Study on China’s Lawyer System

Introduction

            The lawyer system in China is responsible for governing the organization, mission and operational principles of lawyers, and regulates how lawyers offer legal services in the country. There are several laws and regulation under Chinese law that regulates the practice of lawyers and law firms in the country. The Lawyer Law of the People’s Republic of China, under Article 2, defines a lawyer as a “professional who has acquired the practicing license using legal means in order to offer legal services to the public”[1]. As a result, lawyers play an integral role in China’s legal system as outlined by their mission. China lawyers are obligated to achieve the objectives outlined in various state laws associated with the practice of law.[2] Fundamentally, lawyers in China are supposed to maintain the legitimate interests and rights of parties they represent in a suit and ensure proper implementation of the law. In order to achieve its objective, there are a number of legal frameworks that regulate the legal profession[3]. This paper critically analyzes the current situation of China’s lawyer system in relation to the legal framework regulating the lawyer system in the country. The paper also analyzes the shortcomings and dilemma, and the opportunities and challenges faced by the Chinese lawyer system after the country entry into WTO. Lastly, the paper suggests reforms that can be adopted in the China’s legal system to address the identified challenges and shortcomings facing the lawyer system in the country.

 

 

Current Situation of China’s Lawyer System subject To the Legal Frame Work Regulating the Legal Profession

            The lawyer system in China has been subject to political control since its recommencement during the post-Mao era whereby the 1980 Provisional Regulation on Lawyers perceived lawyers as employees of the state. Substantial progress have been observed with respect to the development of the law profession; however, the lawyer system in China is still typified by various demeaning characteristics, which include lack of autonomy from the state; inadequate protection of the rights of lawyers; the legal practice faces heavy administrative interference; and the inferior positioning of lawyers in the judicial process[4]. The National Lawyers Association acts as the primary instrument that the state uses to control the law profession in China. Because of the factors identified above, the law profession in China has witnessed slow development with respect to achieving strong professional identity, lack of a positive professional image, and underdevelopment as regards professional ethics.[5]

The lawyer system in China is regulated by the Law of the People’s Republic of China on Lawyers, which is commonly referred to as the Lawyers law. The precursor to the Lawyer’s Law, the Interim Regulations of the People’s Republic of China on Lawyers, categorized lawyers as state legal state employees. The first edition of the Lawyers Law was enacted in 1996 and adopted in 1997; it revoked the earlier interim regulation. Subsequent amendments and modifications on the Lawyer law served to address the changing needs posed by the Chinese society and the implementation of the open-door economic policy. This saw lawyers being designated as legal professionals rather than state employees.[6] This difference in the designation of lawyers was crucial step towards ensuring the sovereignty of lawyers in China. The Justice Department has hinted plans aimed at revising the Lawyers law in the foreseeable future. The existing Lawyers Law comprises of eight parts, which includes the Supplementary Provisions, Legal Liability, Legal Aid, Lawyers Associations, Rights and Obligations of Practicing Lawyers, Business, Law Firms, Conditions of Practice by Lawyers, and General Provisions. Just like other elements in China’s legal system, the Lawyers’ Law lacks specific details and is typified by broad general statements; for instance, “the law shall protect lawful practice by lawyers”. The primary purposes of the Lawyers’ Law include safeguarding the interests and legal rights of parties to a suit, standardizing the acts of lawyers, ensuring that lawyers play a significant role in developing a socialist legal system, and ensuring that the law is implemented correctly. Practicing laws have to be registered with a law firm; however, solo practicing lawyers are allowed. The types of law firms allowed in China include partnership, cooperative and state funded.[7]

The Shortcomings and Dilemma Faced By the Lawyer System

            Critics usually assert that the legal system in China and its attorneys are corrupt and lack sufficient training. However, an assessment of the existing customs and structures reveal that judges and lawyers in China face constrains imposed by political pressures, which is a prevalent feature of the modern China.[8] Whereas there are deficiencies with regard to training and education, dubious legal representation and judgments stem from core issues associated with autonomy and adjudications that are based on political power. For instance, lawyers in China are often afraid of representing particular clients while judges can make rulings without the dread of political reprisal.  It can be argued that legislation exists theoretically; however, the judiciary and the government tend to disregard them and fail to implement the provisions under the law.[9] In addition, mechanisms for safeguarding these rights do not exist in China. It is apparent that both international parties and Chinese are doubtful of the credibility of China’s legal system. The negative discernments tend to corrode the faith that people should have in the country’s legal system, which increases the difficulty of implementing the rule of law.[10]  The actual practice of lawyers in China is not consistent with the prescriptions outlined in the Lawyers’ Law, and the case is the same for judges. Despite the fact that the Lawyers’ Law assures the freedom of a lawyer to represent a client, officials tend to infringe these established rules without facing any repercussions. The lack of means of enforcing such rights implies that lawyers in China have limited options. The common practice of undermining the law increases the public’s doubt on the legal system and upsets any efforts aimed at ensuring that the law is implemented correctly by the law practitioners such as lawyers.[11]

The Lawyers’ Law spells out the lawyers’ rights; however, there rights are usually disregarded. According to the provisions under the Lawyers’ Law, the personal rights cannot be breached when performing tasks related to legal practice. For instance, lawyers can take part in litigation, appear in court, conduct meets with an individual who freedom rights have been limited, and enjoy other rights articulated in the procedure laws. In contrary with these provisions, newspapers and other media outlets often report the opposite of what is expected. Criminal defense lawyers in China are often victims of harassments, subjected to surveillance and can be arrested on grounds of false charges. In addition, lawyers who represent clients who are politically unpopular can have their licenses revoked or their law firms closed.[12] A case in point is the case of Gao Zhisheng, who is a candid attorney for human rights, who distributed writings on the Internet that criticized the Communist Party and represented several unpopular clients. Mr. Gao was arrested and placed into custody for provocative subversions although there was no evidence or the particular basis of the charges placed against him. In addition, Mr. Gao’s defense lawyer was prevented from visiting him while he was in jail. This case points a number of actions that are not consistent with the provisions articulated under the Lawyers’ Law. Lawyers in China are constrained by the fact that the country’s judicial system is not autonomous. Regardless of the fact that lawyers’ associations can help in safeguarding the lawful interests and rights of lawyers, it is apparent that they are incapacitated to carry out this duty.[13]

The influence of lawyers’ associations in China is significantly constrained by the fact that both the local and national bar associations operate under the directives of the Ministry of Justice. The associations typically act as lower government branches; as a result, they are often aligned to help in achieving the interests of the Communist Party instead of the interests of the legal profession. The lack of actual authority by the lawyers’ associations is manifested with regard to attorney discipline. According to the provisions of the Lawyers’ Law, the lawyer associations have the duty to supervise the discipline of lawyers; however, it is the government’s judicial administration department that is playing this role. Another probable indicator of the law profession’s interdependence with the state is the ongoing regulation of lawyers’ fees by the government. At a time when lawyers were considered as state employees, their salaries were paid by the government as well as collecting their salaries.[14] At present, the Ministry of Justice takes about 15% of the annual profits reported by the law firms regardless of the amendments in the Lawyer Law.

Another dilemma facing lawyers in China is that judges are often under political pressure when imposing rulings for the fear of political consequences. Judges in China are subject to punishment if they issue rulings that are politically incorrect, which are usually masqueraded as erroneous judgments. In reality, the legal system in China can be viewed as a subservient branch of the government and not an autonomous entity. Under these circumstances, lawyers usually face difficulties when representing their clients; after all, the criteria for making rulings are subject to political pressure and not the actual facts presented in the case. Legal representation can only be effective if the judiciary is devoid of administrative interference, which is the case of China.[15]

The structure of the judiciary and the bar is the fundamental problem of the China’s lawyer system rather than gaps in education and training. Even if the legal institutions in China can advance the quality of their training and educational programs resulting in an improvement of the quality of the bar, these advances are insignificant if administrative interference constantly frustrate legal practitioners in the country.[16] This is because lawyers cannot use their professional skills under in a constrained environment. The current state of China’s legal system hinders the future development of lawyers as professionals who can be trusted. For instance, judges’ salaries and court budgets are funded by local governments. The underlying argument is that the existing judicial structure in China does not offer incentive for change; instead it breeds administrative interference on the legal profession.[17]

The Opportunities and The Challenges Faced by Chinese Lawyer System After China Entry Into WTO

            China’s entry into the WTO created a number of opportunities and challenges for the Chinese lawyer system. The first opportunity to the Chinese lawyer system after the country’s accession to the WTO is that it facilitated the opening the legal services market since China removed the restrictions posed in terms of the location and number of foreign law firms in the nation. The increase in the number of foreign law firms in the country does not serve to threaten the Chinese law firms; rather, it provides a leeway through which local law firms can take part in the international legal services market. Perhaps, China’s accession to the WTO will help in ensuring the independence of the judicial system because of the need to meet the international standards of the global legal services market. The policy goal of opening the legal services market in China is to enhance foreign trade and develop the legal profession in China.[18] As a result, Chinese lawyers can cooperate with lawyers from foreign countries in order to learn foreign legal skills that can be of help towards improving the country’s lawyer system. It is apparent that China’s lawyer system lags behind as regards international law and practice; as a result, WTO accession will be an opportunity for Chinese lawyers to venture into international practice. The underlying argument that the credibility of Chinese legal practitioners on an international platform will depend on the credibility of China’s legal system; thus, accession to WTO implies that the independence of judiciary and professionalism will be at the core of improving Chinese legal services in the global arena; this points out the prospects of improving the autonomy and minimal administrative interference.[19]

Challenges on the Chinese lawyer system are also prevalent with country’s entry into WTO. For instance, Chinese law practitioners lack experience when it comes to international practice. Chinese lawyers are still new to a number of practices such as securities and finance; as a result, Chinese lawyers will have significant difficulties in addressing the new aspects associated with international practice.[20] Another challenge will stem from the management of Chinese law firms, which stems from the fact that law firms in China have transformed from being state-sponsored absolutely towards a mix of cooperatives, partnerships and state-supported law firms. The Chinese lawyer system still faces a significant challenge regarding the development of professionalism-oriented law firms.[21]

Conclusions and Reforming Suggestions

            The paper has identified a number of dilemmas and shortcomings facing China’s lawyer system, which includes disregarding of lawyers’ rights stipulated in the Lawyers’ Law; administrative interference resulting in lack of independence of the judicial system; judges take into consideration political consequences when making a ruling, which hinders effective legal practice; and a hierarchical structure of the judiciary and the bar, which hinders effective legal representation.

In order to address the identified problems facing the legal system, a number of proposals have been brought forward, which mainly centers on the restructuring of the legal system in order to enhance the development of the legal profession in China. First, the Communist party should not be restraint on the judicial system and should only interfere when there is the need to safeguard social stability. This requires the restructuring of the legal system by eliminating the hierarchical structure and its link with the government in order to curtail government interference and reducing the judicial dependence on local governments. The second proposal entails restructuring the legal system to ensure there is adequate protection of lawyers from political pressure and reprisal. As such, the lawyer associations should be absolutely autonomous and not operate under branches of the government. The lawyer associations should have the capacity to oversee the operations involving lawyers such as qualifications guidelines and licensing among others.

 

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