“Senior counsel”的意思、由来-开放百科全书

The title of senior counsel or state counsel (post-nominal letters: SC) is given to a senior lawyer in some countries that were formerly part of the British Empire. "Senior Counsel" is used in current or former Commonwealth countries or jurisdictions that have chosen to change the title "Queen's Counsel" to a name without monarchical connotations, sometimes (but not always) because the British monarch is no longer head of state, such that reference to the Queen is no longer appropriate. Examples of jurisdictions which have made the change because of the latter reason include Mauritius, Zambia, India, Hong Kong, the Republic of Ireland, South Africa, Kenya, Malawi, Singapore, Guyana and Trinidad and Tobago. Just as a junior counsel is "called to the [Outer] Bar", a senior counsel is, in some jurisdictions, said to be "called to the Inner Bar". Senior counsel may informally style themselves as silks, like their British counterparts. This is the case in the Republic of Ireland, Australia, Hong Kong and South Africa.

A second usage, prevalent in the United Kingdom itself (which retains the separate and distinct Queen's Counsel title for barristers) refers to a solicitor who is senior and autonomous, but is neither a partner nor on the career path to partnership.

Dress

In Hong Kong, senior counsel (both men and women) must wear the black robe and silk gown together with a wig when appearing in open court.^[1]

In the Republic of Ireland, senior counsel wear a silk gown which differs from that of a Junior Counsel. The wig is optional in the Republic of Ireland.

Australia

The rank of senior counsel has also been introduced in most states and territories of Australia, even though the Queen remains head of state. Between 1993 and 2008 all Australian jurisdictions except the Northern Territory replaced the rank of Queen's Counsel with that of senior counsel. However, in 2013 Queensland restored the rank of Queen's Counsel and there was talk of other Australian states following suit.^[2] On 3 February 2014, the Victorian Attorney-General announced that the rank of Queen's Counsel would shortly be reinstated in the State of Victoria, with existing and future senior counsel having the option to apply to be issued with letters patent appointing them as Queen's Counsel.^[3]

The formal difference appears to be that QCs receive a warrant signed by the relevant state Governor, who is the formal representative of the Sovereign, whereas SCs receive a certificate issued by the relevant Bar Association or bureaucracy such as by the judicature of the State Supreme Court as the case may be.

Hong Kong

"Senior Counsel" ({{zh|t=資深大律師}}^[4]) replaced QC in the law of Hong Kong after the transfer of the sovereignty of Hong Kong from the United Kingdom to China in 1997. Queen's Counsel who had been appointed QC in HK or British Queen's Counsel who had been admitted to practice in Hong Kong generally prior to the handover became senior counsel automatically.^[5]

Queen's Counsel from England or other senior counsel from other jurisdictions are not accorded any precedence if they are admitted generally in Hong Kong. However, visiting Queen's Counsel from another jurisdiction who have been admitted for a specific case are entitled to use the title, and to be accorded the status, of senior counsel for the purposes of those proceedings.^[6]

Ireland

The Irish Free State came into existence as a dominion within what was then called the British Commonwealth of Nations, all within the British Empire, in December 1922. Shortly after the Courts of Justice Act 1924 came into effect, Chief Justice Hugh Kennedy, in conjunction with the Bar Council of Ireland, modified the procedure for issuing patents of precedence. From July 1924, "King's Counsel" was replaced by "Senior Counsel" on patents;^[7] these were issued by the Chief Justice,^[7] although the "privilege of patent" continued to fall within the Royal Prerogative until transferred to the Executive Council (government) by the Executive Powers (Consequential Provisions) Act 1937.^[8]^[9] The title "K.C." continued to be used by many senior counsels, both those created before July 1924 and those after.^[7]

In 1949, shortly before the coming into force of the Republic of Ireland Act 1948, which created the Republic of Ireland and broke the final link with the British Crown, Frank Aiken asked John A. Costello during Taoiseach's questions "whether, in view of the fact that certain members of the Inner Bar who received their patents as senior counsel continue to describe themselves as king's counsel, he will introduce a bill entitled an act to declare that the description of a senior counsel shall be senior counsel"; Costello said he had "no intention of wasting public time and money" on the idea.^[10]

As late as the 1960s, R.G.L. Leonard was described in the official Irish law reports as "Queen’s Counsel",^[11] reflecting the British change from King to Queen in 1952.

Northern Ireland, which came into existence within Ulster in May 1921, has continued being a constituent part of the United Kingdom. Thus, Northern Ireland has continued to follow the practice of King's Counsel or Queen's Counsel, just like the rest of the United Kingdom.

New Zealand

The title "Senior Counsel" was briefly established in New Zealand from 2007 until 2009. It was abolished by the following government in favour of restoring the title of Queen's Counsel on the basis of the respect felt accorded to those appointed Queen's Counsel. Those appointed as senior counsel have been given the option of becoming Queen's Counsel or remaining as senior counsel.

Singapore

"Senior Counsel" ({{zh|s=高级律师}}^[4]) is used in the law of Singapore.^[12] There is no independent bar in Singapore and senior counsel practice as members of law firms.

South Africa

"Senior Counsel" (in Afrikaans Senior Advokaat) replaced QC in South Africa after the union became a republic in 1961, with appointments being made by the state president until 1994, when the office was succeeded by that of president. A judge in the High Court in the province of Gauteng ruled that under the 1993 constitution, the president did not have the power to grant senior counsel status.^[13] This judgment has been overturned by the Supreme Court of Appeal and also the Constitutional Court. See Advocate#Advocates in South Africa.

United Kingdom

In the United Kingdom, the position of Senior Counsel is used to denote an experienced solicitor (who need not be an advocate), who is not on the path to partnership. This position is therefore analogous to the American title of counsel, and is not directly comparable to the position of Queen's Counsel, which is held by barristers.

Similar titles

References

1. ^Code of Conduct Annex 11 {{webarchive|url=https://web.archive.org/web/20091003114150/http://www.hkba.org/the-bar/code-of-conduct/code_of_conducta11.htm |date=3 October 2009 }}
2. ^{{cite web|url=http://www.theaustralian.com.au/business/legal-affairs/states-divide-over-restoration-of-queens-counsel-title/story-e6frg97x-1226663452676|title=States divide over restoration of 'Queen's Counsel' title |publisher=theaustralian.com.au |date= |accessdate=2013-06-14}}
3. ^Victoria to give senior barristers option to become QCs{{dead link|date=May 2018 |bot=InternetArchiveBot |fix-attempted=yes }}
4. ^¹Translation Standardisation Committee for the Chinese Media, Singapore {{webarchive|url=https://web.archive.org/web/20040417195207/http://chineseterms.zaobao.com/gov/gov_agc1.html |date=17 April 2004 }}
5. ^See the savings and transitional provisions contained in s. 2 of Schedule 2 to Ordinance No. 94 of 1997
6. ^Legal Practitioner's Ordinance, S.31B
7. ^¹²Vol.114 No.4 cols.493–5 24 February 1949
8. ^Dáil deb Vol.521 c.191–2 {{webarchive|url=https://web.archive.org/web/20110609131200/http://www.oireachtas-debates.gov.ie/D/0521/D.0521.200006130070.html |date=9 June 2011 }}
9. ^§2, Executive Powers (Consequential Provisions) Act, 1937 Irish Statute Book
10. ^ 23 March 1949
11. ^{{cite journal|last=Hall|first=Eamonn|date=April 2005|title=The ancien régime|journal=Law Society Gazette|publisher=Law Society of Ireland|volume=99|issue=3|page=14|url=http://www.lawsociety.ie/Documents/Gazette/Gazette%202005/april2005.pdf#page=14|access-date=6 January 2019|archive-url=https://web.archive.org/web/20170511123108/https://www.lawsociety.ie/Documents/Gazette/Gazette%202005/april2005.pdf#page=14#page=14|archive-date=11 May 2017|dead-url=yes|df=dmy-all}}
12. ^{{cite web|url=http://www.sal.org.sg/Lists/Senior%20Counsel%20Directory/AllItems.aspx|title=Senior Counsel Directory|publisher=Singapore Academy of Law|accessdate=8 August 2010}}
13. ^Court rules president cannot grant senior counsel status, Mail and Guardian, 9 February 2012
14. ^{{cite web|url=http://en.banglapedia.org/index.php?title=Advocate|title=Advocate|work=banglapedia.org}}
15. ^{{Cite web |url=http://www.sci.nic.in/constitution.htm |title=Supreme Court of India |access-date=1 December 2016 |archive-url=https://web.archive.org/web/20161201210904/http://www.sci.nic.in/constitution.htm |archive-date=1 December 2016 |dead-url=yes |df=dmy-all }}
16. ^{{Cite web |url=http://www.pbbarcouncil.com/downloads/barcouncil_act_amended_2005.pdf |title=Archived copy |access-date=9 November 2011 |archive-url=https://web.archive.org/web/20120405104651/http://www.pbbarcouncil.com/downloads/barcouncil_act_amended_2005.pdf |archive-date=5 April 2012 |dead-url=yes |df=dmy-all }}