China - Law on Lawyers and Legal Representation
Promulgated by the 19th meeting of the Eighth National People's Congress Standing Committee on May 15, 1996 and updated in April, 1998.
Contents
CHAPTER I- General Provisions
Article 1
In order to improve the system governing lawyers, to ensure that lawyers practice according to law, to standardise acts of lawyers, to safeguard the lawful rights & interests of parties, to ensure the correct implementation of law, to enable lawyers to play a positive role in the development of the socialist legal system, this Law is hereby enacted.
Article 2
The term "lawyer" as referred to herein means a practitioner who has acquired a lawyer's practice certificate pursuant to law & provides legal services to the public.
Article 3
In his/her practice, a lawyer must abide by the Constitution & law, strictly observe lawyers' professional ethics & practice discipline. In his/her practice, a lawyer must base him(her)self of facts & take law as the criterion. Practice by lawyers shall be subject to the supervision of the State, society & parties concerned. Lawful practice by lawyers shall be protected by law.
Article 4
The administrative department in charge of justice under the State Council shall supervise & guide lawyers, law firms & bar associations in accordance with this Law.
CHAPTER II-Conditions of Practice by Lawyers
Article 5
In order to practice law, a person shall acquire qualification as a lawyer & a practice certificate.
Article 6
Personnel desiring to obtain the lawyer's qualification must pass the national uniform judicial examination. Personnel shall be qualified for lawyers if they have acquired four-year or more legal education in institutions of higher learning, or have acquired the undergraduate or above education in other majors in institutions of higher learning & have professional knowledge at law, have passed the national judicial examination. In localities where it is actually difficult to apply the educational background provisions of the preceding Paragraph, the educational background conditions may be relaxed to the three-year legal education in institutions of higher learning during a certain period upon the examination & approval of the administrative department in charge of justice of the State Council.
Article 7
A person applying to practice law who has acquired an undergraduate legal education in an institution of higher learning, or more education, who is engaged in professional work such as legal research & teaching, who has a senior professional title or is of an equivalent professional level, shall be granted the qualification of a lawyer, upon approval by the administrative department in charge of justice under the State Council after evaluation & verification in accordance with the prescribed conditions.
Article 8
A person who upholds the Constitution of the People's Republic of China & meets the following conditions may apply to obtain a lawyer's practice certificate: (1) possessing the qualification of a lawyer (2) having had practice training at a law firm for a full year; and (3) being a person of good character & conduct
Article 9
A person in one of the following situations shall not be issued a lawyer's practice certificate: (1) having no capacity for civil acts or having limited capacity for civil acts (2) having been subjected to criminal punishment, except for a crime of negligence; or (3) having been discharged from public employment or having had his/her lawyer's practice certificate revoked
Article 10
A person applying to obtain a lawyer's practice certificate shall submit the following documents: (1) an application (2) a lawyer qualification certificate (3) evaluation materials on practice training prepared by the applicant's law firm; and (4) a copy of the applicant's certificate of identity
Article 11
A person applying to obtain a lawyer's practice certificate who, upon examination by administrative department in charge of justice of the people's government at or above the level of the province, autonomous region or municipality directly under the Central People's Government, is considered to have met the conditions provided for in this Law shall be issued by the department a lawyer's practice certificate within 30 days of receiving the application. If the applicant fails to meet the conditions provided for in this Law, (s)he shall not be issued a lawyer's practice certificate & shall be notified of the matter in writing within 30 days of receiving his/her application.
Article 12
A lawyer shall practise in one law firm & shall not practise in two or more law firms simultaneously. A lawyer's practice is not subject to regional restriction.
Article 13
Any of the active working personnel of a State organ shall not concurrently practice as a lawyer. A lawyer shall not practice law while serving as a member of a standing committee of a people's congress at any level.
Article 14
A person who has not obtained a lawyer's practice certificate shall not practice law under the title of "lawyer" or act as agent ad litem or defend a client for the purpose of seeking economic benefit.
CHAPTER III-Law Firms
Article 15
A law firm is the organisation in which lawyers practice. A Law firm shall meet the following conditions: (1) to have its own name, domicile & articles of association (2) to have assets of RMB 100,000 or more; and (3) to have lawyers who conform to the provisions of this Law
Article 16
A Law firm established with the capital contribution from the State shall be independent in its practice pursuant to law & shall undertake liability for its debts with its entire assets.
Article 17
Lawyers may establish co-operative law firms, which shall undertake liability for their debts with their entire assets.
Article 18
Lawyers may establish partnership law firms. The partners shall undertake unlimited & joint & several liabilities for the debts of the law firm.
Article 19
Persons applying to establish a law firm who, after examination & verification by the administrative department in charge of justice of the people's government at or above the level of the province, autonomous region or municipality directly under the Central People's Government, are considered to meet the conditions provided for in this Law shall be issued by the department a law firm practice certificate within 30 days of receiving the application. Those who fail to meet the conditions provided for in this Law shall not be issued a law firm practice certificate & shall be notified of the matter in writing within 30 days of receiving the application.
Article 20
A law firm may establish branch offices. The establishment of a branch office shall be subject to examination & verification conducted in accordance with the prescribed conditions by the administrative department in charge of justice of the people's government of the province, autonomous region, or municipality directly under the Central People's Government where the proposed branch office is to be located. A law firm shall undertake liability for the debts of a branch office it has established.
Article 21
A law firm shall report to the original examination & verification department changes it wishes to make in important matters such as its name, domicile, articles of association, partners, or dissolution of the firm.
Article 22
A law firm shall, in accordance with the articles of association, arrange for lawyers to carry out business, study laws & State policies, summarise & exchange work experience.
Article 23
In case lawyers undertake business, their law firm shall centrally accept authorisation, sign written
authorisation contracts with the clients and, in accordance with State regulations, collect fees from the parties & truthfully enter them in its accounts. Law firms & lawyers shall pay tax in accordance with law.
Article 24
Law firms & lawyers shall not solicit business by unfair means such as slandering other lawyers or paying middlemen's fees.
CHAPTER IV- Business: Rights & Obligations of Practising Lawyers
Article 25
A lawyer may engage in the following business: (1) to accept engagement by citizens, legal persons or other organisations to act as legal counsel (2) to accept authorisation by a party in a civil/admin case to act as agent ad litem & participate in the proceedings (3) to accept engagement by a criminal suspect in a criminal case to provide him/her with legal advice & represent him/her in filing a petition or charge or obtaining a guarantor pending trial; to accept authorisation by a criminal suspect or defendant or accept appointment by a people's court to act for the defence; to accept authorisation by a private prosecutor in a case of private prosecution or by the victim or his/her close relatives in a case of public prosecution to act as agent ad litem & participate in the proceedings (4) to represent clients in filing petition in all types of litigation (5) to accept authorisation by a party to participate in mediation & arbitration activities (6) to accept authorisation by a party involved in non-litigation legal matters to provide legal services; and (7) to answer inquiries regarding law & to represent clients in writing litigation/legal documents
Article 26
A lawyer acting as legal counsel shall provide opinions regarding legal issues to the person who has engaged him/her, draft & review legal documents, act as agent to participate in litigation, mediation or arbitration activities, handle other legal matters authorised by the person who has engaged him/her, protect the lawful rights & interests of the person who has engaged him/her.
Article 27
A lawyer acting as agent in litigation or non-litigation legal matters shall, within the limits of authorisation, protect the lawful rights & interests of the client.
Article 28
A lawyer representing a defendant in criminal case shall present, on the basis of facts � law, materials & arguments to prove that a criminal suspect is innocent or is less guilty than charged, or that his/her criminal liabilities should be reduced or relieved, in order to protect the lawful rights & interests of the criminal suspect or defendant.
Article 29
A client may refuse to be further defended or represented by a lawyer, & may authorise another lawyer to act in his/her defence or to represent him/her. After accepting authorisation, a lawyer shall not, without good reason, refuse to defend or to represent a client. However, if the matter authorised violates law, the client uses the service provided by the lawyer to engage in illegal activities or the client conceals facts, the lawyer shall have the right to refuse to defend or to represent the client.
Article 30
A lawyer participating in litigation activities may, according to the provisions of procedure laws, collect and consult the materials pertaining to the case (s)he is undertaking, meet & correspond with a person whose personal freedom is restricted, appear in court, participate in litigation, & enjoy other rights provided for in the procedure laws. When a lawyer acts as agent ad litem or defends clients, his/her right to argue or present a defence shall be protected in accordance with law.
Article 31
When undertaking legal matters, a lawyer may, with the consent of the relevant units or individuals, address inquiries to such units or individuals.
Article 32
In his/her practice, a lawyer's personal rights shall not be infringed.
Article 33
A lawyer shall keep confidential secrets of the State & commercial secrets of the parties concerned that (s)he comes to know during his/her practice activities & shall not divulge the private affairs of the parties concerned.
Article 34
A lawyer shall not represent both parties involved in the same case.
Article 35
A lawyer shall not commit any of the following acts in his/her practice activities: (1) to accept authorisation privately, charge fees to the client privately, or accept money/things of value from the client (2) to seek the disputed rights & interests of a party or accept money/things of value from the opposing party by taking advantage of providing legal services (3) to meet with a judge, prosecutor, or arbitrator in violation of regulations (4) to entertain & give gifts to a judge, prosecutor, arbitrator or other relevant working personnel or bribe them, or instigate or induce a party to bribe them (5) to provide false evidence, conceal facts or intimidate or induce another with promise of gain to provide false evidence, conceal facts, or obstruct the opposing party's lawful obtaining of evidence; or (6) to disrupt the order of a court, or interfere with the normal conduct of litigation/arbitration activities
Article 36
A lawyer who once served as a judge or prosecutor shall not act as agent ad litem or defend clients within 2 years after leaving his/her post in the people's court or the people's procurator.
CHAPTER V-Bar Associations
Article 37
A bar association is a public organisation with the status of a legal person & shall be the lawyers' self -disciplinary organisation. The All-China Lawyers Association is established at the national level, while local bar associations are established by provinces, autonomous regions, & municipalities directly under the Central People's Government. Local bar associations may be established according to the need by cities divided into districts.
Article 38
The articles of association of bar associations are formulated centrally by the national congress of the members & submitted to the administrative department in charge of justice under the State Council for the record.
Article 39
A lawyer must join his/her local bar association. A lawyer who has joined his/her local bar association is at the same time a member of the All-China Lawyers Association. In accordance with the articles of association of bar association, members of bar associations shall enjoy the rights granted by, perform the obligations specified in the articles of association.
Article 40
Bar associations shall perform the following duties: (1) assuring that lawyers practise according to law & protecting lawyers' lawful rights & interests (2) summarising & exchanging lawyers' work experience (3) organising professional training for lawyers (4) conducting education in, inspection of, supervision over the professional ethics & practice discipline of lawyers (5) making arrangements for exchanges between Chinese & foreign lawyers (6) mediating disputes arising in lawyers' practice activities; and (7) other duties prescribed by law
Bar associations shall give awards to or take disciplinary measures against lawyers in accordance with the articles of association.
CHAPTER VI-Legal Aid
Article 41
Citizen who needs assistance of lawyers in respect of matters such as livelihood support, work-related injuries, criminal procedure, claims for State compensation or claims for lawful payment of pensions for the disabled or families of the deceased, but cannot afford lawyers fees, may obtain legal aid in accordance with State regulations.
Article 42
A lawyer must undertake the duty of legal aid in accordance with State regulations, provide the recipient with legal services in fulfilment of his/her duty & responsibility.
Article 43
Specific measures for legal aid shall be formulated by the administrative department in charge of justice under the State Council & submitted to the State Council for approval.
CHAPTER VII-Legal Liabilities
Article 44
If a lawyer commits any of the following acts, the administrative department in charge of justice of the people's government of a province, autonomous region, municipality directly under the Central People's Government or a city divided into districts shall issue a disciplinary warning. Where the case is serious, the said department shall impose a penalty of cessation of practice for no less than 3 months and no more than 1 year. Illegal gains shall be confiscated: (1) simultaneously practising in two or more law firms (2) representing both parties involved in the same case (3) soliciting business by unfair means such as slandering other lawyers or paying middleman's fees (4) refusing to defend or represent a client, without good reason, after accepting authorisation (5) failing to appear in court on schedule to participate in litigation or arbitration without good reason (6) divulging commercial secrets or private affairs of a party concerned (7) accepting authorisation privately, charging fees to a client privately, accepting money or things of value from a client or using the provision of legal services to seek the disputed rights and interests of a party concerned or accepting money or things of value from the opposing party (8) meeting with a judge, prosecutor, or arbitrator in violation of regulations or entertaining & giving gifts to a judge, prosecutor, arbitrator, or other relevant working personnel (9) obstructing the opposing party's lawful obtaining of evidence (10) disrupting the order of a court, or interfering with the normal conduct of litigation/arbitration activities; or (11) other acts in respect of which penalties should be imposed
Article 45
In case a lawyer commits any of the following acts, the administrative department in charge of justice of the people's government of a province, autonomous region, or municipality directly under the Central People's Government shall revoke his/her practice certificate. Where the case constitutes a crime, (s)he shall be prosecuted for criminal liabilities according to law: (1) divulging State secrets (2) bribing a judge, prosecutor, arbitrator or other relevant working personnel or instigating or inducing a party to do so (3) providing false evidence, concealing important facts or intimidating or inducing another with promise of gain to provide false evidence or conceal important facts Where a lawyer is subjected to criminal punishment for an intentional crime, his/her lawyer's practice certificate shall be revoked.
Article 46
A person who impersonates a lawyer & provides legal services shall be ordered by the public security authorities to cease the illegal practice of law, which shall confiscate his/her illegal gains a may also impose a fine of no more than RMB 5,000 & detention of no more than 15 days. A person who has not obtained a lawyer's practice certificate but engages in the business of acting as agent ad litem or defending clients for the purpose of seeking economic benefit shall be ordered to cease the illegal practice of law by the administrative department in charge of justice of the local people's government at or above the county level, which shall confiscate any illegal gains & may also impose a fine of no less than 1x & no more than 5x the amount of the illegal gains.
Article 47
A law firm that commits an act in violation of the provisions of this Law shall be ordered to make corrections by the administrative department in charge of justice of the people's government of a province, autonomous region, or municipality directly under the Central People's Government, which shall confiscate any illegal gains & may also impose a fine of no less than 1x & no more than 5x the amount of the illegal gains. Where the case is serious, the law firm shall be ordered to cease practice for rectification or its practice certificate shall be revoked.
Article 48
If a person on whom a penalty has been imposed does not accept the decision on the administrative penalty rendered by the administrative department in charge of justice, (s)he may apply for a review to the administrative department in charge of justice at the next higher level within 15 days of receiving the decision. If (s)he does not accept the review decision, (s)he may bring a lawsuit in a people's court within 15 days of receiving the review decision. (S)he may also directly bring a lawsuit in a people's court. If a person who has been fined neither applies for a review, institutes administrative proceedings, nor complies with the penalty decision, the administrative department in charge of justice that rendered the penalty decision may apply to a people's court for compulsory enforcement. If an application is made for a lawyer's practice certificate according to Article 11 of this Law or application is made for approval to establish a law firm in accordance with Article 19 of this Law, & the applicant does not accept the decision not to issue a lawyer's practice certificate or a practice certificate for the law firm, (s)he may apply for review or bring a lawsuit pursuant to the procedure provided by the Paragraph I of this Article.
Article 49
In case a lawyer practices illegally or causes losses to a party due to his/her fault, the law firm in which (s)he practices shall bear the liability for compensation. After paying compensation, the law firm may claim recovery from the lawyer that acted intentionally or committed gross negligence. Lawyers & law firms may not be relieved of or limited in the civil liability that they shall bear for the losses caused to a party due to illegal practice of law or fault.
CHAPTER VIII-Supplementary Provisions
Article 50
With respect to lawyers who serve in the military & provide legal services to the military, their obtaining of the qualification as a lawyer, their rights, obligations & code of conduct as a lawyer shall be governed by this Law. Specific measures for administration of military lawyers shall be formulated separately by the State Council & the Central Military Commission.
Article 51
Specific measures governing the establishment of offices by foreign law firms to engage in prescribed legal service activities within the territory of the People's Republic of China shall be formulated by the State Council.
Article 52
Specific measures on lawyer's fees shall be formulated by the administrative department in charge of justice under the State Council & submitted to the State Council for approval.
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