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Lawyers In China: Before, and Contemporary

 

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. 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 . "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".

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 .

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.

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 bar association. 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.

From 1927 to 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.

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 . 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 1,700 lawyers registered with the Ministry of Justice. By 1935, the number had risen to 10,249, while by 1943 it had dropped slightly to 9,245. By the early 1940s, the population in China was about 450 million. Though China had about 10,000 lawyers, the overall ratio of lawyers to the population was hence one per 45,000.

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.

1950 to 1957

When the PRC was established on October 1st 1949, the government issued a Common Programme (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 . 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".

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 1954 Constitution 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.

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. 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, 19 lawyers associations and 817 legal advice offices were established. There were about 2,500 full time lawyers and 300 adjunct lawyers working in 33 cities 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.

1957 to 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. Law educations had a same treatment, while in later about 20 years, only two and a half law schools were still exist.

1978 to the present

As part of the nation-wide reconstruction of its legal system, the government decided to revive the legal profession. The 1978 Constitution re-established the system of advocacy. The 1979 Criminal 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.

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. 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 21 general provisions, they legitimised the legal profession in China. Since then, the ranks of the legal profession have expanded swiftly. It is estimated that from 1979 to 1984, there were about 11,000 lawyers in China. This number had increased to 45,666 by 1992; 68,834 by 1993; 83,619 by 1994; 90,602 by 1995; 100,198 by 1996; 98,902 by 1997, and about 110,000 by 1998. By the end of 2005, there were around 114,000 Chinese lawyers in the PRC. The government target was by 2000 around 50% lawyers would hold a Bachelor's degree (xueshi, L.L. B) in law; 30% under the age of 40 in large and medium-sized cities and economically developed coastal areas would possess a Master's degree (suoshi, L.L. M), and that there would be about 10,000 high-level lawyers who understood law, economics and foreign languages.

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, 11,024 candidates sat the examination of which 3,307 passed. 20 years later, the number of candidates increased to 244,000.

In year 2002, a big reformation took place. With amendments of PRC Judge Law, Prosecutor Law and Lawyer Law that year, the exam changed its name into National Uniform Judicial Exam, which included exam of lawyer qualification, judge qualification and prosecutor qualification, which were three exam inpendently to each other before.

In this year of 2005, 244,000 candidates took the National Uniform Judicial Exam. In the last ten years, only 10% of the candidates passed the exam, from lawyer qualification exam to National Uniform Judicial Exam. Candidates ranged in age from young graduates to older retired judges and prosecutors.

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 1988 when the first co-operative law firm appeared in Baoding city in Hebei province. Subsequently, similar law firms began to appear in other large cities. 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.

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.

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 53 Articles 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 Uniform Judicial Exam(NUJE). Qualified candidates include: (a) those who have studied in law faculties of universities and obtained diplomas at undergraduate course level (benke) or higher;and (b) those who have received undergraduate course or above in other university subjects, meanwhile have same level of law knowledge, and (c) in these far and devious county, the educational level could be lowered to tertiary level (zhuanke). 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 NUJE is the most common way of obtaining a lawyer's qualification. The kaohe system is only supplementary to the NUJE. 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" . It can be predicted that this system will fade away while the unified NUJE, based on principles of fair and equal competition, will become the only way to qualify as a lawyer.

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 8 of 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).

Law firms

For a lawyer to practise law, association with a law firm is an absolute requirement. A lawyer cannot accept a case in his or her own name; instead, law firms accept cases in a uniform manner and conclude contracts with their clients (Article 23).

The following criteria which must be met to establish a law firm are not complicated: name, address and articles of association, assets of more than 100,000 yuan and at least three full-time lawyers (Article 15).

The Lawyers Law classifies law firms into three types of: state-funded, co-operative and partnership.

State-funded law firms are those established by judicial administrative organs with state funds, which carry out legal business operations independently, and assume limited liability for the debts of the firms with their whole assets. A lawyer's salary is based on an efficient flexible system, taking into account the years that a lawyer has worked in a law firm, experience, quality and the quantity of cases handled, etc. State-funded law firms were the first organisations in which Chinese lawyers practised law after the resumption of the lawyer system in 1979. Initially, lawyers enjoyed civil servant status and received a fixed salary from the state. From 1983, reforms have been framed to make them financially self-sufficient. By June 1995, of the 5,500 state-funded law firms which account for 76.4% of total law firms, 2,674 (48.6%) no longer rely on government financial support.

Co-operative law firms are set up by partners on a voluntary basis with assets owned equally by all lawyers. The law firms bear limited joint liability for the debts of the firm on the basis of their entire assets. A lawyer's income is based on the same principle as that applied in state-funded law firms. Originally, such firms were instituted by lawyers who had resigned from state-funded law firms and who felt confident that they would have a sufficient number of cases to generate a reasonable income.

Partnership law firms were also initially set up by lawyers who had resigned from state-funded law firms. The firm's property is provided by the partners and belongs to the firm. Partners bear unlimited joint liability for the debts of the firm. The total income of such a firm, after deduction of costs, taxes and reserved funds, is divided by the partners according to arrangements made between them. Lawyers hired to work for such a firm receive a beneficial salary. Details of remuneration are stipulated in an agreement between the partners and the hired lawyers.

By the end of 1997, there were approximately 5,519 state-funded law firms, 1,014 co-operative and 1,851 partnership law firms, accounting for about 70%, 10% and 20% respectively of total law firms in the PRC. State-funded law firms are the mainstay, generally because the other two types of firm involve a measure of risk. Politically speaking, even though the central government has announced its determination to develop a socialist market economy with the intention of privatising many sectors, concerns about the policy change have not completely disappeared. State-funded law firms have offered some privileges, such as job security and other government-subsidised treatment, including housing, medical insurance and child-care, even though these privileges are gradually disappearing as economic reform deepens. Most private law firms are located in the most economically developed areas as the economic boom has provided fertile soil for their growth.

Because of the controversial opinions expressed in the process of its drafting, the Lawyers Law avoids mentioning individual law firms, though in reality many such firms exist, particularly in the Special Economic Zones. For instance, in June 1996 the Standing Committee of the People's Congress in Hainan province passed the Regulations of the Hainan Special Economic Zone on Practising Lawyers. The Regulations were the first in local law to legitimise individual law firms. In 1997, there were 34 state-funded, 38 partnership and 14 individual law firms in Hainan province. Recently, a number of Chinese lawyers, after years of studying and working abroad, have returned to China to open private law firms. Such firms deal mostly with foreign-related commercial and civil cases.

Most Chinese law firms undertake a general legal practice. Only since the 1990s in economically developed cities have some law firms become specialised in foreign-related legal business, intellectual property rights, securities, real estate, international tourism, and so forth.

In China, practising law in certain fields requires an extra licence. For instance, if a lawyer wants to engage in securities, he needs approval from the China Securities Regulatory Commission and the Ministry of Justice. After obtaining a permit, the lawyer can practise securities law in a law firm where two other lawyers have the same permit. There are now about 1,655 lawyers holding such a qualification and 322 law firms are qualified to engage in securities. In addition, in 1997, the Ministry of Justice, the State Commission on Science and the State Bureau for the Administration of State-owned Property provided a training course for lawyers wanting to engage in demarcating the property rights of collectively-owned hi-tech enterprises. This resulted in about 800 lawyers passing the examination to qualify in dealing with legal matters in this field.

Most law firms are on a small scale, consisting of between 10 and 30 lawyers, only a few have more than 40 or 50 lawyers. The larger firms may have various departments: international commerce, real estate, banking and securities, company and taxation, shipping and marine insurance, intellectual property, litigation and arbitration. In recent years, the Ministry of Justice has encouraged law firms to increase their competitiveness at the international level by mergers between them. It remains unclear whether large-scale law firms will be a trend encouraged by the government. If the government believes such a firm structure would be beneficial in strengthening the international competitiveness of Chinese law firms, measures to foster mergers can be anticipated.

Scope of professional activities

Article 25 of the Lawyers Law outlines seven types of lawyers' activities in general terms. They can act as legal advisors or as agents ad litem in civil and administrative cases, handle criminal cases, serve as agents in various petitions, participate in mediation and arbitration, handle non-litigation legal matters, provide advice through consultation and draft legal documents. Since their re-establishment, the scope of lawyer's activities has gradually been expanding. Some Chinese scholars have undertaken thoughtful studies on the role of lawyers in meeting the needs of society. From the table, some conclusions can be drawn.

Most notably, the number of all types of legal services have increased. In the period from 1985 to 1993, the following increases were noted: 670.1% for non-litigation services, 371.3% for company legal advisors, 346.7% for civil and economic litigation cases, 89.7% for drafting legal documents, 79.2% for criminal litigation and representations, and 47.6% for legal consultation. The average rate of increase for all services is 267.4%.

Also, the provision of non-litigation legal services has increased dramatically. Such services can be classified into contentious and non-contentious. The former include participating in mediation, arbitration, administrative review and acting as a representative in administrative petition, etc. The latter refer to broad participation in trade, investment, intellectual property protection, security, finance, taxation, real estate, maritime affairs and other civil and commercial matters. It is estimated that the main potential for the enlargement of legal practice lies in non-litigation services, especially in the sphere of non-contentious work.

Furthermore, the number of cases handled by lawyers in criminal litigation and representation decreased in 1991, and then rose again slightly in later years. However, when compared with other legal services, there was no major expansion in this field. Some scholars estimate that around 70% of criminal cases are currently tried without defence counsel.

It is true that lawyers are reluctant to handle criminal cases as the financial rewards are too low and the risks too high. The most common of these risks include lawyers being verbally attacked and abused by opposing parties; physical attack by the detainee in an attempt to escape; being framed by officers in detention units who pass letters or banned goods to the detainee when things are brought to light; provision of false information by detainees and their relatives in an attempt to escape the charges, whereby lawyers take the risk of offering false evidence which is itself a crime; being turned on by the accused person if he/she is dissatisfied with the lawyers defence; being set upon by judicial workers in courts, procuratorates and public security organs who do not respect lawyers' rights and consider them to be "siding with the bad guys", and "absolving the accused from guilt"; lawyers have even been forced to leave the courtroom.

Despite these problems, it is correct to assert that: "following the resumption of the role of defence counsel in 1980, their ability actively [to] participate in judicial activities has been strengthened notably in the greater furnishing of case information and the freedom to conduct judicial defence". In recent years, government authorities have initiated legal aid programmes to implement a criminal defence system. A number of local justice bureaus require law firms to take an annual quota of criminal defence cases. For example, lawyers in Nanjing are required to take four criminal cases each year as a prerequisite for renewal of their licences, or pay 500 yuans per case into the criminal defence fund. In Beijing, as from 1996, newly licensed lawyers are required to take five criminal defence cases during their first year of practice.

Rights and duties

Based on almost twenty years of practical experience, the Lawyers Law lays down some basic rights and duties of lawyers. In practice, these rights and duties are the most often violated or neglected in China.

Rights in the course of litigation

The Criminal Procedure Law, the Civil Procedure Law and the Administrative Procedure Law contain numerous provisions on the rights of the lawyer undertaking litigation. The Lawyers Law not only refers to the protection of all these rights but also specifically lists rights, the protection of which is rather problematic in practice. These include the rights to collect and consult materials related to a case, to meet and correspond with persons whose personal freedoms are restricted, to attend court sessions and participate in litigation, and to debate and defend when acting as agents ad litem or defence counsel (Article 30). In practice, a lawyer's right to have access to case materials is limited to such documents as the arrest warrant and formal charge document, excluding evidence and documents relating to the facts of the case. Lawyers are often refused permission to see their clients by the detaining authority on the pretext that they are too busy. Lawyers are also first asked to present papers that they would not reasonably have readily available. Lawyers are sometimes even required to pay a fee in order to meet their clients.

Judicial neglect of lawyers' opinions is even more common. Cases in which judges have ordered lawyers to cease their arguments or leave the courtroom because they have presented different opinions are occasionally reported. Some judges, a Report of the Ministry of Justice noted, "deliberately make it more difficult for lawyers to perform their functions, curse, bind and even illegally detain lawyers" . On July 11th 1995, lawyer Zhou Chengxi was handcuffed by three judges in an intermediate court and beaten over a period of 75 minutes because he insisted on his opinion in a civil case. He suffered serious mental and physical injury. The lawyer's role in facilitating the proper enforcement of the law seems far from being accepted by the Chinese judiciary. There is a saying that "arguments can be made by lawyers, but judges can ignore them in handling cases". This stark reality results in Chinese lawyers having to find their own counter-measures, such as setting up private relations with judges, or even bribing judges. Currently, the Chinese government is striving to eliminate judicial corruption and is promoting new measures for judicial reform. One may expect that full respect for the rights of lawyers in the course of litigation will help judges to apply the law with greater accurately.

An issue relevant to the correct application of law, which indeed is currently debated in China, is whether a lawyer can request an appeal if he or she believes a judgement to be incorrect. According to the Criminal Procedure Law (Article 180) and the Civil Procedure Law (Article 59), a lawyer has the right to appeal on behalf of clients. Such a right is however conditional on the agreement or commission of their client. Thus, if a client does not want to lodge an appeal for whatever reason, the lawyer cannot request an appeal even when he or she believes a judgement is incorrect. Some scholars and lawyers have advocated that lawyers be entrusted with the right of applying for judicial review: i.e., lawyers, acting as representatives or defence counsel, should have the right (through lawyers associations), if they believe the judgement or decision of the court is based on incorrect facts or an incorrect application of the law, or a serious violation of procedural law, to submit a written application for review to the court concerned or a higher court. Such a right is considered to be part of the lawyer's right to protect the legitimate rights and interests of his client. Respect for this right should have some deterrent effect on the courts, so as to ensure that they apply the law in the most accurate way possible.

The right of enquiry

Article 31 of the Lawyers Law states that, when handling legal matters, lawyers may make enquiries of organisations or individuals concerned, subject to their consent. Dissatisfaction about the operation of this article is widespread among Chinese lawyers. Although this article extends the scope of the right of enquiry to all legal matters handled by lawyers unlike in the Provisional Regulations, which limit these matters to litigation, mediation and arbitration, it does not provide any safeguards. The conditional clause making the right "subject to the organisation's or individual's consent" makes the binding force of the Article even weaker than it was in the preceding regulations.

The core of the reform of the trial system, which is underway in China, is to stress the parties' responsibility to provide evidence rather than stressing the responsibility of the courts to collect evidence directly. The parties mostly tend to rely on lawyers to do the work. If a lawyer's right of enquiry cannot sufficiently be secured, their competence to act will be undermined. It should be noted that although the Lawyers Law changes a lawyer's title from "legal worker of the state" to "legal practitioner", with the intention of increasing the independence of lawyers, it also has potentially significant side effects. This new status as private individuals may cause some neglect of lawyers' rights by governmental institutions as well as by other citizens.

Duties and legal liability

The Lawyers Law assumes the general duty of lawyers to preserve the principle of confidentiality of state secrets, business secrets and the privacy of the parties concerned (Article 33). A lawyer is not allowed to represent both parties in the same case (Article 34). In response to the most shocking problems in practice, the Lawyers Law further prohibits lawyers from taking illicit gains in cash and in kind (Article 35) . Bribery of judicial officers by lawyers is a part of the corruption which is rife in the Chinese legal system. As a result, the Lawyers Law requires that lawyers must not meet judges, procurators or arbitrators in breach of regulations, nor must they entertain them, send gifts to them or bribe them (Article 35).

Article 49 provides that if losses are incurred by a client due to an illegal act or negligence by a lawyer, that lawyer's law firm must bear liability for any compensation payable. If such losses are caused by what is deemed as a lawyer's intentional or grossly negligent act, the law firm may claim a contribution from that lawyer. However, Article 49 is only a provision in principle: the procedure for utilising it has yet to be laid down. In practice, it is simply not the done thing for law firms to provide compensation to their clients. This does not mean that lawyers rarely cause losses to their clients due to their illegal or negligent acts on their part. On the contrary, the number of complaints lodged with regard to wrongdoing by lawyers is on the increase. The most common forms of lawyer misconduct include: after accepting a commission, failure to act as a defence counsel or representative without proper reason; failure to appear in court at the appointed time to participate in litigation or arbitration without proper reason; revealing commercial secrets or infringing the privacy of the parties concerned; making gains from the disputed rights and interests in the case by using the advantage gained by being the lawyer in the case; losing or damaging important client evidence; through delay without proper reason, causing litigation to become time-barred; making significant errors about the nature of a case; and inducing a client to sign or agree to a contract or an agreement which is obviously to the client's disadvantage.

For a breach of his or her legal duties, a lawyer may be punished with a warning, the suspension of his or her licence to practise, and the confiscation of any illicit gains. If a lawyer's act constitutes a crime, he or she must bear criminal liability. It is very difficult to obtain official statistics on the punishment of lawyers, since the government authorities consider that the disclosure of such information may damage the image of lawyers in society. However, based on very limited information as provided below, one may gain an impression of the situation. From 1985 to 1991, the Ministry of Justice approved the revocation of 63 lawyers' licences: among these, 24 were revoked for bribery, larceny and the like; 21 were revoked because the lawyer in question had frequented brothels or had conducted an improper relationship with relatives of the parties, or due to "hooliganism"; 18 were revoked for breach of professional ethics. In Guangdong province, during the 15 years following the resumption of the lawyer system, 31 lawyers were punished for breach of the law or discipline, including 22 revocations of legal qualifications, while nine were barred from practising law altogether. As far as the reasons are concerned, 6% of the cases concerned the accepting of bribes, etc.; 22% had accepted cases and fees individually and had also accepted extra payments; 6% had opened up a business without a legal permit; 19% of the cases dealt with making false certificates in order to obtain a passport or a lawyer's certificate, or presenting false evidence in courts; 6% concerned negligence in court or slander of the other party; and 31% of cases were due to breaches of discipline, professional ethics and other "inappropriate conduct".

In observing the performance of Lawyers in China, one must realise that it is a new profession, and needs time to develop. In that process, most lawyers will endure the difficulties this entails, while a few may stray from the straight and narrow. Moreover, certain negative phenomena of the legal profession cannot be treated in isolation from the rest of Chinese society. For instance, in the course of dealing with cases, lawyers meet relevant judges, procurators or arbitrators at their homes, or in restaurants, and bribe them, etc. Undoubtedly, such conduct by lawyers is unacceptable, yet this is actually a reflection within the legal profession of a popular way of getting things done by "going through the back door" or through "personal connections". It is concluded that "many lawyers would much prefer to rely on legal arguments rather than personal relationships to serve their clients. However, given the present realities, they have no choice but to rely on connections, and fear that if they do not, their client will be disadvantaged".

In addition, lawyers' misconduct is often linked with judicial corruption, which is so serious in modern China that in recent years the government has become determined to tackle it seriously. But the situation has yet to change significantly.

Over the last 20 years, the extensive promulgation of new laws, administrative regulations and local rules and regulations, has established and complicated the contemporary Chinese legal system. Economic reform and the expansion of commercial activities have created and expanded the markets for legal services. The goal to build and establish the rule of law in a civil society has made the role of lawyers indispensable in securing maximum proper enforcement of the law. The Chinese legal profession has never experienced such a rapid expansion nor respect throughout its history as it does today.

     
   
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