Fujian Province, Implementing Measures for the Work Associated with the Pilot Projects for the Establishment of Representative Offices in Fuzhou and Xiamen by Law Firms from Taiwan

(Issued by the Department of Justice of Fujian Province on September 13 2010 and effective as of September 15 2010.)

Min Si [2010] No.293

Part One: General Provisions

Article 1: These Measures are formulated in accordance with relevant state laws and regulations and relevant requirements of the Ministry of Justice and while taking into account the realities encountered by lawyers in Fujian Province, in order to regulate the work associated with the pilot projects for the establishment of representative offices in Fuzhou and Xiamen by law firms from Taiwan (Representative Offices).

Article 2: These Measures govern the application for the establishment of Representative Offices, and their engaging in the provision of legal services, in Fuzhou and Xiamen by law firms from Taiwan.

Article 3: When providing legal services, Representative Offices and their representatives shall abide by state laws, regulations and rules and observe the professional ethics and practice disciplines of lawyers, and may not prejudice national security or the public interest.

Part Two: Establishment of, Changes to and Cancellation of Representative Offices

Article 4: The establishment of Representative Offices and the secondment of representatives in Fuzhou and Xiamen by law firms from Taiwan shall be reviewed by the Department of Justice of Fujian Province and then be forwarded to the Ministry of Justice for check and approval.

Law firms, other organisations or individuals from Taiwan may not engage in the provision of legal services in Fuzhou and Xiamen in the name of a consulting company or under other names.

Article 5: A law firm from Taiwan applying to establish a Representative Office and to second representatives in Fuzhou or Xiamen shall fulfil the following conditions:

(1) the law firm has been practising in Taiwan in accordance with the law and has not been penalised for any violation of professional ethics or practice disciplines of lawyers;

(2) the representatives of the Representative Office shall be practising lawyers and members of the bar associations in Taiwan, have been practising outside the mainland for no less than two years, and have not been penalised for any criminal offence or for any violation of professional ethics or practice disciplines of lawyers. The chief representative has been practising outside the mainland for no less than three years and is a partner of the law firm or holds an equivalent position; and

(3) there is an actual need for establishing a Representative Office to provide legal services in Fuzhou or Xiamen.

Article 6: A law firm from Taiwan wishing to establish a Representative Office in Fuzhou or Xiamen shall submit the following documents and materials:

(1) an application letter for establishment of a Representative Office and secondment of representatives signed by the main responsible person of the law firm;

(2) documents evidencing that the law firm has been lawfully established in Taiwan;

(3) a partnership agreement or articles of association of the law firm and a list of responsible persons or partners;

(4) a power of attorney from the law firm to each of the proposed representatives of the Representative Office and a letter confirming that the proposed chief representative is a partner of, or holds an equivalent position in, the law firm;

(5) documents evidencing the practising qualifications of the proposed representatives of the Representative Office, and documents evidencing that the proposed chief representative has been practising outside the mainland for no less than three years and that the other proposed representatives have been practising outside the mainland for no less than two years;

(6) documents issued by a Taiwan bar association confirming the membership of each of the proposed representatives of the Representative Office in its region; and

(7) documents issued by the Taiwan lawyers administrative institution confirming that the law firm and the proposed representatives have not been penalised for criminal offences or violations of professional ethics or practice disciplines of lawyers.

The documents listed above shall be notarised by a notary office or notary in Taiwan, and shall be examined and certified by the notary association of Fujian Province.

Application materials shall be in triplicate and bound into separate volumes.

Article 7: A law firm from Taiwan applying to establish a Representative Office shall submit the application materials to the Judicial Bureau of Fuzhou City or Xiamen City.

If the application materials are complete and in the statutory format, the Judicial Bureau of Fuzhou City or Xiamen City shall accept the same in a timely manner and issue a notice of acceptance. If the application materials are incomplete or not in the statutory format, the Judicial Bureau of Fuzhou City or Xiamen City shall, on the spot or within five days of receipt of the application materials, inform the applicant as to all the missing information it is required to provide. If the five days pass without the applicant being so informed, the Judicial Bureau shall be deemed to have accepted the application.

The Judicial Bureau of Fuzhou City or Xiamen City shall, within seven days from the date of acceptance of the application, forward the application materials to the Department of Justice of Fujian Province for its review. The Department of Justice of Fujian Province shall, within two months from the date of receipt of the application materials, complete its review and forward its review opinion together with the application materials to the Ministry of Justice for check and approval.

If the conditions for establishment are satisfied, the Department of Justice of Fujian Province shall issue the Representative Office a practice licence and its representatives practice certificates.

If the conditions for establishment are not satisfied, the Department of Justice of Fujian Province shall give the applicant the reasons therefor in writing.

Article 8: The name of the Representative Office that a law firm from Taiwan proposes to establish shall be composed of three parts, “the name of the law firm from Taiwan, the name of the mainland city in which it is resident, and Representative Office”, in that order.

Article 9: A Representative Office and its representatives may engage in the provision of legal services specified herein only after they have completed the registration procedures with the Department of Justice of Fujian Province on the strength of the practice licence and practice certificates. Registration of a Representative Office and its representatives shall be renewed every year.

The Department of Justice of Fujian Province shall, within two days from the receipt of the application for registration, carry out the registration procedures.

Article 10: Representative Offices shall complete the relevant formalities with respect to taxation, banking, foreign exchange, etc. in accordance with relevant laws and administrative regulations.

Article 11: If a Representative Office of a law firm from Taiwan wishes to change its name or reduce the number of its representatives, it shall submit in advance an application signed by its main responsible person and the relevant documents and materials to the Judicial Bureau of Fuzhou City or Xiamen City. If the Department of Justice of Fujian Province approves a reduction in the number of representatives, the practice certificates of those persons no longer serving as representatives shall be recovered. If the name of the Representative Office is changed, a new practice licence shall be issued, the old practice licence shall be recovered and, within 30 days from the date on which the decision on the change was rendered, such change shall be reported to the Ministry of Justice for the record.

If a Representative Office is divided, merged or a new representative is appointed, it shall be handled in accordance with the provisions hereof on the procedure to establish a Representative Office.

Article 12: If a representative of a Representative Office is in any of the following circumstances, the Department of Justice of Fujian Province shall, after reporting the same to and obtaining the approval of the Ministry of Justice, recover his/her practice certificate and cancel his/her practice registration accordingly:

(1) his/her lawyer's practice qualifications provided in accordance with Item 5 of Article 6 hereof has become invalid;

(2) his/her representative status is cancelled by his/her law firm from Taiwan; or

(3) his/her practice certificate or the practice licence of his/her Representative Office is revoked in accordance with the law.

Article 13: If a Representative Office is in any of the following circumstances, the Department of Justice of Fujian Province shall, after reporting the same to and obtaining the approval of the Ministry of Justice, recover its practice certificate and cancel its practice registration accordingly:

(1) the law firm from Taiwan that it belongs to is dissolved or the registration is cancelled;

(2) the law firm from Taiwan that it belongs to applies to cancel the Representative Office;

(3) the requirements set out in Article 5 hereof are no longer met; or

(4) its practice licence is revoked in accordance with the law.

A Representative Office cancelled in accordance with the above mentioned provisions shall carry out liquidation in accordance with the law. Before finishing discharging the debts, its property may not be transferred out of the mainland.

Part Three: Scope and Rules of Business

Article 14: A Representative Office and its representatives may engage only in the provision of the following legal services that exclude mainland legal affairs:

(1) to provide clients with Taiwan legal consultancy services, legal consultancy services of other countries and regions where lawyers' practice is permitted, and consultancy services on commercial conventions and practices;

(2) to accept appointment from clients or mainland law firms to handle Taiwan legal affairs;

(3) to appoint, on behalf of Taiwan clients, mainland law firms to handle mainland legal affairs; and

(4) to enter into contracts to maintain long-term appointment relations with mainland law firms for legal affairs.

Representative Offices and their representatives may not engage in the provision of any legal services other than those set out above in this Article or any other for-profit activities.

Article 15: After its establishment in accordance with the law, a Representative Office may not otherwise establish regular places of practice and second working personnel in areas in the mainland other than Fuzhou and Xiamen.

Article 16: A Representative Office may not employ mainland practising lawyers and the support personnel they employ may not provide any legal services to clients.

Article 17: In the course of practice activities, Representative Offices and their representatives may not:

(1) produce false evidence, conceal facts deliberately, intimidate or lure another person by promise of gains to produce false evidence, conceal facts deliberately, or impede the other party's lawful obtaining of evidence;

(2) take advantage of the provision of legal services to accept clients' property or unlawful benefits; or

(3) disclose clients' commercial secrets or breach their personal privacy.

Article 18: Representatives of Representative Offices may not hold representative positions or part-time representative positions in two or more than two representative offices of law firms from Taiwan simultaneously, and may not hold representative positions or part-time representative positions in mainland resident representative offices of Hong Kong and Macao law firms or in China resident representative offices of foreign law firms simultaneously.

Article 19: Representatives of Representative Offices shall stay in the mainland for no less than six months every year. Those failing to do so will not have their registration renewed the following year.

Article 20: Representative Offices may charge their clients for the provision of legal services set out herein and such fees must be settled within the mainland.

Part Four: Regulation

Article 21: The Department of Justice of Fujian Province, under the guidance of the Ministry of Justice, shall be responsible for the exercise of day-to-day oversight over the provision of legal services of Representative Offices and their representatives.

The Judicial Bureaux of Fuzhou City and Xiamen City shall assist the Department of Justice of Fujian Province on the exercise of day-to-day oversight over Representative Offices and their representatives.

Article 22: Representative Offices shall, by March 31 every year, submit to the Judicial Bureaux of Fuzhou City and Xiamen City their practice licences, duplicate copies of the practice certificates of the representatives and the following inspection materials of the previous year for annual inspection. The Judicial Bureaux of Fuzhou City and Xiamen City shall, by April 10 every year, forward the inspection materials to the Department of Justice of Fujian Province for annual inspection:

(1) details on their provision of legal services, including details on the appointment of mainland law firms to handle legal affairs;

(2) their annual financial statements audited by an accounting firm or an auditing firm and documents of settlement, and receipts of tax payment in accordance with the law, in the mainland;

(3) details on the change in their representatives and the employment of mainland support personnel;

(4) details on the residence of their representatives in the mainland;

(5) details on the registration of the Representative Offices and their representatives; and

(6) other details regarding their fulfilment of obligations specified herein.

After the Department of Justice of Fujian Province has completed the annual inspection of a Representative Office, it shall submit an inspection opinion to the Ministry of Justice for the record.

Article 23: If a representative office or a representative thereof violates a state law, regulations, a rule or these Measures, the Department of Justice of Fujian Province shall impose the attendant administrative penalties in accordance with relevant provisions. If the circumstances are serious the representative office's practice licence or the representative's practice certificate shall be revoked following approval by the Ministry of Justice. If a criminal offence is constituted, its/his/her criminal liability shall be pursued in accordance with the law.

Article 24: The registration fees, annual inspection fees and fines charged to, and the illegal income confiscated from, representative offices and the irrepresentatives by the Department of Justice of Fujian Province in the course of its administration shall be handled in strict accordance with relevant laws, administrative regulations and the provisions of relevant State Council departments.

Article 25: If a member of the working personnel of a judicial administrative authority violates a law, breaches discipline, commits a dereliction of duties or abuses his/her authority in the course of administration, attendant administrative sanctions shall be imposed in accordance with the law. If a criminal offence is constituted, his/her criminal liability shall be pursued in accordance with the law.

Supplementary Provisions

Article 26: These Measures shall be effective as of September 15 2010.