An introduction to the legal profession in China in the year 2008.

• Author: Clark, Gerard J.

1. INTRODUCTION

   The accession of Deng Xiaoping to leadership in China after the death of Mao Zedong in 1978 provided the impetus for the revival of China's legal system. That commitment to build a rule of law has contributed to China's current phenomenal growth. More recently, China's entry into the World Trade Organization required a commitment to transparency in the lawmaking process, procedures for challenging administrative action, and judicial independence. (2) This article will attempt to assess the progress of a part of that project: the creation, virtually from scratch, of a trained legal profession over the past thirty years.

2. THE COURTS

   The Western notion of enforcing one's legal rights through litigation does not sit well with the Chinese. Not only is the concept of a legal right a foreign concept, but the pursuit of self-interest through adverse litigation is at odds with the paramount virtue of social harmony. (3) It is difficult for the average Chinese person to conceive of a court as other than a place where bad people go or where bad things happen to people at the hands of government. The top-down view of law as an instrument of government with citizens as the objects of legal regulation remains influential in China today. Courts generally do not welcome litigation and often try to discourage it. Far more than in many other systems, the Chinese legal system is willing to forgo the enforcement of rights when other pressing values seem to be at stake, to the point where it might be more accurate to say that the system recognizes interests more than rights. (4)

   Indeed, quite recently, Luo Gan, a member of the governing nine-man Politburo Standing Committee of the Communist Party and the country's most powerful judicial official, said in an address that "judicial officials had the responsibility to prevent infiltration that might threaten national security." (5) To paraphrase his ideas, "'[e]nemy forces' are seeking to use China's legal system to Westernize and divide the country, and the Communist Party must fend them off by maintaining its dominance over lawyers, judges and prosecutors." (6) "There is no question about where legal departments should stand," Luo said, "[t]he correct political stand is where the party stands." (7)

   The very idea of what the law is may be less clear in China than in the West. The Chinese court system resembles the civil-law model more than the common-law model and thus the judge is more a follower of the law than a custodian of it. (8) Further the weight courts give to edicts, policy documents, and exhortations of the Chinese Communist Party (CPC) and the orders, directions, and instructions of senior officials may confront the judge with a quagmire of competing claims for legitimacy. (9)

   The distinction between law and policy or perhaps law and politics is not always clear. (10) Professor Albert H.Y. Chen cites H.L.A. Hart's concept of the "internal aspect of the rules," wherein decision-makers must adopt an internal point of view toward a rule. (11) Once "they accept [the rule] as official, as legitimate, as binding upon them," they will be motivated to reach a result consistent with the intentions of the law's framers. (12) Confusion about the legitimacy of the law will undercut the required commitment. (13)

   In 1978, however, in recognition of the realities of the modern world, the National People's Congress established a unitary national judiciary for all of China. There are four levels of courts in China: the Supreme People's Court, the Higher Level People's Courts at the provincial level, and the Intermediate Level and Basic Level People's Courts at the more local level. (14) These courts employ approximately 200,000 judges. (15) Each level of court is essentially responsible to local political power at the same level, a responsibility reinforced by local control over court staffing and finances. By way of contrast, the Supreme People's Procurancy, also known as the procuratorate or the prosecutor's office, has jurisdiction over the lower-level offices.

   Although there is no lack of authority for the requirement of independence in the Constitution and in Judicial Codes, a lack of judicial independence may be the most serious obstacle for the rule of law in China today. (16) The courts, as offices or bureaucracies, maintain a status equal to the other ministries and commissions for the town or province. As employees of a quasi-executive branch, judges maintain no greater job security than any other governmental appointee. Similar to those appointees, the government selects a judge because he or she is favored by the State, Provincial or Municipal Council or the State, Provincial, or Municipal Communist Party leadership, depending on who is calling the shots at that particular time. Further, the Supreme People's Court has no administrative authority over lower courts and indeed may lack appellate jurisdiction. The local government budget accounts for operating expenses, including judges' salaries. (17) At any time, the legislature can replace or remove those judges serving in a court that corresponds with the level of that particular legislature. (18) The local government and the party can easily express its opinion in matters before a court. (19) The internal managerial system of the people's courts discourage independence. (20) Reports of corruption in Chinese courts are still widespread. (21) Personal relationships or "back-door" connections play significant roles in Chinese society. In the adjudication of cases, lawyers can cultivate easy access to the presiding judge. (22)

   Many judges also lack professional qualifications. Among the presidents and vice-presidents of the people's courts, only 19.1% received a bachelor's degree or higher, while this ratio is down to 15.4% among judges in the lowest courts. (23) Professor Mo Zhang observes that many of those who have received a college degree have not graduated from law school, and of the few who have received a law degree, a substantial number did so through continuing education. (24) In local people's courts there are few law school graduates and most judges are military veterans. (25) Although the Law of Judges was enacted to help improve judicial quality, the law stops short of requiring a law degree or even college education for judges appointed before the law took effect on July 1, 1995. (26) While efforts to upgrade the quality of the judiciary have been especially successful in major cities and commercial centers, the seemingly deficient educational level of judges contributes to their low status in the hierarchy of power. (27)

   Localism may also bias the courts. (28) When courts are asked to enforce foreign judgments, including arbitral awards against local industries or businesses, local access may affect results. Similarly, judgments against a state-operated enterprise may encounter interference from the government. (29)

3. THE LEGAL PROFESSION

   One challenge to the development of a legal profession is the successful tracing of the profession's growth from the ages of the various dynasties. Persons of influence and persons with skills for assisting emperors in the administration of the various empires emerged throughout the ages, serving as intermediaries between the emperor and the people. (30) The emperor or his designee resolved disputes among people in an ad hoc fashion.

   After the fall of the Qing dynasty, a small legal profession emerged in 1912 with the promulgation of the Provisional Regulations on Lawyers, specifying the responsibilities, training, and qualifications of lawyers. (31) By 1935, there were 10,000 lawyers in China. (32)

   The small lawyer class that developed during the republic was essentially abolished in 1949 with the accession of Mao Zedong to power. Another small legal profession emerged in the 1950s but was brutally suppressed during the Cultural Revolution of the 1960s. (33) Finally, after Mao's death and the succession of Deng Xiaoping, the development of a legal profession became possible when Deng declared that lawyers were essential to his proposed economic reform. In 1979, the Ministry of Justice was reconstituted; it, along with the justice bureaus, both operating through provincial or local offices, managed and supervised the creation of a system of lawyers, notaries, and people's mediation committees; labor re-education programs; prisons; and legal education. (34) Also in 1979, the National People's Congress enacted the Provisional Regulations of the PRC on Lawyers. (35) Those lawyers, however, were employed by the state and worked in state-owned law advisory offices, which advised the government, social groups, people's communes, and citizens. (36) In carrying out their responsibilities, lawyers were required to promote the socialist legal order and be faithful to the cause of socialism. (37)

   In 1996, a new law on lawyers was enacted. Among other things, the new law encouraged the creation of independent law firms. By 1998, there were 8,946 law firms: 27 percent were independent, 59 percent were state owned and 11 percent were cooperatives. (38) By 2002, the number of firms was up to 9,995, with only 23 percent state-owned. (39) By 2007, the approximate population of lawyers was at least 120,000, (40) and likely one-half were part-time. (41) Included in this total are the so-called barefoot lawyers who practice without licenses in rural areas. (42) Slowly, administrative and regulatory authority over the bar has started to move from the Ministry of Justice to bar associations. (43) But, the Ministry still has adequate arbitrary authority to intimidate its licensees. (44) The administrative organs of the judiciary, operating under the Ministry, have extensive regulatory authority over law firms as well. They ultimately certify individual lawyers, approve the establishment of law firms, and have the power to regulate fees. (45) Additionally, they regulate...