| Disciplinary system is a very important part of lawyer system. It is a sort ofpunishment to the lawyer who violates the management system of the lawyers, which isusually used to supervise the lawyers to obey the obligations and responsibilities underthe law. Disciplinary punishment system is one of the basic lawyer managementsystems, which has irreplacable function to safeguard lawyer’s basic moral standardsand professional quality. Modern scholars have divided the purpose of the lawyerpunishment system into three parts: the first is the education and warning funtion, inwhich to let lawyers learn from the former cases and not to follow the criminals; thesecond is to stablize the society mainly through disciplinary measures, from which thecriminal lawyers would lose the ability to harm society; the third is to maintain a goodprofessional reputation of the Bar Associations and the law practitioners. The law’ssupervision and displinary on the legal profession is bound to maintain the survival andthe development of the lawyer industry, and to achieve a better justice as well.Based on the social background, the complex environment motivation and the caseincentives during the Republic Perrod, this article ventures to explore the lawyerdisciplinary procedures at that time, to compare with the current Chinese lawyerdisciplinary system, and to understand the disciplinary system of the Western countries,so as to help improve the current lawyer disciplinary system.The dissertation is divided into five parts:First of all, based on the exploration of the generation and failure of theindependence of judiciary by the end of the Qing Dynasty, from the introduction ofWestern ideas of the separation of powers, the unclear relationships between judicialand executive power, to the correct clarification of the relationships among thelegislative, executive and judicial powers, and the re-interpretation of the necessity ofthe existence of the independence of judiciary and the exploration of its value andsignificance. The improvement of the judiciary during the Republic Period is confusing,which is filled with political corruption, and the repeatedly trampling on theindependence of judiciary by the arbitrary warlords. Since the primary judicial organ isthe basis the independence of the judiciary, it would not generate the true sense of theindependence of judiciary, under the existence of the Concurrent Judicial Institution.Judging from the practice of the legal norms, the statement of the independence ofjudiciay during the Republic Period, whether from the scope or degree, is not comprehensive enough.Secondly, based on the discription and summary of the lawyers’ practiceenvironment and rules under the judicial system of the Republic Period, and on thesurvivial and development statement of the active lawyer group at that time, this sectionhas explained lawyer’s social role and responsibility, so as to uncover the hazy veil ofsuch new occupational group of the stage. To uncover the veil of lawyer, the very firstthing is to reveal the different roles lawyer plays in society, so the most important goalof this section is to dig out the subtle relationship between the lawyer and the litigant.With respect of the social function of lawyer, when the lawyer is commissioned by thelitigant, within the limits prescribed by the law, in accordance with the explicitauthorization of the litigant, he/she is bound to exercise the right of attorney for theinterests of the litigant. The lawyer should fully take advantage of its expertise and legaloperational capacity to maintain the litigant’s legitimate rights and interests. Obviously,in the principal-agent relationship between lawyer and litigant, the lawyer is usuallyregarded as an independent agent role.The third part of the paper has compared and analyzed the collected45Jiangxilawyer disciplinary cases, respectively. Through the analysis of the13sorts of thelawyer disciplinary cases such as the fraud drawn, as well as the concurrent business,abetting in the proceedings, the issue of personal style, the falsification of evidence,practicing in the pseudo-organization, the bribery and the judge retaliation, it has putforward a glimpse of the real overview of the lawyer disciplinary situation under thejudicial practice during the Republic Period.In the forth part, the section has compared the current China’s mainland lawyerdisciplinary process, the Taiwan lawyer disciplinary process, and the Western countrieslawyer disciplinary system, and elaborated the operating mechanism of the lawyerdisciplinary system during the Republic Period, including the composition of theDisciplinary Committee, the disciplinary lift, the review procedures of the DsciplinaryCommittee, the implementation of the prosecutor’s investigation, the litigant’sarguement, the identification of the Disciplinary Committee, and the execution of thepunishment.In the conclusion part, it has elaborated two conclusions of the lawyer disciplinarysystem during the Republic Period. The first is the proposal to the setup of thedisciplinary institutions. The another is the idea on how to improve the lawyer group.The author has proposed that to perfect the lawyers access system, and let the high quality legal person enter the lawyer group, is the only way to solve the repeatedlyoccured illegal cases. |
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