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发表于 2020-5-25 16:48:49
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Administrative indictment
Plaintiff: Li Qingliang, male, Han nationality, born in 1982.ID :371425198211010314. Address: Unit 602, Unit 8, Building 17, Nanli, Brick Corner Building, Chaoyang District, Beijing.Mobile :15810445696
Defendant: Beijing Bar Association
Residence: No .5, Capital Building ,18 West Binhe Road, Andingmen Gate, Dongcheng District, Beijing
Legal Representative: Gao Zicheng Position: President
Tel :01064515983
Claims
4、The decision to request a judgment confirming that the interview assessment made by the defendant was unqualified was invalid.
5、The defendant is requested to issue a certificate of conformity to the plaintiff within one working day.
6、The request for judgment invalidates the defendant's decision to extend the plaintiff's internship.
4. requested the defendant to return the training fee of $1950 to the plaintiff.
5. requests to examine the legality of the Rules on the Administration of Practice for Lawyers Practitioners, the Rules for the Examination of Interviews for Lawyers Practitioners and the Rules for the Administration of Practice for Lawyers Practitioners by the Beijing Bar Association.
Facts and Reasons
The defendant has no right to judge the plaintiff's level of professional knowledge.
The plaintiff passed the national judicial examination in 2008, entered Beijing Antong law firm internship in 2018, after a long 21-month internship period, finally looked forward to the defendant's interview examination. However, in a few minutes after the interview was identified as "lack of professional knowledge" unqualified, and was extended internship for three months, this is nonsense. The plaintiff's level of professional knowledge has long been certified by the national judicial examination, and the Ministry of Justice has issued a legal professional qualification certificate to the plaintiff. The defendant has no right to judge the degree of professional knowledge of the plaintiff, much less to deny the legal facts recognized by the Ministry of Justice in granting legal professional qualifications to the plaintiff through a few minutes of interview. Therefore, the defendant based on the plaintiff's "lack of professional knowledge" that the plaintiff is not qualified is obviously the defendant abuse of power to make, do not have legal effect.
三、The defendant intentionally misinterpreted the law and increased the conditions for administrative licensing.
According to Article 5 of the Law on Lawyers, the following conditions shall be met when applying for a lawyer's practice:
1. uphold the Constitution of the People's Republic of China;
2. obtained legal professional qualification through the national unified legal professional qualification examination;
3. has spent one year in a law firm;
4. good conduct.
Article 6
To apply for the practice of a lawyer, an application shall be made to the judicial administrative department of the district people's government at the municipal level or directly under the Central Government, and the following materials shall be submitted:
1. National Uniform Legal Professional Qualification Certificate;
2. the qualified materials of the applicant's internship examination issued by the Bar Association;
3. the applicant's identity;
Certificate issued 4. the law firm agreeing to receive the applicant.
Article 7
The applicant shall not issue a lawyer's practising certificate under any of the following circumstances:
1. without civil capacity or restricting civil capacity;
2. has received criminal punishment, except for negligent crimes;
3. being expelled from public office or having his lawyer or notary certificate revoked.
Among them, the examination of trainee lawyer's application for lawyer's practice shall be based on Article 5, which are negative conditions and positive conditions respectively. To uphold the Constitution means not to overthrow the existing regime by force, and to have good conduct is not to enter the record of dishonest persons, which is a negative condition. Article 7 of the Law on Lawyers has relevant provisions, and trainee lawyers do not have to prove it in practice or in practice. As long as the reviewer can not find the relevant information, it shall be deemed to meet the licensing conditions. It is a positive condition to pass the unified legal qualification examination and to have a full year's internship at the law firm. The trainee lawyer should provide the corresponding materials. Article 6 of the Law on Lawyers has the corresponding requirements. The legal professional qualification certificate is used to prove the passing of the legal examination. The presentation of a certificate of conformity by the defendant to the plaintiff is a typical act of administrative confirmation, which is used to prove that the plaintiff has spent one year in the firm, that is all. The so-called centralized training, written examination, interview is the defendant fabricated and deliberately misinterpreted the law to expand their own authority, but also directly increased the conditions of the lawyer's license to practice, is a major obvious violation of the law. In this case, the plaintiff has been in practice for one year, and the defendant should issue proof.
Third, the defendant overstepped the authority for the enforcement of a lawyer's license.
According to the current practice regulations of the National Law Association, the conditions for the registration of trainee lawyers are exactly the same as those for the licensing of the practice of lawyers. Before registering a trainee lawyer, the law association is required to examine whether the trainee lawyer "passes the law test "," has good character "," supports the constitution ", and does not register those with intentional criminal records. The only difference is that the trainee lawyer has not completed his internship for one year. The above registration conditions obviously violate the basic principle of the administrative license implementation organ, because the enforcement organ of the lawyer's practice license is the judicial bureau, the judicial department (the judicial bureau first instance reports the judicial department final decision).In other words, only the Department of Justice and the Department of Justice have the power to judge whether the applicant meets the conditions for permission.If, in accordance with the current provisions of the National Law Association for the pre-registration of practice, the defendant must pre-examine whether the trainee lawyer meets the requirements of the lawyer's practice license before the trainee lawyer applies for practice, the enforcement organ of the lawyer's practice license will be set aside, and the lawyer's practice license right will actually fall into the hands of the law association.Therefore, the defendant has no right to judge whether the plaintiff meets the requirements of the lawyer's practice. This also confirmed the plaintiff's view :" the defendant issued proof material is only used to prove whether the plaintiff has a full year of internship ."
The defendant has no right to extend the plaintiff's internship.
However, everyone who has studied the law knows that restricting public power to protect private rights is the basic theoretical origin of administrative law, and the administrative subject should follow the basic rule of law principle. In the present case, there is no law authorizing the defendant to extend the internship. And the extension of the internship period increased the plaintiff's obligations, derogated from the plaintiff's rights, but also violated the provisions of the Administrative Punishment Law. The Law on Lawyers in China has been amended six times. Article 11 of the Provisional Regulations on Lawyers, promulgated in 1980, stipulates that graduates of law majors in higher education institutions or persons trained in law majors may serve as trainee lawyers after examination and approval by the judicial departments (bureaus) of provinces, autonomous regions and municipalities directly under the Central Government. The internship period is two years. At the end of the internship period, the qualification of lawyers shall be granted in accordance with the procedures stipulated in Article 9 of these Regulations.This provision was subsequently deleted in previous amendments, which, according to historical interpretation, meant that the extension of the internship period was annulled and the defendant was not entitled to extend the internship period.Therefore, the defendant's decision to extend the plaintiff's internship period should be considered invalid.
The defendant shall not be entitled to collect the training fee of the plaintiff and shall return it.
The plaintiff did not have the legal obligation to participate in the centralized training organized by the defendant, and the defendant threatened with the authority to issue the interview examination documents. The defendant was forced to participate in the centralized training organized by the defendant, and paid the training fee of 1950 yuan to the defendant. The behavior of the defendant charging fees belongs to the administrative collection in a broad sense. According to the provisions of the Legislative Law, the administrative collection belongs to the central legislative authority, and the defendant has no right to collect the plaintiff's fees according to the normative documents involved in the case, and the normative documents involved in the case also have no provisions for collecting training fees. To sum up, the defendant abused his power to take a card to the trainee lawyer, and the circumstances were particularly bad. The people's court should order him to refund the training fee of 1950 yuan to the plaintiff according to law, and transfer his criminal clues to the public security organ.
The tragic situation of Chinese trainee lawyers under the hidden rules.
1. many people think that through the legal examination on the road to the legal profession, but do not know that the tragedy has just begun, a set of evil hidden rules oncoming. In accordance with the normative documents involved, it is not easy to find a trainee lawyer and a solicitor who has been disciplined by the profession for a period of less than five years. The more difficult it is to find a trainee law firm and guide a lawyer, the more difficult it is to find a trainee lawyer, and the salary level of many trainee lawyers is far below the normal wage level. There is a joke on the Internet that five thousand yuan can not find a driver, but can find a trainee lawyer who can drive. This is institutional exploitation.
After finding the guidance law firm and the guidance lawyer, the 2. and so on begin to apply for the internship, and then need to submit to the law association more than a dozen completely unrelated materials, such as residence permit, file storage certificate ,(the defendant once used the file storage certificate to restrict the foreign person to practice in Beijing) no criminal record and so on. A few months have passed, and the date of commencement of the internship is not the date of application but the date of issuance of the internship certificate.
3. practice in law firms such as Lin Daiyu into Jia Fu, need to accompany everywhere careful. Because you can't be a lawyer if he does n' t take you to ten cases. Offending the head of the firm, he won't give you the identification, you ca n' t be a lawyer. A female trainee lawyer who has been revealed by the media as the director of the law firm is not groundless. In addition, in 2007 after the amendment of the law on lawyers, the "law firm issued identification materials" has long been revised to "law association issued assessment certification materials ", but now also law firm issued identification materials to prove that trainee lawyers qualified, in short, a trainee lawyer to get a successful lawyer certificate to get tripartite approval, guide lawyers, law firms, law association. This operation is nothing more than to facilitate the rule of the law association, the law association through the control of law firms to control lawyers, further control of trainee lawyers, this is the reason why many trainee lawyers face illegal interviews dare not dare to speak, false law association true law tyrants form here. In this case, as soon as the plaintiff revealed the intention of litigation, the law firm proposed to lift the internship relationship with the plaintiff, the defendant in the Beijing lawyer industry to dominate the face can be seen.
4. to the interview link is even more exotic, Beijing generally queue about three months. There is an unavoidable conflict of interest for lawyers to interview interns themselves, and no one can serve as a judge in cases related to his own interests. "You can say you can, you can not; you can not, you can not. Interview examiner status into a mystery, the plaintiff has not yet known the name of the interviewer who, agreed to apply for withdrawal? The rule of law is to put power in the cage of the system, not the lawyer in the cage of the interview. Throughout the history of the rule of law in the world, no administrative subject in any country has made any administrative act through interview at any historical stage. Because the characteristics of the interview will certainly lead to power rent-seeking, incompatible with the spirit of the rule of law, and fair and just contrary.
The hidden rules that need to be abolished.
First of all, the procedures for the formulation of normative documents involved in the case are seriously illegal, without evaluation and argumentation, public consultation, legitimacy examination, collective deliberation and decision, public release to the public, and no "sunset clause ". Completely drafted by a few leaders of the National Law Association in secret, and in fact reduced to its ruling tool, so that the internship system into a vested interests of the carnival, not only has no legitimacy, or even anti-human. Secondly, the normative documents involved in the case increase the conditions for the lawyer's practice license and create administrative penalties (for example, article 24 of the Rules on the Administration of Internship for Lawyers Practitioners provides that if an intern commits one of the following acts during the internship period, the law firm shall give critical education, order correction and report to the local bar association. The bar association shall give the trainee a warning; if the circumstances are serious, it shall be ordered to stop the internship, collect the internship certificate, and shall not apply for the internship again within two years  1) to engage in the illegal acts listed in Article 23 of these Rules privately in the name of a lawyer ;(2) to disobey the supervision and administration of the law firm and the trainee lawyer ;(3) to fail to complete the centralized training and practical training projects as prescribed; and (4) to suspend the internship activities without authorization ;(5) There are other violations of the regulations on the administration of internships or acts that harm the professional image of lawyers), the creation of administrative licenses, the creation of administrative fees, and the increase of civic obligations (centralized training, ten cases, internship logs, etc.) can be described as all five poisons. It should be abolished without delay.
I don't see you in court. The law man is a sword. In order to safeguard the correct implementation of the law, safeguard the overall rights and interests of the lawyer profession, comprehensively promote the rule of law, early put their own interests aside and hold the will to leave the lawyer profession will be determined to bring a lawsuit to your court, in order to ensure a fair trial, I hope your court fully implement the trial open system, in the trial open online live broadcast of the case, actively respond to public opinion.
to this effect
Beijing Dongcheng District People's Court
Plaintiff:
Invitation to invitation
President Gao Zicheng:
Hello, this is Li Qingliang, an trainee lawyer of Beijing Antong Law firm. I was identified as a lack of professional knowledge in the recent interview examination, so I decided to invite you to a professional knowledge contest. Competition method is from the calendar year law examination, division examination, law examination questions selected 200 questions (selected by the selection system random selection, refer to the thick big i question bank model), the whole competition by the notary office notarization. If I score less than or equal to you, I will take the initiative to withdraw from the profession of lawyers, never set foot in the future. If my score is higher than yours, you will help us to abolish the interview examination system. I believe you have enough social responsibility as Doctor of Law, deputy to the National People's Congress and president of the Beijing Law Association. looking forward to your early reply.
my mailbox is 313618420@qq.com. also you can contact my chief legal adviser and ad litem agent zhang wenpeng, his mailbox is 15622245153@sina.cn.
Intern:
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发表于 2020-5-25 16:47:36