中国法律职业状况调查分析报告.doc

双城记中国法律职业情况汇报A tale of two citiesThe legal profession in China公布人：国际律师协会，伦敦By IBA研究作者：By Marco Marazzi and Chen Youxi国际律协意大利律师Marco Marazzi中国律师陈有西 研究助理：中国人民大学律师学院法律硕士硕士 刘芸英文正式公布文件,PDF转换INTERNATIONAL BAR ASSOCIATIONS HUMAN RIGHTS INSTITUTE (IBAHRI) THEMATIC PAPERS No 2 A Tale of Two Cities the Legal Professionin China Marco Marazzi and Chen Youxi Material contained in this report may be freely quoted or reprinted, provided credit is given to the International Bar Association. A Tale of Two Cities the Legal Profession in China DECEMBER This paper will analyse the current situation of the legal profession in China, the difficulties faced by lawyers, and the prospects for improvement. It will argue that, while the legal profession in China is acquiring increasing importance and strength with the number of lawyers now exceeding 230,000 (as opposed to only over 2,000 less than 30 years ago) the independence of lawyers remains an aspiration more than a reality; depending on their area of practice, lawyers can suffer great constraints in what they can realistically achieve and in the exercise of their rights. This is gradually leading to a bifurcation within the system: between lawyers dealing mostly with civil and commercial matters who benefit from both an increasing ability to exercise their rights and from growing financial rewards; and lawyers who deal with more sensitive administrative and criminal cases, who face often insurmountable challenges, and as a consequence, tend to be much less successful financially and enjoy a much lower status within the legal profession as a whole. In other words, while legal practitioners may be part of the same bar association and work within the same city, they are actually living and working in two separate and different worlds, depending on the nature of their practice. The outcome is that the brightest and more capable lawyers often tend to refrain from handling precisely those types of cases where a lawyer can make a difference in the protection of fundamental rights. Background During the 1930s, in the part of China that was under control of the Chinese Communist Party, the birth of the legal defence system can be traced back to the period of the so-called revolutionar y bases. In 1932, a legal defence system had already been created inside the base areas in accordance with the Interim Organizations and Regulations of the Judges Department, enacted by the Central Executive Committee of the Chinese Soviet Republic. These rules stated that, with the approval of a court, the defendant could appoint a representative to defend them during the trial in order to protect all relevant interests. Following the establishment of the Peoples Republic of China (PRC) in 1949, the existing legal profession suffered several significant setbacks. With the abolition of legal systems adopted by the former Nationalist government based on the so-called Six Codes, many members of the legal profession were listed as reactionar y and were purged. The legal profession almost vanished. * Marco Marazzi is a foreign lawyer who has lived and worked in China for more than 18 years. Chen Youxi is a legal practitioner specialising in criminal law, a partner of Capital Equity Legal Group and a professor of law. Liu Yun, a PhD student at Peoples University of China, actively liaised with the authors on this article. The views and opinions expressed herein are of the authors only and do not in any manner represent those of their current employers. DECEMBER A Tale of Two Cities the Legal Profession in China In particular, in December 1950, the Ministr y of Justice (MoJ) issued the Circular Concerning Banning “Evil-Minded Lawyers” and Pettifoggers, which explicitly outlawed bar associations and other lawyering activities existing during the period of the Nationalist government. As a consequence, defendants in criminal trials were tried through the revolutionar y mass method without any legal defence. The ver y existence of lawyers was not recognised until the enactment of the first Constitution of the Peoples Republic of China in 1954, which stated clearly under Article 76 that cases which are heard by the courts should be open to the public except for some special situations stated by the law, and the accused has the right to defence. In 1956, the MoJ issued the first Report on Instructions Concerning the Establishment of Lawyers, creating the first professional lawyer system since the foundation of the Peoples Republic. The Chinese government cultivated its own lawyers to ser ve in this new regime; most of them were students who returned from the Soviet Union and those who had received a legal education during the period of the Nationalist government. However, the Anti-Rightist campaign initiated in 1957 by Mao Zedong again identified nearly half of the 2,000 plus lawyers existing at that time as rightists and, therefore, subjects of persecution. During the Cultural Revolution (19661976) which led to a period of almost total lawlessness in the administration of justice law faculties were closed, lawyer qualification exams were suspended, and law firms and bar associations practically ceased to exist. Following Maos death in 1976, the trial of the Gang of Four1 and the ascent to power of Deng Xiaoping, China adopted a new Criminal Procedure Law of the Peoples Republic of China (the Criminal Procedure Law) re-affirming the right to defence of the accused, leading to the rebirth of the legal profession. The right to defence was subsequently recognised also in the new Constitution adopted in 1982. In particular, the Criminal Procedure Law enacted in 1979 provided that the accused can seek legal help from the beginning of the investigation and that, when the case is heard, the accused not only had the right to defend the charges (meaning that they can argue the case personally), but also the right to apply for the collection of evidence and for further investigations. The accused also had the right to make a final statement and appeal during the trial and to appoint a legal defender who could be a lawyer, or a civilian who is recommended by the accuseds work unit (or the mass organisation he belonged to), or as permitted by the court, or a close relative or custodian of the accused. The responsibility of the defender was to offer materials and arguments based on the facts and law, which can prove the accused not guilty or can reduce or avoid criminal liability, and to protect the legitimate rights and interests of the accused. The lawyer was permitted to consult the materials relevant to the case, and to meet and communicate with the accused in writing. All of this could be done also by other defenders with the permission of the court. The law also provided that in cases where there was a public prosecutor, if the accused did not appoint a defender, the court could appoint one. During the trial, if the accused believed that the defender could not protect his or her legitimate rights, the legal defender could be dismissed and another appointed. The Gang of Four comprised Maos wife and three other Communist Party officials who, after Maos death, were accused of anti-Party activities and of being responsible for the worst excesses during the Cultural Revolution. In 1981, they were tried and convicted in what many believe was a politically motivated trial to eliminate the most conser vative figures within the Party and strengthen the path to the reform and opening policy. A Tale of Two Cities the Legal Profession in China DECEMBER In 1980, China adopted the Interim Regulations on Lawyers of the Peoples Republic of China (the Interim Regulations), followed in 1981 and 1986 by other regulations issued by the Supreme Peoples Court,2 the Supreme Peoples Procuratorate,3 and the Ministr y of Public Security. For over a decade, this legislation formed the backbone of the legal framework regulating the establishment of law firms and the participation of lawyers in court proceedings. Following the reopening of law faculties at the beginning of the 1980s, the first lawyer qualification exams were held in 1986, the same year when the All China Lawyers Association (ACLA) was founded. One could justifiably say, therefore, that the legal profession in the new China (ie, the China emerging from Maos totalitarian period) is barely 30 years old. Under the 1980 Interim Regulations, lawyers were defined as workers of the state who represented the state and protected the interests of the state. In other words, lawyers were seen as civil ser vants; they were salaried by the state and therefore were not free professionals. Lawyers were seen as a component of the overall administration of justice and were expected to assist in the enforcement of laws and regulations, and to uphold the socialist cause.4 Accordingly, virtually all law firms and legal advisor y offices created in the decade following the reopening of law faculties were in one way or another affiliated to government departments or entities. At the end of the 1980s the first foreign law firms also started flocking into China, initially in the form of consulting companies, working on non-litigation matters and not allowed to appear in court. However, foreign law firms quickly achieved an almost total monopoly on commercial and corporate legal advice given to the large number of foreign investors entering the countr y. In 1992, the MoJ issued rules restricting the scope of the foreign firms activities: while still able to hire locally qualified lawyers and law students, they were restricted to practising the law of their home countries and dealing with non-litigation matters concerning enterprises from their own countries. In other words, they could not practise local law even if they employed locally-qualified lawyers. This situation has not changed. At the same time, foreign firms have contributed actively to the training of a new generation of PRC commercial and corporate lawyers, some of whom left these foreign firms to set up their own firms. At the beginning of the 1990s, as part of the overall economic liberalisation and reform, the first firms organised along the lines of the private partnership model were established. Many state-owned law firms started to convert into partnerships using a personal partnership model where partners assume unlimited joint and several liability, as well as into corporate-style partnerships. Junhe Law Offices (now one of the largest in China) was founded in 1989; and King & Wood,5 another prominent firm which recently merged with an Australian firm, was founded in 1993. During the same period, the first firms registered under the name of an individual lawyer also were founded. Since , with the amendment of the Lawyers Law of the Peoples Republic of China (the Lawyers Law), over 90 per cent of the law firms in the countr y are organised under the personal partnership model and named after the partners; although some state-owned law firms still remain in some remote and less-developed areas. In addition, all corporate-style partnerships had to be 2 This is the highest-level court in China. It functions as court of appeal for cases heard by provincial level courts and provides interpretation of laws and regulations. 3 The Supreme Peoples Procuratorate is the highest level prosecutorial authority. 4 As noted below, to a large extent lawyers are still seen as performing this auxiliar y role in the administration of justice and are expected to protect the interest of the state and of the Chinese Communist Party. 5 Now known as King & Wood Mallesons. DECEMBER A Tale of Two Cities the Legal Profession in China reorganised in terms of the personal partnership model. Meanwhile, legal aid centres funded by the state have been set up under the local justice bureaus, aiming to help the needy. Some of the big law firms, such as Dacheng, King & Wood Mallesons, AllBright, and Jingheng, now employ thousands of lawyers, and they have specific divisions of professional practice. However, PRC lawyers who practise in mediumsmall law firms tend to be generalists and undertake litigation (often both civil and criminal) as well as commercial and corporate work.6 In the past few years, however, the largest firms (especially those with a large nation-wide network) have focused mainly on commercial/corporate work and related commercial/civil litigation, for two principal reasons: first, because these remain the most profitable practices; and secondly, because (as will be further explained later) criminal cases and administrative litigation cases to a large extent remain less rewarding financially and are more risky from a professional point of view, and thus they fail to appeal to many successful and capable lawyers. The Lawyers Law The development of private firms and the increasing role played by lawyers in the legal system in the 1990s led to the adoption in 1996 of the new Lawyers Law. This law (further amended in ) is recognised as the real first code regulating lawyers in the new China. Under the Lawyers Law, a lawyer is defined as a practitioner who has duly obtained the lawyers practising certificate according to the law and who, by way of accepting an appointment or through designation, provides legal ser vices to a concerned party a ver y different definition from the previous one of worker of the state. The Lawyers Law also states that, in their practise, lawyers must not only abide by the Constitution and the law, and adhere to the ethics of the legal profession and practise discipline, but also that they shall be subject to the monitoring by the state, the public and the concerned party. Nevertheless, Article 3(4) of the Lawyers Law states ver y clearly that a lawyer practicing in accordance with the law shall be protected by the law and no organisation or individual may infringe upon his/her lawful rights and interests. In order to qualify as a lawyer, an individual must uphold the Constitution and pass the state judicial examination (since , China holds a unified bar exam ever y year which opens the way to all legal professions). The individual is also required to have completed a full years training in a law firm, and similarly to requirements found in other jurisdictions, is to be of good conduct. The practising certificate allows the lawyer to practise nationwide, that is, it is not subject to any territorial limitation. More importantly, however, lawyers cannot practise solo and m