Право/ 9. Гражданское право
К.ю.н. Ляшенко Л.В.
Дальневосточный федеральный университет, Россия
PRINCIPLES
OF THE ORGANIZATION OF EFFECTIVE INTERACTION OF THE LEGAL PROFESSION AND THE
STATE AS A RESULT OF THE REFORM OF THE JUDICIARY
Control
of lawyers is carried out through the disciplinary procedure, carried out in
fact dependent on the state bureaux, bar associations. The concept of the
FEDERAL law "On the bar" in this respect differs significantly. The
principle of independence of the legal profession is considered as a basis for
the organization and activity of the advocacy. Independence of the bar is made
up of two elements: first, because of the independence of the legal profession
and legal entities, in the framework of which is legal activity, from the state
and public bodies, and secondly,of independence from the state and public
bodies of the lawyer in the implementation of its activities. Taking into
account that the Situation on the bar was built on the principle of state
control and eliminated the independence of the legal profession, the principle
of self-management it also was a stranger. However, it is necessary to
recognize, that some elements of self-management of the bar still present.
As set
forth in the FEDERAL law "On the bar" the principle of equal rights
implies that the status of all lawyers are equal both in terms of their
professional activity, both in terms of each of them opportunities to choose
the organizational form of the legal education and to participate in the
management profession through direct participation in congresses or meetings of
lawyers, the election bodies of the Federal chamber of lawyers and the chamber
of attorneys of the RF subject.
Corporate
citizenship the legal profession as the principle of its activity is based on
the commonality of interests and objectives of all members of the legal
community, are at the same time independent and acting in their personal
capacity. Corporate citizenship involves, on the one hand, responsible each
member of the community before their colleagues for the expertise, integrity
and legitimacy of its activities, and on the other hand is a manifestation of
the concern by the lawyers'community and its bodies about the members of this
community. Lawyers can speak freely and to choose the form of protection of his
principals. But for this purpose they should be subject to the disciplinary
authority of their colleagues, forming an independent "order", which
guarantees them wide degree of possibility carry out legal assistance, even if
the interests of their clients clash with the interests of the state. An
important principle of legal profession, is the principle of professionalism.
It is professionalism allows the legal profession act tool for ensuring the
right of citizens to receive qualified legal assistance. The bar is a community
of lawyers as independent professional legal advisers. And in Position on the
bar 1980., and in the FEDERAL law "On the bar" of 2002,
professionalism of lawyers associated with the satisfaction of certain
criteria. It is necessary to pay attention to the fact, that in the FEDERAL law
"On the bar" was fixed a formal approach to the understanding of the
professional suitability persons to the profession, and as a requirement to
obtain the status of lawyer has been stated passing the qualification
examination.
Along
with this, as well as the Situation on the bar, the FEDERAL law "On the
bar" does not regulate the obligation of maintaining and enhancing the
lawyer of his/her professional level. Article 7 of the FEDERAL law "On the
bar" specifies the duty of the lawyer to continually improve their
knowledge and improve their skills. However, without the development of a
mechanism for improving the qualifications such a position is declarative.
Novel
of the FEDERAL law "On the bar", aimed at increasing the
professionalism of the legal profession, is the establishment of January 1,
2007 the duty of lawyers to carry out insurance of the risk of its professional
property responsibility
Insurance
of the professional property responsibility of lawyers in the countries with
developed legal systems, the standard of the profession. So, in accordance with
the General code of conduct for lawyers in the European Community "lawyers
should always be insured from filing claims related to the lack of professional
competence. The size of insurance is determined within reasonable limits in
relation to the risk of possible errors made by the lawyers in the course of
implementation of professional activity". Professional liability insurance
will provide security and prestige of the lawyer, and also will expand the
sphere of activities of insurance companies.
Thus,
the analysis of the FEDERAL law "On advocacy" has allowed to allocate
such basic principles of activity of the legal profession, as the rule of law,
the loyalty of the customer, compliance with professional ethics, independence,
controllability, corporate citizenship,
equality and professionalism.
Literature:
1.
Stetsovskiy K.I., Mirzoev G.B. Professional debt lawyer and his status: Monograph.
- M.: UNITY-DANA, 2003, p. 65.
2. The
federal law of 31 May 2002. no.63-FZ "About lawyer activity and legal
profession in the Russian Federation, "no. 1 of the article. 2,. p. 1 of
the article. 3 // Collection of legislation of the RUSSIAN federation, June 10,
2002, № 23, article. 2102.
3. The
federal law of 31 may 2002. no.63-FZ "About lawyer activity and legal
profession in the Russian Federation", pp. 6, p. 1 of the article. 7 //
Collection of legislation of the RUSSIAN federation, June 10, 2002, № 23,
article. 2102.
4.
Cited in: Common code of conduct for lawyers in the European Community, p.
3.9.1. //The Website of "Clinical legal education"
http://www.lawclinic.ru/library