On 15 May 1996, the Standing Committee of the National People's Congress enacted the first legislation specifically tailored for lawyers within the PRC, entitled the Law on Lawyers of the PRC (the Law). It will come into effect on the 1 January 1997 and replaces the outdated
Interim Regulations on Lawyers of 1980. The enactment represents an ideological breakthrough after seven years of drafting and several serious discussions among the top leaders of China. In addition, it sets the stage for the further development of the legal profession in China.published_or_final_versio

Zhang, XC

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TitleA profession reborn: the enactment of the PRCs new lawyerslaw is a major step forward in the restoration of the Chineselegal professionAuthor(s) Zhang, XCCitation Hong Kong Lawyer, 1996, Aug, p. 32-34Issued Date 1996URL http://hdl.handle.net/10722/53593Rights Creative Commons: Attribution 3.0 Hong Kong LicenseA ProfessionThe enactment of the PRC's new Lawyers Law is a majorstep forward in the restoration of the Chinese legalprofessionOn 15 May 1996, the Standing Commit-tee of the National People's Congressenacted the first legislation specificallytailored for lawyers within the PRC,entitled the Law on Lawyers of the PRC(the Law). It will come into effect on the1 January 1997 and replaces the out-dated Interim Regulations on Lawyers of1980.The enactment represents an ideo-logical breakthrough after seven yearsof drafting and several serious discus-sions among the top leaders of China. Inaddition, it sets the stage for the furtherdevelopment of the legal profession inChina.Lawyers DefinedIn contrast to the old regulations whichdefined lawyers as state legal workers,art 2 of the Law characterises lawyers aslegal practitioners who have obtainedpractice licenses in accordance with theLaw and who provide society with legalservices. In addition, arts 1 and 3 statethat the legislative purpose is to protectthe practice of law by lawyers, to havelawyers play an active role in socialistlegal construction and to safeguard thecorrect application of laws.However, some inconsistencies canstill be found. For example, art 4, pro-vides that the Ministry of Justicethrough the State Council and its localoffices (judicial administration offices)shall be in charge of the supervisionand guidance of lawyers, law firmsand lawyers' associations.QualificationTo become a lawyer aperson must qualifythrough the nationallawyer qualif icationexamination, whichcan be taken by bothlaw school graduatesand others withequivalent knowledge.Although currentlyonly a quarter of themore than 90,000 quali-fied lawyers in the PRCare law school gradu-ates, the Ministry ofJustice has set the goalof increasing the number to 150,000 bythe end of this century, as part of thefirst stage in meeting President JiangZe Min's call to have 300,000 lawyersby the year 2010.As a consequence, it is inevitablethat other qualified people will be al-lowed to join the profession. CertainPractice AreasAccording to the new legislation, lawyers' practice areas include the following:• being legal advisors for individual citizens, legal persons or otherorganisations• being litigation attorneys in civil or administrative proceedings• being the defendant's or victim's attorneys in criminal proceedings• representing parties to petition against legally-effective decisions• providing legal services on non-litigation matters• participating in mediation and arbitration on behalf of their clients, and• legal consultation and document drafting.Figure 1people, including law school gradu-ates, with senior academic titles orthose with equivalent competence maynot be subject to examination, but onlyto an assessment conducted by thejudicial administration offices.In addition to the qualification, can-didates still have to meet certain othersubstantive as well as procedural condi-tions before they are permitted topractiselaw. The substantive conditions requirecandidates to support the Constitution,to have finished a training programmein a law firm for a full year, and to be ofgood character.A licence will not be issued to thosewho have been penalised under crimi-nallaw for intentionalcrimes, or who havebeen dismissed froma public position forfault; who have no orlimited civil compe-tence; or who havebeen disciplined byrevocation of theirpractice licences.Armed with theright documents,candidates are alsorequired to apply tothe local judicialadministration of-fices for their licences. Althoughlawyers' practices are not subject toany geographical restrictions, eachlawyer can only practise in one lawfirm. Government functionaries maynot practise as lawyers, and a lawyermay not practise law where he or she iselected as a member of the StandingCommittee of the People's Congress atany level. A person without a practicelicence is prohibited from practisingas a lawyer and from engaging inlitigation for economic gain.Practice Scope and Legal Rights andDuties of LawyersThe new legislation specifies thescope of a lawyer's practice areas(see Figure 1).Once a lawyer is appointed, he orshe shall uphold his or her client'slegal rights and interests, and will notPage 32 Hong Kong Lawyer August 1996refuse to defend or represent Withoutproper reasons, except where the en-trusted matter's; intention is one ofevading the law.A lawyer's practi.ce will be protectedby the law. For example, a lawyer's rightsto engage in debating and defendinghisor her client, and to enjoy his or her ownpersonal autonomy during practice areexplicitly guarded by arts 30 and 32.Lawyers have a legal duty to observethe Constitution and laws, to act on thebasis of fact, to comply with profes-sional ethics and practicediscipline, andto defend correct application of the law.More specifically, lawyers must not:8 disclose state or business secrets orpersonal matters of which theybecome aware of during theirpractice8 represent both parties in the samecase• receive any private appointment andpayment• seek any benefit from the interestsunder the dispute between theparties• illegally meet or bribe judicialpersonnel or arbitrators, or• disrupt legal or arbitrationproceedings.In order to prevent illegal dealings, theLaw subjects lawyers to the supervisionof the state, society, and interestedparties. Former judges or prosecutorsmay not be appointed as litigation a ttor-neys or defendants' representativeswithin two years of ceasing their j udicialfunctions.Law FirmsUnder the Law, law firms are the prac-tice units for lawyers. A law firm musthave its own name, articles, offices,minimum capital of RMB 100,000 andqualified lawyers. Both state-ownedlaw firms and law firms under privateownership are permissible. Althoughthe 'Two No and Four Self policy (notbeing a state establishment, not takingstate funds, self-association, self-support, self-development, andself-discipline) has been used to pro-mote the growth of private sectorpractices since 1993, and with approxi-IZhang Xian Chu: The main theme runningthrough the provisions of the Law is still thestruggle between the freedom or practice andautonomy of the profession, and governmentcontrol based on conservative political ideologymately 1,700 private law firms havingbeing established, state-owned lawfirms still constitute over 75 per cent ofthe 7,200 law firms in. the nation today.Therefore, the dual-track system isaimed at smoothing the transition ofthe current structure, which is domi-nated by state ownership, to a moreopen market with private sector com-petition and, at the same time,guaranteeing availability of legal serv-ices in poor rural areas.The Law provides that a privatelaw firm may be established either as acorporation or as a partnership. Theprovision for sole practices that hasexisted in some cities, was deleted atthe last minute from the draft legisla-tion on the grounds of it beingsomewhat premature.The judicial administration off icesare responsible for the examinationof, and, within thirty clays, the ren-dering of their decisions on whetherto approve applications for theestablishment of law firms or branchoffices of a law firm. They are alsoempowered to terminate a law firmor to approve any significant changesto a firm.According to the Law, all legal workmust be accepted by the law firm itself,rather than from any individual law-yers, on a basis of written appointmentcontract. The fees shall be charged inaccordance with the relevant state regu-lations. No law firm or lawyer shallaccept any business by means of unfaircompetition, such as slander or by offer-ing 'kick backs'. To further deter suchbehaviour the Ministry of Justice lastyear promulgated a detailed regulationagainst unfair competition among lawfirms and lawyers.The Lawyers' AssociationThe Law stipulates that the NationalLawyers' Association of China is a self-disciplining social organisation withlocal branches nation-wide. A lawyermust join a local association, whichautomatically makes him or her a mem-ber of the National Association.The responsibili t ies of theAssociation include the protection oflawyers' legal rights and interests,practical training and the promotionof exchanges, ethical education andpractice supervision, internationalprofessional exchange, and mediationof disputes between lawyers over theirpractices. The Law, however, subjectsthe Association to government controlby providing that only standardarticles of association may be adoptedby the National Association, and thatthe associations at different levels shallbe guided and supervised, by judicialadministrative offices. In addition,articles of association will be registeredwith the Ministry of Justice.Legal AidLegal aid as a legal system is providedin the Law for the first time. It will beprovided by lawyers in casesinvolving maintenance payments,employment-related injuries, criminaloffences, compensation claims againstthe government and pension claims.Eligible individuals include the disa-bled, families of the deceased, those inneed of legal services but who areunable to pay. In recent years, legal aidcentres have been opened in someHong Kong Lawyer August 1996 Page 33cities including Guangzhou andShenzhen. However, resources for thefunding of such operations has yet tobe settled. Thus, the detailed meas-ures of funding have been left to theState Council.Legal LiabilitiesA lawyer may be sanctioned by thelocal judicial administration office bya warning, confiscation of unlawfulincome, or suspension for three-twelve months for minor violationsincluding private receipt of appoint-ment and payment, unfair competition,refusal to represent without properreasons, disclosure of private or busi-ness secrets, unlawful treatment ofjudicial personnel, or disruption ofjudicial proceedings.Revocation of practice licence or evencriminal liabilities may be imposedagainst serious violations, such as dis-closure of state secrets, bribery,fabrication of false materials or otherintentional crimes. A person practisingwithout a licence may be subject to con-fiscation of unlawful income, fines anddetention of up to 15 days. A penalisedlawyer or law firm may seek reconsid-eration of the sanction imposed byappealing to a higher level or by directlyfiling an administrative action againstthe judicial administration office con-cerned.A law firm may also be penalisedthrough an order to correct, confiscationof unlawful income, fines, suspension ofpractice for consolidation or revocationof practice licence. In addition, it may beheld liable for any damages caused to itsclients by any malpractice or for anyother violations by its lawyers. Althoughit may seek further recourse against thelawyer concerned, such civil liability tothe clients may not be exempted or re-stricted by any law firm or lawyer.ConclusionThe enactment is clearly a positivestep towards the modernisation ofthe legal profession in China whichis in itself a necessary component tothe e s t a b l i s h m e n t of a marke teconomy. The main theme runningthrough the provisions of the Law,however, is still the struggle betweenthe freedom of practice and au-tonomy of the profession, andgovernment control based on con-servative political ideology.Compared with the previous draftand some other local regulations, theLaw seems not as bold as many hadexpected. The fact that all the disci-plinary powers of lawyers' associa-tions, as provided in the previousdraft, are now completely held bythe government branch is an illustra-tion of this point. The Law may, there-fore, play only a limited regulatoryrole during this transitional period.Zhang Xian ChuCity University of Hong KongPage 34 Hong Kong Lawyer August 1996

A profession reborn: the enactment of the PRCs new lawyers law is a major step forward in the restoration of the Chinese legal profession

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A profession reborn: the enactment of the PRCs new lawyers law is a major step forward in the restoration of the Chinese legal profession

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