdiction is independent, on the lower court trial is the relationship between the supervision, guidance on business relations. This relationship is different from supervision and leadership, the so-called leadership, is the leader of the leaders of the directive should fully implement the so-called supervision, is the higher level can not be directly under the instructions of their subordinates, even at lower levels are found Illegal acts, we can only follow the correct procedure. From the system level analysis, "two of Final Appeal Tribunal," the core issue is the independence of the two trials, in view of this, China's current judicial system is the ideal would be on the lower court to define the "monitoring and supervision was" within the framework of, Unlike the lower levels on the executive's "leadership and the led" model.
But so far, on the lower level between the court still has a very serious administrative relations. An executive-level administrative Amun-even on the lower court, has seriously affected the independence of the trial court, kill the judge's "independent determination" and "free spirit." Judicial practice, there are higher courts (including the Supreme Court) on the lower courts are handling the case, take the initiative to approval, notification, letter or telephone orders, and other informal means of instruction, the case of a magistrate issued advice to the lower court This almost become accustomed to the many judges "practices." And Correspondingly, the lower courts were making in order to avoid accountability, obtained judgement for the stability, are often also the case during figured out later by their superiors for the Court's opinion, or even directly to the cases "reported" to the higher court, in order to obtain prior Superior Court's judgement, thereby avoiding the magistrate concluded the case was eventually withdrawn by the higher court. It can be said that this is not normal on the lower court on the case within the "communication" and "exchanges" or even "ask" approach, resulting in lower courts more and more a lack of independence of spirit and tradition of the trial. The so-called case referrals, refers to China's lower courts in hearing specific cases, and in fact that the law applicable to such areas Na Buzhun, before the higher court referrals, and so judgement. China's law does not expressly provided, but in practice, the lower court ruling in the case not before reporting to the higher court, asked the practice is widespread, and that such practices have often been the acquiescence or even higher court approval. Especially in major cases heard in the course of the lower court to the higher court reporting, asked the phenomenon even more serious. Investigations asked the system to enable the higher court directly involved in the first instance trials, and destroyed the lower court in the trial of independence, and in effect depriving the appellant the right to appeal, so that the second trial of Final Appeal reduced to a form of a lower court in enhancing The adjudication of cases to the higher court's dependence on the lower court to bring a strong inter-dependence of the color, supervision, a mere formality, the administration of justice and undermined the justice of the triangular pattern that impedes the independence of the trial judge's power Realization of the impact of justice, destruction of the trial-level judicial system.
The so-called request, "(to higher authorities) for instructions: this matter must be decided only after seeking instructions superiors." The highest hospital reply is a product of lower-level people's courts to seek instructions, letters, "the letter: letters, communications, correspondence," is the reply against the lower court asked the letter reply. Rather, the reply is that the lower level people's court's instructions, the so-called instructions, which is "superior to their subordinates or their elders to younger people that deal with a problem of principles and methods." Request, reply or instructions, is a typical administrative work , And "constitution" and "People's Court Organization Law" established by the relationship between the courts against the will oversee the relationship evolved into the relationship between judges evolved into magistrates. Doctor of Law, the Law School of Qinghua University, Associate Professor easily on the extension of the Friends of the Shaanxi Provincial Higher People's Court cancelled the lower court hearing the case asked the higher court, told reporters: "the judges decide cases reported in advance to a higher court, asked the practice should be completely banned completely. For This is, as long as the people's court determination, does not require any reform, we can do. "
Demonstration of the above cases request, the reply is not legality. The author believes that even if the set aside request, the reply is not legitimacy aside, the reply or not universally binding legal effect. Hospital is the highest maximum reply homes for lower-level People's Court on the application of legal cases dealing with the guidance, only to be asked by the Court of guiding significance, even in the reality of China's national conditions, from the highest hospital to trigger the lower-level documents Court after the lower courts have guiding significance, nor with the highest hospital compare the effectiveness of judicial interpretation, the highest judicial interpretation of homes is to decide cases by the courts at all levels should abide by, and the reply stripping out the factors, only a guide Observations only, lower courts can refer to, but not for lower court judges are binding. In other words, the reply in the spirit of the judges in specific cases cited in the judgement of the former is only a guide, not legally binding, lower court judges need not be invoked only in specific ruling by the judge invoked only after a legal Binding, legally binding on the basis of a judgement, rather than reply. Even so, even if the courts at all levels should be observed, can not be bound by the court outside the legal or natural persons, including of course the lawyers. Here based on a fundamental principle of law has not been made public not to, that is, without a legal procedure law to the public announcement, that is not binding on the public. In other words, all levels of courts in hearing such cases, when the compensation requested by cities and towns seek compensation standards for compensation, they can not "the only law" but "only", the highest hospital reply quoted by the guidelines of the town Residents compensation standards judgement, it is understandable, what the standard mining itself is a value judgement (explained below), but can not reply as a lawyer must abide by the law, negligence is not invoked, that is dereliction of duty. Just imagine, if the request of lawyers for the people's courts every request, reply and other documents are all aware, as a lawyer obligations or duties, it can not afford lawyers are so heavy, the Law Society's role is to invoke the law to the public, and Is not within the court documents.
Back to this case, the court cited the reply only public hospital is the highest court of a lower court documents, and no homes to the highest (main) name, through legal procedures to the public announcement (such as judicial interpretation), therefore, According to the reply that there fault Lu lawyers, lawyers that Lu did not perform their duties is not correct, as the public Lu, one of the lawyers, is clearly not the judges, and not necessarily reply to understand the content and subject to reply binding obligations. Therefore, Lu lawyers did not invoke reply, and there is no fault, no breach of duty.
In addition, in order to identify lawyers Lu fault there, there dereliction of duty, unless the standard reply that the problem is the judgement of the general public knowing that normal people are rational, common-sense issue. Clearly, this is a rural accounts of citizens, in that compensation, "the case should be based on the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditures) Or the per capita net income of rural residents (annual per capita consumption expenditure) of the standard "no clear understanding of the law before, is a value judgement, see-is a benevolent, wise men see the issue of Chile, was said to be a value judgement, from the The wording of the highest hospital reply "should" be reflected in the word. Since the Yunnan Provincial Higher People's Court, even dignified the judge how to proceed on the standards that must be conducted to the highest hospital referrals, then how can we force a general counsel with the highest standards of the hospital the same judgement, not Such a judgement was ruling bear the responsibility for judgement errors? » From China's history and the existing system, household registration is often a judgement of citizenship, the status of standards, according to the household registration to determine the relevant economic interests of citizens is an indisputable show. According to Lu lawyers, "the Supreme People's Court hearing on compensation for personal injury case law applicable to the interpretation of a number of issues" under the standard by urban or rural, rural-based account of Ms. Sui by rural standards of compensation requested compensation is in line with reality and in accordance with customary The.
Look forward to in Beijing and Lu Wen law firm of lawyers to appeal, regardless of the outcome of final judgement, at least can be sure of is that the eradication of the court's request, reply, and so there will be little to promote the role. From this point of speaking, as a legal person, that should have won. Finally, notice that a law should be pleased that the people, the Shaanxi High Court asked the abolition of cases taken on a gratifying step, the hospital recently adopted by the Shaanxi Provincial Court of implementing the "people's court reform outline of the second five-year" implementation Views, clearly put forward reform and improve the people's courts at lower levels on the law applicable to the difficult problem of higher-level People's Court asked the system, the phasing out of case referrals.
May 2006, Ms. Sui Wen in Beijing with the law firm commissioned by the agency agreement signed, the commission heard in the law firm in Beijing Acting accident damages case and agency fees paid 3,000 yuan, Wen Law Firm in Beijing assigned Lu lawyers contractors case. SUI President Roh told his lawyers, the rural accounts, but since 2004 has been married after living in Beijing's Dongcheng District. According to Sui, the rural household registration, Lu lawyers peasant family in accordance with the 2005 annual per capita net income of 7,860 yuan standards, developed by the schedule of compensation for Ms. Sui signature confirmation, to the courts.
September 2006, Ms. Sui received in Beijing Dongcheng District People's Court verdict that in accordance with their own living in the towns of the actual situation, can be calculated in accordance with the standards of urban residents, and the court in view of the plaintiff in accordance with the standards that farmers are not above the law, Support the judgement that the amount of the plaintiff. Calculated in accordance with the two different standards, with Ms. Sui degree of disability, loss of the middle post 39,172 yuan. Ms. Sui Suiyi not aware of the relevant provisions in the circumstances, Lu told her lawyers under the 2005 urban residents per capita disposable income of 17,653 yuan of the standard grounds that the prosecution of Wen Law Firm in Beijing, Lu lawyers that non-compliance Their duties, leading to its loss of 39,172 yuan for Beijing Wen Law Firm in compensation and the return of 3,000 yuan agency fees.
Beijing Dongcheng District People's Court judgement in Beijing Wen Law Firm Ms. Sui 39,172 yuan compensation. The court held that the defendant receive assigned counsel in the commission should be provided after the corresponding legal services, and because the parties ignore the actual situation, resulting in Sui, advocates on disability compensation for damage, so the lawyers did not fulfil its responsibilities, the defendant The plaintiff actual loss should be 39,172 yuan compensation. Because lawyers in the proceedings to pay the labour, should receive compensation, and assigned the case to the defendant's lawyer because of fault and liability have been dealt with, the plaintiff asked the defendant for the return of agency fees 3,000 yuan will not support the claim.
Lu contractors case lawyers the existence of fault » Not fulfill its responsibilities » From the Beijing Dongcheng District People's Court's judgement we can see that the Beijing Dongcheng District People's Court of Justice that there Lu lawyers fault, the failure to fulfil its responsibilities is Needless to doubt. However, the Beijing Dongcheng District People's Court of Justice is so sure how this point? » Chinese courts issued by the network at the end of the article had been scheduled, "the judge said," has provided us with a clear answer. Now read as follows:
"According to" People's Supreme Court on personal injury compensation cases before the law applicable to the interpretation of a number of issues ", disability compensation, dependent people living expenses, compensation for the death of calculation standards of urban residents are divided into branch was allocated income and rural residents The per capita net income family of two.
How to identify victims of the calculation standards, not simply based on the location of household registration, but should be based on their lives, closely related to the work of the premises. April this year, the highest on the calculation of standard hospital for further explanation that the case should be based on the actual situation in reference to the victim's residence, place of residence often, the main source of income, and other factors to determine the victim's calculation standards. "
On this, we can see that the Beijing Dongcheng District People's Court of Justice finds that there Lu lawyers fault, did not fulfil their duties according to two: one is "Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues The explanation, "another hospital is the highest of the so-called further explanation. This further explain what is it » Is a Chamber of the Supreme People's Court of Yunnan Province Higher People's Court in a case asked the reply, the Supreme People's Court to the Court of a "regular place of residence in the towns of the rural population due to traffic accident victims how to calculate compensation for the cost of reply" ( [2005] The word he No. 25) of the Yunnan Provincial Higher People's Court "will be on the five-man and Zhaotong in Yunnan transport passenger transport company in a contract dispute and understand the legal implications of the application of the instructions" to make the following Answer: "personal injury compensation cases, disability compensation, death compensation payments and living expenses for dependents, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable Income (per capita consumption expenditure), or the per capita net income of rural residents (annual per capita consumption expenditure) standards. In this case, the victim Tang Shun-liang Although rural accounts, but doing business in the city, living, their regular place of residence and the main source of income to both For the city, the cost of damages should be based on local urban residents in the relevant standard. "
"The Supreme People's Court hearing on compensation for personal injury case law applicable to a number of issues of interpretation" of Article 25 stipulates: "The disability compensation for the loss of the ability to work under the victim or the extent of disability levels, according to the seat of the Court of Appeal on an annual per capita of urban residents Or disposable income of rural residents per capita net income standard, since the residual 20 years from the date of the calculation. "Solely on the basis of the judicial interpretation, of course, can not be launched" personal injury compensation cases, disability compensation, damages and deaths were Dependants of the cost of living, should be the case, the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditure) or net income of rural residents per capita (per capita annual consumption of life Expenditures) standards. "
Well, let Beijing Dongcheng District People's Court of Justice judgement is the basis of the above-mentioned reply. According to the reply that can exist Lu lawyers fault? » Lu that lawyers can not perform their duties? » Writing from the main purpose of this paper is that the negative answer and make the necessary proof. Author reply through the demonstration effect, ruled out the reply generally binding, or the force of law, to permit legislation: reply that Lu can not be used as the basis for the fault of lawyers there can not be identified as Lu lawyers did not perform their duties basis.
"Constitution" 127th, paragraph 2: "The Supreme People's Court supervision of the local people's courts and special people's courts at all levels of judicial work, supervision of higher-level people's courts at lower levels of people's courts of justice" and "People's Court Organization Law" Article 17 stipulates: "The lower-level people's courts of justice by the higher level people's court supervision." Clearly, the Court's exercise of jurisdiction is independent, on the lower court trial is the relationship between the supervision, guidance on business relations. This relationship is different from supervision and leadership, the so-called leadership, is the leader of the leaders of the directive should fully implement the so-called supervision, is the higher level can not be directly under the instructions of their subordinates, even at lower levels are found Illegal acts, we can only follow the correct procedure. From the system level analysis, "two of Final Appeal Tribunal," the core issue is the independence of the two trials, in view of this, China's current judicial system is the ideal would be on the lower court to define the "monitoring and supervision was" within the framework of, Unlike the lower levels on the executive's "leadership and the led" model.
But so far, on the lower level between the court still has a very serious administrative relations. An executive-level administrative Amun-even on the lower court, has seriously affected the independence of the trial court, kill the judge's "independent determination" and "free spirit." Judicial practice, there are higher courts (including the Supreme Court) on the lower courts are handling the case, take the initiative to approval, notification, letter or telephone orders, and other informal means of instruction, the case of a magistrate issued advice to the lower court This almost become accustomed to the many judges "practices." And Correspondingly, the lower courts were making in order to avoid accountability, obtained judgement for the stability, are often also the case during figured out later by their superiors for the Court's opinion, or even directly to the cases "reported" to the higher court, in order to obtain prior Superior Court's judgement, thereby avoiding the magistrate concluded the case was eventually withdrawn by the higher court. It can be said that this is not normal on the lower court on the case within the "communication" and "exchanges" or even "ask" approach, resulting in lower courts more and more a lack of independence of spirit and tradition of the trial. The so-called case referrals, refers to China's lower courts in hearing specific cases, and in fact that the law applicable to such areas Na Buzhun, before the higher court referrals, and so judgement. China's law does not expressly provided, but in practice, the lower court ruling in the case not before reporting to the higher court, asked the practice is widespread, and that such practices have often been the acquiescence or even higher court approval. Especially in major cases heard in the course of the lower court to the higher court reporting, asked the phenomenon even more serious. Investigations asked the system to enable the higher court directly involved in the first instance trials, and destroyed the lower court in the trial of independence, and in effect depriving the appellant the right to appeal, so that the second trial of Final Appeal reduced to a form of a lower court in enhancing The adjudication of cases to the higher court's dependence on the lower court to bring a strong inter-dependence of the color, supervision, a mere formality, the administration of justice and undermined the justice of the triangular pattern that impedes the independence of the trial judge's power Realization of the impact of justice, destruction of the trial-level judicial system.
The so-called request, "(to higher authorities) for instructions: this matter must be decided only after seeking instructions superiors." The highest hospital reply is a product of lower-level people's courts to seek instructions, letters, "the letter: letters, communications, correspondence," is the reply against the lower court asked the letter reply. Rather, the reply is that the lower level people's court's instructions, the so-called instructions, which is "superior to their subordinates or their elders to younger people that deal with a problem of principles and methods." Request, reply or instructions, is a typical administrative work , And "constitution" and "People's Court Organization Law" established by the relationship between the courts against the will oversee the relationship evolved into the relationship between judges evolved into magistrates. Doctor of Law, the Law School of Qinghua University, Associate Professor easily on the extension of the Friends of the Shaanxi Provincial Higher People's Court cancelled the lower court hearing the case asked the higher court, told reporters: "the judges decide cases reported in advance to a higher court, asked the practice should be completely banned completely. For This is, as long as the people's court determination, does not require any reform, we can do. "
Demonstration of the above cases request, the reply is not legality. The author believes that even if the set aside request, the reply is not legitimacy aside, the reply or not universally binding legal effect. Hospital is the highest maximum reply homes for lower-level People's Court on the application of legal cases dealing with the guidance, only to be asked by the Court of guiding significance, even in the reality of China's national conditions, from the highest hospital to trigger the lower-level documents Court after the lower courts have guiding significance, nor with the highest hospital compare the effectiveness of judicial interpretation, the highest judicial interpretation of homes is to decide cases by the courts at all levels should abide by, and the reply stripping out the factors, only a guide Observations only, lower courts can refer to, but not for lower court judges are binding. In other words, the reply in the spirit of the judges in specific cases cited in the judgement of the former is only a guide, not legally binding, lower court judges need not be invoked only in specific ruling by the judge invoked only after a legal Binding, legally binding on the basis of a judgement, rather than reply. Even so, even if the courts at all levels should be observed, can not be bound by the court outside the legal or natural persons, including of course the lawyers. Here based on a fundamental principle of law has not been made public not to, that is, without a legal procedure law to the public announcement, that is not binding on the public. In other words, all levels of courts in hearing such cases, when the compensation requested by cities and towns seek compensation standards for compensation, they can not "the only law" but "only", the highest hospital reply quoted by the guidelines of the town Residents compensation standards judgement, it is understandable, what the standard mining itself is a value judgement (explained below), but can not reply as a lawyer must abide by the law, negligence is not invoked, that is dereliction of duty. Just imagine, if the request of lawyers for the people's courts every request, reply and other documents are all aware, as a lawyer obligations or duties, it can not afford lawyers are so heavy, the Law Society's role is to invoke the law to the public, and Is not within the court documents.
Back to this case, the court cited the reply only public hospital is the highest court of a lower court documents, and no homes to the highest (main) name, through legal procedures to the public announcement (such as judicial interpretation), therefore, According to the reply that there fault Lu lawyers, lawyers that Lu did not perform their duties is not correct, as the public Lu, one of the lawyers, is clearly not the judges, and not necessarily reply to understand the content and subject to reply binding obligations. Therefore, Lu lawyers did not invoke reply, and there is no fault, no breach of duty.
In addition, in order to identify lawyers Lu fault there, there dereliction of duty, unless the standard reply that the problem is the judgement of the general public knowing that normal people are rational, common-sense issue. Clearly, this is a rural accounts of citizens, in that compensation, "the case should be based on the actual situation of the victims home, the regular place of residence and other factors, determine the applicable urban residents per capita disposable income (per capita consumption expenditures) Or the per capita net income of rural residents (annual per capita consumption expenditure) of the standard "no clear understanding of the law before, is a value judgement, see-is a benevolent, wise men see the issue of Chile, was said to be a value judgement, from the The wording of the highest hospital reply "should" be reflected in the word. Since the Yunnan Provincial Higher People's Court, even dignified the judge how to proceed on the standards that must be conducted to the highest hospital referrals, then how can we force a general counsel with the highest standards of the hospital the same judgement, not Such a judgement was ruling bear the responsibility for judgement errors? » From China's history and the existing system, household registration is often a judgement of citizenship, the status of standards, according to the household registration to determine the relevant economic interests of citizens is an indisputable show. According to Lu lawyers, "the Supreme People's Court hearing on compensation for personal injury case law applicable to the interpretation of a number of issues" under the standard by urban or rural, rural-based account of Ms. Sui by rural standards of compensation requested compensation is in line with reality and in accordance with customary The.
Look forward to in Beijing and Lu Wen law firm of lawyers to appeal, regardless of the outcome of final judgement, at least can be sure of is that the eradication of the court's request, reply, and so there will be little to promote the role. From this point of speaking, as a legal person, that should have won. Finally, notice that a law should be pleased that the people, the Shaanxi High Court asked the abolition of cases taken on a gratifying step, the hospital recently adopted by the Shaanxi Provincial Court of implementing the "people's court reform outline of the second five-year" implementation Views, clearly put forward reform and improve the people's courts at lower levels on the law applicable to the difficult problem of higher-level People's Court asked the system, the phasing out of case referrals.
Chinese lawyers, Way
First, the same case in different accused the defence counsel of the people.
A few days ago, I appear in court for drug trafficking together in defence of a defendant, the case is the basic fact that the number of suspects accused of methadone in drug transactions, was arrested by public security officers, can be described as "Renzangjuhuo." When the other to hear the defendant's defence lawyers on the following point of view, can not help much with emotion:
A point of view: a defence counsel is the fact that the drug trade have not actually completed, the case is made for the defence of attempted criminal point of view.
In response, the lawyers made a common-sense error: in judicial practice, "Renzangjuhuo" of drug cases, send been identified as crime occurs. The lawyer attempted to criminal grounds for the defence, no matter how its eloquence, Wanban reasons, not the "wasted words" » The lawyers for the defence of ignorance of the law can only win the sympathy of the Central, and the ad litem judges, not only does not work, that defence counsel will be a lack of basic legal knowledge, the judges caused resentment and ultimately self-defeating.
Second point: the request of the accused, the court in mitigation, but did not propose any mitigation of the statutory reasons.
The lawyer has confused "reduce" punishment and "mitigating" the difference between punishment. What should be mitigating circumstances or can reduce the punishment, criminal law has clear provisions, such as surrender, meritorious service, and other statutory circumstances, the court will have more detailed and specific requirements. The subject matter there is no statutory, how can the lawyers to reduce the indiscriminate punishment? Request of the defence » How judges will look at it »
Three points: that the other lawyers, prosecutors did not list their alleged offences, the specific legal basis for sentencing, prosecutors did not make the burden of proof.
In fact, prosecutors charged, it does not require the transfer of the alleged offence was based on the legal provisions as evidence because it does not belong to the criminal burden of proof; Moreover, the sentencing of the defendant is convicted of belonging to the jurisdiction of the court, the judge Will naturally take into account the specific legal basis and legal provisions.
40 points: in calculating the amount of the drug methadone on the issue, a lawyer believes that the calculation of the number of drug methadone should be solid drug reference to the method of calculating the liquid into a solid methadone methadone, to determine the number of penalties as the standard.
This is no legal basis. Although the drug methadone on the calculation of the number of problems related to the lack of judicial interpretation, but according to April 20, 2000, "the Supreme People's Court hearing on the case of convicted drug sentencing standards on the issue of interpretation" of Article 2, paragraph (5), Mrs Lengding drugs (injections) are branch units calculated. The methadone is the same drug injection, is also liquid, and therefore should be reference to the method of calculating drug pethidine, a branch unit, of course, the judge in sentencing, should seriously consider the drug methadone which the liquid content of the objective situation of very low.
Based on the above circumstances, we found different lawyers on a case with the understanding and the defence will appear so great the difference, and even lawyers committed a common-sense errors, which reflects the legal profession lawyers between the level of uneven, and some The operational capacity of lawyers have yet to be improved.
Second, the Chinese team has many excellent lawyers, but because of poor environmental industry practice, the lack of comprehensive industry standards, unfair competition and the proliferation of vicious competition, while China's legal professional community has not yet formed, serious corruption in the judiciary, have led to the overall quality of lawyers A clear downward trend, the legal profession's future development is worrying.
The above-mentioned example of this phenomenon must not only individual, in order to accurately understand the situation, I Baidu online search for "bad lawyer", as many as 162,000 above the record of the in-line google search for "lawyers scandal", the above Also recorded as many as 797,000, some lawyers, or even as "Yong Yi", gall surgery patients to be done, he却把the patient's liver be cut off, said: "The bad lawyers" are everywhere, lawyers scandal Man Tianfei. What are the reasons for these phenomena led to the formation of this » This has led to my thought.
1, when the court into a "fight", "relations" on the importance of sound far in improving the quality of the business.
Chinese "disgust of First Instance," the legal and cultural traditions and "social acquaintance" of the characteristics of the legal profession with the current limited capacity to develop business and legal needs of the community's relative lack of volume, making the "relations between the circle", "communication network" of lawyers from the A very important role in a wide variety of networks of relationships, can there be the source of the lack of an effective network of relationships, the source of pathetic, and even survival are problematic. This forced the lawyers had to spend a lot of time was spent on communication, used in all kinds of "relations" with maintenance. Some lawyers about 90 percent of the time is spent on finding the source of Sino-Latin American relations, only 5% of the time for handling cases, while the remaining five percent for life. This has led to lawyers handling cases of retrogression, attitude to life is also a problem. Bar mistresses, divorce is quite common, at least for their children is also a lack of discipline, many children become lawyers juvenile problems, fighting, truancy are serious.
In order to attract the sources, lawyers also increasing emphasis on self-marketing. This has occurred on the network marketing model, a person monopolize the so-called "China Law Society Company Law Network", "Chinese criminal defence lawyer network", "Chinese lawyer well-known network", "Chinese lawyers network", "Canton lawyer network." What "big label" sites, a "lead counsel" close to some lawyers, by law, and even employ some of the power sector retirees, resource-rich community relations staff dedicated to finding the source of doing business, and even promised to give " High clawback "to obtain the source. Marketing itself there is nothing wrong with lawyers, but did not have the strength and support of the false marketing can only be beautiful lies, ultimately short-lived, perhaps also detained on "licensed Zhapian Fan" label.
In Western developed countries, advertising and prohibition of private lawyers to the case, can only be arranged by the law of the case at the same time, the state will also provide sufficient protection for lawyers, the law clearly provides that only lawyers can engage in the case of agents and Defence, the great majority of the cases, there must be the participation of lawyers, judges and the court can hear. By comparison, there are still several times the Chinese lawyers in the number of legal workers, mixing all kinds rely on the "internal" Lanhuo stem the Xianzarenyuan, in the legal profession in the improper conduct of the competition, making the legal profession and no more confusion Sequence.
People's energies are limited, if the lawyers to focus on "relations", on finding the source, the quality of lawyers practising how can it improve the quality of the »
2, lawyers growth mode and the lack of a reasonable standard, the overall quality of lawyers will lead to the decline.
All those who have attained some achievements of the lawyers, with the "deputies", "CPPCC members", or Lvxie Ren Moumou duties in the "politicians" title, to start with a clear conscience, "lawyer boss", natural unmotivated study business, improve business Capacity, most of the time on the maintenance of social relations and public entertainment in the case to the wholesale use of cheap wages hired new lawyers and lawyers for assistance, and the new lawyer, assistant counsel because the lawyers are not professional guidance , The only feeling our way across the river, not only unable to handle the case in Huoseshengxiang, even the basic norms of operation can not fight master. However, in order to early out of "Oliver", the more they inadvertently increase in operational capacity, just want an independent practice as soon as possible. And some new lawyers, compelled by the living, often to take risks. When the entire industry in an unfair competition, the plight of vicious competition, do not rely on ability, but only pray that in all kinds of "relations" and various non-standard factors to bring about their own business, it will inevitably lead to the overall quality of lawyers The decline.
3, China's social legal professional community has not yet formed, serious corruption in the judiciary, the overall quality of lawyers will lead to the decline.
In the 1980s, the Guangzhou only 80-odd lawyers, not the lawyers no worries about the source of most of the parties take the initiative to come, with the number of cases that lawyers are the main efforts in handling cases, do not have to Feijinxinji to socialize, Latin American relations, the overall high quality with the same period compared to the judges, lawyers need through the National Bar Examination, and the judge has no strict examination, low-threshold, all kinds of people can enter the court.
Since the beginning of the 21st century, with the promotion of judicial reform, the unified judicial examination system set up so that lawyers, judges have a unified threshold, lawyers and judges at the same starting line, but must recognize that in recent years, judges have the overall quality of Higher than lawyers: Judge daily exposure to a large number of cases, writing a considerable number of legal instruments, at the same time, the court is an instrument of official documents, must meet a certain standard, the security and oversight organizations to the overall quality of judges with a considerable degree The increase with the contrary, lawyers or no cases or the number of cases is too small, too many cases either have to "assistant", "novice" with operational lawyers also a lack of unified norms and effective oversight, the legal profession "Self-employed" and "small workshop" more popular models, which have led to the overall quality of the lawyers decline.
Judges, prosecutors and lawyers have a common educational background and belief, it should be said to form a legal professional community, but in fact lawyers and judges, prosecutors relationship is often mutually exclusive and mutual hostility. Judges, prosecutors whole in power, and the lawyers only Jie Bu Yi, is one of the weakest groups. In order to the smooth operation of business, close to some lawyers have bribed judges and prosecutors, "court" often became a "fight", lawyers can not practice norms, improve the operational capacity of the enterprise will be dampened. Recently, the Central Commission for Discipline Inspection south of Guangdong, Shenzhen Intermediate People's Court judge in the collective exposure of corruption in the judiciary, more than 10 lawyers have been implicated by the investigation. It must be pointed out, the reality of these lawyers is pathetic and sad, pathetic is that they should trouble all day for their livelihood; Sadly, such a lawyer, not only for clients , may also be a major mistake, not only Client, the defendant's unfortunate that the legal profession is unfortunate, the rule of law in China and Chinese society, unfortunately.
Third, the judiciary, lawyers unable to provide substantive assistance; Lvxie, by law, can not completely change the fate of lawyers. Working bumps, wandering souls, in difficult circumstances, the lawyer is not your mother did not Davis unsupported "Kuming children."
1, Chinese lawyers are not your mother's father did not "Kuming child."
Judicial administrative organs management of lawyers, of course not a lawyer "Dieniang"; Bar Association is the industry self-regulatory organization, the management of lawyers has played a positive role, but to regulate industry competition, improve environmental lawyers, not the role of the Great lawyer because of my profession did not "apprenticeship" system, training system is a mere formality, most lawyers go it alone in the long-term status, among households Wa Qiangjiao not on the already very good, let alone what the team collaboration and strict Family-like mutual aid, so old lawyer is not new lawyers "Dieniang" China's law firms are small, frequent changes in lawyers, law firms and lawyers of cooperation is in a state of no confidence, which is not legal counsel ( Especially young lawyers and law clerks) can rely on, and the parties, only "time is the people." When he was seeking a lawyer, the solicitor general as "Buddha", the lawyers hope to help him solve all disputes and troubles when things than he wants, on Fanlianburen, or even malicious slander lawyer. Therefore, the parties are not more lawyers on the "Dieniang." Dieniang not the orphans, the poor environment can be healthy growth »
2, Chinese lawyers did not "Dieniang" and even there is no "relatives" and unsupported, the lack of human warmth, in an internal and external problems, Neiwaijiaokun, the growth environment fend for themselves.
Internet such a review: "lawyers from the 1990s were regarded as high-income class to low-income, no protection class." Popular on the Internet is also a more precise statement: "When you become a lawyer After you become the 'three non-official', without protection of wages, no social security, no protection business. "In such an environment to grow up, the industry standard is not an easy thing. China lacks the legal profession of Community, the lawyer makes a long time go it alone, and abnormal loneliness and helplessness, like there is no "relatives" of orphans, the lack of a human warmth, the independent practice of bear a high pressure and high-risk , Lived a life of a fend for themselves.
3, lawyers souls wandering, the lack of a genuine spiritual sustenance and beliefs.
Chinese lawyers, not only did not rely on the work, the spirit of wandering, in a spirit of difficulties. Legal person of faith should be legal, faith fairness and justice. But in China, "the rule of man" color far more than the "rule of law" color of the country, by too many legal restrictions, there too many factors involved, the lawyer makes full of frustration, anguish and pain, the law can not become a genuine spiritual sustenance. . Many young lawyers have diverted a large number of outstanding graduates of the legal profession from the legal profession, this is the best description.
4, the status quo of China's rule of law, determines that Chinese lawyers will have to experience too much of the disaster.
China's lack of the rule of law, the legal profession is in a state of weightlessness. The lawyers should be the biggest beneficiaries of judicial reform and judicial reform, lawyers precisely the lack of voices, especially the legal profession as a whole "voice." Judicial reform as some of the power sector Fenzang "Carnival Feast," which also doomed the future of the legal profession Font. Fate of a bumpy, Qiantumiaomang the industry, you can not Mingku »
China's legal profession has been caught in a vicious competition in the industry predicament. There Renyan: "China is a lawyer does not force the team, China's law firm is no power of the organization, China's lawyers are not relying on the individual, the entire legal profession is not one to rely on the force." No father did not Mother unsupported, China is the most true portrayal of lawyers.
Fourth, Chinese lawyers "Dieniang", where are you » Chinese enterprises should be lawyers Yishifumu; lawyers, the law should bear the heavy responsibility of training new people and the lawyers, by law, the legal profession, should be self-rescue.
1, enterprises are Chinese lawyers "Dieniang."
According to the statistics: China's private enterprises, the average life expectancy only 2.9 years, China every year about 1 million private enterprises of bankruptcy, 60 percent of the enterprises will be bankrupt in five years, 85 percent of the enterprises will perish in 10 years, can survive for more than three years Only 10 percent of enterprises, large enterprise groups, the average life expectancy is only 7.8 years. Of which 40 percent of the enterprises in the entrepreneurial stage to declare bankruptcy. Every day in China closed down 2,740 enterprises, the average per hour, 114 enterprises go bankrupt, every minute, two enterprise bankruptcy. Japanese companies, the average life expectancy is 30, is 10 times the average life expectancy for U.S. companies in 40, China 13 times. This led to the results of many causes, but the lack of a standardized corporate legal services, but also the core of one of the reasons.
Therefore, Chinese enterprises should pay more attention to enterprises that a legal risk prevention, risk reduction brought about by the loss to Mrs Anson Chan, Li Ming. As a lawyer, but also for the survival of millions of enterprises and development of valuable services, to expand their business enterprises as the most basic means of survival and lawyers to break the embarrassing situation, break through the bottleneck.
2, law firms, the old lawyer is that the new lawyers, the assistant counsel, "Dieniang."
The legal profession is a practical, workable strong industry. Alone concentrate on the "Den" the professor, lecturer training lawyers can not bear the heavy responsibility; Sikao a certificate, you can not prove that is a legal talent.
According to the Law Society of Western culture and mode of some of China's successful experience by the law, law firms, senior lawyers in the old growth of a lawyer in the early stages of the play is very far-reaching impact, it will directly affect the future of the career lawyers, Therefore, they most qualified to assume the new training lawyers, law clerks responsibility. There are even senior lawyer suggested that lawyers should set up specialized institutes, from rich lawyers to practice coaching.
Of course, the new lawyers, law clerks must also overcome the psychological impetuous, a sense of teamwork and open-minded attitude Qiujiao, to grow up as soon as possible, Dudangyimian could eventually become a lawyer.
Ku Ming of Chinese lawyers, Way »
Constantly improve their own quality, the establishment of healthy industry competition and personnel training mechanism, the maximum possible to open new businesses and actively participate in international competition before they can grow up in the competition, and strengthening. Perhaps, this is the only way out for Chinese lawyers.
A few days ago, I appear in court for drug trafficking together in defence of a defendant, the case is the basic fact that the number of suspects accused of methadone in drug transactions, was arrested by public security officers, can be described as "Renzangjuhuo." When the other to hear the defendant's defence lawyers on the following point of view, can not help much with emotion:
A point of view: a defence counsel is the fact that the drug trade have not actually completed, the case is made for the defence of attempted criminal point of view.
In response, the lawyers made a common-sense error: in judicial practice, "Renzangjuhuo" of drug cases, send been identified as crime occurs. The lawyer attempted to criminal grounds for the defence, no matter how its eloquence, Wanban reasons, not the "wasted words" » The lawyers for the defence of ignorance of the law can only win the sympathy of the Central, and the ad litem judges, not only does not work, that defence counsel will be a lack of basic legal knowledge, the judges caused resentment and ultimately self-defeating.
Second point: the request of the accused, the court in mitigation, but did not propose any mitigation of the statutory reasons.
The lawyer has confused "reduce" punishment and "mitigating" the difference between punishment. What should be mitigating circumstances or can reduce the punishment, criminal law has clear provisions, such as surrender, meritorious service, and other statutory circumstances, the court will have more detailed and specific requirements. The subject matter there is no statutory, how can the lawyers to reduce the indiscriminate punishment? Request of the defence » How judges will look at it »
Three points: that the other lawyers, prosecutors did not list their alleged offences, the specific legal basis for sentencing, prosecutors did not make the burden of proof.
In fact, prosecutors charged, it does not require the transfer of the alleged offence was based on the legal provisions as evidence because it does not belong to the criminal burden of proof; Moreover, the sentencing of the defendant is convicted of belonging to the jurisdiction of the court, the judge Will naturally take into account the specific legal basis and legal provisions.
40 points: in calculating the amount of the drug methadone on the issue, a lawyer believes that the calculation of the number of drug methadone should be solid drug reference to the method of calculating the liquid into a solid methadone methadone, to determine the number of penalties as the standard.
This is no legal basis. Although the drug methadone on the calculation of the number of problems related to the lack of judicial interpretation, but according to April 20, 2000, "the Supreme People's Court hearing on the case of convicted drug sentencing standards on the issue of interpretation" of Article 2, paragraph (5), Mrs Lengding drugs (injections) are branch units calculated. The methadone is the same drug injection, is also liquid, and therefore should be reference to the method of calculating drug pethidine, a branch unit, of course, the judge in sentencing, should seriously consider the drug methadone which the liquid content of the objective situation of very low.
Based on the above circumstances, we found different lawyers on a case with the understanding and the defence will appear so great the difference, and even lawyers committed a common-sense errors, which reflects the legal profession lawyers between the level of uneven, and some The operational capacity of lawyers have yet to be improved.
Second, the Chinese team has many excellent lawyers, but because of poor environmental industry practice, the lack of comprehensive industry standards, unfair competition and the proliferation of vicious competition, while China's legal professional community has not yet formed, serious corruption in the judiciary, have led to the overall quality of lawyers A clear downward trend, the legal profession's future development is worrying.
The above-mentioned example of this phenomenon must not only individual, in order to accurately understand the situation, I Baidu online search for "bad lawyer", as many as 162,000 above the record of the in-line google search for "lawyers scandal", the above Also recorded as many as 797,000, some lawyers, or even as "Yong Yi", gall surgery patients to be done, he却把the patient's liver be cut off, said: "The bad lawyers" are everywhere, lawyers scandal Man Tianfei. What are the reasons for these phenomena led to the formation of this » This has led to my thought.
1, when the court into a "fight", "relations" on the importance of sound far in improving the quality of the business.
Chinese "disgust of First Instance," the legal and cultural traditions and "social acquaintance" of the characteristics of the legal profession with the current limited capacity to develop business and legal needs of the community's relative lack of volume, making the "relations between the circle", "communication network" of lawyers from the A very important role in a wide variety of networks of relationships, can there be the source of the lack of an effective network of relationships, the source of pathetic, and even survival are problematic. This forced the lawyers had to spend a lot of time was spent on communication, used in all kinds of "relations" with maintenance. Some lawyers about 90 percent of the time is spent on finding the source of Sino-Latin American relations, only 5% of the time for handling cases, while the remaining five percent for life. This has led to lawyers handling cases of retrogression, attitude to life is also a problem. Bar mistresses, divorce is quite common, at least for their children is also a lack of discipline, many children become lawyers juvenile problems, fighting, truancy are serious.
In order to attract the sources, lawyers also increasing emphasis on self-marketing. This has occurred on the network marketing model, a person monopolize the so-called "China Law Society Company Law Network", "Chinese criminal defence lawyer network", "Chinese lawyer well-known network", "Chinese lawyers network", "Canton lawyer network." What "big label" sites, a "lead counsel" close to some lawyers, by law, and even employ some of the power sector retirees, resource-rich community relations staff dedicated to finding the source of doing business, and even promised to give " High clawback "to obtain the source. Marketing itself there is nothing wrong with lawyers, but did not have the strength and support of the false marketing can only be beautiful lies, ultimately short-lived, perhaps also detained on "licensed Zhapian Fan" label.
In Western developed countries, advertising and prohibition of private lawyers to the case, can only be arranged by the law of the case at the same time, the state will also provide sufficient protection for lawyers, the law clearly provides that only lawyers can engage in the case of agents and Defence, the great majority of the cases, there must be the participation of lawyers, judges and the court can hear. By comparison, there are still several times the Chinese lawyers in the number of legal workers, mixing all kinds rely on the "internal" Lanhuo stem the Xianzarenyuan, in the legal profession in the improper conduct of the competition, making the legal profession and no more confusion Sequence.
People's energies are limited, if the lawyers to focus on "relations", on finding the source, the quality of lawyers practising how can it improve the quality of the »
2, lawyers growth mode and the lack of a reasonable standard, the overall quality of lawyers will lead to the decline.
All those who have attained some achievements of the lawyers, with the "deputies", "CPPCC members", or Lvxie Ren Moumou duties in the "politicians" title, to start with a clear conscience, "lawyer boss", natural unmotivated study business, improve business Capacity, most of the time on the maintenance of social relations and public entertainment in the case to the wholesale use of cheap wages hired new lawyers and lawyers for assistance, and the new lawyer, assistant counsel because the lawyers are not professional guidance , The only feeling our way across the river, not only unable to handle the case in Huoseshengxiang, even the basic norms of operation can not fight master. However, in order to early out of "Oliver", the more they inadvertently increase in operational capacity, just want an independent practice as soon as possible. And some new lawyers, compelled by the living, often to take risks. When the entire industry in an unfair competition, the plight of vicious competition, do not rely on ability, but only pray that in all kinds of "relations" and various non-standard factors to bring about their own business, it will inevitably lead to the overall quality of lawyers The decline.
3, China's social legal professional community has not yet formed, serious corruption in the judiciary, the overall quality of lawyers will lead to the decline.
In the 1980s, the Guangzhou only 80-odd lawyers, not the lawyers no worries about the source of most of the parties take the initiative to come, with the number of cases that lawyers are the main efforts in handling cases, do not have to Feijinxinji to socialize, Latin American relations, the overall high quality with the same period compared to the judges, lawyers need through the National Bar Examination, and the judge has no strict examination, low-threshold, all kinds of people can enter the court.
Since the beginning of the 21st century, with the promotion of judicial reform, the unified judicial examination system set up so that lawyers, judges have a unified threshold, lawyers and judges at the same starting line, but must recognize that in recent years, judges have the overall quality of Higher than lawyers: Judge daily exposure to a large number of cases, writing a considerable number of legal instruments, at the same time, the court is an instrument of official documents, must meet a certain standard, the security and oversight organizations to the overall quality of judges with a considerable degree The increase with the contrary, lawyers or no cases or the number of cases is too small, too many cases either have to "assistant", "novice" with operational lawyers also a lack of unified norms and effective oversight, the legal profession "Self-employed" and "small workshop" more popular models, which have led to the overall quality of the lawyers decline.
Judges, prosecutors and lawyers have a common educational background and belief, it should be said to form a legal professional community, but in fact lawyers and judges, prosecutors relationship is often mutually exclusive and mutual hostility. Judges, prosecutors whole in power, and the lawyers only Jie Bu Yi, is one of the weakest groups. In order to the smooth operation of business, close to some lawyers have bribed judges and prosecutors, "court" often became a "fight", lawyers can not practice norms, improve the operational capacity of the enterprise will be dampened. Recently, the Central Commission for Discipline Inspection south of Guangdong, Shenzhen Intermediate People's Court judge in the collective exposure of corruption in the judiciary, more than 10 lawyers have been implicated by the investigation. It must be pointed out, the reality of these lawyers is pathetic and sad, pathetic is that they should trouble all day for their livelihood; Sadly, such a lawyer, not only for clients , may also be a major mistake, not only Client, the defendant's unfortunate that the legal profession is unfortunate, the rule of law in China and Chinese society, unfortunately.
Third, the judiciary, lawyers unable to provide substantive assistance; Lvxie, by law, can not completely change the fate of lawyers. Working bumps, wandering souls, in difficult circumstances, the lawyer is not your mother did not Davis unsupported "Kuming children."
1, Chinese lawyers are not your mother's father did not "Kuming child."
Judicial administrative organs management of lawyers, of course not a lawyer "Dieniang"; Bar Association is the industry self-regulatory organization, the management of lawyers has played a positive role, but to regulate industry competition, improve environmental lawyers, not the role of the Great lawyer because of my profession did not "apprenticeship" system, training system is a mere formality, most lawyers go it alone in the long-term status, among households Wa Qiangjiao not on the already very good, let alone what the team collaboration and strict Family-like mutual aid, so old lawyer is not new lawyers "Dieniang" China's law firms are small, frequent changes in lawyers, law firms and lawyers of cooperation is in a state of no confidence, which is not legal counsel ( Especially young lawyers and law clerks) can rely on, and the parties, only "time is the people." When he was seeking a lawyer, the solicitor general as "Buddha", the lawyers hope to help him solve all disputes and troubles when things than he wants, on Fanlianburen, or even malicious slander lawyer. Therefore, the parties are not more lawyers on the "Dieniang." Dieniang not the orphans, the poor environment can be healthy growth »
2, Chinese lawyers did not "Dieniang" and even there is no "relatives" and unsupported, the lack of human warmth, in an internal and external problems, Neiwaijiaokun, the growth environment fend for themselves.
Internet such a review: "lawyers from the 1990s were regarded as high-income class to low-income, no protection class." Popular on the Internet is also a more precise statement: "When you become a lawyer After you become the 'three non-official', without protection of wages, no social security, no protection business. "In such an environment to grow up, the industry standard is not an easy thing. China lacks the legal profession of Community, the lawyer makes a long time go it alone, and abnormal loneliness and helplessness, like there is no "relatives" of orphans, the lack of a human warmth, the independent practice of bear a high pressure and high-risk , Lived a life of a fend for themselves.
3, lawyers souls wandering, the lack of a genuine spiritual sustenance and beliefs.
Chinese lawyers, not only did not rely on the work, the spirit of wandering, in a spirit of difficulties. Legal person of faith should be legal, faith fairness and justice. But in China, "the rule of man" color far more than the "rule of law" color of the country, by too many legal restrictions, there too many factors involved, the lawyer makes full of frustration, anguish and pain, the law can not become a genuine spiritual sustenance. . Many young lawyers have diverted a large number of outstanding graduates of the legal profession from the legal profession, this is the best description.
4, the status quo of China's rule of law, determines that Chinese lawyers will have to experience too much of the disaster.
China's lack of the rule of law, the legal profession is in a state of weightlessness. The lawyers should be the biggest beneficiaries of judicial reform and judicial reform, lawyers precisely the lack of voices, especially the legal profession as a whole "voice." Judicial reform as some of the power sector Fenzang "Carnival Feast," which also doomed the future of the legal profession Font. Fate of a bumpy, Qiantumiaomang the industry, you can not Mingku »
China's legal profession has been caught in a vicious competition in the industry predicament. There Renyan: "China is a lawyer does not force the team, China's law firm is no power of the organization, China's lawyers are not relying on the individual, the entire legal profession is not one to rely on the force." No father did not Mother unsupported, China is the most true portrayal of lawyers.
Fourth, Chinese lawyers "Dieniang", where are you » Chinese enterprises should be lawyers Yishifumu; lawyers, the law should bear the heavy responsibility of training new people and the lawyers, by law, the legal profession, should be self-rescue.
1, enterprises are Chinese lawyers "Dieniang."
According to the statistics: China's private enterprises, the average life expectancy only 2.9 years, China every year about 1 million private enterprises of bankruptcy, 60 percent of the enterprises will be bankrupt in five years, 85 percent of the enterprises will perish in 10 years, can survive for more than three years Only 10 percent of enterprises, large enterprise groups, the average life expectancy is only 7.8 years. Of which 40 percent of the enterprises in the entrepreneurial stage to declare bankruptcy. Every day in China closed down 2,740 enterprises, the average per hour, 114 enterprises go bankrupt, every minute, two enterprise bankruptcy. Japanese companies, the average life expectancy is 30, is 10 times the average life expectancy for U.S. companies in 40, China 13 times. This led to the results of many causes, but the lack of a standardized corporate legal services, but also the core of one of the reasons.
Therefore, Chinese enterprises should pay more attention to enterprises that a legal risk prevention, risk reduction brought about by the loss to Mrs Anson Chan, Li Ming. As a lawyer, but also for the survival of millions of enterprises and development of valuable services, to expand their business enterprises as the most basic means of survival and lawyers to break the embarrassing situation, break through the bottleneck.
2, law firms, the old lawyer is that the new lawyers, the assistant counsel, "Dieniang."
The legal profession is a practical, workable strong industry. Alone concentrate on the "Den" the professor, lecturer training lawyers can not bear the heavy responsibility; Sikao a certificate, you can not prove that is a legal talent.
According to the Law Society of Western culture and mode of some of China's successful experience by the law, law firms, senior lawyers in the old growth of a lawyer in the early stages of the play is very far-reaching impact, it will directly affect the future of the career lawyers, Therefore, they most qualified to assume the new training lawyers, law clerks responsibility. There are even senior lawyer suggested that lawyers should set up specialized institutes, from rich lawyers to practice coaching.
Of course, the new lawyers, law clerks must also overcome the psychological impetuous, a sense of teamwork and open-minded attitude Qiujiao, to grow up as soon as possible, Dudangyimian could eventually become a lawyer.
Ku Ming of Chinese lawyers, Way »
Constantly improve their own quality, the establishment of healthy industry competition and personnel training mechanism, the maximum possible to open new businesses and actively participate in international competition before they can grow up in the competition, and strengthening. Perhaps, this is the only way out for Chinese lawyers.
Bar lawyers small
Social division is an objective reality, the industry is also an objective existence of the divide. We have to make every effort to eliminate inequality in human society, the result is: human society there are still inequalities.
In this repeatedly stresses the fairness, justice, equality groups, lawyers not only in personal status, place in the division, divided into 369, also on the personal wealth in the division, a barrister and solicitor of small, and this Differentiation only less than 10 years. I do not want to barristers and solicitors under the definition of small, but merely to the Bar, on the lawyer's representation for a description of all kinds.
First, the Bar Association in various, various chambers of commerce of various Mingmufanduo hung the title, as president, vice president, chairman, vice chairman of the small addition to lawyers and lawyers outside the title of Master of Laws, no all.
Second, the Bar as 10 or even more than dozens of companies, enterprises, the legal adviser to lawyers only as small 1-2 companies, enterprises, the legal adviser, or even simply as a legal adviser may be.
Third, the lawyers working with a private car, many people even have private drivers, the value of his mount at least 300,000 yuan or more lawyers take small buses or ride bicycles to work.
4, the Bar mission, to arrange to travel by plane, living luxury hotels, eat abalone shark's fin; small business lawyer, to arrange to ride the train, long-distance bus, living small hotels, eat the order of the day.
5, the Bar is the source to find him, even to queue up appointments, customers continue; small lawyers are looking for the source of his, but I do not know the source of where to eat on the Dayton worry about the Dayton .
6, the Bar at least two more luxury housing, and there must be a Yishanbangshui; lawyers rent a small 10 square meters rented rooms, summer is Zhenglong, winter is Bingjiao.
7, the Bar daily eat cabbage turnip, see poultry meat on the nausea and vomiting, taste Piandan small Hong Shaorou the lawyers want to eat every day, to see poultry meat on the DC saliva, to a partial taste.
8, the Bar often late to work, to immediately check on the work of aides, guidance from time to time in Jiangshan, Jiyangwenzi small lawyers took time every day to work, fear, the Bar can count on the sub-point sources, eat residual share Sunburn cold, Tianbao stomachs.
9, counsel to each of a number of good lawyers assistants, to help him care of day-to-day affairs, writing legal instruments; small lawyers hope that the Bar asked him to do assistants, dismissed from day to find the source of bitterness.
10, the Bar has never advertise in newspapers, is the so-called "natural musk deer Xiang" and "rich people in the mountains that" lawyers like small slit in a newspaper advertising, is the so-called "Shenpa people do not know" and "non-poor in the streets People asked. "
11, the Bar to see the department director level and above, more than chiefs nod Hayao Group, handed over Xiangying; lawyers to see Kejiyishang small cadres, the manager of two steps forward and three steps, plus a Jianbu, rushed into the last Data Bu Before embrace.
12, the Bar middle of the night two points are still busy with the daily entertainment, sing and dance in the dance halls, parlors in the city to accompany clients feet Chuibei; lawyers middle of the night two points are still small Maoyao care of their own websites, upload blog The article.
13, the Bar no longer appear basic, basic no longer writing articles, the basic no longer handle cases; small hope that the lawyers will appear in court every day, every day to the article, every day to handle cases.
14, a barrister by the end of each year from the cashier in the hands of the dividends received considerable; small lawyers by the end of each year, from the Office of the poor get a pot of oil.
15, the Bar overlooking the more than walk-visual, Mubuxieshi, firm and forceful steps; lawyers small walk to look up at more than head-up, Dongzhangxiwang, steps gingerly.
17, a barrister like to participate in the forum of Chinese lawyers, law firms such as director of the Forum summit meeting, several of the contributions from 1,000 yuan by the expenditure on the lawyers like to participate in the "Contract Law," "Company Law" and other business training Classes, several of the contributions go home 1,000 yuan from his wife claims.
18, the Bar frequently playing golf, the worst is bowling; small lawyers often play football, not Changzaijiuda badminton.
19, the Bar Biting always wear suits, black shoes with dark socks, never Liang Liang; small lawyers often wearing a wrinkled suit, black shoes with white socks, the Heels were stained with mud.
20, when tired of the Bar wanted to go to court when the president of the Guoyin, to the National People's Congress and CPPCC National Committee members when Yangyang; little trouble when the lawyers wanted to sell pork, Jian Laji, vowed not a lawyer.
21, the Bar counsel Yangaoshoudi often criticized the small, quick success, Xinfuqizao small Mental solicitors often rude Digu Bar arrogant, anything, not to counsel when the small people.
22, the Bar of a case may earn tens of millions of small number of cases lawyers may earn two to 3,000.
23, the Bar also Qiongsuan ago, very helpless, helpless, had looked at the sky in a daze; lawyers now very little ambition, very energetic, very backbone, often looked at the sun Chushen.
24, the Bar must be walked from lawyers in the small lawyers will one day become a barrister.
In this repeatedly stresses the fairness, justice, equality groups, lawyers not only in personal status, place in the division, divided into 369, also on the personal wealth in the division, a barrister and solicitor of small, and this Differentiation only less than 10 years. I do not want to barristers and solicitors under the definition of small, but merely to the Bar, on the lawyer's representation for a description of all kinds.
First, the Bar Association in various, various chambers of commerce of various Mingmufanduo hung the title, as president, vice president, chairman, vice chairman of the small addition to lawyers and lawyers outside the title of Master of Laws, no all.
Second, the Bar as 10 or even more than dozens of companies, enterprises, the legal adviser to lawyers only as small 1-2 companies, enterprises, the legal adviser, or even simply as a legal adviser may be.
Third, the lawyers working with a private car, many people even have private drivers, the value of his mount at least 300,000 yuan or more lawyers take small buses or ride bicycles to work.
4, the Bar mission, to arrange to travel by plane, living luxury hotels, eat abalone shark's fin; small business lawyer, to arrange to ride the train, long-distance bus, living small hotels, eat the order of the day.
5, the Bar is the source to find him, even to queue up appointments, customers continue; small lawyers are looking for the source of his, but I do not know the source of where to eat on the Dayton worry about the Dayton .
6, the Bar at least two more luxury housing, and there must be a Yishanbangshui; lawyers rent a small 10 square meters rented rooms, summer is Zhenglong, winter is Bingjiao.
7, the Bar daily eat cabbage turnip, see poultry meat on the nausea and vomiting, taste Piandan small Hong Shaorou the lawyers want to eat every day, to see poultry meat on the DC saliva, to a partial taste.
8, the Bar often late to work, to immediately check on the work of aides, guidance from time to time in Jiangshan, Jiyangwenzi small lawyers took time every day to work, fear, the Bar can count on the sub-point sources, eat residual share Sunburn cold, Tianbao stomachs.
9, counsel to each of a number of good lawyers assistants, to help him care of day-to-day affairs, writing legal instruments; small lawyers hope that the Bar asked him to do assistants, dismissed from day to find the source of bitterness.
10, the Bar has never advertise in newspapers, is the so-called "natural musk deer Xiang" and "rich people in the mountains that" lawyers like small slit in a newspaper advertising, is the so-called "Shenpa people do not know" and "non-poor in the streets People asked. "
11, the Bar to see the department director level and above, more than chiefs nod Hayao Group, handed over Xiangying; lawyers to see Kejiyishang small cadres, the manager of two steps forward and three steps, plus a Jianbu, rushed into the last Data Bu Before embrace.
12, the Bar middle of the night two points are still busy with the daily entertainment, sing and dance in the dance halls, parlors in the city to accompany clients feet Chuibei; lawyers middle of the night two points are still small Maoyao care of their own websites, upload blog The article.
13, the Bar no longer appear basic, basic no longer writing articles, the basic no longer handle cases; small hope that the lawyers will appear in court every day, every day to the article, every day to handle cases.
14, a barrister by the end of each year from the cashier in the hands of the dividends received considerable; small lawyers by the end of each year, from the Office of the poor get a pot of oil.
15, the Bar overlooking the more than walk-visual, Mubuxieshi, firm and forceful steps; lawyers small walk to look up at more than head-up, Dongzhangxiwang, steps gingerly.
17, a barrister like to participate in the forum of Chinese lawyers, law firms such as director of the Forum summit meeting, several of the contributions from 1,000 yuan by the expenditure on the lawyers like to participate in the "Contract Law," "Company Law" and other business training Classes, several of the contributions go home 1,000 yuan from his wife claims.
18, the Bar frequently playing golf, the worst is bowling; small lawyers often play football, not Changzaijiuda badminton.
19, the Bar Biting always wear suits, black shoes with dark socks, never Liang Liang; small lawyers often wearing a wrinkled suit, black shoes with white socks, the Heels were stained with mud.
20, when tired of the Bar wanted to go to court when the president of the Guoyin, to the National People's Congress and CPPCC National Committee members when Yangyang; little trouble when the lawyers wanted to sell pork, Jian Laji, vowed not a lawyer.
21, the Bar counsel Yangaoshoudi often criticized the small, quick success, Xinfuqizao small Mental solicitors often rude Digu Bar arrogant, anything, not to counsel when the small people.
22, the Bar of a case may earn tens of millions of small number of cases lawyers may earn two to 3,000.
23, the Bar also Qiongsuan ago, very helpless, helpless, had looked at the sky in a daze; lawyers now very little ambition, very energetic, very backbone, often looked at the sun Chushen.
24, the Bar must be walked from lawyers in the small lawyers will one day become a barrister.
Who are the lawyers to Jueya
May 2006, Ukraine has Ukrainian Eastern Municipal Court of First Instance ruled that the water on bribery 780,000, including the Zixu lawyers sent to the 8,000 yuan. Because the water from its main facts have no objection to taking bribes, lawyers and Zixu friends such as whether the Lishangwanglai bribery finds that the sentence is almost no influence, so there will be no appeal.
December 2006, virtual Provincial Justice Department to a group suspected of bribing judges to lawyers to administrative punishment, which is also Zixu lawyers. Zixu defence lawyers in the hearing that his book on the water and the exchanges between the Lishangwanglai was a friend, the specific reasons are as follows:
1, I was on the water with a friend for many years, this city in Uzbekistan is well known that the fact that the Court of the Eastern Ukraine and I will be on the water between the economic exchanges only in the amount of money on the simple addition and subtraction, without taking into account of The existence of water on that, on bribery 8,000 yuan is wrong.
2, we assume that the water on the act of taking bribes, I do not exist the question of bribery, because I have never sought any benefit to the water on to the gifts. "Criminal Law (sub) and a new interpretation of the provisions of the new" On the non-bribery and bribery, stressed: In order to reap the legitimate interests of sending money, does not constitute a crime of bribery, but accept the property of national staff can still pose a The crime of taking bribes. Embodies the national legislation on the civil service to set strict demands. In this sense, not any time bribery, and bribery at the same time constitute a crime, the two sides do not need an accomplice. This shows that even under this assumption, I also out with bribery Furthermore, the judgement only on the water that I gave 5,000 yuan, that I did not bribery.
3, in accordance with the "Criminal Law" of the 389th, only in order to gain undue benefit to the national staff of sending money, constitutes bribery. In this sense, I am farther away from the bribery. I give the water on gifts because he gave me gifts, the two sides are friends, not to gain undue advantage.
4, I assume that the verdict on bribery to 8,000 yuan in water, then I do not have any effect, because the Eastern District Court of Ukraine on the water and bribery trial of a case, I did not notice appeared in court Testimony, "the Code of Criminal Procedure," the first 47 clear Provides that: "the testimony of witnesses must be in court after prosecutors, victims and the accused, both sides questioning counsel, Testimony, listen to the testimony of witnesses and after the investigation, the order as the basis for a final decision." Ukraine court in the Eastern appearance, I did not notice the circumstances, even the prosecutors do not refer to transcripts of the investigation, only according to their own subjective assumption that the water, I received the 8,000 yuan for taking bribes or assumptions that my actions as bribery, It is illegal, I do not have any meaning.
然而. Through the hearings, virtual Provincial Justice Department lawyers still believe that the conduct is Zixu bribery, based on the "core evidence" That is the verdict. They believe that there is a bribe and bribery. They also admitted that the defence lawyers Zixu some reason, only the judgement that they only recognize the fact that, while not admissible Zixu the defence lawyers, and even the Eastern Ukraine court judgement is based on the prosecution's investigation to verify the record can not be, because they are no The right to the judgement of the Court for review. They told Zixu lawyers, you have ability you want ways to overthrow the Ukrainian share of the Eastern judgement, the court found that as long as the Eastern Ukraine on the water at 8,000 yuan you are not taking bribes, you do not exist the question of bribery.
Zixu lawyers are helpless to say: That the judgement, he is only a witness, he is also non-party non-judicial organs, so he can not overturn a judgement, this is a road to ruin. But our judicial administrative organs in knowing That judgement in the process (no notice of witnesses appeared in court Testimony) and entities (the normal between friends found a gift for taking bribes) there is an obvious problem, still use it to punish lawyers, no doubt Is the consumption of poisonous tree fruit.
Virtual Provincial Justice Department but it becomes all the more helpless, they said, according to the Constitution, they are obliged to respect the people's court's judgement, but has no power to review the judgement of the Court, even if there is a clear That judgement error.
I relate this situation to Zixu lawyers that he give up the hearing or administrative proceedings, had diverted to other utilities. Zixu lawyers can be said: I am not for myself, Beijing, a lawyer told me that this is what the whole of China Law Society. If the Provincial Justice Department based on a virtual procedures in both entities and there is an obvious error of judgement to the punishment of lawyers is no doubt in our legal system damage, if this precedent set, the entire Chinese lawyers will be imminent disaster. Because any court or prosecutors can not look at them to a lawyer Chejin Shunyan a criminal case where, as long as they forged a lawyer's "testimony" can get on the court read out, anyway you lawyers just a witness , Does not intend to present in court Testimony to inform you, you had no right of entry into force of the ruling start retrial procedures, and judicial administrative organs only recognized judgement do not know the facts, that allows you to "school" you have "school." As a result, Let's lawyers have Huolu? »
Whether you believe it or not, I really can not for themselves. I was being entered for the legal profession and the ranks of lawyers who are exhausted colleagues, Zixu lawyers said some excitement. Because I the lawsuit on the use and will not do lawyers, revoking their licenses have been speaking to me or not does not matter.
December 2006, virtual Provincial Justice Department to a group suspected of bribing judges to lawyers to administrative punishment, which is also Zixu lawyers. Zixu defence lawyers in the hearing that his book on the water and the exchanges between the Lishangwanglai was a friend, the specific reasons are as follows:
1, I was on the water with a friend for many years, this city in Uzbekistan is well known that the fact that the Court of the Eastern Ukraine and I will be on the water between the economic exchanges only in the amount of money on the simple addition and subtraction, without taking into account of The existence of water on that, on bribery 8,000 yuan is wrong.
2, we assume that the water on the act of taking bribes, I do not exist the question of bribery, because I have never sought any benefit to the water on to the gifts. "Criminal Law (sub) and a new interpretation of the provisions of the new" On the non-bribery and bribery, stressed: In order to reap the legitimate interests of sending money, does not constitute a crime of bribery, but accept the property of national staff can still pose a The crime of taking bribes. Embodies the national legislation on the civil service to set strict demands. In this sense, not any time bribery, and bribery at the same time constitute a crime, the two sides do not need an accomplice. This shows that even under this assumption, I also out with bribery Furthermore, the judgement only on the water that I gave 5,000 yuan, that I did not bribery.
3, in accordance with the "Criminal Law" of the 389th, only in order to gain undue benefit to the national staff of sending money, constitutes bribery. In this sense, I am farther away from the bribery. I give the water on gifts because he gave me gifts, the two sides are friends, not to gain undue advantage.
4, I assume that the verdict on bribery to 8,000 yuan in water, then I do not have any effect, because the Eastern District Court of Ukraine on the water and bribery trial of a case, I did not notice appeared in court Testimony, "the Code of Criminal Procedure," the first 47 clear Provides that: "the testimony of witnesses must be in court after prosecutors, victims and the accused, both sides questioning counsel, Testimony, listen to the testimony of witnesses and after the investigation, the order as the basis for a final decision." Ukraine court in the Eastern appearance, I did not notice the circumstances, even the prosecutors do not refer to transcripts of the investigation, only according to their own subjective assumption that the water, I received the 8,000 yuan for taking bribes or assumptions that my actions as bribery, It is illegal, I do not have any meaning.
然而. Through the hearings, virtual Provincial Justice Department lawyers still believe that the conduct is Zixu bribery, based on the "core evidence" That is the verdict. They believe that there is a bribe and bribery. They also admitted that the defence lawyers Zixu some reason, only the judgement that they only recognize the fact that, while not admissible Zixu the defence lawyers, and even the Eastern Ukraine court judgement is based on the prosecution's investigation to verify the record can not be, because they are no The right to the judgement of the Court for review. They told Zixu lawyers, you have ability you want ways to overthrow the Ukrainian share of the Eastern judgement, the court found that as long as the Eastern Ukraine on the water at 8,000 yuan you are not taking bribes, you do not exist the question of bribery.
Zixu lawyers are helpless to say: That the judgement, he is only a witness, he is also non-party non-judicial organs, so he can not overturn a judgement, this is a road to ruin. But our judicial administrative organs in knowing That judgement in the process (no notice of witnesses appeared in court Testimony) and entities (the normal between friends found a gift for taking bribes) there is an obvious problem, still use it to punish lawyers, no doubt Is the consumption of poisonous tree fruit.
Virtual Provincial Justice Department but it becomes all the more helpless, they said, according to the Constitution, they are obliged to respect the people's court's judgement, but has no power to review the judgement of the Court, even if there is a clear That judgement error.
I relate this situation to Zixu lawyers that he give up the hearing or administrative proceedings, had diverted to other utilities. Zixu lawyers can be said: I am not for myself, Beijing, a lawyer told me that this is what the whole of China Law Society. If the Provincial Justice Department based on a virtual procedures in both entities and there is an obvious error of judgement to the punishment of lawyers is no doubt in our legal system damage, if this precedent set, the entire Chinese lawyers will be imminent disaster. Because any court or prosecutors can not look at them to a lawyer Chejin Shunyan a criminal case where, as long as they forged a lawyer's "testimony" can get on the court read out, anyway you lawyers just a witness , Does not intend to present in court Testimony to inform you, you had no right of entry into force of the ruling start retrial procedures, and judicial administrative organs only recognized judgement do not know the facts, that allows you to "school" you have "school." As a result, Let's lawyers have Huolu? »
Whether you believe it or not, I really can not for themselves. I was being entered for the legal profession and the ranks of lawyers who are exhausted colleagues, Zixu lawyers said some excitement. Because I the lawsuit on the use and will not do lawyers, revoking their licenses have been speaking to me or not does not matter.
The lawyer is how to Make
Lawyers do the source of continuous, high-profile, both Jinyiyusi, there , material, spiritual double harvest, is really Yan Chan. In the legal profession, if we say that the Bar is the messenger of justice, human rights fighters, to stand against the vulnerable side with the power, then lawyers and legal reality is a compromise and the balance, to cope with the in temples and the political arena, officials and ordinary people And if that is legal counsel, and the lawyers are legal Carpenter; If the Bar is the sun, the stars are lawyers, there is only one sun, and there are countless stars, looking around the world, the Bar and were less More than just lawyers.
However, lawyers do not take place overnight, from the Law of Health to be lawyers, to the first primary grade to sixth grade, for example analog lawyers growth stage, it can be said is the first year the mandate of the Faculty of Law is studying the legal theoretical study, this Langtunhuyan predecessors to stage results and teachings, mainly, most people need to study hard, because a small number of people at the college entrance examination system has not been Tiancuo voluntary learning, but this does not prevent them to become lawyers, such person is Keban The lawyer who often look down on the illegal lawyers.
By second grade, need to practice, then the law of this illegal and have adopted Sikao, started trainee solicitor. This stage is characterized by hardships and poverty, "than from the chicken early, did more than donkeys, cats eat less than" the image of this stage is an analogy. Some trainee solicitor is no one to pay attention, there is no available, the bench 2001. At this stage many people were repulsed, they Mamalielie or Yuanqichongtian to disperse. In order to tide over difficult period, some people played a small smart, simply linked to the internship.
The remaining lawyers and in some linked to the second-year internship, has now entered the third grade, the main stage of learning how to win customers confidence and avoid risk practice. At this time, the difference between the two demonstrated. They are like soldiers, like assault, but the fighting capacity is quite different. Second-year internship seriously, good results, there are norms of tactical movements, know how to use topography to protect themselves, the masking of destroying the enemy, while linked to the internship, then the tactical action was not standardized, or hit by the enemy, or nothing. This stage, we should also learn patience and learn to face the source of the small firm belief, persist in studying.
To the fourth school year, the decline does not adhere to live with their lawyers, and the third grade when Jibuzesi, the case Laizhebuju of them, this stage should study the case rationally choose, select customers, in the face of temptation, Fixed Shengse. At this time, practice mentality among students in fourth grade, extensive exchange.
Fifth grade, the lawyers have more customers, increasing experience and sentiment, they words appropriate, clothing Guangxian, began to appear as an expert in media and large companies. This stage they have to learn judgement, the Institute of the proceedings and litigation between the non-choice, learn to have broken down the length of Legal Affairs. At this time, they see too many dark and the Inside Story, the experience of reading countless people to enable them to have their own understanding of human nature.
The last school year - to the sixth grade, at this stage need to learn a strong, strong to overcome fatigue, strong in the face of self, self-rescue, so that they are not suspected of sinking in the mire, and re-Desk of the law of passion and admiration . At this point, sixth-grade students do not have to have skills in law, the end result is the soul of their choice. Overlooking the area, they no longer enemies.
However, lawyers do not take place overnight, from the Law of Health to be lawyers, to the first primary grade to sixth grade, for example analog lawyers growth stage, it can be said is the first year the mandate of the Faculty of Law is studying the legal theoretical study, this Langtunhuyan predecessors to stage results and teachings, mainly, most people need to study hard, because a small number of people at the college entrance examination system has not been Tiancuo voluntary learning, but this does not prevent them to become lawyers, such person is Keban The lawyer who often look down on the illegal lawyers.
By second grade, need to practice, then the law of this illegal and have adopted Sikao, started trainee solicitor. This stage is characterized by hardships and poverty, "than from the chicken early, did more than donkeys, cats eat less than" the image of this stage is an analogy. Some trainee solicitor is no one to pay attention, there is no available, the bench 2001. At this stage many people were repulsed, they Mamalielie or Yuanqichongtian to disperse. In order to tide over difficult period, some people played a small smart, simply linked to the internship.
The remaining lawyers and in some linked to the second-year internship, has now entered the third grade, the main stage of learning how to win customers confidence and avoid risk practice. At this time, the difference between the two demonstrated. They are like soldiers, like assault, but the fighting capacity is quite different. Second-year internship seriously, good results, there are norms of tactical movements, know how to use topography to protect themselves, the masking of destroying the enemy, while linked to the internship, then the tactical action was not standardized, or hit by the enemy, or nothing. This stage, we should also learn patience and learn to face the source of the small firm belief, persist in studying.
To the fourth school year, the decline does not adhere to live with their lawyers, and the third grade when Jibuzesi, the case Laizhebuju of them, this stage should study the case rationally choose, select customers, in the face of temptation, Fixed Shengse. At this time, practice mentality among students in fourth grade, extensive exchange.
Fifth grade, the lawyers have more customers, increasing experience and sentiment, they words appropriate, clothing Guangxian, began to appear as an expert in media and large companies. This stage they have to learn judgement, the Institute of the proceedings and litigation between the non-choice, learn to have broken down the length of Legal Affairs. At this time, they see too many dark and the Inside Story, the experience of reading countless people to enable them to have their own understanding of human nature.
The last school year - to the sixth grade, at this stage need to learn a strong, strong to overcome fatigue, strong in the face of self, self-rescue, so that they are not suspected of sinking in the mire, and re-Desk of the law of passion and admiration . At this point, sixth-grade students do not have to have skills in law, the end result is the soul of their choice. Overlooking the area, they no longer enemies.
Lawyers must ask the right questions: lawyers Digest five founding anniversary of 42
"Bar Digest" five-year-old, what is written » Write its shortcomings, their limited ability. Say good words and consciously "Wangpomaigua." Because, in my feelings are on their own, "lawyer Digest" in one. "Upgrading lawyers realm of life, raise the level of business lawyers" is "Potpourri" Running the purpose and mission, which I chaired by the (points eye) School of Political Science and Law Network's vision echoes. Carnival festival may not do! I and the law on management and marketing of several lawyers do superficial Analysis of the problem, to practice the "Digest" purpose and mission to bless "digest"!
One problem: lawyers is a "merchant" »
It was very sure that lawyer is the businessman. This is because lawyers will betray their legal knowledge and access to the client on price, is a typical transaction. Opponents believe that lawyers are the embodiment of fairness and justice, the Law Society of noble descent is how can we become a businessman. In fact, it seems to me that the original is a pseudo-problem! Is not it »
Assumptions, we agree with the former view. Not only will soon hurt the feelings of many lawyers, even if the client also will not agree to this. How that they are willing to hire a lawyer, is a two Green, mercenary, dead guy pegged his wallet. Normal people do not want lawyers are "merchant", can be compared to doctors and patients do not want to, teachers and students on the sale of the same, just like we do not want Guodong brother with a "lawyer Digest", like when the money tree.
Conversely, if we do not agree with the previous point of view. Then, clients, "said Qi Jing cases, soft fresh start with pay," how will the situation change » If clients are not considered to be fair, the embodiment of justice - lawyers paid, should the lawyers who is going to solve the livelihood » The Eternal Flame lawyers how memory is »
Experience tells us that when the pros and cons of the issue without a solution, that this issue has its own problems. Where is the problem » I think there are at least two points worth considering: First of all, the reason the lawyers to discuss the issue, mainly to clarify the role of the professional lawyers, lawyers to enter the mainstream of society or the more dominant society, resulting in "the division" should have Dignity. However, the people of a respected professional career does not depend on the identity or the sacred, but in this career of dedication and spirit of the actual character. Current "As a whole, the Bar did not entrust the fate of people demonstrated the spirit of quality" (SHU Guo Ying language), no contribution to GDP and the number of taxes, etc.. Therefore, the dedication of dignity left, the more the loss of dignity! Another more fatal errors, the lawyers ignored the existence and value of businessmen. In this we may as well ask: how a businessman » Businessmen as lawyers » ! The answer is self-evident. To look at arguments: "To do business !" "People first" and "customer first" and "subsidy" and "charity", "Modern companies have to assume more responsibility for social obligations"…… Please note: businessmen do not Equivalent to unscrupulous merchants, Bill »Gates, and other modern capitalists are seeking fairness, justice and social play! Lawyers and businessmen and not the moral difference, but the product is different. Lawyers can not Bajie a businessman businessmen, Ma Zhe, a client note. Some people say that "for lawyers to name!" I think we in the legal profession "for businessmen name!"
Correct the problem is that Chinese lawyers should learn how to outstanding businessmen, and legal services "cake" bigger - vigorously develop the productivity of industry lawyers. So, the development of productive forces and relations of production can change it »
Second question: do the preferences or small preferences »
This, two years, the rise of the legal profession merger wind, many law by the merger have formed a "joint fleet." But the result is that some Laoyanfenfei Gebendongxi soon, and some makeshift although reluctantly, but the results are "1 +1 <2." On the contrary, by a group of small and medium-sized professional commitment to the road of stable development success. Thus, it was concluded that: "the implementation of the legal profession not by the model", "do not do small by the preferences." What is it true » No, definitely not!
Remember Agui often said that "lawyers are industries." If China really Chengde Qi lawyer for an industry, then it may be one of the most vulnerable sectors. I want to say is that any one industry if not a large number of "aircraft carrier" the backbone to do, then this is definitely not someone to the industry! The market will never give taxpayers very little, very small contribution to the GDP of the main enjoyment of the more noble and moral dignity! Therefore, my basic understanding is, first of all to make this industry, and the industry will make a big indispensable by. At the same time, not only by the bigger, "and by" a shortcut, can at least "and people". Secondly, it is impossible any one industry are "Big Brother" and not "little brother." "Da Zhongxiao" Coordination is the industry keep abreast of the times the normal pattern, "in the" service industry is both healthy sign. As for the "1 +1 <2" phenomenon, we need to Xinxi such as the analysis, if the post-merger "by the" only Zhongguancun "Hailong Building," (the self-employed rental counters) piracy, it is not the problem but the merger Management did not follow-up question. Furthermore, even if the merger failed, but also could not confirm do better by the Office of the small. Therefore, it seems to me how quickly build a number of "a large force led by" the managers, is the correct problems.
3: lawyers could not advertise »
It is said that lawyers advertising such a topic "old U.S." there is also controversy in the two centuries. But to the dispute between the United States has information statistics law firm marketing 93 members of the Committee has reached 1,100, these people is mainly lawyers on marketing including how to advertise. And we have lawyers, including some "high level" that lawyers are noble descent, how can your business card or the streets or in front of the court, "Lian Tan"? » First of all, I would like to ask is: when the current Chinese lawyers had noble descent » Fight from the Office of the State to cooperation, to the partnership. Chinese lawyers from the state legal workers - the people's servants, to the liberal professions, and individual taxpayers. Even if the DNA identification of origin do not find a little bit of fear also noble genes. People still remember that the 1980s all the people to put out to sea, "six groups" take the lead to take to the streets "share practice", I am familiar with, a vice mayor Zhang also with the erhu-EDGE sing. All income-generating the 1990s, public security, procuratorial, law, the Secretary for all income-generating target shouldering. So far, but also from time to time came for the judiciary did not complete a "introduced" to criticize the mandate of such a message. In such an ecological, officials even so, Chinese lawyers do not like no matter how noble descent officials of the Bar » I have to poke lawyers this hurts, do not want to return, "the official of your cheap," just want to tell you that even in normal market economy, lawyers, advertising or business cards along, "Lian Tan," what does not Wrong. Just imagine, if lawyers do is public service ads, business cards of the assistance, provided by the stalls is the ordinary people are hard to find the services, what is this bad? » And how can they would lose dignity or dignity? » The crux of the matter is that the Law School does not teach marketing, lawyers do not understand marketing. Including lawyers marketing the concept, characteristics, principles, roles, taboos, planning and marketing an effective way to lawyers and so on, know little about. Ad people do not understand the advertising, marketing people do not know how to do marketing, not the problem before it strange.
"Marketing is the delivery of justice lawyers a tool!" Crude ad Who do injury Who! This is because consumers have "refused to sell" nature. Therefore, lawyers learn how to enrich your knowledge and marketing with scientific theories to guide their advertising and effective marketing » Is the correct problems.
Conclusion: lawyer who is not a problem of too many too many problems, I can only Paozhuanyinyu. But I hope that "has a special responsibility," the lawyers must ask the right questions, do not like "A lot of people with life-time to those who answered the wrong question."
One problem: lawyers is a "merchant" »
It was very sure that lawyer is the businessman. This is because lawyers will betray their legal knowledge and access to the client on price, is a typical transaction. Opponents believe that lawyers are the embodiment of fairness and justice, the Law Society of noble descent is how can we become a businessman. In fact, it seems to me that the original is a pseudo-problem! Is not it »
Assumptions, we agree with the former view. Not only will soon hurt the feelings of many lawyers, even if the client also will not agree to this. How that they are willing to hire a lawyer, is a two Green, mercenary, dead guy pegged his wallet. Normal people do not want lawyers are "merchant", can be compared to doctors and patients do not want to, teachers and students on the sale of the same, just like we do not want Guodong brother with a "lawyer Digest", like when the money tree.
Conversely, if we do not agree with the previous point of view. Then, clients, "said Qi Jing cases, soft fresh start with pay," how will the situation change » If clients are not considered to be fair, the embodiment of justice - lawyers paid, should the lawyers who is going to solve the livelihood » The Eternal Flame lawyers how memory is »
Experience tells us that when the pros and cons of the issue without a solution, that this issue has its own problems. Where is the problem » I think there are at least two points worth considering: First of all, the reason the lawyers to discuss the issue, mainly to clarify the role of the professional lawyers, lawyers to enter the mainstream of society or the more dominant society, resulting in "the division" should have Dignity. However, the people of a respected professional career does not depend on the identity or the sacred, but in this career of dedication and spirit of the actual character. Current "As a whole, the Bar did not entrust the fate of people demonstrated the spirit of quality" (SHU Guo Ying language), no contribution to GDP and the number of taxes, etc.. Therefore, the dedication of dignity left, the more the loss of dignity! Another more fatal errors, the lawyers ignored the existence and value of businessmen. In this we may as well ask: how a businessman » Businessmen as lawyers » ! The answer is self-evident. To look at arguments: "To do business !" "People first" and "customer first" and "subsidy" and "charity", "Modern companies have to assume more responsibility for social obligations"…… Please note: businessmen do not Equivalent to unscrupulous merchants, Bill »Gates, and other modern capitalists are seeking fairness, justice and social play! Lawyers and businessmen and not the moral difference, but the product is different. Lawyers can not Bajie a businessman businessmen, Ma Zhe, a client note. Some people say that "for lawyers to name!" I think we in the legal profession "for businessmen name!"
Correct the problem is that Chinese lawyers should learn how to outstanding businessmen, and legal services "cake" bigger - vigorously develop the productivity of industry lawyers. So, the development of productive forces and relations of production can change it »
Second question: do the preferences or small preferences »
This, two years, the rise of the legal profession merger wind, many law by the merger have formed a "joint fleet." But the result is that some Laoyanfenfei Gebendongxi soon, and some makeshift although reluctantly, but the results are "1 +1 <2." On the contrary, by a group of small and medium-sized professional commitment to the road of stable development success. Thus, it was concluded that: "the implementation of the legal profession not by the model", "do not do small by the preferences." What is it true » No, definitely not!
Remember Agui often said that "lawyers are industries." If China really Chengde Qi lawyer for an industry, then it may be one of the most vulnerable sectors. I want to say is that any one industry if not a large number of "aircraft carrier" the backbone to do, then this is definitely not someone to the industry! The market will never give taxpayers very little, very small contribution to the GDP of the main enjoyment of the more noble and moral dignity! Therefore, my basic understanding is, first of all to make this industry, and the industry will make a big indispensable by. At the same time, not only by the bigger, "and by" a shortcut, can at least "and people". Secondly, it is impossible any one industry are "Big Brother" and not "little brother." "Da Zhongxiao" Coordination is the industry keep abreast of the times the normal pattern, "in the" service industry is both healthy sign. As for the "1 +1 <2" phenomenon, we need to Xinxi such as the analysis, if the post-merger "by the" only Zhongguancun "Hailong Building," (the self-employed rental counters) piracy, it is not the problem but the merger Management did not follow-up question. Furthermore, even if the merger failed, but also could not confirm do better by the Office of the small. Therefore, it seems to me how quickly build a number of "a large force led by" the managers, is the correct problems.
3: lawyers could not advertise »
It is said that lawyers advertising such a topic "old U.S." there is also controversy in the two centuries. But to the dispute between the United States has information statistics law firm marketing 93 members of the Committee has reached 1,100, these people is mainly lawyers on marketing including how to advertise. And we have lawyers, including some "high level" that lawyers are noble descent, how can your business card or the streets or in front of the court, "Lian Tan"? » First of all, I would like to ask is: when the current Chinese lawyers had noble descent » Fight from the Office of the State to cooperation, to the partnership. Chinese lawyers from the state legal workers - the people's servants, to the liberal professions, and individual taxpayers. Even if the DNA identification of origin do not find a little bit of fear also noble genes. People still remember that the 1980s all the people to put out to sea, "six groups" take the lead to take to the streets "share practice", I am familiar with, a vice mayor Zhang also with the erhu-EDGE sing. All income-generating the 1990s, public security, procuratorial, law, the Secretary for all income-generating target shouldering. So far, but also from time to time came for the judiciary did not complete a "introduced" to criticize the mandate of such a message. In such an ecological, officials even so, Chinese lawyers do not like no matter how noble descent officials of the Bar » I have to poke lawyers this hurts, do not want to return, "the official of your cheap," just want to tell you that even in normal market economy, lawyers, advertising or business cards along, "Lian Tan," what does not Wrong. Just imagine, if lawyers do is public service ads, business cards of the assistance, provided by the stalls is the ordinary people are hard to find the services, what is this bad? » And how can they would lose dignity or dignity? » The crux of the matter is that the Law School does not teach marketing, lawyers do not understand marketing. Including lawyers marketing the concept, characteristics, principles, roles, taboos, planning and marketing an effective way to lawyers and so on, know little about. Ad people do not understand the advertising, marketing people do not know how to do marketing, not the problem before it strange.
"Marketing is the delivery of justice lawyers a tool!" Crude ad Who do injury Who! This is because consumers have "refused to sell" nature. Therefore, lawyers learn how to enrich your knowledge and marketing with scientific theories to guide their advertising and effective marketing » Is the correct problems.
Conclusion: lawyer who is not a problem of too many too many problems, I can only Paozhuanyinyu. But I hope that "has a special responsibility," the lawyers must ask the right questions, do not like "A lot of people with life-time to those who answered the wrong question."
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