Savinov E.E.
2nd year Master of scientific
and pedagogical magistracy
On a specialty "Jurisprudence"
The Republic of Kazakhstan, Almaty
University "Turan"
Functional features of advocacy under the laws of the Republic of Kazakhstan
Annotation. The purpose of this
study, the results of which are reflected in the presented article is to
examine the legal profession as an independent institute in the system of legal
aid and legal services, the definition of legal, moral and organizational
conditions of its effectiveness, consideration of legal representation as one
of the main types of advocacy in the light of modern concepts adversarial
proceedings.
Achieving the goals
of the study led to the need to use as the base of general scientific
dialectical method of knowledge of processes and phenomena of social life, as
well as the generally accepted methods: formal logical, historical, comparative
legal, statistical and others.
Key words: attorney,
status, activities, legislation, legal aid, the court process.
The meaning of
advocacy, is defined by its social significance, it is a qualified legal
assistance to the population.
Thus, according to
the current legislation of the Republic of Kazakhstan "... of lawyer
activity is a qualified legal assistance provided on a professional basis by
lawyers in the manner prescribed by this Law, in order to protect and
facilitate the realization of the rights, freedoms and lawful interests of
individuals and the rights and legitimate interests legal persons "[1].
Questions provide
legal assistance to the population acquire the more important the more
complicated legal system of the state, and the usual public relations acquire
the character of relations.
Category advocacy,
still has not found a proper and systematic development of the scientific
literature, it is becoming more urgent with the expansion of the circle of
subjects of legal assistance and legal services. Due to the fact that the
Constitution of the Republic of Kazakhstan is declared qualified legal
assistance to everyone.
In the Republic of
Kazakhstan, legal aid is found, as we know, the importance of the
constitutional principle. The idea of its diversity and species
Act gives the Republic of Kazakhstan dated December 5, 1997 ¹ 195-I «On
Advocacy". We are talking about consultations and references, drawing up
legal documents, forms of representation in legal proceedings in various organs
of conflict resolution, public authorities and public organizations,
professional protection of the accused and others (Article 4 of the Act).
Highlight issues of legal representation is dictated by the particular
complexity and importance of this type of activity directly affects the quality
of justice and the legal culture of society.
All these kinds of
legal assistance are covered by the concept of advocacy, but it does not end
there. There
is also the concept
of legal services, which is
not the same, in our
view, legal assistance.
Entering the market
of legal services lawyers numerous amateur entrepreneurs who do not have the status
of a lawyer, but flying, in fact, law functions, casts doubt on the
professional level and moral perfection of the realization of the
constitutional guarantee. In the literature more insistently the question is
not only about the legal conditions for ordering these activities, but the
activities of separating from her lawyer. Trying to consider the ratio of the
concepts of "legal aid" and "legal services" and subjects
them providing a systematic exposition of the views on the problems and ways to
solve them.
In order to improve the practice of individual institutions related industries
procedural law and regulations relating to the legal profession can make a
difference presented considerations about the requirements for the subjects of
the legal aid of a judiciary representative as a participant in the process of
proof, conditions of contractual relations of the principal and the attorney, a
professional debt lawyer its disciplinary and property liability as a
representative.
Advocacy, as well as other professional activity is subjectively conditioned.
This conditionality
is manifested in different ways.
These, according to
Kolobashkin S.S., include "... the presence and severity of professionally significant
personal qualities that characterize the ability of a person to carry out
professional activities, including advocacy; professional legal literacy,
mediating a specific level of knowledge of the law, judicial practice, the
ability to correctly apply them, which are the basis of the analytical ability
of the person; how to use legal knowledge, which is applied to the lawyer
disclosed in the Code of Professional Ethics lawyer: In his professional
activities the lawyer honestly, reasonably, conscientiously, competently, in
principle and timely perform their duties, actively protects the rights,
freedoms and interests of the principals all means not prohibited by the
legislation means Guided by the Constitution and the law and the Code of
professional ethics of a lawyer, but in the implementation of advocacy and
legal assistance in a particular case the lawyer fills these requirements
specific content, and violation of the lawyer of legislation on Advocacy and
the Code of Professional Ethics lawyer committed intentionally or gross
negligence, shall entail the application of disciplinary responsibility in the
manner prescribed by Section Two of the Code of Professional Ethics lawyer
"[2 Ð.4].
By our opinion, the category in which a complex combination of subjective and
conditioning activities and objective factors that contribute to the
effectiveness of advocacy is the legal position of a lawyer in the case. In
this study, the specificity of the interaction of the factors considered is
shown in the example of the most useful in the practice of advocacy kinds of
legal positions - defensive position of defense counsel in a criminal case, as
well as the position of the lawyer-representative in a civil case.
Given the above, and
despite the presence of legislatively fixed definition of the term
"advocacy", it becomes clear that there is a need to clarify the
concept of "advocacy" with current realities.
The clarification of
the content and the ratio of these concepts is not a purely academic problem -
depends on the requirements that apply and can be presented to lawyers and
other subjects related activities. Specific, increased demands on lawyers and
advocacy is reflected in the law on the legal profession and in the Code of
Professional Ethics lawyer and regulations lawyer chambers. They find
reinforcement in the disciplinary practices of the legal community. Advocacy is
measured not only in terms of its compliance with legal requirements, but also
in terms of corporate morality.
Legal services
lawyers amateur entrepreneurs are still out of control.
With the adoption of the Law on Advocacy and the new Criminal Procedure
legislation, strengthen and improve the institution of representation, the need
to clarify the constitutional and procedural basis of the status of the
lawyer-representative in the types of legal proceedings;
scientific-methodological and organizational conditions for its effective
activity as the subject of the provision of qualified legal assistance to the
principal.
Notwithstanding the
requirements of a systematic approach to the design of branches of procedural
law is a consequence of lack of coordination, not only in determining the tasks
of the justice of its objectives and principles, but also unjustified
differences in the status of similar institutions. One such institution is
systemically important institutions of legal representation.
To approve the
legislation and judicial practice of beginning the new legal equality of the
parties substantially change the position and responsibility as a lawyer and
representative of the subject of proof. All this requires scientific
understanding and guidance needed to improve advocacy, improving the training
and retraining of the legal profession and, in certain cases, and proposals for
the legislator [3, Ð. 3-5].
At
the same time, despite the fact that the institution of the legal profession
has a certain history, many of the issues of advocacy, as it was mentioned
above, it has not been adequately addressed from the perspective of a
systematic approach by the comparative analysis of the legal regulation of
similar institutions in the various branches of procedural law.
Those,
in particular, are the above-mentioned issues of the legal status of the
lawyer-representative questions of his duties as a subject of proof in
adversarial proceedings. No attempt is made to address the problems of
professional representation on the background of the expanding legal services
to other entities that compete with the legal profession and often reduce the
level of professional activity. Almost undeveloped aspect of property relations
is a lawyer with the client, including the new issue of professional risk
insurance. It does not affect the civil and cultural aspect representation
except for rare mentions of it in the papers devoted to the formation of
"socialist sense of justice" and professional ethics.
Thus,
taking into account the analysis of the current legislation on advocacy and
special literature [4; 5; 6; 7], we note that there is an objective need to
distinguish between the concepts of legal aid and legal services.
The
term "legal aid" includes statutory advocacy in all its forms, has
the aim of protecting the rights, freedoms and interests of individuals and
legal entities and ensuring access to justice, as well as the activities of law
enforcement organs of the State to clarify the legal provisions applied for the
help of their citizens.
Legal services - is founded on the principles of market economy the business of
various legal services and amateur lawyers, which requires the legal regulation
of the hard and external control.
The
essence of professional duty counsel, in our opinion, can be defined as
follows: professional duty counsel is a combination of its legal and moral
obligations to ensure the realization of skilled advocacy to meet the
requirements of law and professional ethics in the interests of the principal
and the civil society.
And in the interest of improving the disciplinary practices and reduce latency,
lawyers admitted violations of the Ethics Code, it is appropriate to extend the
reasons and details of the grounds for the disciplinary responsibility of
lawyers committed misconduct.
Moreover,
we note that advocacy has a special place within the legally established system
of human rights protection, which is a consequence of its universality both
types of legal aid provided by an attorney, and to apply for funds under its
protection of the rights of citizens in court and out of court.
References:
1. The Law of the Republic of
Kazakhstan dated December 5, 1997 ¹ 195-I «On Advocacy" // IPS
"Paragraph» http://online.zakon.kz/Document/?doc_id=1008408
2. Kolobashkin S.S. Advocacy in
the protection of citizens' rights: Author. Dis. ... PhD in Law. - M., 2011. -
31 p.
3. Fedotova T. A. Role of the
lawyer for the protection of the rights and legitimate interests of citizens in
civil proceedings: Author. Dis. ... PhD in Law. - M., 2009. - 29 p.
4. Kalamkaryan R.A. Advocacy.
Teaching practical manual / ed. VN Burobin. - Ed. 3rd, revised. and add. M .:
Title, 2005. - 604 p.
5. Botnia V.K. The implementation
of the constitutional right to qualified legal aid as the main content of the
Bar of Russia. Monograph. - Kaluga: Polygraph-Inform, 2008. - 316 c.
6. Dekhanov S.A. Western European
model of organizing the legal profession: the experience and the current state.
Monograph. - M.: Publishing House of the Peoples' Friendship University, 2007.
- 200 c.
7. Karpikova T.A. Status
Advocacy: Current scientific approaches // Law practice. -2009. - ¹ 1. - S. 10
- 13.