Melnichenko R. G. Legal position of foreign attorneys in the legal systems of different states/ Translated by Tsygankov Artem
Analyzing the verified legislation of foreign states it is possible to isolate two basic approaches apropos of the admittance of foreign attorneys to the legal activity in the territory of foreign state.
The first consists of the complete isolation of the legal system of state from the participation of foreign attorneys. For example, the legislation of the Ukraine indicates that can be occupied exclusively by legal activity the attorney, who in turn can be only citizen of the Ukraine.
The second approach, is most common and specifies the admittance of foreign attorneys to the legal practice by the specified conditions and by the presence of the specific limitations in their activity.
Questions of the regulation of the activity of the foreign attorneys of the legislation of states, as a rule, carry to their scope. For example, according to the verified legislation of the republic of Armenia foreign attorneys achieve legal activity in the order, established by national legislation, if another is not provided by international agreements. This standard condition inherent in the majority of legislations proceeds from the principle of the primacy of international law above the national.
So that the foreign attorney could be occupied in the territory of the assuming state by legal activity it was necessary its implementation. The implementation of foreign attorney - this is procedure on start or reference of foreign attorney in the system of organs or individuals of those rendering legal services in the state territory. National legislations for the implementation of foreign attorney, as a rule, establish the specified conditions, only in the presence, which the foreign attorney can be occupied in this state by legal practice. What this there can be conditions? It is possible to conditionally divide them into two groups: general and individual.
The general conditions include the requirements, which conditionally relate to the state of the citizenship of foreign attorney. This condition, on which can be specified the implementation of foreign attorney, is the condition of the signing of bilateral agreement with the state of the citizenship of foreign attorney. Thus, foreign attorney can render juridical aid, if the corresponding agreement is signed with the country of his citizenship. For example, according to the legislation Of kyrgyzskoy republic attorneys of the foreign states can render juridical aid in any form citizens and legal persons of " on the basis the intergovermental agreements Of kyrgyzskoy republic with the country of attorneys".
The condition of reciprocity is the following disseminated general condition. Thus, in the republic Tadzhikistan acknowledges the right of the attorneys of foreign states to the rendering to juridical aid in its territory, but it depends on the possibility of its attorneys to achieve analogous activity in the territory of state concerned. For example, if the Russian Federation allows the attorneys of Tadzhikistan to achieve legal activity in its territory, then Russian attorneys, correspondingly, can be occupied by this activity in the territory of Tadzhikistan.
The individual conditions include the requirements, presented to the personal qualities and the habits of foreign attorney. The individual conditions of the admittance of foreign attorneys in the legislation of the USA are especially clearly studied. Foreign attorney can be occupied by the verified activity in the USA if:
- it reached the age of 26 years;
- was during not less than five years, attorney in the state of its citizenship;
- it possesses the necessary moral qualities and satisfies the general requirements of fitness for membership in the bar association of the state, where it is assembled to operate; - it is intended to have in the USA its office;
- it paid duty for the delivery of license.
The implementation of foreign attorneys in question occurs in the specific form. It achieve or specially to that the authorized executing agencies of power of the state or law court. IN the USA, for example, precisely the law courts issue license to the practice as the juridical consultant in the concrete state to foreigner.
After the completion of the report of implementation, foreign attorneys can be occupied by legal practice, but with some limitations. Basic limitations is the prohibition of foreign attorney to render juridical aid, if this activity will be connected with the state secret. One additional possible limitation is the prohibition of some states to open to foreign attorneys in its territory legal offices.
Some states establish in their legislation such limitations, which, in the essence, block the participation of foreign attorneys in the rendering to juridical aid. Thus, rendering to legal aid by attorney- foreigners in the territory of Azerbaijan is limited exclusively to the assignment of consultations and conclusions on the application of laws of the state, native of which he is foreigner, or international legal law".
A question about the participation in the legal activity of the attorneys of foreign states in the territory of Russia is especially immediate in light of a change in the legislation. In the science a question about the admittance of foreign attorneys was always debatable. Even in the period of the analysis of the projects of the law of "On the legal profession of the Russian", the number of civil law scholars was subjected to the valid criticism of position about the prohibition of admittance to the representation of foreign jurist. Unfortunately, the acting verified legislation of Russia actually removes the possibility of the participation of foreign attorneys in the rendering to juridical aid in its territory.
With the study of the problem about the attorneys foreigners it is necessary to distinguish two concepts: "foreign citizens, who received status of attorneys" and "the attorneys of foreign states". The first concept covers those, who are accepted in the corporation of Russian attorneys. For this they must finish Russian higher educational institution, possess length of employment in the territory of Russia and return qualifying examination.
The legal status of these persons in practice does not differ from status of Russian citizen, entering the corporation of Russian attorneys.Тhe concept of "the attorneys of foreign states" relate attorneys, entering the appropriate corporation of any foreign state and achieving legal activity in the territory of Russia. It is necessary to note that the standards of international law permit states to limit the admittance of foreign attorneys to the rendering to juridical aid in their territory. The congress of United Nations accepted "Basic principles are the being concerned roles of laweyers" (Havana, on August 27 - on September 7, 1990), after fastening in them position according to which the demand of any state, about the fact that the attorney must be the citizen of the corresponding country, it is not considered as discrimination.
But how does proceed the matter concerning the admittance of the attorneys of foreign states for the acting Russian legislation? The attorneys of foreign state can render juridical aid in the territory of the Russian Federation exclusively on questions of the right of this foreign state. Let us examine the circle of possibilities on the rendering of the juridical services, given to foreign attorneys. The discussion deals with the so-called кollizion right - cases, when Russian public organs in their activity are obligated to use the right of foreign state.
In essence this concerns the standards of civil liberty, and so the adjacent it standards of family and copyright. According to international particular right, to the civil- legal relations with the participation of foreign citizens or foreign legal persons or the civil- legal relations, complicated by another foreign element, including in cases when the object of civil liberties is located abroad, can be used the right of foreign state. In the case, when Russian law court with arbitration is obligated to use the rule of law of foreign state, for example France, the aid of French attorney would be not only useful, but also necessary.
User acquired the washing machine of the production of the USA. As a result of a deficiency in the goods the fire and the destruction of house ownership of user occurred. In the judicial session of Russian law court the user has the right to require application to the given juridicial relationships of the rules of law of the legislation of the USA. Specifically, in this case for the rendering to it of juridical aid can be invited attorney of the USA.
It is possible to represent, to what extent will be rare in practice similar cases.
The cases of the participation of foreign attorney in the criminal process are even less probable. As is known, in Russia the application of foreign criminal- legal standards is actually excluded. It is possible to consider the procedure of extradition rare exception.
From the government of state Austria entered the demand about the delivery of the person, who is found on the territory of the Russian Federation. With the trial of the exstradition matter in the law court, face can use the services of attorney of the Austrian republic. This will be expediently because for Russian law court one way or another it is necessary in its trial to touch on questions of criminal law of Austria.
Furthermore, the attorneys of foreign states it is forbidden to render juridical aid on the questions, connected with the state secret of the Russian Federation.
Law requires that all foreign attorneys achieving legal activity in the territory of the Russian Federation must be introduced into the special list.
The limitations on the rendering indicated with the foreign attorneys of juridical aid in Russia lead to the fact that qualified legal assistance they can render predominantly those, who specialize in the legal system of Russia (i.e. Russian attorneys).
However, it is present and the number of deficiencies in this limitation.
First, the limitation of competition. The wider participation of foreign specialists, especially from the countries with the developed legal systems and the rich practice on the rendering of juridical services, would go for the benefit both to the clients and to the Russian attorneys. This opinion was formed both in the practitioners and in those, who carry out theoretical developments in this sphere.
In the second place, a number of the authors they note that possibility itself to obtain expert assistance of western legal firm can be evaluated as indirect the stimulus- encouragement of the realization of foreign investments. The authors correctly note that " important foreign investor became accustomed to the special confidence interrelations with the West European attorneys or the attorneys of Wall Street, who were added by decades in the process of its commercial activity and who manufacture in it business confidence. This "psychology of habit", their orientation to the acknowledged in the world law firms must be considered thinly by the legislator of the countries Of SNG".
Thirdly, was no matter how independent Russian attorney from the state, in certain cases, for example into "louder" criminal near-political processes, the attraction of foreign attorney together with the Russian, would make legal protection of more independent variable and efficient.
For the purpose of a certain softening of the hard line of law is seen the possibility of the conclusion of the bilateral international agreements, in which on the reciprocity principles would be enlarged the possibilities of the participation of foreign attorneys in the rendering to juridical aid. Concluding bilateral international agreements, the professional level of the attorneys of the legal services allowed for the Russian market (for example, as to us it is presented desirable agreements with the countries of Europe, USA and the like) would be controlled. In connection with the fact that the international agreements of the Russian Federation have the large juridical force than laws, similar bilateral agreements would act predominantly before limitation by those superimposed by the law RF of " On the legal activity and the legal profession of the Russia".
The absence of the practice of the conclusion of a similar kind of bilateral international agreements is an essential drawback in this proposal. Not one of the signed by Russia international agreements of legal nature, until they contain the rules, which regulate the participation of foreign attorneys in the rendering to juridical aid in its territory.
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