Legalprofession
the needs of the new society.[137] The 1980-adopted Provisional Regulations on Lawyers re-established the legal profession. Lawyers were, however, defined restrictively as â€?state legal workers' with the task â€?to provide legal assistance to state organs, enterprises and institutions, social organisations, people's comÂmunes and citizens'.[138] Put simply, lawyers were just like other government employees and their mission was to advance state interests through legal work.
In 1996 a formal Lawyers Law was adopted, in which lawyers were redefined in a much less politically charged way as legal practitioners licensed to �provide legal services to the society'.[139] Despite the strong rhetoric of socialism and the avoidance of the more typical description that lawyers should provide legal services to clients, under the new law �Chinese lawyers [were] now nevertheless allowed by Chinese law to perform similar functions to those lawyers in other countries'.[140] The Lawyers Law was revised in 2007, and now the definition of a lawyer is one who is licensed to �provide legal services to clients' under a retainer or designation.[141] Under the revised law, lawyers are required to �safeguard the client's lawful rights and interests, safeguard the correct implementation of the law, and safeguard social fairness and justice.'[142] As Peerenboom succinctly remarks, �[t]he change in the definition of lawyers and the toning down of the rhetoric of socialism, particularly when coupled with structural reforms to the organisation oflaw firms, represent steps in the direction of greaterindependence of the legal profession.'[143]
To obtain the practising licence for lawyers, one must pass the National JudiÂcial Examination (NJE) that is held on a yearly basis and have undertaken a traineeship with a law firm for more than one year.
The person also needs to show he or she upholds the PRC Constitution and has good conduct. To sit for the NJE the requirements are that one (1) is a PRC citizen; (2) upholds the PRC Constitution and has rights to elect and be elected to public office; (3) has full capacity for civil conduct; (4) has graduated with an undergraduate degree from a law school or department in a higher educational institution, or from a non-law school or department but has knowledge ofthe legal field; and (5) can show good conduct.[144] Permanent residents or citizens of Hong Kong, Macau and Taiwan are also allowed to participate in the NJE. A lawyer can only practise in one law firm, but there are no geographic restrictions on a lawyer's legal practice within the PRC.The legal form of a law firm could be either a general partnership or special general partnership according to China’s Partnership Enterprise Law (1997; Rev 2006). An individual lawyer with legal practice experience of more than five years could also establish a solo practice, called an �individual law firm', whereby the lawyer bears unlimited liability for all the debts incurred in the firm's practice. Only the state can establish limited liability law firms. An overwhelming majority of the law firms today are partnership firms.
Privatisation has probably had the most significant impact on the legal profesÂsion. If law firms and lawyers are not financially beholden to the state, they will be more likely to confront the state in legal disputes between state and citizens, and even use law as a weapon to limit the state's exercise of powers. That said, the legal profession today is at best semi-independent in the sense that the GovernÂment, or the PRC Ministry of Justice which is charged with regulating law firms and lawyers, has a strong desire to control the legal profession. Although the AllÂChina Lawyers' Association was incorporated as a self-regulatory organisation, it is listed as a â€?subordinate unit' under the Ministry of Justice.[145] Likewise, local lawyers' associations are subordinated to the departments of justice of their local governments.
Despite the many restrictions on lawyers and lawyering, Chinese lawyers are becoming increasingly independent and many of them have taken on the state to safeguard their clients' rights. As Jianfu Chen observes:
Taking advantage of the amendments made to the Criminal Procedure Law of the PRC in 1996 (effective 1 January 1997) that afford defence counsel a greater role in discovÂery, the examination of witnesses and the presentation of evidence, criminal lawyers are becoming more aggressive in defending their clients. Similarly, lawyers are making use of a variety of means provided by administrative laws such as the Administrative Litigation Law of the PRC (effective 1 October 1990) and the Administrative SuperviÂsion Law (effective 9 May 1997) to sue the government and challenge administrative decisions.[146]
An even greater role and better protection was given to lawyers under the 2007 revised Lawyers Law (effective 6 June 2008) in which a whole chapter covers the rights and responsibilities of lawyers. Under art 33 of the new law, as of the date of first interrogation of or adoption of a compulsory measure in relation to a criminal suspect or defendant by the crime investigation organ, an authorised lawyer has the right to meet with the criminal suspect or defendant to gain information related to the case, simply by presenting his or her legal practising licence, law firm certification, and power of attorney or official legal aid papers. Previously such a meeting would, in addition to presentation of the documents above, have required an approval from the judicial authorities. Article 33 also provides that the lawyer's meeting with a criminal suspect or defendant shall not be under surveillance. Before this revision, it was a common practice of the police or procuracy to have their own staff in such meetings. Article 34 of the new LawyersLaw now grants lawyers the rights to read, extract and duplicate all litigation documents and case materials related to their case. Before the revision, they were only allowed to read the relevant materials within the courts or the crime investigation agencies.
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