摘要(Abstract)：
在1957至1977二十年政治冲击下消亡的中国律师业,在改革开放后得到了蓬勃发展,尤其是1996年《律师法》制定之后,发展更为迅猛。然而,在中国律师业前进过程中,发展与隐忧并存。本文从纵向和横向两个角度入手,总结中国律师业在通往职业化发展道路上的成绩与曲折,并对中国律师职业目前行政化色彩浓重、自治力弱、职业化程度有待提高等问题提出了建议。同时,鉴于律师执业责任是律师职业化发展过程中不可回避的问题,本文还就律师的执业责任进行深入探讨和分析。
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作者(Author): 王萍;
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参考文献(References)：
- 1 In the year of 1957,the legal system of China was destroyed badly,and lawyer profession was abolished.
- 2In 2012,the whole population of China according to New Statistical Yearbook 2013 published by China Statistics Press is 1,354,040,000 and the number of lawyers in 2012 is 232,384,so the number of lawyers per 100,000 populations is 17.
- 3Hou Yan,Lawyers and a Society Ruled of Law,12 Legal System and Society,471(2007).
- 4OOKI MASAO,A COMPARISON BETWEEN LEGAL CONCEPTS OF THE EAST OCEAN AND THE WEST OCEAN,at 6-18(Hua Xia and Zhan Xianbin trans.,Beijing University Press,2004).
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- 6Legal worker at primary level is someone who works in the country or in the small town for legal work.
- 7THE REPORT ON CHINA LAW DEVELOPMENT 2012:PROFESS IONIZATION OF CHINA’S LEGAL WORKERS,at 6(Zhu Jingwen ed.,The Renmin University Press,2012).
- 8The Civil Procedural Law of the PRC,article 58;The Administrative Procedural law of the PRC,article 29.
- 9Zhu Jingwen,A Professional Analysis on Legal Profession in China,5 Chinese Journal of Law,28(2008).
- The term“unit”in China has a very wide meaning.A unit could be a government department,a state-owned company,and even a private company.Here unit lawyers refer to lawyers who do not work in a law firm but somewhere else.
- It is different from the legal workers in company,the company lawyer will be issued a practice license indicating particularly company lawyer and his working experience in the company will be added into the experience of practice.
- The Yearly Book of Chinese Law(2007-2011);The Yearly Book of Justice Authorities(2007-2011);and The Yearly Book of Chinese Lawyers(2001-2009).
- Wu Hongqi,The Career Crisis of American Lawyers,1 Global Law Review,103(2010).
- According to article 2 of the Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law:the interpretation of questions involving the specific application of laws and decrees in court trials shall be provided by the Supreme People’s Court,the Interpretation of questions involving the specific application of laws and decrees in the procuratorial work of the procuratorates shall be provided by the Supreme People’s Procuratorate.If the interpretations provided by the Supreme People’s Court and the Supreme People’s Procuratorate are at odds with each other in principle,they shall be submitted to the Standing Committee of the National People’s Congress for interpretation or decision.Since then,the Supreme People’s Court and the Supreme People’s Procuratorate enact general rules called judicial interpretations.Although there are not any specific provisions regarding judicial interpretation in the Legislation Law of the People’s Republic of China,the judicial interpretations are binding in reality and play a very important role in China.
- The Lawyer’s Law of the PRC was adopted at the 19th Session of the Standing Committee of the Eighth National People’s Congress of the PRC on May 15,1996,and was revised and adopted at the29 th Session of the Standing Committee of the Eleventh National People’s Congress of the PRC on October 26,2012,and was effective since January 1,2013.
- Administrative Measures for the Practice of Law by Lawyers was adopted by Ministry of Justice on July 18th,2008,according to the 112th Order of the Ministry of Justice.
- Administrative Measures for the Management of Law Firm was adopted by Ministry of Justice on July18 th,2008,according to the 111th Order of Ministry of Justice and revised by Ministry of Justice on November 30,2012,according to the 125th Order of the Ministry of Justice.
- Measures for Punishing Outraging Lawyers and Law Firms for Their Illegal Acts was adopted by Ministry of Justice on April 8th,2010,according to the 122nd Order of the Ministry of Justice.
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- He Weifang,The Road to Self-Regulation of Lawyers,8 South Reviews,17(2002).
- Beijing and Shanghai are considered the largest cities and the other three provinces lie in the richer part of eastern China.
- Here most of the provinces lie in the west of China.
- Supra note 7,12.
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- ALL-CHINA LAWYERS ASSOCIATION,REPORT OF LAWYERS’SOCIAL LIABILITY IN CHINA,at http://www.acla.org.cn/html/xinwen/20130827/11102.html(Last visited on August15,2014).
- Supra note 7,214.
- Wu Yi,Beijing Female Lawyers,5 Chinese Lawyers,76(2008).
- Id.
- Zhu Fan,supra note 19.
- Article 1 of the Interim Regulations of the PRC on Lawyer provided,“Lawyers are State legal workers whose task is to give legal assistance to State organs,enterprises and institutions,public organizations,people’s communes and citizens in order to ensure the correct implementation of the law and protect the interests of the State and collectives as well as the lawful rights and interests of citizens.”
- The Judge Law of PRC was adopted at the 22nd Session of the Standing Committee of the Ninth National People’s Congress of the PRC on June 30,2001,was hereby promulgated and went into effect as of January 1,2002.
- The Public Procurators Law of the PRC was adopted at the 22nd Session of the Standing Committee of the Ninth National People’s Congress on June 30,2001,was hereby promulgated and went into effect as of January 1,2002.
- According to requirements on residents of HongKong and Macau entering into the national bar exam and requirements on residents of Taiwan entering into the national bar exam by the Ministry of Justice,the residents of HongKong,Macau and Taiwan are allowed to join in the national bar exam of Mainland China.
- The courts,the procuratorates and law firms usually seek someone who already passes the bar.It is a big disadvantage for the undergraduates to hunt for a job if they are not allowed to enter into the bar exam.
- Supra note 7.
- Since 2004,the scores of each exam paper(altogether 4 papers)have changed from 100 points to150 point.
- Article 10(2)of the Lawyer Law of the PRC prescribes as follows:a lawyer’s practice is not subject to regional restriction.
- Hukou refers to registered permanent residence and has a very important meaning for citizens in China.For example,if a person is born in Zhejiang,(a province in Southeast China),and his parents are also Zhejiang natives,he or she has a hukou of Zhejiang.If he or she later works in Beijing,he or she is still considered a resident of Zhejiang by indication this person’s Hukou and could not enjoy many benefits Beijing natives enjoy.For example,he or she is not allowed to buy a house in Beijing if he or she does not work in Beijing for a period no less than five years while a Beijing native could buy a house without any restrictions.
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- OOKI MASAO,supra note 4,1.
- Shanghai is the largest city in China and has the fourth largest number of lawyers in China in 2012.
- SOME DATA COMES FROM THE YELLOW PAGES,WHEN IT LACKS,THE DATA REFERENCED FROM THE OFFICIAL SITE OF THE LAW FIRMS,at http://lawyer.yingkelawyer.com/Lawyer/Index/Shanghai/(Last visited on September 16,2013).
- PROFESSIONALS,at http://www.allbrightlaw.com/cn/professionals(Last visited on September 2,104).
- SHANGHAI BRANCH OF DACHENG LAW OFFICE,at http://shanghai.dachenglaw.com/cn/shanghaibranch/describe(Last visited on September 16,2013).
- ZHONGLUN LAW FIRM,at http://www.zhonglun.com/cn/peoplelist.aspx(Last visited on September 2,2014).
- KING&WOOD MALLESONS,at http://www.kingandwood.com/office.aspx?id=shanghai(Last visited on September 2,2014).
- There are altogether 19,361 law firms and 232,384 practicing lawyers in China,with an average of 12lawyers in every law firm.
- The calculation is not accurate but rather rough.However we still can see some tendency.
- The total number of lawyers in Beijing is 22,796,and the total number of law firms is 1,672.
- However,it is interesting to find that such a law firm may exist in Guangdong province according to website report and scholar’s research.According to the official website of Committee of Politics and Law of Guangdong Province,the first law firm in the form of a company was founded on December24 ,2009.And the head of the Committee paid a visit to the law firm in 2010.
- The division from the general taxpayer and small taxpayer is decided by the revenue according to“Some Rules about the Trial of Tax Reform from the Business Tax to Value-added Tax in Transportation Industry and Some Modern Service Industries”of the Ministry of Finance and State Administration of Taxation of China.Usually,the revenue beyond 5 millon RMB is a general taxpayer for a law firm and below is a small taxpayer.
- The individual tax of a law firm will be charged according to annual taxable income.An amount not exceeding 15,000 yuan is charged 5 percent;an amount exceeding 15,000 but not exceeding 30,000is charged 10 percent;an amount exceeding 30,000 but not exceeding 60,000 is charged 20 percent.an amount exceeding 60,000 but not exceeding 100,000 is charged 30 percent;an amount exceeding60 ,000 is charged 35 percent.
- Petition is very special in China and has its legal binding in some ways according article 203 of the Criminal Procedure Law of PRC and article 296-303 of the Rules of Explanations on the Criminal Procedure Law of PRC of the Supreme People’s Court.The party could file a petition against a binding judgment after the trial,and the court shall look into it and determine if the petition is reasonable.If it is,the court must conduct a new trial of the same case.
- THE 2012 NAME LIST OF MAJORS IN CHINESE UNIVERSITIES HAS BEEN ISSUED BY THE MINISTRY OF EDUCATION,at http://finance.ifeng.com/roll/20101028/2784183.shtml(Last visited on September 3,2014).
- ZHANG WUSHENG,STUDY ON CHINESE LAWYERS’PROFESSION,at 266-267(China Legal Publishing House,1999).
- ZHANG XINBAO,TORTS LAW IN CHINA,at 254-255(Social Science Publishing House of China,1995).
- Chen Shu and Zhan Liyuan,Lawyers’Professional Liability,3 Chinese Lawyers,47-48(2004).
- The latest rules of the Supreme People’s Court will be published in the Gazette.Besides,the Supreme People’s Court will select some typical cases judged by himself or other lower courts in the Gazette.Those cases are not binding but they have influence on the future judgments in similar cases as a matter of fact.
- Zhou Xiao,The Law Firm Shall Bear Its Responsibility,People’s Court Daily,May 24,2005.
- Civil Judgments of Beijing First Intermediate People’s Court,No.5398,2013.
- Civil Judgments of the Second Civil Division of Ningbo Intermediate People’s Court,No.479.
- Civil Judgments of the Second Civil Division of Dongguan Intermediate People’s Court,No.203.
- Zhang Sizhi,Jiang Ping and the Rule of Law Society,3 Journal of China University and Political Science and Law,78(2010).
