The Lawyers' Association Under The Scope Of Administrative Law

This Essay focus on the legal position, responsibility of the Lawyers' Association (hereinafter refereed to as "LA"), rights and regulations, members' rights and its remedies and the relationship between the State authority and its members from the view of administrative law by the means of regulating analysis, case study, historic research and comparative mechanism with the guidance of dialectic materialism and historical materialism.This Essay divided into five (5) Chapters with the addition of Guidance, Conclusion and References."The Guidance" consist of three (3) parts, including background, significance to select this topic, current position and material comprehension, contents structure as well as creation of this essay. This Essay try to do the research on the legal position, responsibility of the LA and the relation among the State authorities and its members from the angle of administrative law, choosing the LA as new public person to the administration to be the research object. This Essay shows the novelty, unique on the subject and creativeness of the research on the legal statues, characteristic and source and the relation between LA and State authorities. The significances of this Essay both of historic and realistic sides include but not limited to: a) enhance the development of subject theory of the administrative law; b) view the great change of the administrative legal relationship; c) solute the legal problems sourcing from public administrative renovation; d) push forward the regularization of the LA and other organization.Chapter 1 "The Statue of the LA among the Administrative Relation." This Chapter discussed the source and development, characteristics and specialty and its statue and function of the LA. From the author's view of point, the LA shall be the organization of independent legal entity, non-profitable civil and self-disciplinary organization with organic, civil (non-governmental), non-profitable, intermediate, self-disciplinary, non-voluntary, mutual and legal specialties. The two-tie statues of the LA within the administrative legal relations shall become the person to the administration as well as the opposite person to the administration with the functions of communication and coordination, profit expression, self-governance, right of protection and harmonization, etc.Chapter 2 "the Basic Models of the Relationship between LA and State Authorities". This Chapter discussed the evolution of the public administration and the relationship between state and society, basic models about foreign LA and State authorities, the relationship between Chinese LA and State authorities as well as the developmental tendency on the relationship between LA and State authorities. In the view of author, the relationship between LA and State authorities is only the reflection of the relationship between State and sociality and the development of the public administration and administrative legal relation. It cause the relative changes on the relationship between LA and State authority as the socialization of the public administrative power and multiplication of the person to the administration.There are three (3) models of the relation between the LA all over the world and the State organs: a) "Administrative Control" represented by Germany, where the LA exercise the management duties for the lawyers together with the judicial department and accepting the control by the judicial department; b) "Judicial Control" represented by American, where the LA mutually cooperated and checked together with judicial department; c) "Self-governance" represented by Japan, where the LA self-control beyond the judicial department and the court. d) "Two-tie Control"represented by China, where the judicial department and LA jointly exercises the rights on the control lawyers and its institutes.The relationship between the LA and the State authority had passed four (4) stages in China, and shall be the co-ordination, guidance and check as for its relationship in the future.Chapter 3 "Relationship between LA and its Members". This Chapter discussed the structure of LA and operating mechanism, relationship among the LA, lawyers and lawyers' institute. From the view of the author, it bas become the source of the great change that the research on the socialization of the administrative power, multiplicity of the administrative subject and administrative operation. The relationship between LA, lawyer and lawyer's institute shall have three (3) catalogues, which is representation, service, management and double-side check. There are three (3) types for their relationship of parallel, check and guidance between the local LA and the All China Lawyers Association.Chapter 4 "the Right of LA and its Rules". This Chapter focus on the rights of contents, nature, sourcing and rules of LA. The rights of the LA shall include the right of regulation, check and control, disciplinary punishment, dispute settlement and representation. And it belongs to the civil and self-governing rights as the social entity in its nature. It may source from the covenant of the necessity of protecting common interests by specified member same as the State other than the delegation from the State authorities for such self-governance right. The LA shall also accept the check and control by the State administrative authorities and lawyer's organ internally during the process of exercising the right because of the malfeasance and misuse done by the LA.Chapter 5 "the Rights of its Member and Efficiency Remedy". This Chapter discussed the substantial and procedural rights as a person to the administration and its member, as well as the remedies for such rights. As for exercise of the rights of the check and control of self-governance, the LA become a person to the administration. And the lawyer or its institute may also become the opposite person to the administration while their rights may be influenced directly or indirectly. Any of the individual member or entity member shall have their rights from the by-laws of LA, such as the rights of information, participation, profit, statement, defense, appeal, etc. Should such right may suffers any infringement, the member of LA shall have the rights to seek for various remedies through LA and judicial department.