Mel'nichenko Roman Grigor'evich Principles of formation of lawyer corporation in Russia // the Lawyer, Moscow, 2004.
In 2002 in connection with change of the legislation there was a radical turn in a question of formation of lawyer corporation in Russia. Consequences of this transition period, in our opinion, are that, as a matter of fact, the legal profession became a certain open club which each interested person can join.
Let's address to the history of formation of the lawyer case in Russia. Till 2002 there was no procedure of examinations fixed at a legislative level at entering in legal profession. It is possible to name exception attempts of the "alternative" Bars formed in 90th years to enter examinations. However during this period the settled mechanism of "elimination" of candidates at employment as the lawyer was a little bit different than today. Directly legal consultations recommended Presidium of Bar of the promoted workers for work in consultation and, as a rule, Presidiums did not refuse them in that. Thus selection was conducted on three directions and occured at a level of the consultation itself. First, relatives or friends of already working lawyers were accepted in consultation. In this case a lawyer - patron as a certain guarantor of " professional responsibility " of applicant for lawyer work with was served. Second, consultation accepted trainees whom it estimated during their practice. And last selection occured from the midst of already practising lawyers (judges, public prosecutors, inspectors, lawyers of other consultations). These candidates already had certain "name" both their professional and moral qualities were known to members of legal consultation. These filters which conditionally can be named as opinion of consultation, were productive enough. However it is necessary to note, that all this occured on the background of artificial restriction of quantity of lawyers in one region. That is the majority of presidiums started with a rule: how many lawyers have left, so many of them have gone. This circumstance created a certain competition between candidates in lawyers.
Today other system of selection of candidates for employment for the lawyer activity operates essentially. All the persons passed examination automatically are included into lawyer corporation. Naturally, this system new to lawyers demands "polishing" by practice. So, according to the qualifying commission on the Volgograd area, 90 % of candidates for reception of the status of the lawyer have successfully passed examinations.
We suppose, that it is necessary for lawyer community to develop some qualifications as well with the purpose of acceptance of the most valuable applicants in legal profession.
Conditionally such qualifications can be divided into two groups: qualifications necessary for the admission to the qualified examination, and qualifications of the promotion examination. We shall stop in more detail on the first group.
The qualifications necessary for the admission to a promotion examination. The law in force establishes the following qualifications for reception in lawyer community: the educational qualification, presence of the legal experience, absence of a previous conviction and full capacity. Basically these qualifications are not an innovation for our legal system. Position working earlier about legal profession in the Russian Federation in 1980 contained as a minimum of two first of set forth above the qualification: educational and presence of the legal experience. However, today in light of position already stated to us the attitude to these qualifications should be closer and strict. Let's see the modern contents of these qualifications.
The juridical education. The lawyer as the person rendering a qualified legal aid, should have deep knowledge of legal sphere. The law gives this quality to the persons having the higher juridical education, or a scientific degree on a legal speciality. According to the Law of the Russian Federation " About the higher and post-graduate education" in the Russian Federation the following steps of the higher vocational training are established:
The higher education confirmed with conferment of "bachelor"(degree) to the person;
The higher education confirmed with conferment of qualification of " the diplomaed expert " to the person;
The higher education confirmed with conferment of "master" degree to the person;
Achievement of what step is enough for overcoming the educational qualification for entering legal profession? According to the specified law, qualification of "bachelor" at going to work already gives the candidate the right on filling a post for which qualifying requirements stipulate the higher vocational training. That is formally - legally the bachelor can also become the lawyer.
Though the law establishing this position, operates since 1996, there were no special problems connected with the gradation of higher education stated in the law at entering in legal profession. It speaks that bachelor institution has not got accustomed yet in Russian higher school - in practice practically nobody faces the bachelor's degree. However soon this problem becomes more actual. As it is known, Russia has signed Bolon agreements. According to them, the higher education is devided into three degrees: the bachelor, the master, the doctor. That is soon all the system of the higher school in Russia will pass on this new three-level system without fail. Then lawyers will face with applicants for reception of the status of the lawyer, having the bachelor's degree.
Let's address to experience of the European countries on this question. In England there is no formal requirement to the candidate about his higher juridical education at all. Though the common law reduces attempts of the persons who are not having higher education to become lawyers practically to zero. The applicant for employment of lawyer activity in France should have the French citizenship and the diploma in a speciality of a higher educational institution (as a minimum - the Master of the Right). The most rigid requirements to the candidate are made by the legislation of some cantons of Switzerland. So, a number of cantons demand for reception of the license of the lawyer a degree of the Doctor of the Right. In none of the national legal systems investigated by us de facto the persons having the diploma lower than the master are admitted in legal profession.
We think, that for employment of lawyer activity in Russia the applicant should have, as a minimum, a degree of the Master of the Right. It is proved by that Bachelor institution does not correspond to concept of "higher education" historically used to lawyer activity by quantity of hours. It is necessary either change concept of " the higher juridical education " or in the law " About lawyer activity and legal profession in the Russian Federation " to make specifications in this occasion.
The juridical length of service. Indoubtedly, that the future lawyer, except for theoretical, should have and practical knowledge in the field of legal profession. Here it is possible to allocate two criteria: a place and time of having practice.
In all countries the special attention is paid to legal practice of applicants. For example, in Germany the given stage is so important, that the legislator even has gone on deviation from a principle of " secret of adjudication ". At adjudication there can be a trainee in a consultative room.
The foreign legislation solves the problem on where lawyer practice there should be passed differently. In the same Germany the graduate of a faculty of law of university should pass training in courts, at public prosecutors and lawyers within three or four years. After passing of final examinations the applicant for a post of solicitor in England should pass biennial legal practice in one of solicitor offices. And only after training he is accepted in corporation. The future English barrister should work during one year as the pupil in a barrister office. By the general rule in Switzerland, it is necessary to have the certain experience (from 2 till 6 years) of work as the assistant at any lawyer or, as in some German-speaking cantons, at court to become the lawyer.
The Russian legislation gives the broadest list of works on the legal speciality, necessary for a set of the experience for purchase of the status of the lawyer. The analysis of this list reveals the main idea of the legislator: filling this post demands the higher juridical education. However the same analysis reveals a certain legal blank. So, the experience includes work on posts demanding the higher juridical education in legal services of the organizations - that is the person, ostensibly worked as the lawyer into the organizations " Horns and hoofs ", can become the lawyer. If only in documents of this organization it was established, that for filling a post of the legal adviser the higher juridical education is necessary.
On the other hand, the post of the trainee of the lawyer didn't get in this list though the law makes the requirement about the higher juridical education to this post. What for is then the institution of trainees in the attorney right?
We think , that in the experience of work on the legal speciality necessary for purchase of the status of the lawyer, it is necessary to accept only work as an assistant or a trainee of the lawyer. And, if for acceptance of a trainee in the lawyers change in the current legislation is necessary for exception of all other applicants it is not required. It's enough to unify practice of the qualifying commissions with the purpose of notorious rejection of the applicants who are not having the legal experience as the assistant or the trainee of the lawyer.
The rest of qualifications are absence of a previous conviction and full capacity are clear and in general do not cause objections.
We suppose, that in our legislation there is no qualification available in legal systems of the majority of the states. This requirement about candidate's special theoretical knowledge in the field of lawyer activity.
The future solicitor in England, already received university education, should listen and pass a 9-month's rate of lectures in legal college. Getting the status of barrister is similar to the form of getting the status of solicitor. The applicant is enlisted in school - guild and passes a year of studying in it. The candidate in lawyers in France should pass entrance examination in Training centre. After that he passes there training during one year. Training includes a theoretical course and practical training.
Lawyer activity is a special kind of legal activity. It demands additional knowledge in this sphere. In the majority of high schools of Russia students learn about lawyer activity casually on the first course of studying on such subject as law enforcement bodies. Presence of a subject legal profession in high schools is an exception, than a rule. How is it possible to speak about theoretical readiness of the applicant to work of the lawyer in this connection? We see two ways out of this situation. To include a subject of legal profession in all high schools as an obligatory discipline. Another variant is introduction of a course of legal profession within the framework of additional education.
The vision of qualifications stated to us is not a certain attempt of creation of the closed lawyer corporation. We suppose, that competently made and used qualifications will promote the maintenance of high image of the lawyer trade.
1 So, from students - solicitors in 1986 75 % had the university juridical education, about 15 % - not legal university education and 9 % were without university education at all. Цвайгерт К., Кетц X. Introduction in comparative jurisprudence in sphere of private law: In 2 vol. - Volume I. Bases: Пер. With it(him). - i., - 1998. - With 235.
2 Pipilenko Yu. With. The legal profession in Switzerland // the Lawyer, 2000, 5.
|Почтовый адрес: г. Волгоград, ул. Порт-Саида, 9-29. e-mail: firstname.lastname@example.org http://melnichenko.t-k.ru|