Chinese Lawyers System

 

 

Timur Nursainov                                                                                           14/12/2012

 

 

 

 

 

STUDY ON CHINA’S LAWYER SYSTEM

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

1	INTRODUCTION	2
2	DEVELOPMENT SINCE LATE 70’s	2
3	LAW FRIMS	3
4	MANAGEMENT SYSTEM OF LAWYERS AND LAW FIRMS	5
5	CONCLUSION	6

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 INTRODUCTION

 

The most prominent changes in the Chinese legal profession since its re- establishment in 1979 are: the shift in the function of lawyers from working merely in the public capacity and serving the public authority to also protecting the rights and interests of private parties; the initial formation of a legal service market; the implementation of joint management of lawyers by judicial administration authorities and by lawyers’ associations; investigations into establishing the systems of government attorneys and corporate attorneys; and the establishment and implementation of a uniform judicial qualification examination for lawyers, judges, and public prosecutors.

 

The legal profession in China has gradually become an important social service profession. Attorneys are playing increasingly important roles in China’s political, legal, economic, cultural, and societal realms. Lawyers are widely regarded as among the highly paid class in China, and the legal profession is one of the professions that many people envy or aspire to join.

 

According to the Ministry of Justice, the country had more than 15,000 law firms, more than 166,000 lawyers, and more than 220,000 people working in the sector at the and of 2009, and the same year, the country’s lawyers handled nearly 2 million lawsuits, and dealt with more than 534,000 non litigious legal matters, plus more than 184,000 cases of legal aid.¹

 

The purpose of this paperwork is to show development way of China’s Lawyers System since late 70’s, describe law firm framework, define how lawyers and law firms are managed, and as a conclusion draw you shortcomings and dilemmas that faced by Chinese advocacy.

 

 

2 DEVELOPMENT SINCE LATE 70’s

 

In September 1979, the Ministry of Justice was re-established. Among other functions, it was authorised to take charge of the administration of the legal profession. In August 1980, the Provisional Regulations of the People’s Republic of China on Lawyers were promulgated by the NPC Standing Committee.² Provisions were made for the responsibilities, rights, qualifications and business organisation of Chinese lawyers. Lawyers were defined as “legal workers of the State” with the task of providing legal assistance to government, enterprises and citizens. “Legal advisory offices” were the business organisations in which lawyers practised. Lawyers could serve as legal advisers, act as representatives in civil litigation, mediation or arbitration, and defence counsel in criminal cases, and to give legal assistance in non-litigation matters, provide consultative advice and draft various legal documents. To be qualified as a lawyer, one had to cherish the PRC, support the socialist system, have the right to vote and stand for election and, moreover, had to be examined and approved by the Bureau of Justice Office affiliated to the provincial government.

 

Although the Regulations contained only 21 general provisions, they legitimised the legal profession in China. Since then, the ranks of the legal profession have expanded swiftly. It is estimated that from 1979 to 1984, there were about 11,000 lawyers in China. This number had increased to 45,666 by 1992; 68,834 by 1993; 83,619 by 1994; 90,602 by 1995; 100,198 by 1996; and 98,902 by 1997.³ By the end of 1998, there were around 110,000 Chinese lawyers in the PRC.⁴ The government target was to have approximately 150,000 lawyers by the end of 2000. The aim is that by then around 50% would hold a Bachelor’s degree in law; 30% under the age of 40 in large and medium-sized cities and economically developed coastal areas would possess a Master’s degree, and that there would be about 10,000 high-level lawyers who understood law, economics and foreign languages.⁵

 

Along with the expansion of the number of lawyers, a lawyer system has gradually taken shape. Since 1986, a national bar examination has been administered by the Ministry of Justice initially on a biannual basis, and annually since 1993. In 1986, 11,024 candidates sat the examination of which 3,307 passed. Ten years later, the number of candidates increased to 127,000. In November 1998, 180,000 candidates took the bar exam. In the last ten years, only 10% of the candidates passed it. Candidates ranged in age from young graduates to older retired judges and prosecutors.⁶

 

Business organisations in which lawyers practise have also undergone considerable change. The state-owned law firms were the only organisations in which lawyers could practise law until 1988 when the first co-operative law firm appeared in Baoding city in Hebei province. Subsequently, similar law firms began to appear in other large cities.⁷ In May 1988, the Ministry of Justice issued the Trial Scheme for Co-operative Law Firms which formally legalised these firms. In 1993, the Ministry of Justice issued Proposals on Deepening Lawyers’ Reform, which legitimised the existence of partnership law firms.⁸

 

 

3 LAW FIRMS

 

State-funded law firms were the first organisations in which Chinese lawyers practised law after the resumption of the lawyer system in 1979. Initially, lawyers enjoyed civil servant status and received a fixed salary from the state. From 1983, reforms have been framed to make them financially self-sufficient. By June 1995, of the 5,500 state-funded law firms which account for 76.4% of total law firms, 2,674 (48.6%) no longer rely on government financial support.⁹

 

Co-operative law firms are set up by partners on a voluntary basis with assets owned equally by all lawyers. The law firms bear limited joint liability for the debts of the firm on the basis of their entire assets. A lawyer’s income is based on the same principle as that applied in state-funded law firms.¹⁰

 

Partnership law firms were also initially set up by lawyers who had resigned from state-funded law firms. The firm’s property is provided by the partners and belongs to the firm. Partners bear unlimited joint liability for the debts of the firm.¹¹

 

By the end of 1997, there were approximately 5,519 state-funded, 1,014 co-operative and 1,851 partnership law firms, accounting for about 70%, 10% and 20% respectively of total law firms in the PRC.¹² State-funded law firms are the mainstay, generally because the other two types of firm involve a measure of risk. Politically speaking, even though the central government has announced its determination to develop a socialist market economy with the intention of privatising many sectors, concerns about the policy change have not completely disappeared. State-funded law firms have offered some privileges, such as job security and other government-subsidised treatment, including housing, medical insurance and child-care, even though these privileges are gradually disappearing as economic reform deepens. Most private law firms are located in the most economically developed areas as the economic boom has provided fertile soil for their growth.

 

Because of the controversial opinions expressed in the process of its drafting, the Lawyers Law avoids mentioning individual law firms, though in reality many such firms exist, particularly in the Special Economic Zones. Recently, a number of Chinese lawyers, after years of studying and working abroad, have returned to China to open private law firms. Such firms deal mostly with foreign-related commercial and civil cases. Some firms have earned domestic as well as international reputations.

 

Most Chinese law firms undertake a general legal practice. Only since the 1990s in economically developed cities have a few law firms become specialised in foreign-related legal business, intellectual property rights, securities, real estate, international tourism,¹³ and so on.

 

In China, practising law in certain fields requires an extra licence. For instance, if a lawyer wants to engage in securities, he needs approval from the China Securities Regulatory Commission and the Ministry of Justice. After obtaining a permit, the lawyer can practise securities law in a law firm where two other lawyers have the same permit. There are now about 1,655 lawyers holding such a qualification and 322 law firms are qualified to engage in securities.¹⁴ In addition, in 1997, the Ministry of Justice, the State Commission on Science and the State Bureau for the Administration of State-owned Property provided a training course for lawyers wanting to engage in demarcating the property rights of collectively-owned hi-tech enterprises. This resulted in about 800 lawyers passing the examination to qualify in dealing with legal matters in this field.

 

Most law firms are on a small scale, consisting of between 10 and 30 lawyers, only a few have more than 40 or 50 lawyers.¹⁵ The larger firms may have various departments: international commerce, real estate, banking and securities, company and taxation, shipping and marine insurance, intellectual property, litigation and arbitration. In recent years, the Ministry of Justice has encouraged law firms to increase their competitiveness at the international level by mergers between them. It remains unclear whether large-scale law firms will be a trend encouraged by the government. If the government believes such a firm structure would be beneficial in strengthening the international competitiveness of Chinese law firms, measures to foster mergers can be anticipated.

 

 

4 MANAGEMENT SYSTEM OF LAWYERS AND LAW FIRMS

 

Since 1980, the Ministry of Justice and its affiliated bureaus of justice at the local level have always exercised organisational leadership (zuzhi lingdao) and professional supervision (yewu jiandu) over law firms. The Lawyers Law is intended to modify this system by combining the administrative leadership of judicial administrative authorities and the professional administration of lawyers associations, and gradually transforming these into a system with association management as the core with macro-level guidance from judicial administrative organs. In other words, the aim is to increase the administrative functions of lawyers associations and reduce the burden on the judicial administrative organs.

 

Under the Lawyers Law, the Ministry of Justice is in charge of conferring certificates of qualification as a lawyer (Article 6). The local judicial administrative organs at provincial level award certificates to practise law (Article 11), examine and verify the establishment of law firms (Article 19), issue a warning to revoke or revoke a lawyer’s certificate to practise for lawyers who have conducted activities prohibited by the Lawyers Law (Articles 44 and 45). In addition, the major task of the Ministry of Justice is to establish rules for the implementation of the Lawyers Law. For instance, in November 1996, the Ministry issued the Measures for the Administration of Lawyers Practising Certificate and the Administrative Measures for the Administration of Persons Who Practise Law on a Part-Time Basis, and in January 1997 issued the Measures for Punishing Illegal Activities of Lawyers.

 

The All-China National Lawyers Association (ACNLA) was established in July 1986. Many local lawyers associations have also been set up at provincial level and in municipalities with districts. Chinese lawyers must be members of the local lawyers association of their place of residence; simultaneously they also become members of the ACNLA (Article 39).

 

Although the Lawyers Law describes lawyers associations as self-regulating incorporated social organisations of lawyers, such associations are not the independent professional organisations they are in Western countries. Lawyers associations in China are led by the Ministry of Justice and its local bureaus. The Lawyers Law provides that lawyers associations have the functions necessary to safeguard lawyers’ rights to practise law; to summarise and exchange the work experience of lawyers; to organise professional training; to educate, examine and supervise lawyers in professional ethics and legal practice disciplines; and to mediate in disputes arising during the course of legal practice.

 

In recent years, lawyers associations have played an increasingly important role in protecting lawyers’ legitimate rights and interests. Local lawyers associations usually report cases of serious violation of lawyers’ rights to the ACNLA which then sends an investigation team to help resolve the problem. For cases with nation-wide impact, the Association sometimes organises a meeting of experts to seek solutions. It has also sent the most qualified lawyers to participate in the defence or representation of lawyers whose rights have been violated. Further, the ACNLA is active in reporting cases to relevant central governmental organisations, and in involving public media to help solve some difficult cases. However, of the cases reported to the ACNLA only about 30% are resolved. In order to improve the effectiveness of its work, the ACNLA set up a Committee for the Protection of Lawyers’ Legitimate Rights and Interests in July 1998, consisting of 60 lawyers recommended by lawyers associations at the provincial level. Such committees also exist in various localities.¹⁶

 

 

5 CONCLUSION

 

However legal profession framework seems to be developing, within PRC advocacy I identified some basic problems concerning legal profession in China.

 

Although China is the most occupied country in the world, the quantity of licensed lawyers still stays very small concerning to the ratio of population. And most of the lawyers are concentrated in Beijing, Shanghai, and other economically dynamic areas, leaving Western regions in China with fewer and fewer lawyers and thus contributing to the polarization of the legal profession.

 

Many law firms in China are small, and they provide only a limited range of services, namely criminal defense, counsel for corporations, and ordinary civil representation. The vast majority of law firms have limited ability to handle legal practice that involves foreign parties. Just simply most of the lawyers had never dealt with foreign cases and has lack of experience in systematically managing partnership-based law firms involved Chinese and foreign parties, and only a very small portion of Chinese lawyers are experienced in dealing with cases involving foreign parties. And I believe that it will change since China entered WTO, but it needs some time, maybe even of a few decades.

 

In Chinese advocacy the liability insurance system for malpractice has not yet been fully established, and the degree of education and overall quality of lawyers are often higher than those of judicial administration officials who are in charge of managing lawyers. Generally speaking, the Chinese legal profession faces two main challenges. First, many lawyers lack professional ethics, thereby seriously damaging the overall image of the Chinese legal profession.

 

Second, the political status of Chinese lawyers is not high, the system that protects the rights of Chinese lawyers is deficient, the environment for legal practice is deteriorating, and the risks in providing legal services are growing. Lawyers often encounter four difficulties in criminal defense, namely, difficulty in investigating and obtaining evidence, 
difficulty in getting access to case files kept by the authorities, difficulty in meeting with the defendants, and
difficulty in having judges consider their defense opinions.

¹ China’s law profession advances as nation rule-of-law system, by Xiong Tong, 16.02.2010, the article is available at – www.news.xinhuanet.com

² The official English translation of the text can be found in The Laws of the People’s Republic of China (1979-1982), compiled by the Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s Republic of China, Foreign Languages Press, Peking, 1987, pp. 177-181.

³ Zhongguo falü nianjian (Law Yearbook of China), Peking, Zhongguo falü nianjian she, 1993-1998. According to the statistics provided in these yearbooks, there was a slight drop of the number of lawyers in 1997 in comparison to 1996.

⁴ Qian Guzhou, interview with Duan Zhengkun, head of the department of lawyers in the Ministry of Justice, Zhongguo lüshi (China Lawyer), No. 1, 1998, p. 6.

⁵ See the “Ministry of Justice 1996-2000 Training Plan for Judicial Workers”,Zhongguo falü nianjian, 1997, p. 671.

⁶ Lawyers in China: Obstacles to Independence and the Defense of Rights, New York, Lawyers Committee for Human Rights, March 1998, p. 39.

⁷ See Xiao Shengxi et al, op. cit., p. 25.

⁸ The document is contained in Zhang Geng, op. cit., pp. 665-671.

⁹ See Zhang Geng, op. cit., p. 95.

¹⁰ Articles 2 and 17 of the Administrative Methods on Co-operative Law Firms (Hezuo lüshi shiwusu guanli banfa), issued by the Ministry of Justice on October 25th 1996. The document can be found in Zhongguo falü nianjian, op. cit., 1997, pp. 674-675.

¹¹ Article 2 of the Administrative Methods Governing Partnership Law Firms (Hehuo lüshi shiwusu guanli banfa), issued by the Ministry of Justice on November 25th 1996. The document can be found in Zhongguo falü nianjian, op. cit., 1997, pp. 668-669.

¹² See Qian Guzhou interview, op. cit. en. 21, p. 7.

¹³ For instance, the Continental Law Firm in Nanjing is the first Chinese law firm to engage in the law related to international tourism. China Law, No. 3, 1997, p. 116.

¹⁴ See Qian Guzhou interview, op. cit. en. 21, p. 6.

¹⁵ Randy Peerenboom, China’s Developing Legal Profession: The Implications for Foreign Investors, China Law and Practice, Vol. 12, No. 5, June/July, 1998, p. 41.

¹⁶ Zhongguo lüshi, No. 9, 1998, pp. 4-7.