A Study On The Judicial Relief Mechanism Of The Sanctions By The Bar Association

Last year,the Ministry of Justice officially released the Task List of the 2020 Judicial Administrative Reform,with a total of 57 reform measures,One of the important contents is to improve the management system of lawyers,and make the Lawyers Law of the People’s Republic of China(hereinafter referred to as the Lawyers Law)well amended.As an important representative of modern industry organizations,the definition and sanctions of the Bar Association are still controversial in the theoretical and practical circles.To this end,this article has conducted a systematic analysis of this issue,and put forward opinions and suggestions on whether it enjoys the right to judicial relief and how to conduct judicial relief.Under the dual role of state authorization and industry autonomy,the legal status of the bar association should be clarified first,and on this basis,a differentiated analysis of the nature of its sanctions should be made.On the one hand,sanctions implemented within the scope of state authorization should be regarded as the exercise of state power,and their actions should be included in the scope of administrative litigation.On the other hand,the independence of the bar association determines that it has the qualifications of the main body to exercise the common interests of the society in the industry,which means that the exercise of its autonomy should not be excessively interfered.At the same time,according to the classification of the punishment behaviors of different identity subjects within the bar association,the emphasis is on distinguishing lawyer members and lawyer practice intern applicants.This is also the key to distinguishing judicial remedies.Among them,the nature of the management behavior produced by the latter must be more important.Grasp its suitability.In addition,in the context of the existing relief mechanism that is mainly reviewed by the Disciplinary Committee of the Lawyers Association and supplemented by the reconsideration of the judicial administrative agency,the necessity and feasibility of the judicial relief mechanism are drawn.On the basis of judicial relief,the author conducted in-depth data analysis on the collected 145 judicial cases,extracted data from multiple dimensions,and used statistical data and case analysis to form a multi-level study,expounding the current judicial sanctions by the Bar Association Current status and problems of relief.Theory needs to be put into practice to make more sense.How to realize the judicial remedy path can absorb the essence of the judicial remedy mechanism of punishment behaviors of foreign bar associations.Looking at the global mainstream,the trend of“respecting the autonomy of lawyers associations and strengthening the protection of the independence of lawyers associations" has provided an important reference for my country.Through the demonstration of judicial relief mechanisms in Anglo-French law countries and civil law countries,the possibility of its application in our country’s practice is explained.At the same time,in combination with my country’s actual national conditions and cultural environment,a localization attempt is made on the judicial model of exhaustive internal remedies and the relatively mature judicial remedies for criminal penalties.In addition to the above-mentioned problems of sanctions against bar associations in judicial practice,this article also puts forward targeted suggestions.The first is to clarify the scope of judicial remedies and discuss the different situations of different subjects.The sanctions for the applicants of lawyers’ practice trainees shall be included in the scope of driver review,and the sanctions for lawyer members shall be given according to their different types.Discrimination.For general sanctions,the power status of industry autonomy should be clarified.However,for disciplinary actions that may affect the actual rights and obligations of lawyer members,such as suspension of membership,cancellation of membership,etc.,the right to seek relief through administrative litigation should be confirmed.Secondly,once the disciplinary action of the bar association enters the scope of judicial review,more specific judicial review regulations are required.The author believes that in order to seek a balance between judicial discretion and industry autonomy,the court should fully respect the first judgment of the Lawyers Association during judicial review,and review whether the punishment violates legal procedures,but the ultimate goal is to punish whether it violates the norms.The facts in the document should be judged on the basis of the clarity of the facts,and the determination of other matters should not be evaluated as much as possible.This not only protects the legitimate rights and interests of the opposing parties,but also fully respects the main status of the industry autonomy of the lawyers association,and does not cause excessive judicial interference.