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 People’s 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 today’s 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 1997Lawyers Law.China’s 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 China’s 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 another—especially 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 lawyer’s 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”(3).
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 lawyer’s 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 lawyer’s 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 lawyer’s 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 client’s behalf (7).
From 1927to 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 today’s 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 1,700lawyers registered with the Ministry of Justice.By 1935,the number had risen to 10,249,while by 1943it had dropped slightly to 9,245.By the early 1940s,the population in China was about 450million.Though China had about 10,000lawyers,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.
1950to 1957
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 People’s Courts,issued by the central government in 1950,the 1954Constitution and the Organic Law of the People’s 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 Country’s 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 1957,19lawyers associations and 817legal advice offices were established.There were about 2,500full time lawyers and 300adjunct lawyers working in 33cities 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).
1957to 1977
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).
1978to the present
As part of the nation-wide reconstruction of its legal system,the government decided to revive the legal profession.The 1978Constitution re-established the system of advocacy.The 1979Criminal Law,the Criminal Procedure Law and the Organic Law of the People’s 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 People’s Republic of China on Lawyers were promulgated by the National People’s 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 21general provisions,they legitimised the legal profession in China.Since then,the ranks of the legal profession have expanded swiftly.It is estimated that from 1979to 1984,there were about 11,000lawyers in China.This number had increased to 45,666by 1992;68,834by 1993;83,619by 1994;90,602by 1995;100,198by 1996;and 98,902by 1997(20).By the end of 1998,there were around 110,000Chinese lawyers in the PRC (21).The government target was to have approximately 150,000lawyers by the end of 2000.The aim is that by then around 50%would hold a Bachelor’s degree (xueshi)in law;30%under the age of 40in large and medium-sized cities and economically developed coastal areas would possess a Master’s degree (suoshi),and that there would be about 10,000high-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 1986,11,024candidates sat the examination of which 3,307passed.Ten years later,the number of candidates increased to 127,000.In November 1998,180,000candidates 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 (23).
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 1988when 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.
