【云德资讯】精英律师院长说系列 荆孟强——社会价值多元和市场服务情境下精英律师的定位

荆孟强院长

    云德律师学院院长、法律顾问中心首席律师，2019年陕西云德律师事务所执行主任、陕西省律师协会财税法专业委员会副主任、陕西省法学会婚姻家庭法学研究会常务理事、西安市行政复议应诉专家组专家、西安市未央区人民法院诉讼服务中心调解律师、西北大学法律硕士专业研究生校外导师、西安培华学院客座教授。

    Dean of the Yunde Law college, Principal Counsel of the Centre for Legal Advisers, 2019 Executive Director of Shaanxi Yunde Law Firm, Deputy Director of the Finance and Tax Law Committee of Shaanxi Bar Association, Executive Director of Marriage and Family Law Research Association of Shaanxi Law Association, Expert of Xi'an Administrative Reconsideration Litigation Response Expert Group, Mediation Lawyer of Litigation Service Center of Xi'an weiyang district People's Court, off-campus Tutor of Master of Law Major of Northwestern University, Visiting Professor of Xi'an Peihua University.

社会价值多元和市场服务情境下精英律师的定位

    在刚刚过去的二零一九，我们不仅共同见证了建国七十周年的伟大庆典，作为一名律师，我们还欢庆了中国律师制度恢复四十周年的行业盛会。四十年，四十余万名律师，律师行业取得了巨大的发展和进步。2020年，中国律师行业面临新起点、新征程，新机遇，但机遇同时也意味着问题和挑战：行业要发展，发展的基本要素之一就是行业传承、从业人员的高素质、精英化。但没有谁一开始就是就精英，精英是培养和历练出来的，但现在律师的行业传承以及精英化培养受到社会价值多元化以及市场服务需求新变化的影响。

    In the past 2019, we not only witnessed the great celebration of the 70th anniversary of the founding of the People's Republic of China, but also celebrated the 40th anniversary of the restoration of China's lawyer system as a lawyer. In the past 40 years, there have been more than 400,000 lawyers, and the lawyer industry has made great development and progress. In 2020, China's lawyer industry will face a new starting point, a new journey and new opportunities, but opportunities also mean problems and challenges: one of the basic elements for the development of the industry is the inheritance of the industry, the high quality and elitism of employees. However, no one started with elites, and elites were trained and experienced. However, the inheritance of lawyers and the cultivation of elites are now affected by the diversification of social values and the new changes in market service demand

PART   1   社会价值多元对整个律师行业的影响

    改革开放以来，我们中国在各个方面都取得了举世瞩目的伟大成就，但西方一些思潮也趁机而进入国门，我个人观察其中的不良思潮对律师行业带来的不良影响主要在以下三个方面:

    Since the reform and opening up, China has made great achievements that attract worldwide attention in all aspects, but some western ideological trends have also taken the opportunity to enter the country. Personally, I observe that the adverse effects of the unhealthy ideological trends on the lawyer industry are mainly in the following three aspects:

    (一) “律师是天生的反对派”

    "Lawyers are natural opponents."

西方有股思潮:律师就是天生的反对派，和当权者对抗，为弱者发声代言。这种思潮在政治学上有一定的合理性，但遗憾的是逐步演变为“为了反对而反对”，这种思潮在国内律师行业还有一定的市场。进入律师行业后，我的指导老师丁云波先生曾给我讲过一个段子：某次一起普通的民事案件庭审过程中，某一方的代理律师不知为何在庭上打起了瞌睡，主审法官喊道这位代理律师的时候，这位律师条件反射地举手大喊：“我反对！”法官很生气:“我只是想同你核实些问题，还没有问对方，我也没表达什么，你就直接反对，你反对什么？”这虽然是个茶余饭后的段子，但公众称我们部分律师同行为“死磕律师”非常值得深思:一味反对、死磕的做派是为了个案公正、为了积及参与社会治理合法地表达自己的观点呢，还是为了博出位、博出名，然后带来利益？

    There is a trend of thought in the West: lawyers are natural opponents, confronting those in power and speaking for the weak. This trend of thought has certain rationality in political science, but unfortunately it has gradually evolved into "opposing for the sake of opposing". This trend of thought still has a certain market in the domestic lawyer industry. After entering the legal profession, my instructor, Mr. ding yunbo, once told me a joke: during the trial of an ordinary civil case, the attorney of one party dozed off in court for some reason. When the presiding judge shouted at the attorney, the lawyer raised his hand conditionally and shouted, "Object!" The judge was very angry: "I just want to verify some questions with you. I haven't asked the other party yet, and I haven't expressed anything. You directly oppose it. What do you oppose?" Although this is a joke after dinner, it is very worth pondering when the public says that some of our lawyers are "hard-hitting lawyers": is it for the sake of case justice, for the sake of accumulating and participating in social governance to legally express their views, or is it for the sake of gaining positions, fame and then bringing benefits?

    很明显；“天生反对派”、“为了反对而反对”这种思潮与我们社会主义主流价值观是不相符的，但令人遗憾的是这种思潮不仅在现有的律师同行中有影响，也迷惑了相当一部分社会公众，用天涯网友“窗外雨荷”的话作为这一部分的结语：

    Apparently, The ideological trend of "natural opposition" and "opposition for opposition" is inconsistent with our mainstream socialist values. However, it is regrettable that this ideological trend not only has influence among the existing lawyers, but also confuses a considerable part of the public. The words of Tianya netizen "rain lotus outside the window" are used as the conclusion of this part:

    “人们对于哪些敢于提反对意见的律师总是心怀敬意，在这个被和谐的社会，反对的声音如久旱的大地响起的雷声，不仅是振聋发聩，而且让人充满期望。但是律师并不是天生的反对派，律师也不是天生的不合作者，律师只是以自己对法律的理解来诠释自己所看到的世界。律师之所以反对，是因为他看到了不公正，律师之所以提异议，是因为他认为不合法。面对强权，律师敢于反对，面对恶性，律师敢于提异议，这是律师的使命。

    "People always have respect for lawyers who dare to raise objections. In this harmonious society, the voices of opposition, like thunder from the drought-stricken earth, are not only deafening but also full of expectations. However, lawyers are not natural opponents, nor are they natural non-cooperators. Lawyers only interpret the world they see with their own understanding of the law. The reason why the lawyer objected was because he saw injustice, and the reason why the lawyer objected was because he thought it was illegal. In the face of power, lawyers dare to oppose, and in the face of malice, lawyers dare to raise objections. This is the mission of lawyers.

    但是，请不要把律师当做天生的反对派，律师绝不是鸡蛋里挑骨头的睚眦小人，律师可能会会从细微处找出那些被掩盖的真相，被修饰的错误，但律师绝不会无中生有，无理取闹，无事生非。

    However, please don't regard lawyers as natural opponents. Lawyers are by no means vengeful people who pick bones in eggs. Lawyers may find out the hidden truth and embellished mistakes from subtle points. However, lawyers will never make false statements, make trouble without reason or cause trouble.

    而且，律师自己也不要把自己变成反对派，尽管这个世界需要反对的声音，但反对需要理性，不理性的盲目反对会把自己变成被反对的对象。同时在反对的时候律师更需要自省。

    Moreover, lawyers themselves should not turn themselves into opponents. Although the world needs voices of opposition, opposition needs rationality. Irrational blind opposition will turn themselves into objects of opposition. At the same time, lawyers need more introspection when opposing.

    律师应该学会合作，反对精神与合作精神是律师赢得社会的两把钥匙。”

    Lawyers should learn to cooperate. The spirit of opposition and cooperation are the two keys for lawyers to win a high reputation. "

    （二）一切向钱看，行业害群之马不时出现

    Put money above everything else, and black sheep in the industry appear from time to time.

    部分律师同行为了金钱，要么“只收钱不办事”，置当事人合法权益于不顾，对当事人委托的事项漠不关心走过场；要么给当事人作出虚假承诺，裁判结果不理想时将问题和矛盾推给法院；还有更恶劣的情形:不仅置律师职业道德和职业纪律于不顾，甚至知法犯法，搞权力寻租搞司法腐败。

    For the sake of money, some lawyers either "only receive money but do not do anything", ignoring the legitimate rights and interests of the parties and going through the motions indifferent to the matters entrusted by the parties. Either make false promises to the parties concerned and push the problems and contradictions to the court when the judgment result is not ideal; There are even worse situations: not only do they ignore lawyers' professional ethics and discipline, but they even know the law and break the law, engage in power rent-seeking and judicial corruption.

PART 2   社会服务能力与社会及公众需求匹配度不够

    时代在进步，社会在发展，中国的律师事业也在不断发展与进步，但从供给侧改革角度来讲，中国的律师行业未达到中国GDP已是全球第二大经济体的市场法律服务需求、未能在法律服务端口解决人民日益增长的美好生活需要和不平衡不充分的发展之间的矛盾这一新时代社会主要矛盾的需求，体现在两方面:

    The times are progressing, The society is developing, China's legal profession is also developing and progressing, But from the perspective of supply-side reform, China's lawyer industry has failed to meet the market demand for legal services that China's GDP is already the world's second largest economy. It has failed to solve the contradiction between the people's growing need for a better life and the unbalanced and inadequate development at the legal service port. The demand for the main social contradiction in the new era is reflected in two aspects:

    (一) 国际化服务能力欠缺

    Lack of international service capability

    改革开放以来，越来越多的中国企业走出国门，但对国际规则了解程度及参与程度的欠缺导致中国律师并没有很好地为中国企业走出去保驾护航进行服务，在国际层面上屡屡受挫，中兴事件、华为孟晚舟事件都给我们敲响了警钟，对中国律师行业也是一种鞭策。现在“一带一路”已经是国家战略，但我们的涉外律师数量、涉外律师的服务能力和水平远远没跟上，很多时候沦为替英美一些大所牵线搭桥当小二的角色。

    Since the reform and opening up, More and more Chinese enterprises are going abroad, However, the lack of understanding and participation in international rules has led Chinese lawyers to fail to provide good services for Chinese enterprises to go out and suffer repeated setbacks at the international level. The ZTE incident and Huawei Meng Wanzhou incident have all sounded the alarm bell to us and are also a spur to the Chinese lawyer industry. Now "the belt and road initiative" is already a national strategy, but the number of foreign-related lawyers and the service ability and level of foreign-related lawyers are far from keeping up with each other. In many cases, they are reduced to the role of matchmaking for some big companies in Britain and the United States.

    （三）部分区域法律服务资源过于欠缺

    Some regions are too short of legal service resources

    北京一个朝阳区就有上万名律师，但很多贫困县甚至连一名律师都没有，或者屈指可数的几名律师，律师人力资源分布的严重不均衡导致了部分区域的人民群众很难享受到有保障、高质量的律师服务。

    There are tens of thousands of lawyers in Chaoyang District of Beijing, but many poor counties do not even have a lawyer, or there are only a handful of lawyers. The serious imbalance in the distribution of lawyers' human resources makes it difficult for people in some areas to enjoy guaranteed and high-quality lawyer services.

PART 3   应当对新时代的精英律师进行定位

    江平先生说过:“一名好的律师，应该兼具政治家、法律专家、社会活动家及商人的特性。”我个人深表赞同，我个人的理解是这样的：

    Mr. Jiang Ping said: "A good lawyer should have the characteristics of a politician, a legal expert, a social activist and a businessman." Personally, I deeply agree. My personal understanding is as follows:

    一个律师要具备政治家的胸怀格局，政治立场要坚定，不能唯“律师费”是瞻，要守初心、担使命，因此职业道德、品格操守要好，社会责任及社会担当要到位，比如法律援助、公益活动等等；

    A lawyer should have the mind pattern of a politician, and his political stand should be firm. He should not only follow the "lawyer's fees", but also keep his initial heart and undertake his mission. Therefore, he should have good professional ethics, character and integrity, and social responsibilities and social responsibilities should be in place, such as legal aid and public welfare activities.

    一个律师必须是法律专家，要有工匠精神。但随着社会的发展，光是法律专家还是不够的，比如我们服务企业，就需要在法律之外对被服务的企业有更深的了解，对该企业所处的行业有更多更深的认识，这样才能服务好该企业。

    A lawyer must be a legal expert and have the spirit of a craftsman. However, with the development of society, legal experts alone are not enough. For example, we need to have a deeper understanding of the served enterprise outside the law and the industry in which the enterprise is located, so as to serve the enterprise well.

    一个律师必须具备社会活动家的才能。

    A lawyer must have the talent of a social activist.

    律师行业也存在竞争，案源及客户永远是律师永恒的命题之一，如果不具备社会活动家的才能，坐在办公室里是等不来当事人委托的。

    There is also competition in the lawyer industry.The source of the case and the client will always be one of the eternal propositions of lawyers. If you do not have the talent of social activists, you cannot wait for the client to entrust you to sit in the office.

    至于江平先生说的最后一点，也就是商人特性，个人认为应当算追求吧，从律师事务所角度来讲，除了国办所，无论是个人所还是合伙所，在现行律师法的规定之下，合伙人或者个人所的负责人都是要为律所负无限连带责任的，合伙人及负责人必须具备商人特性，否则律师事务所无法发展，离开了平台的律师又如何发展？合伙人应该是每个律师从业之初的目标，是不是合伙人也是业内或者客户对某一位律师是否属于行业精英的认可标准之一。

    As for the last point made by Mr. Jiang Ping, That is, merchant characteristics, Personally, I think it should be regarded as pursuit. From the perspective of law firms, In addition to the State Office, whether it is an individual office or a partnership office, under the provisions of the current Lawyers Law, partners or the person in charge of the individual office are required to bear unlimited joint and several liability for the law firm. Partners and the person in charge must have the characteristics of businessmen. Otherwise, the law firm cannot develop. How can lawyers develop who leave the platform? Partners should be the goal of every lawyer at the beginning of his career. Whether a partner is also one of the criteria for the industry or clients to recognize whether a lawyer belongs to the elite of the industry.