Lawyers, State Officials, and Significant Others: Symbiotic Exchange in the Chinese Legal Services Market, Sida Liu
What drives the dynamics of competition in the market for legal services? In addition to the “turf battles” within a profession and between different professions, the relationship between legal professions and the state is also significant.
As Sida Liu demonstrates, in the case of China, the “symbiotic exchange” between law practitioners in the market and judges and other officials in the state is a key social process that determines the outcomes of interprofessional competition between lawyers and basic-level legal workers. Drawing on in-depth interviews with over two hundred law practitioners across twelve provinces of China, Liu suggests the great importance of understanding the social positions of law practitioners between market and state and the interactions among them.The Chinese legal profession has a recent yet broken history. The first group of Chinese lawyers in the modern sense appeared in the Republican era (1912-49), but most of them were concentrated in a few major cities. Although the Republican legal profession was initially denied by the Communist government, in July 1954 the MOJ appointed a number of major cities to establish “legal advisory divisions” (falu guwenchu) following the Soviet model. By June 1957, 820 such divisions had been established in 19 provinces, with a total of 2,572 full-time and 350 part-time lawyers. However, during the Anti-Rightist Campaign in 1957, lawyers were classified as a type of “rightist” and therefore disappeared from the Chinese legal system in the following two decades.
It was not until the late 1970s that lawyers were formally revived in China. The 1980 Interim Regulation on Lawyers defines them as “state legal workers” (article 1). At the time, all lawyers were employed by the state and worked in legal advisory divisions affiliated with different levels of state agencies or work units.
Criminal defence, divorce and inheritance constituted much of lawyers' work during the 1980s. By 1988, when “co-operative law firms” (hezuo suo) were first permitted, there were just 21,051 full-time and 10,359 part-time lawyers in 3,473 law firms. Meanwhile, with the beginning of the “law dissemination” (pufa) campaigns in the mid-1980s, demands for legal services rapidly increased all over the country. This huge imbalance of the supply and demand of legal services generated a large vacant space in the market. In particular, the vast area of individual legal services at the street and township (jiedao xiangzhen) level was almost an unexplored territory.It is into this vacant territory that alternative legal service providers began to emerge. As early as 1980, some street and township level justice agencies (sifa suo) in Beijing and a few provinces (such as Liaoning, Guangdong and Fujian) had already started to provide legal services to the local community, and in 1984 the Liaoning experience was adopted by the MOJ as the model to be spread to the whole country (IN04106). The 1987 Interim Regulation on Township Legal Service Firms formalized this type of grassroots legal service and named it “township legal service” (xiangzhen falu fuwu). In practice, like law firms' affiliation with different levels of the justice bureaus, all township legal service firms in the 1980s were affiliated with the grassroots justice agencies at the street and township level.
Compared to lawyers, the qualification standard of township legal workers was very low, requiring only a high school diploma and “certain legal knowledge.” Even today, the educational and licensing requirements are still much lower for basic-level legal workers than for lawyers. Despite this, the work scope of the township legal service and lawyers has striking similarities. Except for criminal defence, township legal service firms were permitted to handle almost all areas of legal work, and because of their affiliation with streets and townships, they also assumed some administrative functions in local communities.
In fact, most legal service firms and local justice agencies were merely “one team, two titles” (yitao renma, Iiangkuai paizi). [...]An examination of the competition between lawyers and their emulators - mostly notably basic-level legal workers - requires an analysis of their symbiotic exchange with judicial and administrative agencies. It is necessary to start from a classification of all the major species in the Chinese legal services market according to their structural positions between market and state. In general, lawyers, basic-level legal workers, legal advisory agencies and various kinds of “black lawyers” are outsiders of the state apparatus, while judges, procurators, police officers, justice bureau officials and other state officials are insiders. This insider-outsider distinction is crucial for the market-state exchange because it differentiates actors' power and resources: the outsiders are rich in economic and social resources but lack political power; the insiders have firm control over political power and the allocation of resources but are often insufficiently remunerated by the state for their work. This sharp imbalance in resource distribution provides a hotbed for the symbiotic exchange between insiders and outsiders.
However, not every actor in the legal services market can be classified as an insider or an outsider. There are some law practitioners who are brokers between market and state, that is, they worked in the state apparatus and then moved out to practise in the market. A good example is the retired high- ranking officials who practise in law firms or legal service firms, or as individual “black lawyers.” Another is the large number of law practitioners who used to work in the state sector or are close relatives of judges or state officials. These brokers are the “amphibians” in the legal services market because they have access to both state power and market resources. This structural position gives brokers enormous advantages in the resource flow between the two systems.
The closest symbiotic exchange in the Chinese legal services market is probably that between basic-level legal service firms and local justice bureaus. The justice bureaus set up legal service firms and transfer their retired officials and extra personnel to them. They also give the firms advantages for their practice. For instance, the housing of many legal services firms is provided free by the local justice bureaus or the street/township government, and when people come to the local justice bureau for legal help, they refer them to the legal service firms. On the other hand, legal service firms pay an annual “management fee” to the justice bureaus, use their revenue to support the operation of local justice agencies, and assist the justice agencies in their daily work. As a former district justice bureau chief in Ningxia vividly comments: “These legal workers are all my soldiers”. Not incidentally, a lawyer on the AllChina Lawyers Association forum also describes basic-level legal workers as the biological “sons and daughters” of the justice bureaus, whereas lawyers are only the “stepchildren”.
Besides justice bureaus, basic-level legal workers also have frequent exchanges with local courts. Because legal service firms accommodate many retired or transferred judges and court staff, they often get case referrals from local courts, including a large number of legal aid cases. In extreme instances, the offices of some legal service firms are even located inside the court or its tribunals, and some basic-level legal workers occasionally work as judicial clerks during court trials or even draft judicial opinions for the judges. More frequently, basic-level legal workers would give judges a certain amount of “kickback” for every case referral, usually 20-30 per cent of the billings.
In fact, giving inducements to judges is not the prerogative of basic-level legal workers, but a general survival rule that most law practitioners in ordinary litigation must follow, regardless of their formal identities.
Lawyers with no previous work experience or connection to the judicial agencies also have to use a variety of means to nurture their relationship with judges. Sometimes this takes the form of negotiated exchange, such as giving “kickbacks” to the judge on a case-by-case basis. More frequently, however, lawyers and other practitioners use reciprocal exchange to maintain and consolidate their symbiosis with judges. A successful lawyer in Taiyuan gives a great lecture on the subtle techniques of reciprocal exchange:To maintain these relations, even if [you have] no money and cannot give gifts, [you] still have to accumulate emotions in a piecemeal way, to penetrate step by step. Even if nothing is urgent, make some phone calls for greetings, ask whether he needs help in the family, and keep in touch, when cases come up give it to me your buddy. Remember his birthday and his child's birthday, because some people may not support their parents, some people may not love their wives, but everybody cares about his children. Send a small cake when the time comes, some emotional credits are established, and let him refer cases to me. These kinds of things are not about the amount of money, because the greediness of human beings could never be filled, but about striking him with emotions. If I give cigarettes to the judge, no matter how many judges are in the office, I always give each person a pack, five packs of cigarettes are only a little more than 100 yuan. Just like the commercial says, “Input one drop of water every day, when difficulties come up, you will have the pacific ocean.”
This quotation clearly shows the incremental nature of reciprocal exchange. To build a solid bridge from market to state, case-by-case monetary transactions are necessary but often not sufficient. Emotional attachment and mutual trust are at least equally important. Moreover, as receiving money or gifts for specific cases is considered to be corruption, reciprocal exchange is a safer choice in order to evade external sanction. Other techniques that law practitioners adopt in symbiotic exchange with judges include hosting dinners and entertainments, playing “business mah-jongg” with judges and intentionally losing money, or even renting apartments in the court's residential community and becoming neighbours with judges. In a nutshell, the symbiosis between market and state actors often rests on emotions and trust rather than pure economic benefits.
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