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A Profession

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  • pg 1
									                                                                                          people, including law school gradu-

A Profession                                                                              ates, with senior academic titles or
                                                                                          those with equivalent competence may
                                                                                          not be subject to examination, but only
The enactment of the PRC's new Lawyers Law is a major                                     to an assessment conducted by the
                                                                                          judicial administration offices.
step forward in the restoration of the Chinese legal                                          In addition to the qualification, can-
profession                                                                                didates still have to meet certain other
                                                                                          substantive as well as procedural condi-
On 15 May 1996, the Standing Commit-          vides that the Ministry of Justice          tions before they are permitted topractise
tee of the National People's Congress         through the State Council and its local     law. The substantive conditions require
enacted the first legislation specifically    offices (judicial administration offices)   candidates to support the Constitution,
tailored for lawyers within the PRC,          shall be in charge of the supervision       to have finished a training programme
entitled the Law on Lawyers of the PRC        and guidance of lawyers, law firms          in a law firm for a full year, and to be of
(the Law). It will come into effect on the    and lawyers' associations.                  good character.
1 January 1997 and replaces the out-                                                          A licence will not be issued to those
dated Interim Regulations on Lawyers of       Qualification                               who have been penalised under crimi-
1980.                                         To become a lawyer a                                           nallaw for intentional
    The enactment represents an ideo-         person must qualify                                            crimes, or who have
logical breakthrough after seven years        through the national                                           been dismissed from
of drafting and several serious discus-       lawyer qualification                                            a public position for
sions among the top leaders of China. In      examination, which                                              fault; who have no or
addition, it sets the stage for the further   can be taken by both                                            limited civil compe-
development of the legal profession in        law school graduates                                            tence; or who have
China.                                        and others with                                                been disciplined by
                                              equivalent knowledge.                                           revocation of their
Lawyers Defined                               Although currently                                              practice licences.
In contrast to the old regulations which      only a quarter of the                                               Armed with the
defined lawyers as state legal workers,       more than 90,000 quali-                                         right documents,
art 2 of the Law characterises lawyers as     fied lawyers in the PRC                                         candidates are also
legal practitioners who have obtained         are law school gradu-                                           required to apply to
practice licenses in accordance with the      ates, the Ministry of                                           the local judicial
Law and who provide society with legal        Justice has set the goal                                        administration of-
services. In addition, arts 1 and 3 state     of increasing the number to 150,000 by      fices for their licences. Although
that the legislative purpose is to protect    the end of this century, as part of the     lawyers' practices are not subject to
the practice of law by lawyers, to have       first stage in meeting President Jiang      any geographical restrictions, each
lawyers play an active role in socialist      Ze Min's call to have 300,000 lawyers       lawyer can only practise in one law
legal construction and to safeguard the       by the year 2010.                            firm. Government functionaries may
correct application of laws.                      As a consequence, it is inevitable      not practise as lawyers, and a lawyer
     However, some inconsistencies can        that other qualified people will be al-     may not practise law where he or she is
still be found. For example, art 4, pro-      lowed to join the profession. Certain       elected as a member of the Standing
                                                                                          Committee of the People's Congress at
                                                                                          any level. A person without a practice
                                   Practice Areas                                         licence is prohibited from practising
                                                                                           as a lawyer and from engaging in
  According to the new legislation, lawyers' practice areas include the following:        litigation for economic gain.
  • being legal advisors for individual citizens, legal persons or other
    organisations                                                                         Practice Scope and Legal Rights and
  • being litigation attorneys in civil or administrative proceedings                     Duties of Lawyers
  • being the defendant's or victim's attorneys in criminal proceedings                   The new legislation specifies the
  • representing parties to petition against legally-effective decisions                  scope of a lawyer's practice areas
  • providing legal services on non-litigation matters                                    (see Figure 1).
  • participating in mediation and arbitration on behalf of their clients, and               Once a lawyer is appointed, he or
  • legal consultation and document drafting.                                             she shall uphold his or her client's
                                                                                          legal rights and interests, and will not
Figure 1

 Page 32                                                                                                Hong Kong Lawyer   August 1996
refuse to defend or represent Without                                                                According to the Law, all legal work
proper reasons, except where the en-                                                             must be accepted by the law firm itself,
trusted matter's; intention is one of                                                            rather than from any individual law-
evading the law.                                                                                 yers, on a basis of written appointment
    A lawyer's practi.ce will be protected                                                       contract. The fees shall be charged in
by the law. For example, a lawyer's rights                                                       accordance with the relevant state regu-
to engage in debating and defendinghis                                                           lations. No law firm or lawyer shall
or her client, and to enjoy his or her own                                                       accept any business by means of unfair
personal autonomy during practice are                                                            competition, such as slander or by offer-
explicitly guarded by arts 30 and 32.                                                            ing 'kick backs'. To further deter such
    Lawyers have a legal duty to observe                                                         behaviour the Ministry of Justice last
the Constitution and laws, to act on the                                                         year promulgated a detailed regulation
basis of fact, to comply with profes-                                                            against unfair competition among law
sional ethics and practicediscipline, and                                                        firms and lawyers.
to defend correct application of the law.
More specifically, lawyers must not:                                                             The Lawyers' Association
8
    disclose state or business secrets or                                                        The Law stipulates that the National
    personal matters of which they                                                               Lawyers' Association of China is a self-
    become aware of during their                                                                 disciplining social organisation with
                                                                                             I
    practice                                                                                     local branches nation-wide. A lawyer
8                                             Zhang Xian Chu: The main theme running
    represent both parties in the same        through the provisions of the Law is still the     must join a local association, which
    case                                      struggle between the freedom or practice and       automatically makes him or her a mem-
                                              autonomy of the profession, and government
•   receive any private appointment and       control based on conservative political ideology   ber of the National Association.
    payment                                                                                          The responsibilities of the
• seek any benefit from the interests                                                            Association include the protection of
    under the dispute between the             mately 1,700 private law firms having              lawyers' legal rights and interests,
    parties                                   being established, state-owned law                 practical training and the promotion
• illegally meet or bribe judicial            firms still constitute over 75 per cent of         of exchanges, ethical education and
    personnel or arbitrators, or              the 7,200 law firms in. the nation today.          practice supervision, international
• disrupt legal or arbitration                Therefore, the dual-track system is                professional exchange, and mediation
    proceedings.                              aimed at smoothing the transition of               of disputes between lawyers over their
In order to prevent illegal dealings, the     the current structure, which is domi-              practices. The Law, however, subjects
Law subjects lawyers to the supervision       nated by state ownership, to a more                the Association to government control
of the state, society, and interested         open market with private sector com-               by providing that only standard
parties. Former judges or prosecutors         petition and, at the same time,                    articles of association may be adopted
may not be appointed as litigation a ttor-    guaranteeing availability of legal serv-           by the National Association, and that
neys or defendants' representatives           ices in poor rural areas.                          the associations at different levels shall
within two years of ceasing their j udicial       The Law provides that a private                be guided and supervised, by judicial
functions.                                    law firm may be established either as a            administrative offices. In addition,
                                              corporation or as a partnership. The               articles of association will be registered
Law Firms                                     provision for sole practices that has              with the Ministry of Justice.
Under the Law, law firms are the prac-        existed in some cities, was deleted at
tice units for lawyers. A law firm must       the last minute from the draft legisla-            Legal Aid
have its own name, articles, offices,         tion on the grounds of it being                    Legal aid as a legal system is provided
minimum capital of RMB 100,000 and            somewhat premature.                                in the Law for the first time. It will be
qualified lawyers. Both state-owned               The judicial administration off ices           provided by lawyers in cases
law firms and law firms under private         are responsible for the examination                involving maintenance payments,
ownership are permissible. Although           of, and, within thirty clays, the ren-             employment-related injuries, criminal
the 'Two No and Four Self policy (not         dering of their decisions on whether               offences, compensation claims against
being a state establishment, not taking       to approve applications for the                    the government and pension claims.
state funds, self-association, self-          establishment of law firms or branch               Eligible individuals include the disa-
support, self-development, and                offices of a law firm. They are also               bled, families of the deceased, those in
self-discipline) has been used to pro-        empowered to terminate a law firm                  need of legal services but who are
mote the growth of private sector             or to approve any significant changes              unable to pay. In recent years, legal aid
practices since 1993, and with approxi-       to a firm.                                         centres have been opened in some
Hong Kong Lawyer   August 1996                                                                                                      Page 33
cities including Guangzhou and               intentional crimes. A person practising       step towards the modernisation of
Shenzhen. However, resources for the         without a licence may be subject to con-      the legal profession in China which
funding of such operations has yet to        fiscation of unlawful income, fines and       is in itself a necessary component to
be settled. Thus, the detailed meas-         detention of up to 15 days. A penalised       the e s t a b l i s h m e n t of a m a r k e t
ures of funding have been left to the        lawyer or law firm may seek reconsid-         economy. The main theme running
State Council.                               eration of the sanction imposed by            through the provisions of the Law,
                                             appealing to a higher level or by directly    however, is still the struggle between
Legal Liabilities                            filing an administrative action against       the freedom of practice and au-
A lawyer may be sanctioned by the            the judicial administration office con-       tonomy of the profession, and
local judicial administration office by      cerned.                                       government control based on con-
a warning, confiscation of unlawful               A law firm may also be penalised         servative political ideology.
income, or suspension for three-             through an order to correct, confiscation         Compared with the previous draft
twelve months for minor violations           of unlawful income, fines, suspension of      and some other local regulations, the
including private receipt of appoint-        practice for consolidation or revocation      Law seems not as bold as many had
ment and payment, unfair competition,        of practice licence. In addition, it may be   expected. The fact that all the disci-
refusal to represent without proper          held liable for any damages caused to its     plinary powers of lawyers' associa-
reasons, disclosure of private or busi-      clients by any malpractice or for any         tions, as provided in the previous
ness secrets, unlawful treatment of          other violations by its lawyers. Although     draft, are now completely held by
judicial personnel, or disruption of         it may seek further recourse against the      the government branch is an illustra-
judicial proceedings.                         lawyer concerned, such civil liability to    tion of this point. The Law may, there-
    Revocation of practice licence or even   the clients may not be exempted or re-        fore, play only a limited regulatory
criminal liabilities may be imposed          stricted by any law firm or lawyer.           role during this transitional period.
against serious violations, such as dis-
closure of state secrets, bribery,           Conclusion                                                              Zhang Xian Chu
fabrication of false materials or other      The enactment is clearly a positive                        City University of Hong Kong




 Page 34                                                                                                   Hong Kong Lawyer   August 1996

								
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