[author]ZHANG Liang

[content]

ZHANG Liang

Abstract: The participation of attorneys is an important fulcrum for the realization of the purpose of the administrative litigation system. Through the quantitative study of adjudication data within a specific scope, it is found that the difference of the proportion of attorneys representing in administrative litigation between local areas is obvious. Based on the binary regression analysis of influencing factors such as economic ability, power pressure, awareness of rights protection and rights type, it shows that the participation level of attorneys in various regions is affected by factors such as market supply and demand and the legal environment to varying degrees. There is a "regional threshold" for the attorney representation rate for the plaintiff. The analysis of the effectiveness of attorney' representation shows that attorney's professional services have improved the operation of the administrative litigation system. Based on the above-mentioned regional differences, influencing factors and practical effects, the study proposes the theory of "bonding function" as an explanation, which is that attorney representation in administrative litigation is actually beneficial to the balanced realization of various purposes of the administrative litigation system. In order to improve the legalization level of administrative dispute resolution, it is necessary to strengthen the legal aid for administrative litigation and the internal and external policy incentives for government attorneys, and further improve the supply and demand of the participation of administrative litigation attorneys.

Key Words: Administrative Litigation; Attorney's Representation; Influencing Factors; Regional Threshold; Bonding Function

Introduction

The legal service team is an important force of the comprehensive rule of law, in which the lawyer group is more typical. The system orientation of lawyers' participation in the three major litigations is different, and the rules of lawyers' representation in administrative litigation are more oriented towards the competition of rights model, which is basically the same as that of civil litigation. However, due to the existence of multiple legislative purposes, administrative litigation implementation process may often bring conflict between the legislative purposes, and thus affect the overall effectiveness of the law normative system. Therefore, the practical effect of administrative litigation is often difficult to achieve dispute resolution, supervision of the administration and relief of the rights and other purposes of predetermined, litigation activities sometimes instead of affecting the efficiency of the administration, damage to the public interest, a waste of judicial resources, the contrast between the purpose and the role led to litigation itself by the relevant departments as well as the courts of the cautious treatment. In other words, the practical effect of administrative litigation may have a negative impact on the participation of lawyers in fact or policy. So, what kind of function does the representation of lawyers in administrative litigation play? Is it positively promote the realization of the purpose of the administrative litigation system, or intensify the conflict, leading to the occurrence of stalking and abusive litigation? This conflict and tension deserves in-depth thinking, at present, there is a lack of empirical data to support the systematic study, it is necessary from the theoretical point of view to scrutinize the factors and effects of lawyers' representation in administrative litigation.

The research perspective and problem awareness of this paper is based on the quantitative empirical observation of a specific range of administrative litigation lawyers' participation samples, and tries to explain its local differences, influencing factors and effectiveness, and proposes countermeasures for the further improvement of the national relevant system. Four parts will be developed: first, what is the overall and localized picture of lawyer engagement in the country? This needs to be measured and described through standardized data crawling and statistical analysis. Second, why does the plaintiff's willingness to choose a lawyer to represent him in administrative litigation vary, and what factors are at work behind it? This paper designs four sets of models to explain this issue, including economic ability, power pressure, defense awareness, and type of rights. Third, what is the actual effect of attorney representation on administrative litigation? Does it deviate from the purpose of the administrative litigation system? To this purpose, this paper constructs the three sets of models of litigation effects in terms of acceptance, success, and dismissal to examine them. Fourthly, what should be the attitude towards lawyer participation in China's legal policy? Based on relevant empirical findings, this paper proposes a "bonding function" theory to respond.

The data sample examined in this paper is the effective administrative adjudication documents concluded by the intermediate and high courts of 31 provincial administrative regions across the country in 2017, totaling 104,960, including 59,643 rulings and 45,317 judgments. The explanatory power and theoretical range of empirical research depends on the standard and scope of the sample, and the scope of the data in this paper is limited, reflecting only the judicial phenomenon or law in a specific period. At the same time, the identifying information of the parties in the public judgments has been censored, and some demographic information is missing in the data, such as the above flaws may have an impact on the research conclusions. The author's considerations lie in the following: firstly, compared with the grassroots courts, the Internet access rate and the quality of decisions of the intermediate and high courts are more guaranteed. Secondly, the majority of the adjudication documents in this part are cases accepted and concluded after the revision of the Administrative Procedure Law in 2015, which can maintain relative consistency in the application of the law and present the real pattern of administrative disputes entering the judicial channel. Finally, there are objective differences in the online situation of the adjudication documents in different time periods, and the time point of data collection in this paper is relatively ideal.

1. Preliminary observations on the participation of lawyers in administrative proceedings

According to the distribution of power theory of justice, judicial behavior is determined by the various configurations of power states of the parties and the judge, as well as by the pattern of distribution of information, i.e., causality under the influence that the parties exert on the judge in the institutional environment in which the judiciary operates, through a variety of formal and informal means. Lawyers, as the primary means by which parties rely to address information asymmetries, are important variables that can legitimately alter this causal relationship. The professional gap between legal professionals and the public has received attention in early theories of judicial behavior, particularly in complex specialized judicial activities such as administrative litigation, where lawyers have a more significant advantage and attraction. However, in contrast to the stimulus effect of the professional gap, there are also views that the political and legal environment and citizens' awareness of the rule of law will lead to the low rate of lawyers' representation in administrative litigation, such as relevant studies show that when the public in China is faced with administrative disputes prefer petitions rather than administrative litigation, in which the proportion of those who would consider looking for a lawyer is even smaller. Or, the plaintiffs are mostly "small people", the value of the case is small, hire a lawyer is still quite a luxury for them. Since legal representation is not mandatory by law, in many of the cases appealed to the Supreme Court, the parties are still not represented by lawyers.

1.1 General overview

The data related to the participation of lawyers in administrative litigation in previous studies, due to different sampling standards and scope, the conclusions present certain differences, which can provide theoretical supplementation or reference from different perspectives. This paper through the 104960 referee data for statistical analysis, showing 38702 cases of plaintiffs with lawyers, defendants with lawyers 49157 cases, the national average of plaintiffs with lawyers 39.06%, the defendant is 47.48%. Comparatively speaking, the attorney representation rate for civil litigation cases in China is about 23%, and the attorney defense rate for criminal litigation cases is between 20 and 30%.

1.2 Local differences

A cross-tabulation of districts and parties reveals (Table 1) that there are significant localized differences in attorney representation rates.

Table 1 Cross-tabulation of districts and parties

1.2.1 Relatively low representation of plaintiffs by lawyers in economically developed regions

The gap between the plaintiff's lawyer representation rate in various places is large. Among them, Beijing, Shanghai, tianjin, chongqing, zhejiang province, jiangsu province and other developed areas are below the average level, further to the plaintiffs lawyers agency rate and 17 local statistical data to do correlation analysis, can be found, the plaintiffs lawyers agency rate and the local per capita GDP, per capita disposable income, the proportion of the urban population are all significantly negative correlation. From the quantitative relationship can be initially judged, the higher the level of per capita income and economic development, the more densely populated urban areas, the lower the rate of plaintiffs' lawyers. Existing research results show that the higher the level of economic development and the larger the population size of the region, the number of administrative disputes will also increase, the demand for legal services market and the size of the market will be correspondingly larger, but this conclusion is not fully reflected in the plaintiffs' lawyers on the data. In other words, the willingness of lawyers to practice in each region does not match the local level of economic development. Factors that deter the market effect on the rate of plaintiffs' attorney representation may be the high number of specific types of cases, low profitability, sensitivity, etc., which have an impact on the willingness of lawyers to practise and the level of supply of legal services in various places, resulting in a relatively low rate of plaintiffs' attorney representation. On the contrary, in some backward areas, although the volume of administrative litigation cases and the scale of the practice of lawyers is small, but the fee gap between the various types of business has been similarly narrowed, and at the same time, there will be a large number of lawyers from the developed areas to represent in other places, so the rate of legal representation, on the contrary, can be maintained at a high level.

1.2.2 Representation of defendants by attorneys is generally higher than that of plaintiffs

The rate of legal representation of defendants in administrative litigation is higher than that of plaintiffs is a common phenomenon in most areas, basically unaffected by the level of local development, with only six places, including Hainan Province, Qinghai Province, Yunnan Province, Guangdong Province, the Inner Mongolia Autonomous Region, and Guizhou Province, where the rate of legal representation of plaintiffs is slightly higher than that of defendants. This phenomenon is likely to be affected by the administrative organs work mechanism and responsibility mechanism. Although the administrative organs in lawsuits are in a strong position, and have their own professional legal departments or teams to deal with lawsuits, it is not difficult to understand the defendants' preference for outside lawyers when the work of responding to lawsuits is increasingly heavy and does not produce performance, which brings responsibilities or risks in the performance of duties, and when there are financial guarantees for the hiring of social attorneys. Administrative organs do have to actively exercise the right to litigation to protect the public interest, but the defendant in a large number of lawsuits in the expenditure of financial resources to hire lawyers, is not uncontroversial. At present, the people's court judicial review of administrative action is comprehensive and prudent, to administrative organs may lose the case will be extra cautious, which in fact is favorable to the defendant. Combined with the current judicial situation, the defendant should focus on the front end of the process of administration in accordance with the law, or after the administrative disputes to facilitate the dispute resolution, rather than in the end of the link through the litigation techniques to "win". If indeed due to administrative violations and triggering litigation, then rely on the professional skills of lawyers to cover up or avoid responsibility is more improper, representation that has no practical effect on litigation also constitutes a waste of public funds.

1.2.3 Summary

Compared with the attorney representation rate of civil and criminal cases, the attorney representation rate of administrative litigation in China is not low on the whole, which is not unrelated to the specialization and adversarial nature of administrative litigation cases as well as the low fees, which is in line with the daily cognition. However, the examination of local differences found that the economically developed areas of the plaintiff's attorney representation rate is relatively low, the defendant's attorney representation rate is generally higher than that of the plaintiff, the reasons for these two special phenomena may lie in the supply level of the legal services market does not match with the demand, as well as the impact of the work and responsibility mechanism of the administrative organs.

2. The factors affecting the plaintiff's choice of representation by lawyers

The above has preliminarily analyzed the overall situation and local differences of administrative litigation lawyer representation in China, and this part will further examine the influencing factors and related variables of plaintiffs' choice of lawyer representation. Examining the demand theory of legal services, some scholars point out from a macro perspective that urbanization, the popularization of higher education and other social modernization processes have gradually promoted the social demand for the lawyer's profession. The cultural perceptions and behavioural patterns of acquaintance societies are the explanation for the low demand for legal services in underdeveloped rural areas. Further research on demand preferences suggests that different social groups have different preferences when using the legal system, including lawyer services, and that education level significantly influences people's choices. More comprehensive research in the field of criminal procedure points out that the relevant influencing factors include personal factors such as education level, place of origin, and identity, environmental factors such as economic development status and the distribution of lawyers, as well as case factors such as the degree of investigation of the facts of the case, the type of case, and the seriousness of the accusation. All of the above studies provide useful inspiration for the variable design in this paper. Due to the fact that the identifying information of the plaintiff in the public judgment documents has basically been deleted, this paper cannot comprehensively outline the characteristics of the parties, and mainly designs the influencing factor variables of the plaintiff's choice of lawyers through the statistical data of the yearbook, the level of administrative organs, the level of adjudication organs, the field of administrative management, and the type of administrative acts, which are divided into four sets of models: economic ability, power pressure, awareness of rights protection, and type of rights.

2.1 Theoretical explanation of the model of influencing factor variables

2.1.1 Economic ability

Examining the effect of economic ability on attorney participation, we hypothesized that the better the economic condition of the plaintiff, the stronger the willingness to hire an attorney. Early sociology of law studies have pointed out that poverty is an important reason for restricting the realization of rights in the judicial process. This is also consistent with the judgment of domestic scholars examining grassroots judicial practice that professional and institutional thresholds create the costs and burdens of the legal process, and that disadvantaged groups with low economic means are undoubtedly at a significant disadvantage. Empirical studies have shown that a large number of social disputes are tolerated, some are resolved through non-legal channels, and a smaller number of disputes end up being escalated to litigation. The distribution of such action strategies is like the general rule of the "pyramid", where the escalation from the low end to the top implies that the resolution process is becoming more and more institutionalized, formalized, and expensive. Therefore, it is reasonable to believe that administrative litigation, like any other litigation, whether or not there is sufficient financial ability to purchase professional services is an important factor affecting the choice of lawyers for administrative litigation plaintiffs. Fees for administrative litigation cases are subject to government-guidance pricing, which prohibits risky representation, while a large number of administrative cases do not involve property subjects and are based on piece-rate fees. Therefore, the fee level of administrative cases is generally lower than civil cases, also not as criminal cases, due to the higher oppression of rights and personal freedom restrictions lead to bargaining space is relatively large. Overall, attorney fees for administrative litigation are low and more acceptable.

The variables selected for the economic capacity model are the plaintiff legal person and the plaintiff natural person, assuming that the economic capacity of the former is higher than that of the latter.

2.1.2 Power pressure

Plaintiffs have different pressures when facing various administrative activities, which may lead to differences in decision-making. We assume that the higher the power pressure, the higher the probability that the plaintiff will seek the help of a lawyer when suing. Although the people's legal awareness is constantly improving, the influence of the traditional "fear of official" mentality should not be underestimated, so that the public in administrative disputes, the phenomenon of swallowing their anger still exists. On the other hand, the administrative organs of the performance of duties with the state coercive force to ensure that the administrative relative is obviously a strong party, and administrative disputes of professionalism is slightly higher than the civil issues, the general public is difficult to manage. In administrative litigation, the above psychological, legal and factual imbalance between the two creations is perpetuated, and hiring a lawyer is the main way to alleviate the dilemma.

Three sets of variables are selected here to test the power pressure model: the first set is a comparison of power abuse type violations with other violations. This paper categorizes the violations of "abuse of power" and "obvious impropriety" stipulated in Article 70 of the Administrative Procedure Law as abuse of power violations, with the former defined as an administrative act with serious subjective fault, and the latter referring to an administrative act that does not violate the prohibition of the law, but is obviously improper. The former is defined as an administrative act with serious subjective fault, while the latter refers to an administrative act which, although it does not violate the prohibitions of the law, is manifestly unreasonable or does not meet the requirements of justice, such as being manifestly unfair, being influenced by irrelevant factors, not in line with customary practices, not in line with traditions, and being contrary to the public will. It is assumed that these two groups of unlawful situations will generate stronger resistance from the plaintiffs. The second group is a comparison between the four levels of government and their functionaries, such as provinces, cities, counties, and townships. In the previous concept of relief, the public believes that the higher the tier of the state organs, the more authoritative they are (this realization is especially obvious in letters and petitions), but this authority may be transformed into might when the higher tier of the administrative organs is in conflict with the relative. Therefore, we hypothesize that the higher the level of the administrative organ, the higher the pressure of authority. The third group is a comparison of typical interventionist administrative behavior with other behaviors. The basic mode of traditional administration is "command-submission", which is typical of interventionist administration to maintain social order by restricting or even depriving the relative's rights and interests in a coercive way, as opposed to other types of administration such as payment administration, which focuses more on public service. Under this assumption, plaintiffs who encounter highly intrusive administrative actions feel more pressure to exert power and are more likely to hire a lawyer.

2.1.3 Awareness of rights

It is assumed that the stronger the awareness of rights defense, the higher the likelihood of choosing a lawyer to represent them. The general public generally avoids conflicts with administrative authorities, but once a relative decides to file a lawsuit, he or she has already made up his or her mind to defend his or her rights. Some studies have used the initiation of judicial proceedings as a criterion and found that people are more likely to resolve administrative disputes through judicial channels than civil disputes, so Chinese citizens are not indifferent to legal awareness. On top of filing a lawsuit, whether or not to hire a lawyer may be another indication of strong legal awareness. Plaintiffs who are more aware of their rights will fight more aggressively to win the case and are more willing to spend money to hire a lawyer.

The model selects three groups of variables: the first group is the comparison of second trial and retrial cases with first trial cases. It is hypothesized that the higher the trial level of administrative litigation advances, the stronger the plaintiff's awareness of rights. The second group is the comparison between the subjects of multiple lawsuits and other subjects. The third group is the comparison of the subject of post-review litigation with other subjects. Under the assumptions of the second and third groups, both multi-claims and post-review litigation are manifestations of adherence to exhaustive remedial avenues, and thus the awareness of rights protection is higher than that of general litigation subjects.

2.1.4 Types of rights

Examining the various types of rights infringed upon by plaintiffs, we hypothesize that the involvement of different rights leads to differences in rights defense strategies. When administrative disputes involve which rights, plaintiffs will be more willing to hire lawyers, which necessarily implies a cost-benefit measure of the expected benefits of litigation, so the rights type model is related to the economic capacity model. However, the rights type model evaluates rights more from the perspective of rights rank, and even groups with similar economic capacity may have different judgments about the importance of various types of rights. The existence of a hierarchy of rights in a rights system is basically an indisputable fact, i.e., some rights must be guaranteed more strongly than others. The notion that personal rights are superior to property or other rights is also largely consistent with public perception and legal practice.

Three groups of variables were selected for the rights type model: the first group is a comparison of personal rights cases (personal freedom punishment and coercion) with other cases; the second group is a comparison of property rights cases (property punishment, property coercion, administrative expropriation, administrative registration, and administrative licensing) with other cases; and the third group is a comparison of the right to information (public disclosure of government information) with other cases.

2.2 Binary Logistic Regression Analysis of Influential Factors

Based on the above design of independent variables, binary Logistic regression validation will be carried out in the following. Since most of the explanatory and control variables used in this paper belong to binary variables, it can be assumed that there is no serious heteroskedasticity problem, and there is no need for further logarithmic or lagged processing of the variables, which is also in line with the characteristics of the cross-sectional data in this paper. Using SPSS25.0 statistical software, a binary logistic regression model was used to estimate the relationship between the four influencing factors of economic ability, power pressure, awareness of rights, and type of rights and attorney representation, and the regression equation was established as shown in equation (1):

Multi-value selection Logit model:

Group 1 (no lawyers) is selected as the reference group, and the conditional probability that option j, "Hire a lawyer," occurs under this condition is:

where j ≠ 1. If positive, then the larger the representation, the more likely option j, "Hire a lawyer," will be chosen.

The following four models passed the significance level test (Sig.=0.000), and overall it seems that the models were proven to be valid.

2.2.1 Affordability analysis

Table 2 Regression analysis of the economic capacity model

The data show that the probability of a plaintiff legal person hiring a lawyer is much higher than that of a natural person, verifying the effect of economic capacity.

2.2.2 Analysis of power pressure

Table 3 Regression analysis of the power pressure model

The first set of data shows that the probability that a plaintiff is represented by a lawyer is higher when an abuse of power type of offense is involved.

The second set of data shows that the probability of plaintiffs being represented by lawyers in administrative agencies at the township, county, and municipal levels increases from level to level, but this trend reverses at the provincial level. This can be explained by examining the organizational structure of specific administrative activities: prior to the reform of administrative law enforcement downstream, the administrative authority at the township and street level was relatively limited, mainly responsible for public services as well as a small number of executive affairs, and less interventionist to the public. Provincial-level authorities, on the other hand, were mainly responsible for policy formulation and supervision, and had little direct contact with the public; 53.1% of their cases were litigations brought by plaintiffs after reviewing the actions of municipal-level authorities. County-level agencies are the ones that actually undertake a great deal of law enforcement activities, and while the data shows that the rate of legal representation is highest when plaintiffs face municipal-level agencies, in reality it is the high volume of disputes at the county level that drags municipal-level agencies, as reviewing agencies, into litigation. Comparatively speaking, the number of cases in which county-level authorities act as reviewing authorities is significantly lower. Therefore, this set of control data can also verify the preliminary hypothesis.

The third set of data shows that there is a significant positive correlation between administrative coercion, administrative orders, and administrative levies and the rate of plaintiffs' legal representation. However, there is a significant negative correlation between administrative penalties, indicating that the probability of plaintiffs hiring lawyers when suing for administrative penalties is relatively low. This result may be related to the fact that the number of cases of administrative penalties in daily life is huge and varied, and that the impact of the rights and interests involved in the various types of penalties such as warnings, fines, detention, confiscation of unlawful income, and ordering the shutdown of production, etc. is quite different, and the public adopts different strategies for defending their rights, which can be further explained with the following rights and interests model. This can be further explained in the context of the Rights Type Model below.

2.2.3 Rights Awareness Analysis

Table 4 Regression Analysis of the Rights Defense Awareness Model

The first set of data shows that plaintiffs' willingness to hire lawyers gradually decreases as the trial level increases.

The second and third sets of data show that the probability of attorney representation in both multi-suit subjects and post-review litigation cases is significantly lower.

2.2.4 Analysis of Rights Types

Table 5 Regression analysis of the right type model

The data from the Types of Rights model show that in personal rights cases, the probability of plaintiffs hiring an attorney is relatively low for either punishment or coercion. In property rights cases, the probability of plaintiffs' attorney representation is significantly high for all actions except for property penalties, a finding that echoes the data from the power pressure model. In addition, the low probability of representation in right to know cases supports the view that some of the cases in the current government information disclosure litigation are characterized by abusive litigation. The above quantitative relationship does not exactly match the theoretical view of the hierarchy of rights, but is an objective reflection of the plaintiff's awareness of rights defense. Compared to property rights cases, the plaintiff's willingness to choose lawyers in personal rights cases is low, which may be related to the lower level of sanctions at the administrative law level, such as administrative detention for a maximum of no more than twenty days, and only measures such as mandatory drug rehabilitation for a longer period of time, which is also a kind of interest measurement thinking. In the eyes of the general public, personal rights may not be more important than property rights within this level of infringement. Examining the specific content of personal rights cases, disputes are mainly concentrated in the field of grassroots security, and many cases involve the handling of illegal petitioners, and most of these plaintiffs belong to the general concept of "vulnerable groups", with weak legal awareness and ability, and low economic capacity.

2.3 Summary

Through the analysis of the four models of economic ability, power pressure, rights awareness, rights type, this part tries to explain the influencing factors and preferences of the plaintiffs' choice of lawyers, and to a certain extent responds to the overall situation and local differences above. A very interesting finding is that the level of participation of lawyers around by the market supply and demand and the rule of law environment and other factors to varying degrees, there is a plaintiffs' attorney representation rate of the "regional threshold", that is, administrative litigation plaintiffs' attorney representation rate in a specific range to remain stable and show S-shaped growth curve. In the threshold range, this value will be the regional economic development level, administrative dispute level, legal services market size and other market supply and demand factors, economic capacity and power pressure and other model analysis can be supported. But the upper limit of the threshold is again clearly affected by local rule of law environment factors, such as specific types of cases, low profitability, sensitivity, etc., and the agency rate stagnates when it reaches the threshold, which is also supported by modeling analyses such as the awareness of rights and the type of rights. Because of the different regional thresholds around the world, there will still be some disparity in the representation rate of plaintiffs' lawyers in regions that appear to have similar levels of economic development. The most obvious contrasts are in Guangdong Province, Beijing and Shanghai, where the size of practicing lawyers or the number of lawyers per capita is quite impressive and far exceeds that of other regions. However, the legal services of Guangdong lawyers are mainly supplied locally, and the large scale can be fully digested by the market at the same time. Beijing is rich in lawyers' resources, but the volume of administrative litigation business mainly overflows to other regions, and most cases are represented off-site. Shanghai is limited by the threshold, the local plaintiff's attorney representation rate maintained at a low level, but also not as high as Beijing's spillover effect, so the total business is relatively small.

3. the effectiveness of lawyers' representation analysis

Lawyers specialize in litigation matters, but the actual effect of the case on behalf of how, whether more helpful to the parties to achieve the purpose of litigation? This problem in the eyes of ordinary people seems to be unquestionable, in the theoretical study is controversial. Comparative law studies of lawyers' direct involvement in litigation and changes in the outcome of court hearings show that representation by lawyers in general significantly changes the course and outcome of litigation. Specific areas of litigation phenomenon research also confirms this, such as scholars based on the U.S. Tax Court (Tax Court) case quantitative research, analyzing the lawyer to assist the client and the Internal Revenue Service (IRS) against the actual impact on the outcome of the case, the professional lawyer's involvement in the outcome of the case under review has a great positive impact, this impact with the lawyer's experience increases, but the same positive effect will not be reflected in the case, but the same positive effect will not be reflected in the case, the lawyer's involvement in the case. But the same positive effects are not reflected in settlements. The area where the contrast is most striking is in Immigrant Representation, which has been graphically described as the idea that immigrants are deported not because they do not have a legal right, but because they do not have an attorney to help them realize that right, and the empirical data fully support this view. In this part, we will design three sets of variables according to the process of the case to construct a regression model to verify the effectiveness of the lawyer's representation in administrative litigation in China, such as acceptance of the case, dismissal of the case and winning the case.

3.1 An analysis of the effectiveness of the plaintiff's lawyer's representation

The first set of variables is whether the plaintiff's lawsuit can be admissible. Acceptance of a case is a sign that an administrative dispute has successfully entered the judicial process, and the sample of non-acceptance includes procedural rulings such as non-filing, non-acceptance, rejection of prosecution, rejection of appeal, etc., except in a few cases, non-acceptance means that the administrative dispute does not meet the legal requirements for acceptance and cannot enter the substantive review.

The second set of variables is whether the plaintiff withdraws the lawsuit. In addition to the plaintiff's own reasons, there are also cases where the plaintiff has been influenced by external influences or accepted concessions from the administrative authorities and made a compromise decision. As an important criterion for "the case is closed" in the current judicial policy and trial work, the withdrawal of litigation has a certain indicator significance.

The third set of variables is whether the plaintiff wins the case. For the sake of statistical convenience, the success of the lawsuit in this article includes full or partial support for the plaintiff's claim, which is an important criterion for judging whether the administrative agency has violated the law.

Table 6 Regression analysis of the effectiveness of plaintiff counsel's representation

The data of the three sets of models show that when represented by a lawyer, the probability of the plaintiff winning the case is significantly increased, and the probability of choosing to withdraw the lawsuit is relatively low, and the case is easier to be accepted.

3.2 An analysis of the effectiveness of the defendant's lawyer's representation

The effectiveness analysis model of the plaintiff's attorney can also be used to test the defendant. Since the defendant does not need to consider the issue of filing a case, only the effect of winning the case and withdrawing the lawsuit (plaintiff) is examined here.

Table 7 Regression analysis of the effectiveness of the defendant's lawyer's representation

The data shows that when the defendant is represented by a lawyer, the probability of the defendant winning the case is relatively smaller, and the probability that the plaintiff chooses to withdraw the lawsuit is also smaller.

3.3 Summary

The analysis data of the effectiveness of lawyers' representation show that lawyers' professional services have a positive effect on the operation of the administrative litigation system on the whole. The heterogeneity analysis after attaching the court's trial level, the type of plaintiff, the defendant's representation, the level of administrative organs, and the field of administrative management also basically verifies the above conclusions, and there are several rules worthy of attention: First, the presence or absence of lawyer representation has a greater impact on the effect of natural person in protecting their rights, and it can also be presumed that it is more necessary for the plaintiff natural person to hire a lawyer. Second, when the plaintiff chooses to be represented by a local lawyer, the effect is better in accepting and withdrawing the case, and there is little difference in winning the case. Third, the plaintiff's choice of lawyers in administrative fields such as social security and public security has had a very significant effect.

4. Theories and Suggestions of Empirical Analysis

4.1 Theory: The adhesive function of lawyers' participation

Based on the background of regional thresholds, combined with the influencing factors of plaintiffs' choice of lawyers and the observation of the effectiveness of lawyers' representation, this paper proposes the theory of "adhesive function" of lawyers' participation to explain the positive role played by lawyers' representation in administrative litigation. The so-called adhesive function refers to the fact that the representation of lawyers in administrative litigation actually contributes to the balanced realization of various items of the administrative litigation system, that is, with Article 1 of the Administrative Litigation Law as the standard, lawyers' participation in litigation can guide plaintiffs to rationally protect their rights, accurately supervise administration in accordance with law, effectively promote judicial review, and promote dispute resolution in accordance with law. The results of the quantitative analysis of this paper show that the effect of the above-mentioned adhesive function exists and is significant, and the participation of lawyers is beneficial to the integration and improvement of the functions of the administrative litigation system, and alleviates the conflict or even tearing between the purposes of the various systems. Promoting the understanding, recognition and implementation of the adhesive function by all parties in administrative litigation can greatly reduce the occurrence of extreme cases, protect rights and remedies in a timely and effective manner, and help improve the regional threshold of plaintiff lawyer representation rate in the long run.

4.1.1 Guiding the plaintiff to defend his rights rationally

The plaintiff's choice of lawyer's willingness and preference show the rationality of the rights of the characteristics, the so-called "rationality" is limited to the behavioral level, refers to the parties believe and choose to claim the rights and interests of the position within the rules of justice. In the process of administrative litigation, the lawyer's representation and the litigation benefits can deepen this rationality. First, the affordability model shows that the importance plaintiffs place on the judicial process is closely related to affordability. Although under the influence of regional thresholds, the level of regional development and the level of legal service provision shows a certain discrepancy, and the rate of plaintiffs' legal representation in developed regions is relatively low. But in the threshold range still reflects the marketization of legal service resources, for example, backward regions accept other regions of the overflow resources, only after the relatively high representation rate. In other words, backward regions can "upwardly" seek more specialized and expensive legal services, but developed regions have difficulty in obtaining the reverse supply. Secondly, the power pressure model shows that the relative's normal and legitimate "resistance" is intuitively reflected in the effect of power pressure on the demand for professional legal services. Finally, the data of the right type model reflects a more simple "economic" thinking, the public's willingness to defend property rights is stronger, and there is a higher tolerance for infringement within a limited intensity.

4.1.2 Precise monitoring of administration in accordance with the law

In addition to the subjective protection of public rights, administrative litigation is also in accordance with the law of the administration of the objective legal order to maintain a promotional effect. The analysis of the effectiveness of the representation shows that the lawyer's representation significantly increases the probability of the plaintiff winning the case, which means that the lawyer's professional services for the parties to fight for more legitimate interests, but also accurately corrected the phenomenon of more administrative violations. Adhere to the people as the center, through administrative litigation to supervise the administration in accordance with the law, the legitimacy of this supervisory path is indisputable. Only part of the administrative organs because of their own work is not strict, not standardized, not transparent, not civilized, and even fluke or wantonly violate the law, pervert the law, because of the relevant leaders and staff in the face of administrative litigation, and even regarded as a disturbing factor to disrupt the stability of the community, this mentality is rather alienation, deterioration of the function of the administrative litigation, negatively affecting the participation of lawyers in the negative energy.

4.1.3 Effectively promote judicial review

Representation by lawyers significantly increases the probability of administrative cases being accepted, and the direct effect is to bring more administrative disputes into the judicial channel, avoiding those disputes being transferred to other state organs due to the plaintiff's lack of professional ability, and consuming additional public resources. In addition, the data of the rights awareness model are all opposite to the initial hypothesis, showing that the stronger the plaintiff's rights awareness, the lower the possibility of lawyer participation. This just shows that the plaintiff's awareness of rights defense in a large number of current administrative disputes have not been matched with professionalism, so the phenomenon of procedural idling or aggressive rights defense in the continuation of administrative disputes exists objectively. For example, in some cases of multi-claim subject, no matter whether the claim is legal and reasonable, the plaintiff will exhaust the litigation means, and even in the real purpose can not be satisfied after the multi-claim as a means to file a large number of public disclosure of government information litigation and other unrelated litigation, hoping to dig deeper into the administrative organs of the illegal or defective as a bargaining chip of the interests of the game, the results of individual cases rather unimportant. As the litigation costs of these cases are low and the subject matter of the lawsuits does not directly involve economic interests, the plaintiffs usually do not choose lawyers to represent them. In addition, the most intense defense of this part of the group generally lack of lawyers to intervene, according to which can also be reverse presumption, the technical level of the legal dispute is actually most likely to be resolved in the court of first instance or the basic court, even if the plaintiff did not win, most of them can be reconciled, interest rate, to stop the lawsuit, and therefore, the lawyer can effectively promote the judicial review process and the finalization of the process.

4.1.4 Facilitating the settlement of disputes in accordance with the law

Promote administrative disputes are accepted by the court, as well as mediation, conciliation and adjudication, are the duty of lawyers, administrative disputes in the judicial way should be collected is the ideal state of legal settlement. Along this line of thought, the plaintiff's legal representation leads to reduce the probability of withdrawal, also has a positive significance, which can be reasonably deduced from the form and substance to prevent the occurrence of three types of improper withdrawal of the case: First, when represented by a lawyer, the plaintiff will not be withdrawn due to procedural reasons, such as non-payment of litigation fees and did not apply for a reduction or waiver, absent from the court hearing, the court withdrew from the court without consent, etc.; secondly, more often, the plaintiff has the assistance of a lawyer Secondly, in more cases, with the assistance of lawyers, the plaintiffs have a more accurate understanding of the illegal administration, and are less likely to be "persuaded to withdraw" due to misunderstanding; thirdly, standardized litigation behavior can avoid the mediation of some cases from deviating from the norms of the law, and this kind of "unlawful" withdrawal of lawsuits will be reduced as well. Overall, the above reduction of withdrawal may be a certain degree of "detrimental" to the judicial efficiency, but the essence of the concept of justice. Whether the parties are satisfied with the results of the decision, at least administrative disputes are always in the judicial track, through the judicial decision to implement the sense of the rules, even if the parties are dissatisfied at the moment, in the long run may not be a bad thing. On the other hand, when the defendant is represented by a lawyer, the probability of (defendant) winning the case and (plaintiff) dropping the case is lower. In addition to the ineffectiveness of the representation, another more plausible explanation is that cases that require the intervention of lawyers tend to be relatively difficult, and other studies have come to a similar view. At the same time, the defendant lawyers more from a professional point of view on administrative disputes, not at the disposal of resources and do not tend to do the "exchange of interests" mediation work, the plaintiff may not be as effective as the administrative staff to withdraw the case.

4.2 Countermeasures: internal and external different policy incentives

In the sense of the protection of fundamental rights, administrative litigation lawyers and criminal defense function is similar, administrative dispute resolution of the rule of law level is also an important content of the modernization of national governance system and governance capacity. In order to actively exert the adhesive function of lawyers' participation, it is necessary to take incentives from the policy level of legal service supply to further improve the supply and demand of lawyers' representation in administrative litigation, mainly involving the legal aid system for administrative litigation and the system of public lawyers in the government.

4.2.1 Policy Enhancement of Legal Aid for Administrative Litigation

Examining the factors affecting plaintiffs' choice of lawyers, we find that the public is relatively resistant to abuse of power-type violations of the law, forcefulness of law enforcement agencies, and strong interventionist behavior, but there is a distinct lack of professional lawyers to intervene in cases involving radical rights groups, disadvantaged groups with specific cases, and administrative penalty cases directly infringing on personal or property rights, and that the causes of this disparity cannot be attributed to a simple lack of legal awareness or financial capacity on the part of the plaintiffs. The reason for this gap can not be simply attributed to the plaintiff's legal awareness is not strong or weak economic capacity. At the same time, the litigation effect of the above cases is generally unsatisfactory, a large number of cases can not enter the threshold of acceptance, or a long period of time the program is empty, the case can not be closed. The existence of a large number of such lawsuits and the fact that the plaintiffs are not specialized should be taken seriously.

In response to the above problems, the policy can dynamically reduce the application conditions for legal aid in administrative litigation, and at the same time guide the plaintiff to actively accept the intervention of lawyers. In recent years, from the central government to the local government has been gradually expanding the scope of legal aid, which is reflected in the relaxation of the economic hardship standard, and also expanding the objects of assistance from a single group of economic hardship to all kinds of key and special cases, and this kind of principle of economic hardship plus special cases of example of the assistance model has been clarified in the "Legal Aid Law" formulated in 2021. On the other hand, some places have taken the lead in breaking through the above limitations on the scope of legal aid for administrative litigation by adding "poor ability to carry out litigation" as a separate condition for assistance, which in effect has fully liberalized the restrictions on applications, while at the same time including the examination requirement that "the litigation claim has certain factual and legal basis" as a condition for application. At the same time, the inclusion of "the claim has a certain factual and legal basis" as an element of review as a mechanism for dynamic adjustment and filtering is of positive significance to the innovation of the legal aid system at the normative level. Judging from the pilot implementation in some regions, the effect of the full roll-out of legal aid for administrative litigation is still not significant at the initial stage. The number of legal aid cases in administrative litigation has grown slowly, as the subjects concerned may have a distrustful attitude towards public power and may question the starting point and purpose of the assistance. While this situation demonstrates the feasibility and stability of the policy of "providing legal aid for administrative litigation", it also reminds us that enhancing acceptance of and trust in the policy requires substantial improvements in the quality and effectiveness of legal aid, such as the provision of competent, professional, politically credible, and independent teams, and that administrative authorities should adopt a more open attitude towards the provision of legal aid. It also requires administrative authorities to approach administrative litigation with a more open mind to allay the apprehensions of the aided parties.

4.1.2 Policy activation of governmental public lawyers

Defendants in administrative litigation enjoy the same litigation rights as plaintiffs, which of course includes the appointment of lawyers to represent them, and in order to safeguard the public interest, administrative authorities should also fully exercise their litigation rights. However, in the case of the defendant's lawyers' representation rate is generally higher than that of the plaintiff, there may be hidden dangers such as responsibility evasion, misuse of funds, and poor representation. In the final analysis, the administrative organs as the "supervised object" to attend the trial, for the legality of its performance of the lawfulness of the defense, the administrative facts of the law, is in the administrative process has been completed, which is different from the introduction of the administrative process of expert legal adviser to participate in the decision-making. When the defendant will be part of the lawsuit entrusted to external lawyers, lawyers should only try to restore the facts of law performance, and not to the legality of administrative behavior to repair, not to modify or cover up the facts of the violation of law.

In this regard, the policy can be moderately corrected, in actively playing the role of legal services "outside the brain" at the same time, but also to pay attention to the training of legal professionals within the government, which is the most important content is to activate the system of public lawyers, that is, require governments at all levels to strengthen the management of the public lawyers belonging to the management and use of public lawyers. For the legal work of government departments, public lawyers actually know more about the operation and rules of internal affairs, and also have certain advantages in terms of law enforcement experience and business level. As to why the team of public lawyers has been "asleep" for a long time, there are two reasons: firstly, the management system is still sloppy. The system of public lawyers experienced a "palace war" between many departments of the State Council in the early years, and was finally finalized in 2016. But for a long time after that, the policy goal is still focused on the "establishment" of the system of public lawyers, such as the number of public lawyers as an indicator of the departmental assessment of the current government in all parts of the world. On the one hand, in recent years, the number of public lawyers has indeed increased steadily, but on the other hand, it is still difficult to carry out systematic management and deployment of public lawyers, mismatch between people and posts, lack of practical work, form over substance and other phenomena prevail, public lawyers are basically reduced to a category of qualifications that can be dispensed with. Secondly, the positioning of the work is not clear. Public lawyers are part-time by the staff of the unit, in addition to the rights of lawyers, the same as part-time government legal adviser and public lawyer's work content is highly overlapping. However, external legal advisers have a more flexible use of the mechanism, according to the workload and performance to pay a reasonable remuneration, while public lawyers only a vain "necessary protection". As a matter of fact, there is basically no incentive or guarantee for public lawyers to take up matters outside their own work.

From the demand side of the administrative organs, administrative law direction of the lawyer is currently in short supply, the market can provide the government legal services of good and bad, part of the community lawyers are not familiar with the department of administrative law business, may not be more than the public lawyers have a professional advantage, it is difficult to satisfy the government departments of the work requirements. At present, out of the actual work or not, forced by the policy requirements or not, many administrative organs more hope that external lawyers to undertake written review of the legality of the work, or in the necessary process nodes to provide advice, in order to reduce the workload of the unit. As for the external will directly produce legal liability of litigation activities, or tend to be responsible for their own staff. Under this tone of "internal relaxation and external tightening", the requirement for public lawyers to play a more effective role is both in line with the policy direction and an urgent practical need.