Melnichenko R. G. Necessary attorney monopoly on the market of the legal services? // Law. April 2008.
The Modern market of the legal services in Russia it is enough three-dementional both on amount of the rendered services, and on volume getting through it financial facilities. The Russian attorneys are on this market by key contributorses. Exactly so, exactly attorney community particularly worries the question, to whom and on what condition will be let in Russia to render the skilled legal help. Before that what go directly to russian market of the legal services, address to foreign experience in this question.
In some state rendering any type legal help is a monopoly attorney. For instance, such notion exists in Israell legislation as "exclusive or uniqueness to attorney profession". This means that rendering any legal help to population can concern with only person, having special license - rishayon i.e. members to Israell board attorney. This is a prohibition pertains as to representation in court, so and to other legal help, for instance - a legal consultancy.
In the other state actual monopoly attorney is bolted to judicial representation only. So, Federal law to Switzerlands "About judiciary" in respect of representation in Federal court installs following: "Act as representative in civil and criminal deal can only patent attorneys and teachers of the right swiss university". In the same way, according to Ordonansu Vietnam, quotient to consultations have a no right to participate in judicial hearing.
Necessary to note that specified positions have not found its fastening in legislation majority countries, in particular, state - a former republics USSR.
In majority legislation foreign state exclusive right to render the legal help belongs to the attorney in criminal proceedings only. This position is bolted, for instance, in confidant legislation state Armenia and Kyrgyzstan. According to law these state professional protection on criminal deals is realized only attorney.
Legislation of the row state legally allows the participation not attorney as protector. They can be, in different legal system, teachers of the right, including technical educational institutions, simply lawyers or other person in the individual order let by court to protection. In practice these rates or are not used, or are interpreted lawyer limited. For instance, in one of the decisions High land court Karlsrue (Germany) is noted that person, not being attorney (if this even lawyer), does not possess the required person by ability to realize protection on criminal deals.
On cause of the rendering legal help in economic court and court on civics, majority state allows the lawyer-not attorney to judicial representation. However in lawyer practical person majority state exists unambiguous understanding that that only attorneys can render any persons any legal help, including within the framework of judicial meeting, but legal advisers render her(it) within the framework of that juridical person only, where they realize their own professional functions as mercenary workman.
Sometimes in full conduct attorney are returned specifically fine and complex mechanisms of the legal regulation. So, in USA circle of the persons, accredited to file the suits through internet, so named system of the electronic justice, is limited solely attorney. This helps to raise efficiency of the work this complex system, and, in ditto time, exclude the negligence other lawyer, activity which is not checked by professional honour.
Necessary to note that some state limit the sphere of the attorney services. So, according to law Netherlands, attorneys, being member to Netherland Assotiation Attorney, has the right not to give the legal facilities in sphere of the business and control.
The First public collision standpoint russian lawyer on cause of the monopolizing attorney part market legal services was shown in resolution of the Constitutional Court to Russian Federation from January 28 1997 "On deal about check constitutionally part fourth cl. 47 Criminal-processed of the code RSFSR in connection with complaint of the people B.V. Antipova, R.L. Gitisa and S.V. Abramova". The Ground question became for consideration of the deal, allow as protector at production on criminal deals on stage of the preliminary effect only attorney or any other persons at the option inculpated? In process of consideration of the deal main polemics turned round around notion skilled legal help. Constitutional court has indicated that, guaranteeing right on reception certainly skilled legal help, state must, first, provide condition, promoting preparation skilled lawyer for rendering to people different type legal help, secondly, set up with this purpose determined professional and other qualification requirements and criteria. If on the first condition some contradiction did not appear then on the second appeared the discords. Costs to remind that in current whole of composition of the Constitutional Court, considered this deal, four judges have voiced its special opinion. The Resolution was accepted with superiority in one voice that confirms discuss marked question. We shall Try to define the deep reasons given spore. On the one hand, inadmissible to create the condition, when persons determined professions (in this instance attorney) are given exclusive rights on rendering to people legal help, since monopolizing not best image is reflected on quality rendered legal services. On the other hand, uncontrolled tolerance to rendering the legal services can be also reflected on their quality by the most negative image. A. F. Horsecar in its work "Final debates of the sides in criminal process" indicated: "Institution juror bars, existed under till reform formation in narrow only and germinal condition, received on change former intercessor "with back porch", was met hot public empathy. Regrettably, she was not puted in favourable for her developments of the condition, and alongside with juror by confidants appeared the quotient an intercessor and absolutely stranger to bar of the person, eligible to be a representative inculpated without any educational or moral requirement". The Constitutional court stopped on second variant, having indicated that as protector is allowed attorney, other condition, professional criteria and organizing-legal forms, providing rendering skilled legal help in criminal process, must be determined by lawmaker. In principle Constitutional court has really chosen least from two ashes. However, with publishing the specified resolution point in given question is puted was not. As defined in most resolution and in person opinions, expressed court of the Constitutional court, at present is absent the federal law, defining criteria qualify legal help. And judicial practice has perceived the decision of the Constitutional court. So, public prosecutor on deal Zhakovoy has considered that her right on protection is not broken, since its protector was P., which to participation in deal asked to allow itself inculpated, not wanting have as protector attorney from legal consultation. The Judicial board on criminal deals of the SUPREME JUDICIAL COURT RF has indicated that person, not being attorney, can be let as protector on determination of the court only or resolution to judges. Thereby, court validly has drew a conclusion about infriengement inculpated on protection on preliminary effect whereas, improper person was attracted for protection.
Having Installed attorney monopoly on rendering skilled legal help on stage of the preliminary effect, Constitutional court has not done the unambiguous conclusion about the further monopolizing attorney market of the legal services. Sooner on the contrary, the following decisions of the Constitutional court were are sooner directed on demonopolisation this market. In its determination from December 5 2003 "On complaint of the people L.D.VALIDMAN, S.M.GRIGORIEVA and regional public body "Association depositor "MMM" court settled the problem about that, possible tolerance of the person, having high legal formation and degree of the candidate of the legal sciences, but not being attorney, to participation in judicial meeting as representative aggrieved. Having Considered this deal, court came to conclusion that deprivation of the right of the person to apply for legal help to one, on its opinion, wholly capable to render skilled legal help, practically brought to restriction of the liberty of the choice, to
compulsion to use, notwithstanding own will, only one, determined way of protection their own interest.
Like by image attorney monopoly was skim and with rendering the legal services in process arbitration representation (the deal Melihova). The Specified precedent is concluded in following: organization has hired for protection their own interest in courts of arbitration lawyer M. Court of arbitration has refused in tolerance to process of the representative M., motivating this that that, according to arbitration-processed legislation, representative organization can emerge in courts of arbitration person, consisting in staff organization, or attorneys. The Constitutional court RF has acknowledged these positions Arbitration-processed of the code RF not corresponding to constitutions.
We introduce that attempts of the introduction to attorney monopoly on skilled legal help will be ruinous not as much for her grantees as for the most attorney community.
First, state, "give" attorney monopoly, hereunder gets the moral right to realize more hard checking on attorney corporation. This disgusts one of the reference positions of the bar - its independence.
Secondly, competition to only inwardly attorney corporation is insufficient and will bring, eventually, to deterioration quality and increase the cost of their services.
Third, attorney monopoly will bring about deterioration style attorney. In eye of the population attorneys will are leveled to raw materials, transport, notarial and the other monopoly.
Fortunately, in attorney and scientific ambience question about attorney monopoly has not found the hot supporter. However some attorney was validly puted question about inequality of the competitive conditions between attorney and other participant market legal services. So, president of the Attorney chamber of the city of the Moscow G.M. Reznikom was prepared project of the federal law "About rendering skilled legal help in Russian Federation". G.M. Reznik перелагает several steps on liquidations inequality competitive conditions on legal market. For instance, is offered lead "under hand" organ of the attorney home rule "free lawyer".
Necessary to notice that attempts of the checking on "free lawyer" were undertaken and earlier. So, Resolution Government to Russian Federation from April 15 1995 "About approving the Position about licensing of activity on rendering the pay legal services" was made attempt to regularize activity on rendering legal help. In development given document were published other normative acts, for instance, letter Minyusta RF from June 3 1998 "About some questions, in accordance with practice of the extension duration license of rendering the pay legal services". However, in connection with taking the Federal law "About licensing separate type to activity", according to which legal activity does not subject to to licensing, specified position was cancelled.
The Other aspect to monopolizing market legal services - a restriction of the access hereto market foreign attorney. Installed by russian legislation of the restriction on rendering foreign attorney legal help in Russia bring about that that skilled legal help can render mainly person, specializing on legal system of the Russia (i.e. russian attorneys).
However, on hand row defect such restrictions. First, restriction to competitions. The more broad participation foreign specialist, particularly from countries with developed legal system and rich practice on rendering the legal services, has went on profit both client, and russian attorney.
Secondly, row of the authors notice that possibility itself to get the skilled help of the west attorney company can be valued as indirect stimulus-encouragement of the realization foreign investment. The Authors fair note that "large foreign investor to got accustomed to special confidential relations with east European attorney or attorney Uoll-street, which formed the decennial event in process his commercial activity and which work out business confidence beside it. This is "psychology of the habit", their orientation on recognized in the world legal companies must be finely taken into account by lawmaker of the countries C.I.S.".
Third, howsoever was independent russian attorney from state, in some cases, in "loud" criminal political process for instance, attraction of the foreign attorney alongside with russian, has did attorney protection more independent and effective.
The Attempt legislative "to close" market of the legal services for foreign attorney has brought about that that the most largest american, british and french attorney companies have to work in Russia as usual commercial organization. Naturally, water will always find itself road. Need for foreign attorney in Russia it is enough firm, and stated actual prohibition on rendering foreign attorney legal help on territory of the Russia, has compelled last to search for the bypass road to its clients.
In its publications G.M. Reznik, noting these circumstance, offers to protect the domestic market of the legal services from expantion of the foreign companies. Motivates he this liing ahead entering to Russia in VEIN. We shall Afford not to comply with opinion famous attorney and scientist. "Hotbed" condition of existence russian attorney will bring about that that they will become the without live on hard world market attorney services.
We introduce that attorney community in fight for "equality of the market conditions" greater effort must spare not complication to lifes "free lawyer" or foreign attorney, but increasing quality and prestige of the russian bar. The Organs of the attorney home rule are obliged to create such condition, under which to client and in head could not come the thought about that that skilled legal help he can get, sometime else aside from russian bar.
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