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The significant proposition of "extending and standardizing legal services" was put forward in the 16th CCP national congress, which is not only a scientific generalization of the goals for the development of the legal profession in the background of building a well-off society in an all round way, but also marks the orientation for promoting the development of the legal profession in the new century and the new stage of development. In order to extend and standardize the legal profession from now on, to urge the lawyers to better serve the construction of socialist material, spiritual and political civilization, the following opinions are proposed on basis of the actual development of the legal profession. I. THE CURRENT SITUATION, GUIDING IDEOLOGY AND GOAL OF THE DEVELOPMENT OF LEGAL PROFESSION (1) Ever since the restoration of the lawyer system in 1979, notable achievements have been made in the development of the legal profession. The number of the lawyers has increased greatly. By the end of 2002, the number of practicing lawyers has amounted to 102,198. As people with higher education and the students returning from abroad have become lawyers in China, a highly specialized lawyer group has come into being. Meanwhile, the law firms have developed rapidly into more professional and extensive ones. And since the legislation concerning the legal profession has been reinforced, a system of laws and administrative regulations has taken shape. Finally, lawyers have extended their scope of practice, contributing to the promotion of economic construction, the maintenance of social stability, the protection of the legitimate rights of citizens and the advance of the process of ruling the country by law. (2) Our country has by now entered into a new stage of development of building a well-off society in an all-round way, and speeding up the construction of socialist modernization, where the economic construction, the reforming of the economic system and the constant improvement of the socialist market economic system will further expand the scope of the practice of lawyers. The development of socialist democratic politics, the construction of socialist political civilization and the deepening of government restructuring will provide new opportunities for lawyers to play their role. And lawyers will be endowed with more important social responsibilities in the process of ruling the country by law, improving the socialist legal system with Chinese characteristics, promoting the legal reform, and respecting and maintaining human rights. The development of all industries such as technology, education, culture, sports and health, etc. will enrich the content of the legal practices to a larger degree. All of the above will make a broader stage for the lawyers to take full advantage of their expertise and provide all round legal services, which is a glorious task for the legal profession. (3) Faced with the demand for more comprehensive and competitive legal services as China's economy integrate into globalization, and with the increasing competition in the legal services market after China's entry into the WTO, it should be realized clearly that China's legal profession in general fails to meet the demand of development. First of all, the scope, manner and quality of legal services fail to meet the demand of social development, leaving much to improve. Second, the administrative system of lawyers and the internal management of the law firms are far from being perfect, and the structure of the lawyers' organization remains to be improved. Third, the overall competence of the lawyers entails immediate improvement. Problems such as lawyers' violation of professional ethics, practice disciplines and lacking good faith are prominent. Fourth, the environment and conditions for lawyers' practice needs to be improved further. (4) From now on, the guiding ideology for extending and standardizing lawyers' practice is to make full efforts to improve the professional ethics and service qualities of the lawyers, extend the scope and function of the practices of lawyers, standardize the practices of lawyers in an all round way, further explore and reform the administrative system of lawyers, actively improve the structure of lawyers' organization, under the guideline of Deng Xiaoping Theory and the important thought of Three Represents, on the basis of meeting the actual demands of ruling the country by law, constructing socialist legal state and building a well-off society in an all round way, with the purpose to establish a comparatively improved socialist legal system with Chinese characteristics in 2010. (5) The major objectives of the development of legal profession are as follows: 1. Improving the structure of the lawyers' organizations, creating a pattern where the social lawyers, public lawyers, corporate lawyers and armies develop in coexistence, complementing and cooperating with each other; 2. Bringing lawyers' role and function into full play, meeting the demand for the legal services in the process of building a well-of society in an all-round way; 3. Constructing a rigid system to standardize the subjects, behaviors, orders and administrative activities of legal services, standardizing the legal services of lawyers; 4. Pushing forward the Party building, the professional, ideological and ethical education and improving the competence of lawyers, so as to boost the competence of the legal profession in overall; and 5. Optimizing the practice environment of the lawyers, maintaining the legitimate interests and rights of the lawyers, and ensuring the normal practice of the lawyers. II. EXTENDING THE LEGAL SERVICES OF LAWYERS (6) The system of public and corporate lawyers should be experimented actively. Based upon the national conditions and the experiences of the foreign countries, the system of public and company lawyers should be established and the structure of the lawyers' organization improved, on the basis of which the essential framework of China's lawyer system will take shape. Currently the tryout of public and company lawyers should be pushed forward, and the scope of it extended. The tryout of the system will be carried out in nationwide in 2004. Meanwhile, the experience in the tryout should be concluded immediately, the theoretical studies be strengthened, the relevant measures be drafted and the publicity of the system be improved. The opinions to revise the Law on Lawyers should be proposed in good time so that the system of public and company lawyers is brought into the framework of China's lawyer system. (7) Developing the public services function of the lawyers. The lawyers should be lead to and supported in the provision of legal services to the grass root, to the communities and China's western region, so as to promote the construction of democracy and rule of law in the grass root, and to maintain social stability. The lawyers should be encouraged to play a part in the introduction of capital, projects and talents in developing the western region of China, to provide competitive and efficient legal services for the corporations and governmental department involved in the development of China's western region. Lawyers should be urged to actively fulfill their duties of legal assistance, reducing or exempting service fees charged against low income families, laid-off workers, unemployed people, and the economically difficult group, taking active part in social public affairs such as donating money to the dropouts, the handicapped, and the poor or providing disaster relief. Cooperation and collaboration within the profession should be advocated; especially the law firms in the developed areas should provide assistance for those in the underdeveloped regions. (8) Consolidating basic practices such as criminal defense and civil agency. The lawyers should be urged to boost their initiatives in criminal defense and civil agency, from the perspective of promoting justice, maintaining social stability, and protecting the citizens' right of litigation. On the basis of sufficient investigation and argumentation, active communication and coordination with relevant department, effective measures should be taken to remove the difficulties of lawyers in meeting clients, files review, investigation and evidence collection in the process of litigation, so as to protect the legitimate interests and rights of the lawyers, and enhance the efficiency of criminal defense. A scientific and reasonable system of fee charging should be studied and established in order to enhance the activeness of the lawyers in criminal defense and civil agency. And the professional competence in criminal defense and civil agency should be constantly improved to meet the demands of reform of litigation procedure. (9) Guiding and supporting the lawyers to develop the scope of practices. The system of corporate legal services should be established and improved so as to meet the demand of the economic construction and reform of economic system. The lawyers should be urged to take part in the activities of social management and maintenance of market economic order, to play a part in the reform of state-owned enterprises, the management system of state assets and the financial system, and provide service for the resolution of the issues concerning agriculture, the reorganization and regulation of the market economic order and the speeding up of technological innovation. In the transformation of the functions and administrative measures of the governmental department, the lawyers should be urged and supported to provide legal services concerning the economic administrative activities of the government, and coordinate with the government in leading and supervising the behavior of market players. (10) Promoting actively and steadily the opening up of the legal service market. In order to meet the demands of economic globalization and the entry into the WTO, the strategies of introducing the foreign lawyers in and sending the domestic lawyers out should be stuck to, so that the domestic lawyers can participate in the cooperation and competition of the international legal profession in a broader extent and at a higher level. The commitment of China's entry into WTO should be seriously fulfilled, the strategies concerning the opening of the legal service market should be studied, and the opening process should be expedited. A number of law firms with international competitiveness should be established and supported, and the lawyers should be trained so as to be more specialized in practice. The scope of foreign related legal services should be extended so as to enhance the competitiveness of the Chinese lawyers in international market and to promote the status of the Chinese lawyers in the world. III. STANDARDIZING THE LEGAL SERVICES OF LAWYERS (11) Standardizing the actors of the legal services. Strengthening the human resource management of the law firms, standardizing the management system of the interns and legal assistants, and sorting out disqualified part-time lawyers. Reforming the annual verification and registration system of lawyers, through which to close down the law firms with disordered internal management for rectification or to dismiss them, and to punish the lawyers that violate laws and regulations or to revoke the practice licenses of them. The approval procedure of the establishment of law firms should be strictly complied with, and the criteria to promote lawyers to partners be enhanced. (12) Standardizing the behavior in the provision of legal services. Special importance should be attached to the establishment of good faith of the legal profession. An information system for the legal profession is supposed to be set up in three year all over the country, which is composed of information concerning the registration in the judicial administrative departments or the lawyers' association, the routine supervision and administration, and the credit of the lawyers and law firms provided and verified by the relevant departments, the judicial administrative departments of all levels and the clients. The supervision and punishment of the lawyers violating laws and disciplines should be strengthened. The Six Prohibitions for law firms and lawyers should be strictly carried out, that is, to prohibit the various ways of private acceptance of cases or fees, prohibit the illicit competition by slandering other lawyers or paying introduction fee, prohibit the law firms from employing non-lawyers to practice law in the name of lawyers, prohibit offering bribes to the judicial officials or inciting and leading clients to offer bribes, prohibit providing fake evidence or leading and threatening the clients to provide fake evidence, and prohibit the provision of fake legal opinions. The procedure of case acceptance, investigation and punishment concerning the complaints against lawyers should be further reformed and improved. The supervision system of lawyers should be established and improved, and the supervision of society over the practice of lawyers strengthened. The supervision system of the relations between lawyers and judges, prosecutors and other related persons should be established and improved. The lawyers violating laws and disciplines should be punished according to law, the result of which should be publicized. (13) Standardizing the order of legal services. A uniform legal service system centering on the lawyers should be established, and the uniform management of the profession realized. The program of the Ministry of Justice on strengthening the legal services in large and medium-size cities, and realizing the goal of "One Regulate and Two Reinforces" should be continued to work on, and the relations between different groups providing legal services should be well managed. The routine supervision and inspection of lawyers' practice and the order of legal services should be strengthened so as to punish the counterfeit lawyers and maintain the order of legal service. The supervision of the foreign related legal services should be strengthened so as to prohibit the foreign law firms from providing legal services in China in name of consulting companies, and to prohibit the representative offices of the foreign law firms from providing legal services against law. (14) Standardizing the administrative activities of the judicial administrative departments. The function of the judicial administrative departments should be transformed, and the conception of administration should be renewed so as to improve the working style and the quality of administration. The task of the judicial administrative departments in managing the lawyers' affairs is to control the market access, establish the rules of game and supervise the order of legal services. The functions and responsibilities of the judicial administrative departments should be reasonably distributed according to the principle of streamlining, unification and efficiency. The judicial administrative departments above the provincial level should not directly administrate the affairs of law firms. From now on, the establishment of law firms at the provincial level shall not be approved. Before 2006, the judicial administrative departments at the provincial level should assign the law firms under their direct administration to the judicial departments at the capital cities of the provinces. The training of the cadres administrating lawyers' affairs should be strengthened. The cadres at the level of province and district should be trained once in the next two to three years. (15) Standardizing the administrative activities of the lawyers' association. The functions of the lawyer's association should be emphasized. The association shall speed up the establishment of professional standards, strengthen the improvement of lawyers' professional ethics and sense of disciplines, work hard on the training, continuous education, professional research and foreign exchanges of lawyers, and protect effectively the rights of the lawyers. In order to establish the system of lawyers' association, the independent administrative associations should be established at the level of province (district, city), and the organization, personnel and finance of the associations at the level of province should be separated from that of the judicial administrative departments completely in the next year. Only the practicing lawyers rather than the non-practicing lawyers are allowed to assume the position of president, vice president and standing directors of the association (non-practicing lawyers who have assumed should be dismissed as soon as possible). In order to meet the demand for the administrative role of the lawyers' association, a scientific operating system should be established in the association gradually. In order to improve the cooperation between the associations and the judicial administrative departments, the latter should strengthen its guidance to the associations, and establish a system of routine conference with the association for immediate notification of administrative affairs. The judicial administrative departments should be invited to attend the relevant conferences held by the lawyers' association and vice versa. (16) Standardizing the self-disciplinary management of the law firms. The law firms should be guided to improve the management system, strengthen the internal control of the services, standardize the workflow, and improve the legal services. A scientific management system inside the law firms should be established, and the supervision of the practice of the lawyers should be strengthened. In order to set up a risk prevention mechanism, the system of liability compensation and insurance should be established in an all round way. In the places and cities with qualifications, especially in the large cities and the economically developed zones, a batch of large-scale, professionally competent law firms should be developed. Meanwhile, the law firms should be encouraged to develop their specialization so as to establish a number of specialized law firms. IV. INSURANCE MEASURES (17) Providing legal insurance for extending and standardizing the lawyers' practice by improving the legal system concerning lawyers. In order to report to the Standing Committee of the National People's Congress the Law on Lawyers (amended) by the end of 2003, emphasis should be attached to the research concerning the amendment. All supporting regulations and other administrative documents related to the Law on Lawyers should be established, including the Measures for the Administration of Interns Applying for Practice in Law, the Measures for the Administration of Assistant Personnel in Law Firms, the Measures for the Punishment of Illegal Practices of Lawyers and Law Firms, and the Measures for the Financial Management of Law Firms, etc. Meanwhile, systematic professional standards and regulations of lawyers should be set up, with introduction of beneficial experiences of the foreign countries, so as to realize the normalization, standardization and routinization of the administration of legal profession. (18) Providing political insurance for extending and standardizing the lawyers' practice by strengthening Party building in law firms. In the new historical era, the Party building in the law firms should be further strengthened so as to increase the rallying power and cohesion force of the CCP in the legal profession, ensure the implementation and fulfillment of the line, principles and policies of the CCP, and ensure the legal profession keep developing in the correct direction. In order to strengthen the Party building among lawyers, the committee of the CCP should be established in the lawyers' association at provincial level, and the Party branch established in the law firms with more than three CCP members. Lawyers who actively apply to join the CCP and meet the requirements set forth in the Party constitution should be allowed into the Party. The measures of Party building in the legal profession under the new circumstances should be explored in order that the organization of the CCP in the law firms play a key role in implementing the lines, principles and policies of the CCP, and developing the law firms in an all-round way. The education and management of the CCP members among the lawyers should be paid attention to in order that they play an exemplary role in obeying the laws and disciplines, serving the clients in good faith and participating in activities for public welfare. (19) Providing insurance of qualified personnel for extending and standardizing the lawyers' practice by education and training. The political and ideological education of lawyers should be strengthened so as to enhance the consciousness of the overall situation and sense of social responsibility, and to establish correct philosophy and values. The education of lawyers' professional ethics should be strengthened by implementing the Regulation of Professional Ethics and Disciplines of Lawyers so as to improve their level of professional ethics and create good social images. The training and continuous education of lawyers should be strengthened by implementing the Program of Education and Training of Lawyer from 2002 to 2005, with emphasis on the pre-practicing training, on-job training and high level training, with the purpose to improve the competence of lawyers. (20) Further optimizing the practicing environment of lawyers. The publicity of the lawyers' work should be strengthened, and the exemplary lawyers and their stories should be publicized. The functions of the lawyers should be made known, so that all circles in society better understand and support the work of lawyers. The coordination with other administrative departments should be strengthened in order to improve the system of charging, taxation and financial administration of law firms. Meanwhile, the judicial administrative departments should further simplify the administrative approval items so as to enhance efficiency and provide convenience for lawyers. The personnel and finance of the judicial administrative departments should be separated form law firms, and with no economic relations between them. And the judicial administrative departments should not charge the law firms for annual inspection and registration and administration. |
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