Introduction

Rapid developments in the legal profession have paralleled China’s economic reform and restructuring. The rise of new businesses, private economic relationships, and the legal rules governing them has created an increasing need for legal professionals. Both endemic corruption and the strong hand of the government present serious challenges for the future of the Chinese bar. However, Chinese lawyers have become increasingly active in numerous domains, raising hopes that they can play a positive force for social change.

History

Reduced to nonexistence in the political chaos of the Cultural Revolution, the Chinese bar began a slow process of regrowth following the institution of reformist policies in the late 1970’s. China’s first new regulations on lawyers took effect in 1982, and clearly reflected a socialist conception of the role of the bar. The regulations explicitly defined lawyers as workers of the state, faithful to the cause of socialism, and governed by the Ministry of Justice (MOJ). Organized into state-owned law firms dependent on government funding, Chinese lawyers of the 1980’s bore a strong stamp of officialdom.

By the mid-1990’s, underlying economic shifts had prompted changes in the perception of lawyers.The 1996 Lawyers Law reflected these changes by redefining lawyers in more politically neutral language as legal practitioners providing legal services. Further, the law explicitly recognized non-state law firms, allowing for the establishment of partnerships and cooperatives.The Lawyers Law also assigned a limited amount of responsibility for professional supervision of lawyers to local bar associations. However, the Chinese MOJ retained final control over the bar via the administration of the bar exam, exercise of ultimate disciplinary authority, and the annual review and accreditation process of all law firms.

Relative to Western countries, the Chinese bar is very much in its infancy. In 2002, there was roughly 1 lawyer for every 10,000 individuals in China, compared to a ratio of about 1 to 300 in the United States. Educational requirements are recent. In fact, prior to 2001, national law did not require a university degree as a prerequisite for taking the bar exam.

The relative youth of the Chinese legal profession has implications for the practice of law in China. Legal education in China remains strongly influenced by traditional pedagogy, with an emphasis placed on the memorization of entire statutes instead of their analysis and use. Consequently, young lawyers often graduate with few practical skills, and with no opportunities to obtain them through on-the-job training. Career success is often dependent on achieving local notoriety through handling sensational cases, as well as establishing connections with business interests and government officials. Particularly in important cases, involving government officials or large sums of money, these connections are often far more important than the strict black-letter law in determining the outcome of the case. Naturally, this creates a vast breeding ground for corruption.

As in the United States, many young Chinese are attracted to the bar as a lucrative profession. Successful Chinese lawyers, particularly those in major cities such as Beijing or Shanghai, can earn salaries hundreds of times larger than those of professors or small businessmen, and thousands of times larger than those of rural farmers. In response, enrollment in university law faculties has increased dramatically in recent years.

Lawyers'Role in Social Change

In July 2003, the State Council passed regulations aimed at establishing legal aid centers at county-level governments and higher. Provision of legal aid remains extremely uneven, however, with many rural residents and migrants unable to obtain counsel. The requirement of the Lawyers Law that the bar provide legal aid has been accompanied by the spread of pro bono or reduced fee services for the indigent. More remains to be done.

Lawyers and Legal Protest November 2003 - Four lawyers petitioned the National People’s Congress, challenging a provincial government punishment of a judge for declaring invalid a provincial regulation which conflicted with national law. Via the media, the lawyers questioned the absence of a system for reviewing the legality of local regulations.

Chinese lawyers are also playing an increasing role in challenging established government practices and norms. Their own representation of clients who face criminal or administrative punishment often focuses the attention of Chinese lawyers on the flaws in the Chinese system. Outlets for such dissatisfaction include popular legally-oriented radio and television programs, such as the Politics and Law Channel in Xi’an. Well-known local lawyers often appear as commentators on such programs to criticize recent cases or discuss troubling legal issues. Chinese lawyers are also demonstrating greater attention to system-wide issues, via filing petitions with the National People’s Congress to urge particular legal changes. Such activities raise hopes that the Chinese bar is slowly becoming a force for social change.

Issues

Despite these positive developments, Chinese lawyers face numerous challenges in their efforts to provide effective counsel to their clients. Continuing MOJ control over lawyers through the annual review and disciplinary system creates a client-like relationship between lawyers and officials in which lawyers often must be extremely attentive to government interests, or suffer professionally. Corruption is prevalent. 

Chinese lawyers also enjoy few of the protections or rights of their American counterparts. Handling sensitive cases can often land lawyers in jail. Provisions of the Chinese Criminal Code barring evidence fabrication are often abused to bring charges against criminal defense lawyers when witness testimony given to police investigators differs from that given in court. Chinese lawyers often face difficulties in simply meeting with their clients and obtaining court files. Measures such as the recent issuance by the Zhuhai city government of regulations specifying the right of counsel to photocopy government documents relevant to client cases, to interview criminal clients pre-trial, and to make arguments at trial, are certainly encouraging signs. However, the very need to specify such rights reflects the generally low level of respect and authority accorded to Chinese lawyers in their daily work.

Conclusion

Rampant corruption and continued government control pose the two largest threats to the Chinese bar at the moment. Both of these factors do serious harm to the image of Chinese lawyers in the public eye. However, the rise of the Chinese bar as an economic entity is beginning to be accompanied by positive signs of its emergence as a social force.

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