In recent years, the legal profession has been referred to by the Chinese as
a flourishing industry, with the connotation that it is overwhelmingly
popular, promises a decent income and consequently enjoys an increasingly higher
level of social prestige. In a country where resentment of lawyers is a deeply-rooted
tradition and, moreover, where the resumption of a system of lawyers has only
a twenty year history, the current standing of the profession has aroused international
interest. It can be said that the rapid development of the legal profession is
a reflection of rapid legal development in the Peoples Republic of China
(PRC) in general. Meanwhile, the close link between legal practitioners and economic
reform has driven the former to evolve faster than other legal professionals.
In todays China, judges, procurators, law researchers and teachers enjoy
far less fashionable careers than lawyers do.
However, being a lawyer in China is not the ideal profession many think it
to be as Chinese lawyers encounter many awkward problems in day-to-day practice
that are hardly imaginable in the Western world. This article briefly examines
the history of the legal profession in China before analysing the basic rules
governing legal practice as provided in the 1997 Lawyers Law. Chinas ongoing
economic, legal and political reforms offer lawyers unprecedented and wide-ranging
opportunities to practise law, but at the same time the transitional nature of
Chinas economic and political system causes this profession some unique
problems. This article not only discusses the rapid expansion of the legal profession,
the positive role lawyers have been playing in building up the rule of law in
China, but also delves into some of the challenges for, and significant troubles
of, this infant professional group.
Lawyers in Pre-PRC Time
According to scholars of Chinese legal history, ancient China had developed
some rules to regulate litigation. For instance, the principle that members of
the same household could not testify against one anotherespecially not before
the state authorities. The same principle applied to the relationship between
master and servant. Anyone violating the principle and lodging an appeal would
be punished. In addition, compliance papers had to be written according to a certain
form; otherwise the plaintiff would be punished. Since ordinary people had no
knowledge of litigation, they had to seek expert help. Thus, some intellectuals
became specialised in assisting people to make complaints. They were called litigation
tricksters (songgun). In the Ming and Qing dynasties, litigation
tricksters were widely known in society (1). However, in imperial China this did
not result in the emergence of a lawyers profession. Moreover, these litigation
tricksters were condemned or even punished by the authorities (2). The legal
annals of the Qing dynasty contain a number of reports of cases in which legal
draughtsman received three years of penal servitude or worse for their efforts
Lawyers first appeared in China in the modern era as the result of foreign
influence. After the Opium War in 1840, when several European countries acquired
extra-territorial consular jurisdiction and established consular courts, foreign
lawyers started to work in China. They initially worked in foreign concessions,
and later also acted as legal counsels or representatives in Chinese courts. They
represented not only foreigners but also Chinese citizens. Concerned about the
situation that some Chinese were relying on foreign lawyers to defend them in
conflicts with foreigners, the Minister for Law Reform of the late Qing Dynasty,
Shen Jiaben, wrote to the Emperor saying that foreign lawyers would not help the
Chinese where this might disadvantage that lawyers own countryman. He thus
suggested the establishment of a system that should produce Chinese lawyers. Consequently,
the criminal and civil procedure codes, which were drafted in 1910, imitated the
Western system, providing qualification, registration, responsibility, punishment
provisions and the like. However, the draft codes never became effective (4).
In 1911, Sun Yat-sen led the Xinhai revolution, which overthrew the Qing dynasty
and established the Republic of China. Sun Yat-sen supported the drafting of a
law on lawyers, but his government survived for only three months and the draft
law was never issued (5).
In 1912, Yuan Shikai set up the Peking government and inherited the legal system
created at the end of the Qing Dynasty. The government issued the Provisional
Regulations on Lawyers, the Provisional Regulations on the Registration of Lawyers
and other detailed rules. These laws laid down the basic rules for lawyers. They
had to be above the age of 20, graduating of universities of politics and law,
and had to have passed the lawyers examination. Women were not allowed to
become lawyers. To practise law, a lawyer had to be a member of a lawyers association
(6). The Provisional Regulations laid down the lawyers functions in court.
Lawyers could appear in ordinary and special courts, either appointed by a client
or by court order. This was the first time that lawyers were specifically authorised
to appear in Chinese courts. When the Provisional Regulations were revised in
1917, other functions of lawyers were formally recognised, such as their appointment
by clients for the drafting of contracts and wills, or their entering into contracts
and other legal documents on a clients behalf (7).
From 1927 to 1944, the Chiang Kai-shek government continued to apply the previous
lawyer system, while it revised old laws and enacted new ones. Women were subsequently
allowed to become lawyers. The minimum permitted age for a lawyer was raised to
21. The rights of lawyers associations were expanded to include making proposals
to the Minister of Justice on law reform. A special procedure for handling the
punishment of lawyers was established. These laws constituted the basis of the
lawyer system during the Kuomintang period and are the origin of the lawyer system
in todays Taiwan today (8).
Obviously, from the late Qing dynasty to the Republic of China, each authority
paid some attention to the lawyer system. Consequently, the legal profession gradually
became established and bar associations appeared in big cities. The Shanghai Bar
Association was the most dynamic. It had, in particular, acted effectively against
foreign legal privileges and in championing judicial independence (9). However,
due to continuous war, frequent changes of government, and the lack of a tradition
of using lawyers in Chinese society, the lawyer system never flourished. In 1913,
there were only about 1,700 lawyers registered with the Ministry of Justice. By
1935, the number had risen to 10,249, while by 1943 it had dropped slightly to
9,245. By the early 1940s, the population in China was about 450 million. Though
China had about 10,000 lawyers, the overall ratio of lawyers to the population
was hence one per 45,000 (10).
Lawyers in PRC
The establishment and development of the lawyer system since the founding of
the PRC has been bumpy. It can be roughly divided into three stages.
When the PRC was established on October 1st 1949, the government issued a Common
Programme (11) (provisional constitution) and announced the abolition of the Kuomintang
legal system. The judicial system, along with the affiliated legal profession,
was no exception. The Circular Concerning the Abolition of Underground Lawyers
and Litigation Tricksters issued by the Ministry of Justice in December
1950, clearly stated the abrogation of the lawyer system, the dissolution of the
lawyers organisations, and the cessation of lawyers activities under the
previous regime (12). Lawyers from the defeated regime were denounced as representatives
of an exploiting class and Only a few lawyers were upright and fair-minded
and dared to speak for the people (13).
After abolishing the old system, the government tried to set up a new system
by enacting new laws. The General Principles of Peoples Courts, issued by
the central government in 1950, the 1954 Constitution and the Organic Law of the
Peoples Courts provided the right for an accused person to be defended and
established a system of defence lawyers (14).
In July 1954, the Ministry of Justice authorised Peking, Shanghai and a couple
of other large cities to set up legal advice offices to engage in lawyers
work (15). In January 1956, the Ministry of Justice submitted a Report Concerning
Establishing Our Countrys Lawyers Work, which suggested setting up
a lawyer system by enacting rules on a national level. Consequently, the Provisional
Regulations on Lawyers were drafted in 1957. Up to June 1957, 19 lawyers associations
and 817 legal advice offices were established. There were about 2,500 full time
lawyers and 300 adjunct lawyers working in 33 cities in China. Lawyers were treated
as public servants and private law firms were not allowed to exist. The professional
work of a lawyer included criminal defence, acting as legal advisers and representatives
in civil cases, drafting legal documents and responding to legal inquiries (16).
The characteristic feature of this period was the absence of practising lawyers
in China. In the middle of 1957, the expansion of the Anti-Rightist Movement resulted
in many lawyers being treated as rightists; as a result, they were sent to the
countryside. The lawyer system was criticised as a capitalist remnant of a bygone
era. In 1959, the Ministry of Justice was removed. Lawyers organisations were
also soon dismantled (17).
As part of the nation-wide reconstruction of its legal system, the government
decided to revive the legal profession. The 1978 Constitution re-established the
system of advocacy. The 1979 Criminal Law, the Criminal Procedure Law and the
Organic Law of the Peoples Courts provided the right for the accused to
be defended as well as the basic principles of criminal defence by lawyers. In
1979, experimentation with professional legal work began; in Hulan county of Heilongjiang
province, criminal defence by lawyers was allowed on a trial basis; in Canton,
a legal advisory office was established to handle foreign-related maritime cases;
and in Shanghai, a lawyers association was established (18).
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 Peoples Republic
of China on Lawyers were promulgated by the National Peoples Congress Standing
Committee (19). 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 (20). By the
end of 1998, there were around 110,000 Chinese lawyers in the PRC (21). 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 Bachelors degree (xueshi) in
law; 30% under the age of 40 in large and medium-sized cities and economically
developed coastal areas would possess a Masters degree (suoshi),
and that there would be about 10,000 high-level lawyers who understood law, economics
and foreign languages (22).
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
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 (24). 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 (25).
The number of fields of legal practice has also increased. Gradually, the profession
has expanded into participating in contract negotiation, acting as agent ad
litem in trademark, patent and copyright matters, and dealing with matters
in other emerging and more technical fields. In large cities, lawyers are deeply
involved in foreign investment and other highly profitable commercial areas.
The Lawyers Law of the PRC
The expansion in both the number of lawyers and the quantity of their work
increased the requirements and expectations of their professionalism. In 1989,
the Ministry of Justice started to draft a law to govern the profession of lawyers.
It took about seven years before the Lawyers Law of the Peoples Republic
of China on Lawyers was finally promulgated by the National Peoples Congress
Standing Committee on May 15th 1996 (26). It came into force on January 1st 1997.
This Law contains 53 Articles covering the qualification of lawyers, the management
of law firms, the rights and duties of lawyers, legal liability and legal aid.
To practise as a Chinese lawyer, the candidate must first meet the qualifications
required to become a lawyer and then must obtain a certificate to practise.
Under the Lawyers Law, there are two avenues by which a person may qualify
as a lawyer (27). The first is to pass the national bar examination (NBE). Qualified
candidates include: (a) those who have studied in law faculties of universities
and obtained diplomas at tertiary level (zhuanke) or higher; (b) those
who hold the same level of professional skills as in (a); and (c) those who have
received a Bachelors degree or above in other university subjects. The second
avenue is to be granted the title of lawyer upon assessment and approval
(kaohe) by the judicial administrative department of the State Council.
Eligible candidates include those who have obtained a Bachelors degree or
higher from law faculty of a university, and are engaged in research or teaching
law with senior professional titles, or who have attained the same level of professional
Passing the NBE is the most common way of obtaining a lawyers qualification.
The kaohe system is only supplementary to the NBE (28). However, allowing
such a two-track system is open to criticism. The Minister of Justice defended
this dual system by claiming that candidates qualified through the kaohe
system are of a higher cultural level and have engaged in legal professional
work for a longer period of time and are of a higher level of legal proficiency
(29). Many do not view this as a satisfactory institution of qualification. In
view of rapid legal development and the increasingly sophisticated legal profession
in the PRC, these experienced professionals may not be up to date with the latest
legal developments. The NBE has become increasingly difficult in recent years,
so it might entail a considerable loss of face for experienced practitioners if
they were to fail an NBE imposed on them. It seems likely that an exception has
been made for those older and experienced professionals based on other considerations.
A further drawback to the kaohe system lies in its inconsistent control
from region to region which will eventually affect the quality of the legal profession.
It can be predicted that this system will fade away while the unified NBE, based
on principles of fair and equal competition, will become the only way to qualify
as a lawyer.
As regards the requirement of legal study, the Lawyers Law takes a rather minimalist
approach by requiring only a law diploma at the tertiary level. In China, only
two years are needed to obtain a zhuanke degree. Within this period, the
student spends about half a year studying courses on philosophy, political economy
and politics, which also includes a period as a trainee of at least three months.
Thus, the student spends less than one and a half year specialising in the study
of law itself (30). No matter how hard a student studies, this limited time does
not suggest that the student will be able to obtain a reasonable understanding
of the various subjects of law. Of course, it could be argued that the choice
of a low level of knowledge for a law degree is based on the assumptions that
self-study should be encouraged and that very few people have the opportunity
to study for four years to obtain a Bachelors degree. In the meantime the
market continues to demand more lawyers.
However, the low level of academic knowledge required has caused serious concern
regarding the competence of Chinese lawyers, in particular among foreign lawyers.
These latter complain that many Chinese lawyers express opinions without
legal basis, fall back on general claims about PRC law unsupported by reference
to specific clauses, or appeal to general notions of fairness and what should,
at least in the eyes of the particular lawyer, be the case. When they do cite
specific provisions, there is often no analysis of how the provisions apply to
the particular factual situation or support their conclusions. The work product
of many local lawyers also often suffers from a lack of attention to detail, both
in terms of the presentation of the material and the substantive analysis
After obtaining a qualification certificate as a lawyer, one may apply to the
Bureau of Judicial Office at the provincial level (sifaju or sifating)
for a certificate to practise law. In addition, Article 8 of the Lawyers Law also
requires that practising lawyers must uphold the Chinese Constitution, undertake
a traineeship with a law firm for more than one year, and demonstrate good conduct.
A lawyers licence is renewed every year. On this occasion, lawyers must
submit an application, a summary of their work during the previous year, a certificate
of completion of training (32), a report concerning compliance with professional
responsibilities and disciplinary rules, and a certificate proving the fulfilment
of these obligations as provided in the articles of association of the bar association
It should be noted that not everyone who shows a card with the title of lawyer
is a qualified, licensed lawyer. In fact, misuse of the title to practise law
is not at all uncommon. It is said that to be a successful, modern law firm in
China, three kinds of personnel need to be employed: those who have ample
knowledge of substantive law, those who know how to conduct litigation, and those
who have a wide network of relations in order to acquire business
for the firm. For their own convenience, some law firms allow personnel who are
not qualified, to act as lawyers. In response to this problem, the Lawyers Law
specifically prohibits those who have not obtained a certificate for practising
as a lawyer (Article 14). If they do so, an order to cease these illegal business
activities may be made, any illicit gains may be confiscated, and fines
can be imposed (Article 46).
According to Article 9 of the Lawyers Law, persons who cannot be granted certificates
to practise law include those who have no capacity or limited capacity for civil
conduct (34); who have been subject to a criminal penalty (with the exception
of a crime of negligence); who have been dismissed from public employment or whose
certificate to practise as a lawyer has been revoked.
In face of the problem that many government officials moonlight as lawyers,
Article 13 of the Lawyers Law prohibits employees in government institutions from
acting concurrently as practising lawyers. Article 36 requires that lawyers who
were formerly judges or procurators must not serve as agents ad litem or
defence counsel within two years of leaving their post in courts or procuratorates.
In practice, many practising lawyers have a background of having worked in a court
or procuratorate. There is strong support for restricting their engagement in
litigation because their background and network may harm the normal legal practice
and endorse judicial corruption. In a popular Chinese TV series entitled Single
Parent Families, a female judge resigned from the court in order to become
a lawyer to defend her friend at the same court where she had worked. Indeed,
under such a situation her relationship with the judges may raise doubts concerning
fairness for the opposing party. Implementation of Articles 13 and 36 continuously
face problems as governmental officials and former judges and procurators conduct
the same activities but under the guise of legal consultants (35).
For a lawyer to practise law, association with a law firm is an absolute requirement.
A lawyer cannot accept a case in his or her own name; instead, law firms accept
cases in a uniform manner and conclude contracts with their clients (Article 23).
The following criteria which must be met to establish a law firm are not complicated:
name, address and articles of association, assets of more than 100,000 yuan and
at least three full-time lawyers (Article 15).
The Lawyers Law classifies law firms into three types of: state-funded, co-operative
State-funded law firms are those established by judicial administrative organs
with state funds, which carry out legal business operations independently, and
assume limited liability for the debts of the firms with their whole assets (36).
A lawyers salary is based on an efficient flexible system, taking into account
the years that a lawyer has worked in a law firm, experience, quality and the
quantity of cases handled, etc (37). 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 (38).
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 lawyers income
is based on the same principle as that applied in state-funded law firms (39).
Originally, such firms were instituted by lawyers who had resigned from state-funded
law firms and who felt confident that they would have a sufficient number of cases
to generate a reasonable income.
Partnership law firms were also initially set up by lawyers who had resigned
from state-funded law firms. The firms property is provided by the partners
and belongs to the firm. Partners bear unlimited joint liability for the debts
of the firm (40). The total income of such a firm, after deduction of costs, taxes
and reserved funds, is divided by the partners according to arrangements made
between them. Lawyers hired to work for such a firm receive a beneficial salary.
Details of remuneration are stipulated in an agreement between the partners and
the hired lawyers.
By the end of 1997, there were approximately 5,519 state-funded law firms,
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 (41). 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 (42). 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. For instance, in
June 1996 the Standing Committee of the Peoples Congress in Hainan province
passed the Regulations of the Hainan Special Economic Zone on Practising Lawyers.
The Regulations were the first in local law to legitimise individual law firms.
In 1997, there were 34 state-funded, 38 partnership and 14 individual law firms
in Hainan province (43). 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, such as Duan &
Duan Law Firm in Shanghai (44).
Most Chinese law firms undertake a general legal practice. Only since the 1990s
in economically developed cities have some law firms become specialised in foreign-related
legal business, intellectual property rights, securities, real estate, international
tourism (45), and so forth.
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 (46). 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 (47).
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 (48). 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. On June 26th 1998 the first inter-regional firm, Guo Hao Law Firm, opened
in Peking. It is a large co-operative law firm established by three existing well-known
law firms (i.e., Zhang Yongtao Law Firm in Peking specialised in finance, Wanguo
Law Firm in Shanghai specialised in securities, and Tangren Law Firm in Shenzhen
specialised in investment and company mergers) (49). 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.
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 lawyers 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 (50).
Scope of professional activities
Article 25 of the Lawyers Law outlines seven types of lawyers activities
in general terms. They can act as legal advisors or as agents ad litem
in civil and administrative cases, handle criminal cases, serve as agents in various
petitions, participate in mediation and arbitration, handle non-litigation legal
matters, provide advice through consultation and draft legal documents. Since
their re-establishment, the scope of lawyers activities has gradually been
expanding. Some Chinese scholars have undertaken thoughtful studies on the role
of lawyers in meeting the needs of society. From the table, some conclusions can
be drawn (51).
Most notably, the number of all types of legal services have increased. In
the period from 1985 to 1993, the following increases were noted: 670.1% for non-litigation
services, 371.3% for company legal advisors, 346.7% for civil and economic litigation
cases, 89.7% for drafting legal documents, 79.2% for criminal litigation and representations,
and 47.6% for legal consultation. The average rate of increase for all services
is 267.4% (52).
Also, the provision of non-litigation legal services has increased dramatically.
Such services can be classified into contentious and non-contentious. The former
include participating in mediation, arbitration, administrative review and acting
as a representative in administrative petition, etc. The latter refer to broad
participation in trade, investment, intellectual property protection, security,
finance, taxation, real estate, maritime affairs and other civil and commercial
matters. It is estimated that the main potential for the enlargement of legal
practice lies in non-litigation services, especially in the sphere of non-contentious
Furthermore, the number of cases handled by lawyers in criminal litigation
and representation decreased in 1991, and then rose again slightly in later years.
However, when compared with other legal services, there was no major expansion
in this field. Some scholars estimate that around 70% of criminal cases are currently
tried without defence counsel (54). It is true that lawyers are reluctant to handle
criminal cases as the financial rewards are too low and the risks too high. The
most common of these risks include lawyers being verbally attacked and abused
by opposing parties; physical attack by the detainee in an attempt to escape;
being framed by officers in detention units who pass letters or banned goods to
the detainee when things are brought to light; provision of false information
by detainees and their relatives in an attempt to escape the charges, whereby
lawyers take the risk of offering false evidence which is itself a crime; being
turned on by the accused person if he/she is dissatisfied with the lawyers defence;
being set upon by judicial workers in courts, procuratorates and public security
organs who do not respect lawyers rights and consider them to be siding
with the bad guys, and absolving the accused from guilt; lawyers
have even been forced to leave the courtroom (55).
Despite these problems, it is correct to assert that: following the resumption
of the role of defence counsel in 1980, their ability actively [to] participate
in judicial activities has been strengthenednotably in the greater furnishing
of case information and the freedom to conduct judicial defence (56). In
recent years, government authorities have initiated legal aid programmes to implement
a criminal defence system. A number of local justice bureaus require law firms
to take an annual quota of criminal defence cases. For example, lawyers in Nanjing
are required to take four criminal cases each year as a prerequisite for renewal
of their licences, or pay 500 yuans per case into the criminal defence fund. In
Beijing, as from 1996, newly licensed lawyers are required to take five criminal
defence cases during their first year of practice (57).
Rights and duties
Based on almost twenty years of practical experience, the Lawyers Law lays
down some basic rights and duties of lawyers. In practice, these rights and duties
are the most often violated or neglected in China.
The personal rights of a lawyer are inviolable in the course of his or her
practice of law (Article 32). The prohibition of the infringement of personal
rights is a constitutional principle. However, the fact that the Lawyers Law repeats
this has a practical significance. Since the resumption of the lawyer system,
the number of publicised cases on serious infringements of lawyers personal
rights is alarming (58). They include instances where lawyers have been kidnapped
and taken into custody, humiliated, or slandered. The home of a number of lawyers
were searched and property confiscated, while some lawyers were beaten up.
In 1995, the exposure of a dozen serious cases led to the question being asked
publicly: who protects Chinese lawyers? (59). On March 22nd, when
lawyer Peng Jie in Hunan province met the accused in detention, the accused escaped
after colluding with the custody officials. Peng was charged with the crime of
dereliction and was sentenced to three years in prison by the local court (his
conviction was quashed on appeal). On March 30th, lawyer Ren Shangfei from Hebei
province was commissioned by his client to go to Hunan province to handle a dispute.
He was kidnapped and taken hostage by the other party to the dispute. He was beaten
up, denied food and subjected to other inhuman treatment. He was rescued only
on July 29th 1995 with the help of the ANCLA and the local procuratorate. On April
10th, lawyer Ma Haiwang in Shanxi province accepted the commission to act as an
agent ad litem in a divorce case. He was attacked by the other party, which
caused him to lose the sight in his right eye and other serious injuries. In May
1998 lawyer Jia Yaojin in Henan province was beaten in the courtroom by the opposing
party who then accused the lawyer of having beaten him. The court took no action
against the opposing party until the local government ordered the court to do
so. Local lawyers also organised a demonstration to support lawyer Jia. The above-mentioned
cases have been reported in various journals and newspapers (60).
The major reasons for these infringements of lawyers personal rights
are the feebleness of citizens legal awareness, the low professional quality
of some judges and procurators, and deficiencies in legal safeguard provisions.
Chinese law not only provides inadequate protection of the legal profession, it
also contains provisions which can easily allow violation of lawyers rights.
For instance, Article 306 of the Criminal Code states that if a defender or agent
ad litem destroys or forges evidence, or coerces the witness or entices
him into changing his testimony in defiance of the facts or into giving false
testimony, he can be sentenced to fixed-term imprisonment. Article 38 of the Criminal
Procedure Law provides that defence lawyers should not help criminal suspects
to conceal, destroy or falsify evidence or to co-ordinate their confessions with
each other, stating that violation of this provision should be investigated in
terms of legal responsibility. Article 45 of the Lawyers Law has a similar provision.
These provisions only stress how lawyers should be controlled and the fact that
they can be used against lawyers is an ongoing loophole. The protection of lawyers
personal rights must be improved in China if lawyers are to be able to fulfil
the role expected of them in fighting legal cases. However, achieving this respect
for such rights in China may take a long time.
The Criminal Procedure Law, the Civil Procedure Law and the Administrative
Procedure Law contain numerous provisions on the rights of the lawyer undertaking
litigation. The Lawyers Law not only refers to the protection of all these rights
but also specifically lists rights, the protection of which is rather problematic
in practice. These include the rights to collect and consult materials related
to a case, to meet and correspond with persons whose personal freedoms are restricted,
to attend court sessions and participate in litigation, and to debate and defend
when acting as agents ad litem or defence counsel (Article 30). In practice,
a lawyers right to have access to case materials is limited to such documents
as the arrest warrant and formal charge document, excluding evidence and documents
relating to the facts of the case. Lawyers are often refused permission to see
their clients by the detaining authority on the pretext that they are too busy.
Lawyers are also first asked to present papers that they would not reasonably
have readily available. Lawyers are sometimes even required to pay a fee in order
to meet their clients (61).
Judicial neglect of lawyers opinions is even more common. Cases in which
judges have ordered lawyers to cease their arguments or leave the courtroom because
they have presented different opinions are occasionally reported. Some judges,
a Report of the Ministry of Justice noted, deliberately make it more difficult
for lawyers to perform their functions, curse, bind and even illegally detain
lawyers (62). On July 11th 1995, lawyer Zhou Chengxi was handcuffed by three
judges in an intermediate court and beaten over a period of 75 minutes because
he insisted on his opinion in a civil case. He suffered serious mental and physical
injury (63). The lawyers role in facilitating the proper enforcement of
the law seems far from being accepted by the Chinese judiciary. There is a saying
that arguments can be made by lawyers, but judges can ignore them in handling
cases. This stark reality results in Chinese lawyers having to find their
own counter-measures, such as setting up private relations with judges, or even
bribing judges. Currently, the Chinese government is striving to eliminate judicial
corruption and is promoting new measures for judicial reform. One may expect that
full respect for the rights of lawyers in the course of litigation will help judges
to apply the law with greater accurately.
An issue relevant to the correct application of law, which indeed is currently
debated in China, is whether a lawyer can request an appeal if he or she believes
a judgement to be incorrect. According to the Criminal Procedure Law (Article
180) and the Civil Procedure Law (Article 59), a lawyer has the right to appeal
on behalf of clients. Such a right is however conditional on the agreement or
commission of their client. Thus, if a client does not want to lodge an appeal
for whatever reason, the lawyer cannot request an appeal even when he or she believes
a judgement is incorrect. Some scholars and lawyers have advocated that lawyers
be entrusted with the right of applying for judicial review: i.e., lawyers, acting
as representatives or defence counsel, should have the right (through lawyers
associations), if they believe the judgement or decision of the court is based
on incorrect facts or an incorrect application of the law, or a serious violation
of procedural law, to submit a written application for review to the court concerned
or a higher court. Such a right is considered to be part of the lawyers
right to protect the legitimate rights and interests of his client. Respect for
this right should have some deterrent effect on the courts, so as to ensure that
they apply the law in the most accurate way possible (64).
Article 31 of the Lawyers Law states that, when handling legal matters, lawyers
may make enquiries of organisations or individuals concerned, subject to their
consent. Dissatisfaction about the operation of this article is widespread among
Chinese lawyers. Although this article extends the scope of the right of enquiry
to all legal matters handled by lawyersunlike in the Provisional Regulations,
which limit these matters to litigation, mediation and arbitrationit does
not provide any safeguards. The conditional clause making the right subject
to the organisations or individuals consent makes the binding
force of the Article even weaker than it was in the preceding regulations (65).
The core of the reform of the trial system, which is underway in China, is
to stress the parties responsibility to provide evidence rather than stressing
the responsibility of the courts to collect evidence directly. The parties mostly
tend to rely on lawyers to do the work. If a lawyers right of enquiry cannot
sufficiently be secured, their competence to act will be undermined. It should
be noted that although the Lawyers Law changes a lawyers title from legal
worker of the state to legal practitioner, with the intention
of increasing the independence of lawyers, it also has potentially significant
side effects. This new status as private individuals may cause some neglect of
lawyers rights by governmental institutions as well as by other citizens.
The Lawyers Law assumes the general duty of lawyers to preserve the principle
of confidentiality of state secrets, business secrets and the privacy of the parties
concerned (Article 33). A lawyer is not allowed to represent both parties in the
same case (Article 34) (66). In response to the most shocking problems in practice,
the Lawyers Law further prohibits lawyers from taking illicit gains in cash and
in kind (Article 35) (67). Bribery of judicial officers by lawyers is a part of
the corruption which is rife in the Chinese legal system. As a result, the Lawyers
Law requires that lawyers must not meet judges, procurators or arbitrators in
breach of regulations, nor must they entertain them, send gifts to them or bribe
them (Article 35).
Article 49 provides that if losses are incurred by a client due to an illegal
act or negligence by a lawyer, that lawyers law firm must bear liability
for any compensation payable. If such losses are caused by what is deemed as a
lawyers intentional or grossly negligent act, the law firm may claim a contribution
from that lawyer. However, Article 49 is only a provision in principle: the procedure
for utilising it has yet to be laid down. In practice, it is simply not the done
thing for law firms to provide compensation to their clients (68). This does not
mean that lawyers rarely cause losses to their clients due to their illegal or
negligent acts on their part. On the contrary, the number of complaints lodged
with regard to wrongdoing by lawyers is on the increase. The most common forms
of lawyer misconduct include: after accepting a commission, failure to act as
a defence counsel or representative without proper reason; failure to appear in
court at the appointed time to participate in litigation or arbitration without
proper reason; revealing commercial secrets or infringing the privacy of the parties
concerned; making gains from the disputed rights and interests in the case by
using the advantage gained by being the lawyer in the case; losing or damaging
important client evidence; through delay without proper reason, causing litigation
to become time-barred; making significant errors about the nature of a case; and
inducing a client to sign or agree to a contract or an agreement which is obviously
to the clients disadvantage (69).
For a breach of his or her legal duties, a lawyer may be punished with a warning,
the suspension of his or her licence to practise, and the confiscation of any
illicit gains. If a lawyers act constitutes a crime, he or she must bear
criminal liability (70). It is very difficult to obtain official statistics on
the punishment of lawyers, since the government authorities consider that the
disclosure of such information may damage the image of lawyers in society. However,
based on very limited information as provided below, one may gain an impression
of the situation. From 1985 to 1991, the Ministry of Justice approved the revocation
of 63 lawyers licences: among these, 24 were revoked for bribery, larceny
and the like; 21 were revoked because the lawyer in question had frequented brothels
or had conducted an improper relationship with relatives of the parties, or due
to hooliganism; 18 were revoked for breach of professional ethics.
In Guangdong province, during the 15 years following the resumption of the lawyer
system, 31 lawyers were punished for breach of the law or discipline, including
22 revocations of legal qualifications, while nine were barred from practising
law altogether. As far as the reasons are concerned, 6% of the cases concerned
the accepting of bribes, etc.; 22% had accepted cases and fees individually and
had also accepted extra payments; 6% had opened up a business without a legal
permit; 19% of the cases dealt with making false certificates in order to obtain
a passport or a lawyers certificate, or presenting false evidence in courts;
6% concerned negligence in court or slander of the other party; and 31% of cases
were due to breaches of discipline, professional ethics and other inappropriate
In observing the performance of Lawyers in China, one must realise that it
is a new profession, and needs time to develop. In that process, most lawyers
will endure the difficulties this entails, while a few may stray from the straight
and narrow. Moreover, certain negative phenomena of the legal profession cannot
be treated in isolation from the rest of Chinese society. For instance, in the
course of dealing with cases, lawyers meet relevant judges, procurators or arbitrators
at their homes, or in restaurants, and bribe them, etc. Undoubtedly, such conduct
by lawyers is unacceptable, yet this is actually a reflection within the legal
profession of a popular way of getting things done by going through the
back door or through personal connections. It is concluded that
many lawyers would much prefer to rely on legal arguments rather than personal
relationships to serve their clients. However, given the present realities, they
have no choice but to rely on connections, and fear that if they do not, their
client will be disadvantaged (72).
In addition, lawyers misconduct is often linked with judicial corruption,
which is so serious in modern China that in recent years the government has become
determined to tackle it seriously. But the situation has yet to change significantly.
The payment of fees for legal services is one of the most sensitive and problematic
issues whenever the legal profession is discussed. Some Chinese sceptically refer
to lawyers as the new rich. The Lawyers Law contains no rules on lawyers
fees but merely mentions that detailed measures will be implemented by the Ministry
of Justice with the approval of the State Council. So far, the latter has not
yet exercised this power. Hence, current law governing lawyers fees remains
the Methods and Standards on the Collection of Attorneys Fees (Methods)
issued jointly by the Ministry of Justice, the Ministry of Finance and the State
Bureau on Prices in 1990 (73).
The general principle established in the Methods is that law firms decide detailed
standards of fee collection within the scope provided by the Methods and in accordance
with the complexity of the case, the time spent on the case, the actual amount
of money the client received from the lawsuit, and the lawyers professional
rank (Article 3). In dealing with civil, economic and administrative cases that
involve property relationships, apart from collecting a handling fee, law firms
may ask for payment of a certain percentage of the amount claimed in the dispute
(Article 6). If the legal affairs handled by lawyers are difficult and complicated,
lawyers fees can be raised within a limit not exceeding twice the amount
provided in the Methods (Article 8). As far as providing legal services to foreigners,
overseas Chinese from Hong Kong, Macao and Taiwan is concerned, fees can be decided,
according to the lawyers level and the amount of work, by consultation with
clients or by calculating hours of work (Article 9).
Pursuant to the Methods, the standards pertaining to the collection of fees
are divided into eight categories: answering legal inquires, drafting legal documents,
handling criminal cases, handing civil cases, handling economic cases, handling
administrative cases, acting as legal advisors, and representation in non-litigation
matters. For each category, the maximum and minimum fees are given. For instance,
it provides that in handling criminal cases of the first instance, the fee ranges
from 30 to 150 yuan ($US 1 = 8.84 yuan). For drafting civil contracts, fees range
from 10 to 50 yuan. In dealing with civil cases involving property relationships,
handling costs range from 100 to 200 yuan; apart from this, fees can be charged
up to a certain percentage of the amount in dispute: for example, if the amount
in dispute exceeds 5,000 yuan, 3% can be charged for the part between 5,001 to
Since the standards as provided are generally too low, little more than lip-service
is paid to them in practice. In rural areas these standards may remain relevant,
whereas in urban districts, especially in large cities, they have no real influence.
For instance, it is reported that in Heilongjiang province, while lawyers from
large cities can charge a few thousand yuan for handling criminal cases, lawyers
in small cities or counties usually charge 300 to 500 yuan (74). Lawyer Zheng
Chuanben in Shanghai charged 160,000 yuan for defending two murder suspects (75).
Obviously, the discrepancies here can be enormous.
Most commonly, lawyers and clients consult and agree on the fees to be paid.
This practice has actually been tacitly consented to or even supported. For instance,
a lawyer in Hunan concluded a contract with a client for a compensation case in
which they agreed that if the case should succeed then the lawyer would receive
10% of the amount of the claim; but the client was in the end reluctant to pay
the amount. The lawyer brought the case to the court and the court ordered the
client to pay the lawyer the amount as agreed (76).
The lack in practice of operational standards on fee collection has caused
many problems, especially where charges are too high or the standards are without
any firm legal basis. These problems have led to Chinese lawyers acquiring a bad
image, particularly in large cities. People complain that while the legal services
provided by Chinese lawyers are not yet up to international standards, the fees
It seems likely that establishing a uniform standard for the collection of
lawyers fees will be a difficult task given the increasingly uneven economic
development in different parts of China. It is rational that fees can be higher
in more economically advanced areas than in poor areas. Thus, local legislation
at provincial level may well be used to produce realistic and sensible standards.
Over the last 20 years, the extensive promulgation of new laws, administrative
regulations and local rules and regulations, has established and complicated the
contemporary Chinese legal system. Economic reform and the expansion of commercial
activities have created and expanded the markets for legal services. The goal
to build and establish the rule of law in a civil society has made the role of
lawyers indispensable in securing maximum proper enforcement of the law. The Chinese
legal profession has never experienced such a rapid expansion nor respect throughout
its history as it does today.
However, as a highly and professionally demanding occupation, the rapid growth
of the profession also presents significant problems. The most serious of these
are competence and professional responsibility (77). Lack of experience along
with tradition and a high demand within a short period, have meant that Chinese
lawyers seem to have had little or no time or opportunity to become fully trained
before they take on the responsibility of practising law. In addition, the overall
legal system in China remains at an early stage of development. Legal uncertainty,
especially when coupled with judicial corruption, makes Chinese lawyers a less
trustworthy business proposition when compared with the profession in the Western
world. One may assume that a healthy development of the legal profession will
depend not only upon the improvement of the quality of lawyers, and their professional
ethics and discipline, but also upon the judicial system and the social environment
in which law is practised. Lawyers do not live and function in their own little
world. The lawyer system is part of the legal system which, as a whole, is undergoing
significant and systematic change. Thus, the improvement of the legal profession
to a level where it meets international standards will largely depend on the success
or failure of the current legal reforms. One cannot expect the development of
a competent and respectable legal profession when it operates within an immature
and corrupt legal system.
However, this does not mean that at least some aspects of the legal profession
cannot be improved before the reform of Chinas legal system is complete.
One may observe that legal reform, in the same way as economic reform, in China,
is being undertaken in a phased manner. At present, changes in the trial system
and measures against judicial corruption are high on the reform agenda. Meanwhile,
laws are also being enacted to improve other components of the legal system. The
1997 Lawyers Law is an essential part of such efforts. The Law is intended to
improve the legal profession in several respects. Lawyers are defined as legal
practitioners instead of legal workers of the state as provided
for in the preceding law. Practising lawyers are members of local lawyer associations
which are self-regulating organisations; previously, they were institutionally
affiliated with the Ministry of Justice. Lawyers are encouraged to practise law
in partnership or in co-operative law firms, which are private firms as in Western
countries. The Law also emphasises the protection of the lawyers right to
debate and defend in the courts. There is no restriction under the Law on the
scope of legal practice. Thus, Chinese lawyers can enter any field to provide
legal services. The implementation of the Lawyers Law certainly is helping to
move the Chinese legal profession towards becoming an independent and competent
profession, safeguarding justice and meeting the needs of a market economy. Given
all of this, it is of great significance to keep abreast of the impact of the
Lawyers Law is having in the wider context of legal and economic reform in China
Shengxi et al., eds., Lüshi xue (Lawyers Studies), Peking,
Jiaoyu chubanshe, 1996, p. 21.
R. Zheng, The Evolving Role of Lawyers and Legal Practice in China,
The American Journal of Comparative Law, Vol. 36, 1988, p. 474. See also
William P. Alford, Tasselled Loafers for Barefoot Lawyers: Transformation
and Tension in the World of Chinese Legal Workers, in Stanley Lubman, ed.,
Chinas Legal Reforms, Oxford University Press, 1996, p. 26.
A. Gelatt, Lawyers in China: The Past Decade and Beyond, International
Law and Politics, Vol. 23, 1991, p. 751. See also Xiao Shengxi et al.,
op. cit., p. 21.
4. See Xiao
Shengxi et al, op. cit., pp. 21-22.
5. Tao Mao
et al., eds., Lüshi shiyong daquan (Applied Encyclopedia for
Lawyers), Hebei renmin chubanshe, 1993, p. 20-21.
Conner, Lawyers and the Legal Profession During the Republican Period,
in Kathryn Bernhardt, ed., Civil law in Qing and Republican China, Stanford
University Press, 1994, pp. 216-217.
8. See Tao
Mao et al, eds., op. cit., p. 21.
9. See Conner,
op. cit., p. 240, and Zheng, op. cit., p. 27.
Conner, ibid., pp. 229-230.
English translation is contained in Albert P. Blaustein, ed., Fundamental Legal
Documents of Communist China, New Jersey, Fred B Rothmanse Co., 1962, pp.
Geng, et al, eds., Zhonghua renmin gongheguo lüshifa quanshu
(Encyclopedia of the Law of the Peoples Republic of China on Lawyers), Peking,
Blue Sky Publishing House, 1996, p. 38.
Zheng, op. cit., p. 474.
Zhiming, Dangdai zhongguo de lüshiye: yi minquan wei jiben chidu
(Lawyers in Contemporary China: A Civil Rights Perspective), in Xia Yong, et
al, eds., Zouxiang quanli de shidai: zhongguo gongmin quanli fazhang yanjiu
(Toward a Time of Rights: A Perspective of the Civil Rights Development in China),
Peking, Chinese University of Politics and Law Publisher, 1995, p.144. See also
Gelatt, op. cit., pp. 752-754; and see Zhang Geng, op. cit., pp.
Zhang Geng, op. cit., p. 39; and Xiao Shengxi et al, op. cit.,
Zhang Zhiming, op. cit., p. 144. During this period, lawyers involvement
in economic activities was rather limited due to the underdeveloped economy, and
especially underdeveloped industry and commerce.
Zhang Geng, op. cit., p. 40; and Tao Mao, op. cit., p. 23.
Zhang Geng, op. cit., p. 40.
official English translation of the text can be found in The Laws of the Peoples
Republic of China (1979-1982), compiled by the Legislative Affairs Commission
of the Standing Committee of the National Peoples Congress of the Peoples
Republic of China, Foreign Languages Press, Peking, 1987, pp. 177-181.
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.
Guzhou, interview with Duan Zhengkun, head of the department of lawyers in the
Ministry of Justice, Zhongguo lüshi (China Lawyer), No. 1, 1998, p.
the Ministry of Justice 1996-2000 Training Plan for Judicial Workers,
Zhongguo falü nianjian, 1997, p. 671.
in China: Obstacles to Independence and the Defense of Rights, New York, Lawyers
Committee for Human Rights, March 1998, p. 39.
Xiao Shengxi et al, op. cit., p. 25.
document is contained in Zhang Geng, op. cit., pp. 665-671.
English translation of the Law can be found in Zhongguo falü (China
Law), No. 2, 1996, pp. 108-112. The Law applies only to licensed attorneys.
6 and 7 of the Lawyers Law.
the resumption of the lawyer system in the period from 1979 to 1986, the kaohe
system was the only way to become a qualified lawyer. The system was further confirmed
in the Proposal for Deepening the Reform of Lawyers Work issued
by the Ministry of Justice in 1993. The text can be found in Zhang Geng (note
12), pp. 665-671. It stated that the judicial organs should grant a lawyers
title to those who work in law firms and meet one of the following conditions:
holds a senior title from a law school of a university or a law research institute;
holds a senior title and has worked in the legal field in governmental institutions;
holds a senior title, and is engaged in economic or scientific work, and is familiar
with legal issues in a particular field, and has participated in a legal training
course of more than six months; obtained a law degree at or above Masters
level abroad, has worked in a law firm for more than a year upon returning to
China; obtained a law degree at or above Masters level in China and has
worked for more than one year in a law firm.
speech is contained in Zhang Geng, op. cit., pp. 14-15.
Zhonghong, Guanyu woguo lüshi zige shouyu zhidu de ruogan wenti
(Several Issues Concerning Our Countrys System of Lawyers Qualification),
Xiandai faxue (Modern Law Journal), No. 1, 1997, p. 52.
in China..., op. cit., p. 64.
Ministry of Justice has issued an internal circular calling upon all lawyers to
take 40 hours of training each year. The training courses must be approved by
the Ministry of Justice and administered by the same Ministry or local judicial
departments, bar associations or other authorised entities. Such courses focus
mainly on introducing new laws and professional responsibility. Ibid.,
sets the age limit at and above 18. Because under Articles 11, 12 and 13 of the
General Principles of the Civil Law of the PRC (referred to as the Civil Code
by Chinese scholars), a citizen aged 18 or over is an adult, and has full capacity
for civil acts. A minor aged 10 or over is a person with limited capacity for
civil acts; a minor under the age of 10 and a mentally ill person, who is unable
fully to account for his own conduct, is a person having no capacity for civil
in China..., op. cit., p. 93.
Articles 3 and 15 of the Administrative Methods on State-funded Law Firms (Guojia
chuzi shelide lüshi shiwusu guanli banfa), issued by the Ministry of
Justice on November 25th 1996. This document can be found in Zhongguo falü
nianjian, op. cit., 1997, pp. 673-674.
Zhang Geng, op. cit., p. 95.
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.
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.
Qian Guzhou interview, op. cit. en. 21, p. 7.
42. If one
looks back through the last 50 years since the Communist Party took power in 1949
at how frequently government polices have changed and how much people have suffered
through ideological struggles, one can understand peoples suspicion of the
present government. After all, the latter still holds to its communist ideology
and rules the country by policy rather than seeking to engage in political reform
so as to establish institutional guarantees for economic prosperity and
social progress in China. This critical comment does not intend to express the
authors lack of confidence in the present government, but rather seeks to
illustrate the rationale of peoples uneasiness from a historical and practical
43. Li Singsong,
Tantu jiuzai jiaoxia: Hainan jiansheng shinian lüshi gongzuo gaige
huimao (The Road Is Under Ones Feet: Retrospective of Reform on
Lawyers Work over the Last Ten Years in Hainan Province), Zhongguo lüshi,
No. 1, 1998, p. 9.
rapid development of the form of law firms has been beyond many experts
expectations. A distinguished law professor from Peking University in his article
published in 1993 predicted that the firms would be neither a partnership
nor a professional corporation. Additionally the firms would remain under administrative
control. The principle of such reforms is to improve the status and income of
lawyers, giving them more opportunities to display enthusiasm and creativity
(Shen Zongling, The Role of Lawyers in Social Change: China, Case
Western Reserve Journal of International Law, Vol. 25, 1993, p. 167).
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,
Qian Guzhou interview, op. cit. en. 21, p. 6.
Peerenboom, Chinas Developing Legal Profession: The Implications for Foreign
Investors, China Law and Practice, Vol. 12, No. 5, June/July, 1998, p.
lüshibao (The Chinese Lawyers News), May 20th, 1998, p.1.
lüshi, No. 9, 1998, pp. 4-7.
figures in the table from 1985 to 1993 are taken from Zhang Zhiming, Dangdai
zhongguo de lüshiye, op. cit., p. 175. The figures from 1994 to
1997 are from Zhongguo falü nianjian (1995-1998). As far as the exact
numbers are concerned, only two decimal places are considered: for example, 23.4496
appears on the Table as 23.44, etc.
Qizhi, Legal Aid Practices in the PRC in the 1990s Dynamics, Contents
and Implications, Occasional Papers/ Reprint Series in Contemporary Asian
Studies, No. 4, 1997, pp. 17-18.
lüshi, No. 9, 1998, p. 39.
Wing-hung Lo, Chinas Legal Awakening: Legal Theory and Criminal Justice
in Dengs Era, Hong Kong, Hong Kong University Press, 1995, p. 265. He
gives the example that on October 25th 1986 a defence lawyer refuted the public
prosecutors indictment of four defendants in the Shanghai Intermediate Peoples
58. A Ji,
Zhongguo lüshiye de xianzhuang he weilai (The Present
Status and Future Perspective of Chinese Lawyer Profession), Zhengfu fazhi
(Government and Legal System), No. 8, 1996, p. 5.
p. 5, and Zhongguo lüshi, No. 9, 1998, pp. 12-13.
Lawyers in China..., op. cit., p. 78.
Zheng, The Evolving Role..., op. cit., p. 514.
Xiao Shengxi et al, op. cit., p. 88.
lawyers are often criticised for working only for economic gain. They acted as
the representative of parties at first instance trial, and yet went on to act
as the representative of the opposing party at second instance. Article 34 should
be understood as to mean that a lawyer cannot represent parties whose interests
are in conflict. For instance, a criminal case may involve a number of accused
parties: some are principal offenders, others are accessories. There is a difference
between the serious and minor crimes which may have been committed. A lawyer may
not represent all the accused because this may lead to a contradictory defence.
See Zhang Geng, Zhonghua renmin gongheguo lüshifa quanshu, op.
cit., pp. 142-43.
67. In practice,
many problems occur. For instance, some lawyers have accepted an excessive amount
of money from relatives of the accused, and then have tried by various means to
free the accused. There is even a saying that if enough money is offered, even
a person who has been charged with an offence which would warrant the death penalty
can be released. See A Ji, Zhongguo lushiye, op. cit.,
from foreign experience, a fault-compensation system has been established into
some partnership law firms since the end of the 1980s. However, their intention
is mainly geared towards increasing the law firms reputation. There is no
established criterion for fault. See A Ji, ibid., p. 6.
Gaoshang, Shilun lüshi shiwusuo de peichang zeren (Discussion
of the Compensation Liability of Law Firms), Anhui lüshi (Anhui Lawyer),
No. 4-5, 1996, p. 34.
44, 45 and 46 of the Lawyers Law.
Zhang Zhiming, op. cit., pp. 187-189.
note 23, p. 67.
documents can be found in Zhang Geng, op. cit., pp. 585-590.
74. Ma Jiandong,
Lushi shoufei zhidu gaige de jianyi (Some Suggestions Concerning
Reform of Fee Collection System), Zhongguo lüshi, No. 5, 1998, p.
Dong, Shiliuwan de qishi (Enlightenment of 160,000), Zhongguo
lüshi, No. 5, 1998, p. 17.
A Ji, Zhongguo lushiye, op. cit., p. 6.
Alford, op. cit., pp. 32-36.