AMENDMENT CONSIDERED TO THE LAW ON LAWYERS
July 01, 2007 | BY
clpstaffThe National People's Congress (NPC) is considering a draft amendment to the Law on Lawyers that would solidify ethical guidelines, thereby allowing lawyers…
The National People's Congress (NPC) is considering a draft amendment to the Law on Lawyers that would solidify ethical guidelines, thereby allowing lawyers to meet criminal suspects, obtain evidence for cases and even allow experienced lawyers to open individual private law firms. The Law on Lawyers was implemented on January 1 1997 and the reforms, which were proposed by the Ministry of Justice, would be the first revisions to the law since its promulgation.
The draft amendment states that with the exception of cases involving state secrets, certified lawyers would be entitled to meet criminal suspects in person once judicial officials have completed interrogations. Criminal defence attorneys have often complained in the past of the difficulties inherent in meeting with suspects, conducting research and obtaining evidence.
The proposals also would entitle defence lawyers to make applications to collect and provide relevant evidence. Attorneys would also be entitled to access all files and materials relating to a case and to use the courts to bring witnesses to testify in court.
To protect lawyers and clients, the amendment would also prohibit the state from conducting surveillance of defendants meeting their lawyers, and grants defence attorneys legal immunity for opinions or remarks made in court, so long as they do not constitute slander or threaten national security.
The draft amendment also imposes ethical boundaries, such that “lawyers must not collude with the litigants of opposite party or the third party to cheat and infringe the interests and rights of his or her own clients. Lawyers must not seek to influence judges, prosecutors and arbitrators through unlawful means.”
The draft further states that lawyers cannot be agents or defence attorneys in cases which run counter to their interests or the interests of their family relatives. It also says that judges and prosecutors cannot be lawyers unless they have left their posts in courts and prosecuting organs for more than two years.
The somewhat controversial Article 8 takes what some see as a step backwards towards the rule of law by making it possible to grant a lawyer's license to professionals without a legal education. Those eligible to apply to practice law should have “advanced professional titles or corresponding professional competence” and could be given approval under the State Council. This runs contrary to Article 6 of the original law, which stipulated that all who apply for a lawyer's license must first pass special examinations.
The amendments would also allow lawyers with over five years of practice to establish their own firms, provided that they have never had their license suspended.
Minister of Justice Wu Aiying cited statistics showing that China now has more than 130,000 lawyers working in 13,000 law firms. In 2006, Chinese lawyers dealt with more than 1.8 million litigation cases and 1.15 million non-litigation cases, and provided legal aid in more than 5.2 million cases.
This premium content is reserved for
China Law & Practice Subscribers.
A Premium Subscription Provides:
- A database of over 3,000 essential documents including key PRC legislation translated into English
- A choice of newsletters to alert you to changes affecting your business including sector specific updates
- Premium access to the mobile optimized site for timely analysis that guides you through China's ever-changing business environment
Already a subscriber? Log In Now