Judicial Relief Of Disciplinary Action In Lawyer Profession

According to the four conditions specified in Law of Lawyer and Rules against Illegal Activities for Members of the Lawyer Association that shall be disciplined,lawyer association will take disciplinary action against its members,which includes reprimand,warning,public censure,circulating a notice of criticism,suspending member rights and membership cancellation.From the aspect of specification,the disciplinary action in lawyer profession means that the lawyer association shall discipline respondent in a rather mild way after accepting complaint and necessary investigation.From the aspect of reality,as the whole lawyer profession’s management agency,the disciplinary action may cause significant and direct impact on the commission acceptance and remuneration of the respondent.Although the disciplinary action seems mild,it may cause serious consequences and be lack of powerful relief mechanism of law.This paper researches the judicial relief for the disciplinary action in lawyer profession,takes a comprehensive application of the normative analysis,historical analysis,case study,value analysis and so on to demonstrate the necessity and pattern of judicial relief,which may offer some references for the relief of the association discipline.At present,in terms of the right relief for the complainant and respondent,there are internal relief and external relief.Based on the disciplinary rules made by association,the internal relief mechanism is composed of conciliation proceedings,hearing proceedings,re-examination procedures,while external relief mechanism mainly refers to judicial relief.Both of them are indispensable,jointly maintain the orderly operation of the disciplinary power and guarantee the right of complainant and respondent.Today,the system of disciplinary rules that guide internal relief is not perfect;the All China Lawyers Association only publishes the framework of provisions,and the lawyer associations in many areas do not even formulate the specific working regulation.The imperfection of the normative document of the lawyer association is also reflected in the detailed rules for the implementation of the six disciplines.Since there is no unified regulations,the lawyer associations in some areas are slack to formulate the detailed rules and regulations,and there is no precedent that the disciplinary decision of lawyer association enters the procedure of re-examination,it is doubtful for the relief effect of the internal procedure of the lawyer association.At the same time,because the court insists that disciplinary action does not belong to the scope of accepting cases of administrative proceeding,the relief rights of the complainant and respondents are facing internal and external dilemmas,which objectively increases the possibility that the lawyer association would have abused the disciplinary power.In consideration of the situation that the internal relief cannot satisfy the basic procedural requirement,the establishment of judicial relief system is the key to settle the problem.The relationship between autonomy and administration of justice is complex,on the one hand,autonomy can motivate the internal creativity of the profession and make the profession solve the problem in itself,on the other hand,the power of profession association is mastered by the minority,and the power operation and the exchange of interests have always been an accident-prone area,which requires the supervision of judicial capacity at the national level,and provides the rights protection for the complainant and the respondent.After confirming the necessity of judicial relief,it is found that there are no legal text,judicial interpretation text or other texts to stipulate that the disciplinary action chooses administrative proceeding or civil proceeding.There are two kinds of opinions in educational circles on selection of judicial mode: categorization theory and unity theory.Categorization theory believes that the associative discipline of voluntary association shall adopt the civil proceeding mode,while unity theory thinks that the associative punishment shall take administrative proceeding mode.After criticizing the categorization theory,this paper affirms the advantages of adopting the administrative proceeding mode from the perspective of power supervision and right relief.Supposing that after the disciplinary action is included in the scope of administrative proceedings,the overall principle that educational circles construct the adjudication rule is to respect the autonomy of the association and adhere to the limit of modest judicial review.This paper carries out the criticism and discussion from the aspect of accepting and hearing a case,review intensity and incidental review.In terms of the condition of accepting and hearing a case,it is more proper for the prosecutor to freely make a choice between internal relief and initiation of legal proceedings.In terms of the review intensity,the court should attach equal importance to lawful review and rational review.In terms of incidental review,the court may review the normative document formulated by lawyer association in accordance with the application of the plaintiff,and the terms which be judged as the unreasonable terms are not appropriate to be used as the judicial basis.