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按照《律师法》和法无明文规定即允许的原则,实习期超过一年也可以申请执业是存在法律依据的,但法律没有规定具体操作程序。超过一年实习区别于实习无效,超期实习是实习人员个人放弃了自己的时效利益,为了提高自身素质延长时间学习,没有损害国家实习律师考核制度,不具可罚性。2014年中华律师协会印发新操作规程,补充了法律的程序空白,各机关团体没有必须适用规程的法定义务但可以参考适用。规程要求超期实习人员提交延期申请,但该规程中90日的规定具有解释的实务需求和法律空间。90日是一则程序条款,由于法律是一个逻辑自洽的体系,对90日起算时间可以解释为自权利人知道或应当知道权利的主观日期,采取此种主观权利时间解释会限制该条通过程序条款剥夺实体权利的危险,有利于保障个人考核执业实体权利;兼顾保护律协考核工作的管理和申请人的个案公平公正性;解释本身也是地方律协对考核工作发展和补充,也是法治中国中加强律师队伍建设的应有之义。
In accordance with the “Law” and the law is not a clear rule that is allowed, the internship period of more than one year can apply for practice is a legal basis, but the law does not provide for specific operational procedures. More than one year internship is different from the internship is invalid, the internship is an internship individuals to give up their own time interests, in order to improve their own quality to extend the time to learn, did not undermine the national trainee appraisal system, not punitive. In 2014, the Chinese Lawyers Association issued a new operating procedure that complemented the procedural law of the law. There is no legal obligation on the part of various government agencies to apply the statutory provisions, but reference may be made to it. Procedures require the extension of interns to submit an application for an extension, but the provisions of the regulations on the 90th have practical requirements and legal space to explain. 90th is a procedural clause. Since law is a logical self-consistent system, the time starting from the 90th can be interpreted as the subjective date since the obligee knows or ought to know the right. Such time-consuming interpretation of the subjective right will limit the passage Procedural provisions deprivation of the rights of entities is conducive to the protection of individuals assess the rights of practicing entities; both to protect the work of the Bar Association assessment work and the applicant’s case fair and equitable; interpretation itself is also the local bar association for the development of assessment work and supplement, but also the rule of law China Strengthen the construction of lawyers in the proper meaning.