The Lawyers Law of the PRC
The expansion in both the number of lawyers and the quantity of their work increased the requirements and expectations of their professionalism.In 1989,the Ministry of Justice started to draft a law to govern the profession of lawyers.It took about seven years before the Lawyers Law of the People’s Republic of China on Lawyers was finally promulgated by the National People’s Congress Standing Committee on May 15th 1996.It came into force on January 1st 1997.This Law contains 53Articles covering the qualification of lawyers,the management of law firms,the rights and duties of lawyers,legal liability and legal aid.
Qualification requirements
To practise as a Chinese lawyer,the candidate must first meet the qualifications required to become a lawyer and then must obtain a certificate to practise.
Lawyer’s qualification
Under the Lawyers Law,there are two avenues by which a person may qualify as a lawyer .The first is to pass the national bar examination (NBE).Qualified candidates include:(a)those who have studied in law faculties of universities and obtained diplomas at tertiary level (zhuanke)or higher;(b)those who hold the same level of professional skills as in (a);and (c)those who have received a Bachelor’s degree or above in other university subjects.The second avenue is to be granted the title of “lawyer”upon assessment and approval (kaohe)by the judicial administrative department of the State Council.Eligible candidates include those who have obtained a Bachelor’s degree or higher from law faculty of a university,and are engaged in research or teaching law with senior professional titles,or who have attained the same level of professional skills.
Passing the NBE is the most common way of obtaining a lawyer’s qualification.The kaohe system is only supplementary to the NBE .However,allowing such a two-track system is open to criticism.The Minister of Justice defended this dual system by claiming that candidates qualified through the kaohe system “are of a higher cultural level and have engaged in legal professional work for a longer period of time and are of a higher level of legal proficiency”.Many do not view this as a satisfactory institution of qualification.In view of rapid legal development and the increasingly sophisticated legal profession in the PRC,these experienced professionals may not be up to date with the latest legal developments.The NBE has become increasingly difficult in recent years,so it might entail a considerable loss of face for experienced practitioners if they were to fail an NBE imposed on them.It seems likely that an exception has been made for those older and experienced professionals based on other considerations.A further drawback to the kaohe system lies in its inconsistent control from region to region which will eventually affect the quality of the legal profession.It can be predicted that this system will fade away while the unified NBE,based on principles of fair and equal competition,will become the only way to qualify as a lawyer.
As regards the requirement of legal study,the Lawyers Law takes a rather minimalist approach by requiring only a law diploma at the tertiary level.In China,only two years are needed to obtain a zhuanke degree.Within this period,the student spends about half a year studying courses on philosophy,political economy and politics,which also includes a period as a trainee of at least three months.Thus,the student spends less than one and a half year specialising in the study of law itself .No matter how hard a student studies,this limited time does not suggest that the student will be able to obtain a reasonable understanding of the various subjects of law.Of course,it could be argued that the choice of a low level of knowledge for a law degree is based on the assumptions that self-study should be encouraged and that very few people have the opportunity to study for four years to obtain a Bachelor’s degree.In the meantime the market continues to demand more lawyers.
However,the low level of academic knowledge required has caused serious concern regarding the competence of Chinese lawyers,in particular among foreign lawyers.These latter complain that many Chinese lawyers “express opinions without legal basis,fall back on general claims about PRC law unsupported by reference to specific clauses,or appeal to general notions of fairness and what should,at least in the eyes of the particular lawyer,be the case.When they do cite specific provisions,there is often no analysis of how the provisions apply to the particular factual situation or support their conclusions.The work product of many local lawyers also often suffers from a lack of attention to detail,both in terms of the presentation of the material and the substantive analysis”.
License to practise
After obtaining a qualification certificate as a lawyer,one may apply to the Bureau of Judicial Office at the provincial level (sifaju or sifating)for a certificate to practise law.In addition,Article 8of the Lawyers Law also requires that practising lawyers must uphold the Chinese Constitution,undertake a traineeship with a law firm for more than one year,and demonstrate good conduct.A lawyer’s licence is renewed every year.On this occasion,lawyers must submit an application,a summary of their work during the previous year,a certificate of completion of training ,a report concerning compliance with professional responsibilities and disciplinary rules,and a certificate proving the fulfilment of these obligations as provided in the articles of association of the bar association .
It should be noted that not everyone who shows a card with the title of “lawyer”is a qualified,licensed lawyer.In fact,misuse of the title to practise law is not at all uncommon.It is said that to be a successful,modern law firm in China,three kinds of personnel need to be employed:those who have ample knowledge of substantive law,those who know how to conduct litigation,and those who have “a wide network of relations”in order to acquire business for the firm.For their own convenience,some law firms allow personnel who are not qualified,to act as lawyers.In response to this problem,the Lawyers Law specifically prohibits those who have not obtained a certificate for practising as a lawyer (Article 14).If they do so,an order to cease these illegal business activities may be made,any illicit gains may be confiscated,and fines can be imposed (Article 46).
