論法律職業(yè)共同體的構(gòu)建
發(fā)布時間：2019-03-09 12:51
【摘要】： 一個國家的法制狀況,不僅僅與法律體系的健全程度有關(guān),更與法律操作者的水平密不可分,建立高度專業(yè)化的同一的法律職業(yè)共同體,是現(xiàn)代國家實現(xiàn)法治的基本要求和共同特征。因而對于法學(xué)研究而言,僅僅對法律制度進行探討是不夠的,還要找出人與法之間的一般規(guī)律,從而深入研究法律職業(yè)共同體的生長路徑。但是,在我國,法律職業(yè)共同體的研究尚處于呼喚共同體階段,本文試圖從法律職業(yè)化與共同體形成的一般理論出發(fā),通過對西方社會法治實踐與我國法治現(xiàn)狀的研究,來對我國法律職業(yè)共同體的構(gòu)建提出一些見解。 法律職業(yè)共同體是一個高度自覺,宗旨明確,以職業(yè)道德維系和以公共服務(wù)為價值觀的專業(yè)集團,法律職業(yè)共同體不僅代表了從事法律職業(yè)的從業(yè)者,更重要的是代表了這一群體對法治理念的認(rèn)同、詮釋,以及獨有的精神氣質(zhì)。法律職業(yè)共同體的社會功能包括三個方面:控制功能、整合功能、制衡與保障功能。 西方法律職業(yè)共同體是在其特定的歷史、文化和傳統(tǒng)的延續(xù)中形成的,通過比較分析,可以看到無論是英美法系法律職業(yè)一元化的培養(yǎng)模式,還是大陸法系科舉選拔而成的法務(wù)卡特爾組織形式,都成功的構(gòu)建了各自的法律職業(yè)共同體。然而對我國來說,成功經(jīng)驗的借鑒并不代表簡單的移植,還須根據(jù)本國特殊的“本土資源”來構(gòu)思法律職業(yè)共同體的養(yǎng)成模式。 我國社會法律職業(yè)共同體在構(gòu)建進程中的困惑與矛盾中首先表現(xiàn)為共同體獨立性的嚴(yán)重缺失,無法自治的共同體就失去了其成立的根基,而法律職業(yè)群體內(nèi)部的相互矛盾和對立直接導(dǎo)致了司法腐敗,職業(yè)認(rèn)同感的缺失與身份保障的缺乏使得我國的法律職業(yè)共同體的構(gòu)建困難重重。如果說這些只是表面現(xiàn)象的話,那么我國“獨有”的深層次原因就是市民社會的孱弱。 從解釋共同體與利益共同體的存在中我們看到了構(gòu)建法律職業(yè)共同體的可能性,針對我國在法律職業(yè)化方面存在的問題,可以從自治性的取得、內(nèi)部關(guān)系的調(diào)整、職業(yè)保障與職業(yè)倫理的建立三個方面進行改進,以期開辟在我國構(gòu)建法律職業(yè)共同體的進路。
[Abstract]:The state of the legal system in a country is closely related not only to the integrity of the legal system, but also to the level of the legal operator, and to establish a highly specialized community of legal professions. It is the basic requirement and common characteristic of the modern country to realize the rule of law. Therefore, for the study of law, it is not enough to discuss the legal system, but also to find out the general law between man and law, so as to deeply study the growth path of the legal professional community. However, in our country, the research of legal professional community is still at the stage of calling for the community. This paper attempts to start from the general theory of legal professionalization and the formation of community, through the study of the practice of rule of law in the western society and the current situation of the rule of law in our country. To put forward some opinions on the construction of the legal professional community in our country. The legal professional community is a professional group with high self-consciousness, clear purpose, maintaining professional ethics and taking public service as its values. The legal professional community not only represents the practitioners engaged in the legal profession. More importantly, it represents this group's identity, interpretation, and unique spiritual temperament to the concept of rule of law. The social function of legal professional community includes three aspects: control function, integration function, balance and safeguard function. The Western legal professional community is formed in the continuation of its specific history, culture and tradition. Through the comparative analysis, we can see that the legal profession in the Anglo-American law system is a unified training model. Or the civil law system imperial examination formed the legal cartel organization form, all have successfully constructed the respective legal profession community. However, for our country, the successful experience does not mean the simple transplantation, but also according to the national special "local resources" to conceive the formation model of the legal professional community. In the process of constructing the social and legal professional community in our country, the confusion and contradiction are firstly manifested in the serious lack of the independence of the community, and the community which cannot be self-governing has lost the foundation of its establishment. The contradiction and opposition within the legal professional group directly lead to judicial corruption. The lack of professional identity and the lack of identity guarantee make the construction of the legal professional community difficult in our country. If these are only superficial phenomena, the deep-seated reason of our country's "unique" is the weakness of the civil society. We have seen the possibility of constructing a legal professional community from the view of the existence of the explanation community and the interest community. In view of the problems existing in the legal professionalization of our country, we can obtain autonomy and adjust the internal relations. Career security and the establishment of professional ethics should be improved in order to open up the way of building a legal professional community in our country.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2009
【分類號】：D90
[Abstract]:The state of the legal system in a country is closely related not only to the integrity of the legal system, but also to the level of the legal operator, and to establish a highly specialized community of legal professions. It is the basic requirement and common characteristic of the modern country to realize the rule of law. Therefore, for the study of law, it is not enough to discuss the legal system, but also to find out the general law between man and law, so as to deeply study the growth path of the legal professional community. However, in our country, the research of legal professional community is still at the stage of calling for the community. This paper attempts to start from the general theory of legal professionalization and the formation of community, through the study of the practice of rule of law in the western society and the current situation of the rule of law in our country. To put forward some opinions on the construction of the legal professional community in our country. The legal professional community is a professional group with high self-consciousness, clear purpose, maintaining professional ethics and taking public service as its values. The legal professional community not only represents the practitioners engaged in the legal profession. More importantly, it represents this group's identity, interpretation, and unique spiritual temperament to the concept of rule of law. The social function of legal professional community includes three aspects: control function, integration function, balance and safeguard function. The Western legal professional community is formed in the continuation of its specific history, culture and tradition. Through the comparative analysis, we can see that the legal profession in the Anglo-American law system is a unified training model. Or the civil law system imperial examination formed the legal cartel organization form, all have successfully constructed the respective legal profession community. However, for our country, the successful experience does not mean the simple transplantation, but also according to the national special "local resources" to conceive the formation model of the legal professional community. In the process of constructing the social and legal professional community in our country, the confusion and contradiction are firstly manifested in the serious lack of the independence of the community, and the community which cannot be self-governing has lost the foundation of its establishment. The contradiction and opposition within the legal professional group directly lead to judicial corruption. The lack of professional identity and the lack of identity guarantee make the construction of the legal professional community difficult in our country. If these are only superficial phenomena, the deep-seated reason of our country's "unique" is the weakness of the civil society. We have seen the possibility of constructing a legal professional community from the view of the existence of the explanation community and the interest community. In view of the problems existing in the legal professionalization of our country, we can obtain autonomy and adjust the internal relations. Career security and the establishment of professional ethics should be improved in order to open up the way of building a legal professional community in our country.
【學(xué)位授予單位】：北方工業(yè)大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2009
【分類號】：D90
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