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LAW ON LAWYERS AND LEGAL REPRESENTATION

(Promulgated by the 19th meeting of the Eighth National People's
Congress Standing Committee on May 15, 1996)



 

 

SUBJECT: LAWYERS AND COURTS

ISSUING-DEPT: THE NATIONAL PEOPLE'S CONGRESS

ISSUE-DATE: 05/15/1996

IMPLEMENT-DATE:01/07/1997

LENGTH: 3934 words

TEXT:

Table of Contents:

Chapter I. General Rules
Chapter II. Requirements for Lawyers to Set up Practice
Chapter III. Law Offices
Chapter IV. Business, Rights and Obligations of Lawyers Who Set up in Practice
Chapter V. Bar Association
Chapter VI. Legal Assistance
Chapter VII. Legal Responsibility
Chapter VIII. Supplementary Articles

Chapter I. General Rules

Article 1. This law is formulated to improve the system of legal representation, ensure that lawyers conduct their business in accordance with the law, standardize lawyers' behaviour, protect the legitimate rights and interests of litigants, safeguard the correct enforcement of laws and bring into full play the positive role of lawyers in establishing a socialist legal system.

Article 2. Lawyers mentioned in this law refer to personnel who have obtained a business licence for setting up a lawyer's practice in accordance with the law and who are providing legal services for the public.

Article 3. When setting up a practice, lawyers must abide by the Constitution and the law, and must scrupulously observe professional ethics
and discipline. Lawyers who set up in practice must use facts as a basis and the law as criteria.

Lawyers who set up in practice must accept supervision by the state, the public and litigants. Lawyers who set up in practice in accordance the law are protected by the law.

Article 4. The judicial administration department of the State Council shall supervise and provide guidance for lawyers, law offices and bar associations in accordance with this law.

Chapter II. Requirements for Lawyers to Set up Practice

Article 5. To set up in practice, lawyers must have obtained both the credentials of a lawyer and a lawyer's business licence.

Article 6. The state is implementing a system of holding examinations in a unified way nationwide for lawyers' credentials. Personnel with a formal schooling record at and above the level of professional college training in the science of law at institutions of higher learning, or personnel having attained the same level of specialities as well as personnel with a formal schooling record at and above the level of regular college course other than the science of law, will be conferred with lawyers' credentials by the judicial administration department of the State Council if they pass the
examination for lawyers' credentials. The judicial administration department of the State Council shall draw up methods for holding examinations in a unified way nationwide for the credentials of a lawyer.

Article 7. If personnel who have a formal schooling record at and above the level of regular college courses majoring in the science of law at institutions of higher learning have been engaged in studying and teaching law and have a senior job title, or have attained the same level of specialities, submit applications for setting up practice as a lawyer, the State Council's judicial administration department shall appraise and approve their applications in accordance with the regulations and confer lawyers' credentials on them after their applications are approved. Article 8. Those who support the Constitution of the PRC and who meet the following requirements may apply for a lawyer's business licence to set up practice:

(1) have a lawyer's credentials;
(2) have worked as a trainee in a law office for a full year; and
(3) show good behaviour.

Article 9. Those who are found to have one of the following conditions shall be denied the business licence of a lawyer to set up practice:

(1) are incapable of civil action or under restrictions to perform civil action; or
(2) have received a criminal sanction, but those who have committed an involuntary crime are excepted; and
(3) those who have been discharged from public employment or have had their lawyer's business licences revoked.

Article 10. Those who submit an application for a lawyer's business licence to set up in practice should submit the following documents:

(1) an application form;
(2) a lawyer's credentials;
(3) training verification issued by the law office at which the applicant works; and
(4) duplicate of the applicant's identification card.

Article 11. The judicial administration departments of people's governments at and above the provincial, autonomous regional and municipal levels shall issue a lawyer's business licence to an applicant if examination finds his or her application meets the requirements stipulated in this law within 30 days after receipt of his or her application, and shall deny an applicant a lawyer's business licence if examination finds his or her application fails to meet the requirements stipulated in this law and serve a notice in writing to the applicant within 30 days after receipt of his or her application.

Article 12. A lawyer should pursue his or her practice at a law office and must not pursue the practice at more than two law offices at the same time. A lawyer is not under restrictions of locality in pursuing his or her practice.

Article 13. Personnel currently working at a state organ are not permitted to set up practice of a lawyer on a part-time basis. While serving as a member of the standing committees of people's congresses at all levels, lawyers are not permitted to set up practice.

Article 14. Those who have not obtained a lawyer's business licence are prohibited to set up practice in the name of a lawyer or act as a legal representative or defend a case in court for economic interests .

Chapter III. Law Offices

Article 15. Law offices are the organizations in which lawyers set up in practice.

A law office should meet the following requirements:

(1) it should have its own name, address and articles of association;
(2) have assets worth more than 100,000 yuan renminbi; and
(3) have a lawyer that meets the requirements stipulated in this law. Article 16. Law offices financed by the state shall independently pursue
the practice of a lawyer in accordance with the law, and shall be responsible for their liabilities with all the assets owned by such law offices.

Article 17. Lawyers may establish an cooperative law office and be responsible for its liabilities with all its assets.

Article 18. Lawyers may set up a law office in partnership. Partners are responsible for the unlimited liability and joint liability of such a law office.

Article 19. The judicial administration departments of the people's governments at and above the provincial, autonomous regional and municipal level shall examine an application for the establishment of a law office, and should issue a business licence to the applicant within 30 days of receiving his or her application if it is found to meet the requirements stipulated in this law, or, if not, deny the applicant a business licence and should serve notice in writing to the applicant within 30 days of receipt of his or her application.

Article 20. A law office may set up a branch. The judicial administration department of the provincial, autonomous regional or municipal people's government of the locality in which such a branch is going to be set up shall examine the relevant application in accordance with stipulated requirements.

A law office shall take responsibility for the liability of the branch it has set up.

Article 21. A law office should report such major events as a change to its name, address, articles of association and partners or a dissolution to the department that originally examined its application for establishment.

Article 22. Law offices should organize lawyers to pursue practice, study laws and national policies, and sum up and exchange working experiences in accordance with their articles of association.

Article 23. When a lawyer accepts a commission for a case, his or her law office shall undertake such a commission in a unified way, sign a commission contract in writing with the client, collect fees from the litigant in accordance with state regulations and accurately enter such fees in the account book.

Law offices and lawyers should pay taxes in accordance with the law.

Article 24. Law offices and lawyers must not try to secure business for themselves by such dishonest competition methods as calumniating other lawyers or paying commission for referral of client.

Chapter IV. Business, Rights and Obligations of Lawyers Who Set up in Practice

Article 25. Lawyers may conduct the following business:

(1) accept appointment by citizens, legal persons and other organizations to act as their legal advisers;
(2) accept commissions for civil and administrative cases by litigants to act as their representatives and participate in lawsuits ;
(3) accept appointment by suspects involved in a criminal case to provide them with legal advice, act as their representatives to appeal or file charges in court and apply for release upon bail pending trial; accept the commission by suspects involved in a criminal case and by defendants or accept the appointment by people's courts to act as defenders; and accept the commission by private party who prosecutes a case by himself, by the victim of a prosecution case or by their close relatives to act as their representatives and participate in lawsuits;
(4) act as representatives for various lawsuit cases to appeal;
(5) accept a commission by litigants to participate in mediation and arbitration;
(6) accept a commission by litigants of legal affairs not related to a lawsuit to provide them with legal services; and
(7) answer questions concerning the law and draft documents for legal proceedings and other documents on legal affairs.
Article 26. A lawyer who acts as a legal adviser should offer his or her opinion on relevant legal issues to clients; draft and examine legal documents; act as a representative to participate in a lawsuit, or mediation or arbitration; handle other legal affairs commissioned by clients; and maintain their legitimate rights and interests.

Article 27. A lawyer who acts as a representative for legal affairs either related or not related to a lawsuit should maintain the legitimate rights and interests of his or her client to the extent that the scope of authorization of the client's commission permits.

Article 28. A lawyer who acts as a defender in a criminal case should present information, material and opinion based on facts and law to prove
the suspect and defendant is not guilty, or only guilty of misdemeanour, or qualified for a reduction or exemption of the responsibility for a crime to maintain the legitimate rights and interests of the suspect and defendant.

Article 29. A client who has commissioned a lawyer to handle a case for him or her may refuse to let the lawyer continue to defend or act as a representative for the case, or commission another lawyer to act as his or her defender or representative.

After a lawyer accepts a commission to handle a case, he or she must not refuse to defend or act as a representative without good reason. However, if the case commissioned is illegal and if the client uses the services provided by a lawyer to conduct illegal activities or conceal a fact, a lawyer has the right to refuse to act as a defender or a representative for such a case.

Article 30. When participating in a legal action, a lawyer may collect and consult information and material related to the case in accordance with the stipulations contained in the litigation law, meet and correspond with the parties whose personal freedom is under restriction, attend court hearings, participate in a lawsuit and enjoy such other rights as are stipulated by the litigation law.

When a lawyer acts as a representative or a defender in a lawsuit, his or her right to dispute and defend should be protected in accordance with the law.

Article 31. With the approval of relevant units or individuals, a lawyer may make inquiries with them to conduct investigations after he or she has
undertaken to handle a legal matter.

Article 32. A lawyer's personal rights are immune to violation when he or she is conducting the business activities of a lawyer's practice.

Article 33. A lawyer should keep state secrets and a litigant's commercial secrets learned through conducting the business activities of a lawyer's practice, and should not disclose the privacy of litigants.

Article 34. A lawyer is prohibited from acting as a representative for both parties in the same case.

Article 35. When conducting the business activities of a lawyer's practice, lawyers are prohibited from:

(1) privately accepting a commission from a client to handle a case, or privately collecting fees from a client who gave the case to him or her, or accepting money or personal belongings from the client;
(2) trying to gain rights and interests disputed between both parties to a lawsuit by taking advantage of the opportunity arising from providing legal services, or accepting money or personal belongings from the other party to the case of litigation;
(3) meeting a judge, public procurator or an arbitrator in violation of the regulations;
(4) inviting a judge, public procurator or an arbitrator or other
relevant personnel to dinner, or offering gifts or bribes to them, or
instigating or misleading litigants into offering bribes;
(5) providing false evidence, concealing facts or coercing or luring others by promise of gain to provide false evidence or conceal facts, or interfering with the lawful gathering of evidence by other party to the lawsuit; or
(6) disturbing the order of a law court or an arbitration court or interfering with the normal proceedings of legal action or arbitration. Article 36. Lawyers who have acted as a judge or a public procurator are prohibited from acting as a representative or a defender for a lawsuit within two years of leaving their posts at the people's courts or people'sprocuratorates.

Chapter V. Bar Association

Article 37. The bar association is the legal entity of a social organization and an organization for lawyers to exercise self-discipline. The All-China Lawyers'Association ACLA , a national organization, has been established, while local bar associations have been established in all the provinces, autonomous regions and municipalities. Cities with districts may establish local bar associations in the light of their needs.

Article 38. The articles of association for bar associations shall be drawn up by a national congress of members of bar associations in a unified way, and shall be reported to the judicial administration department of the State Council for the record.

Article 39. Lawyers must join the local bar association in the locality in which their law offices are located. Lawyers who have joined a local bar association will automatically become ACLA members . In accordance with the articles of association of a bar association, members of a bar association are entitled to enjoy the rights endowed by its articles of association and should fulfil the obligations stipulated by the articles of association.

Article 40. Bar associations should fulfil the following duties:

(1) guarantee that lawyers pursue their practice in accordance with the law, and maintain the legitimate rights and interests of lawyers;
(2) sum up and exchange the experiences acquired by lawyers in conducting their work;
(3) organize training of the practice of a lawyer;
(4) conduct education in, inspection of and supervision over the professional ethics and discipline of lawyers;
(5) organize lawyers to conduct exchanges with foreign counterparts;
(6) mediate disputes arising from lawyers' pursuit of their practice; and
(7) other duties stipulated by laws. Bar associations shall award or punish lawyers in accordance with their
articles of association.

Chapter VI. Legal Assistance

Article 41. When citizens need lawyers'assistance to request support, or compensation or the issue of pensions for the disabled or for the family of the deceased from the state for injury suffered during the course of work or to file a criminal suit but cannot afford the counsel fee, they may receive legal assistance according to state regulations.

Article 42. Lawyers must undertake the obligation to provide legal assistance in accordance with state regulations, fulfil their duties and provide those who need assistance with legal services.

Article 43. Specific measures for legal assistance shall be drawn up by the State Council's judicial administration department and submitted to the State Council for approval.

Chapter VII. Legal Responsibility

Article 44. The judicial administration department of the provincial, autonomous regional and municipal people's government and of the people's government of a city with districts shall serve a disciplinary warning to lawyers found to have committed one of the following violations. If the degree of violation is found to be serious, they shall be suspended from pursuing their lawyer's practice for a period of more than three months and less than one year. Whatever illegal income they have received shall be confiscated .

(1) Conduct business at more than two law offices at the same time;
(2) act as a representative for both parties to a lawsuit in the same case;
(3) try to secure business for themselves by such dishonest competition methods as calumniating other lawyers or paying commission for referral of client;
(4) refuse to defend or act as a representative for a client without a good reason after having accepted a commission from the client to handle a case;
(5) fail to appear on court on time to participate in a lawsuit or arbitration without a good reason;
(6) disclose a litigant's commercial secret or personal privacy;
(7) privately accept the commission by a client to handle a case, or privately collect fee from a client who commissioned the case to them, or accept money or personal belongings from client, or try to gain the rights and interests disputed between both parties to a lawsuit by taking advantage of the opportunity arising from providing legal services, or accept the money or personal belongings from the other party to the case of litigation;
(8) meet with a judge, or a public procurator, or an arbitrator in violation of regulations or invite a judge, or a public procurator, or an arbitrator, or other relevant personnel to dinner, or offer gifts or bribes to them;
(9) interfere with the legal obtainment of an evidence by other party to the lawsuit; or
(10) disturb the order in a law court or an arbitral court or interfere with the normal proceedings of legal action or arbitration; or
(11) conduct other punishable activities.

Article 45. The business licence of a lawyer shall be revoked by the judicial administration department of the provincial, autonomous regional and municipal people's government if the lawyer is found to have committed one of the following violations. If such violations constitute a crime, the lawyer shall be prosecuted for criminal liability;

(1) If he discloses a state secret;
(2) offers bribes to a judge, public procurator or an arbitrator, or other relevant personnel or instigate or mislead litigants to offer bribes; and
(3) provides false evidence, conceals an important fact or coerces or lures others by promise of gain to provide a false evidence or conceal an important fact.

The business licence of a lawyer should be revoked if he or she is given a criminal sanction for having deliberately committed a crime.

Article 46. Public security organs shall order those who provide legal services by passing themselves off as a lawyer to stop their illegal
business activities, confiscate their illegal income and impose a fine of no more than 5,000 yuan in conjunction with a punishment of detention for no more than 15 days.

Judicial administration department of people's government at and above county level shall order those who act as a legal representative and defence, without a lawyer's business licence in a lawsuit for economic interests, to stop them practising illegally as a lawyer, confiscate their illegal income and impose a fine of between 100 and 500 per cent of their illegal income
.
Article 47. If law offices are found to have violated any of the regulations contained in this law, the judicial administration department of provincial, autonomous regional and municipal people's government shall order them to correct their violation, confiscate their illegal income and impose a fine to an amount between 100 and 500 per cent of their illegal income. If the degree of their violation is serious, they shall be ordered to stop practising as a lawyer, or conduct consolidation, or have their business licences revoked.

Article 48. If those who have been given a punishment refuse to abide by the decision on administrative penalty made by a judicial administration department, they may apply to the judicial administrative department at the higher level for a reconsideration within 15 days after receipt of a decision on administrative penalty and, if they refuse to abide by the decision made after reconsideration, they may either take legal proceedings in a people's court within 15 days after receipt of the decision made after reconsideration or directly take legal proceedings in a people's court as
published .

Anyone who fails to apply for an administrative reconsideration or file an administrative lawsuit and refuses to comply with a penalty decision after having a fine imposed, the judicial administration department which made the penalty decision may request a people's court to enforce such a decision. If anyone who has applied for a lawyer's business licence according to Article 11 of this law or for the establishment of a law office according to Article 19 of this law refuses to accept the decision of the judicial administration department denying him or her a lawyer's or law office's business licence, he or she may apply for reconsideration or take legal proceedings in accordance with the procedure stipulated in the first paragraph of this article.

Article 49. If a lawyer causes a litigant to suffer losses because he or she is practising as a lawyer illegally or has made a mistake, the law
office at which he or she works shall assume the liability to pay compensation. After the law office has paid compensation, it may ask
compensation in return from the lawyer who is found to have committed a deliberate or serious act of negligence. Lawyers and law offices are not entitled to an exemption from or a ceiling Chinese: xian zhi 7098 0455 on the civil liability which they should assume for the losses suffered by their litigants because they are practising illegally as a lawyer's or have made a mistake.

Chapter VIII. Supplementary Articles

Article 50. The regulations contained in this law apply to the obtainment of a lawyer's credentials by military lawyers who provide legal services for the military as well as their rights, obligations and code of conduct. The specific measures for the administration of military lawyers shall be separately drawn up by the State Council and the Central Military Commission.

Article 51. Measures for the administration of foreign law offices setting up organs and providing specified gui ding de 6016 1353 4104 legal services in the territories of the PRC shall be drawn up by the State Council.

Article 52. The judicial administration department of the State Council shall draw up specific measures on the charge of counsel fee by lawyers and submit them to the State Council for approval.

Article 53. This law is to go into effect on 1st January 1997 and the " PRC Interim Regulations on Lawyers" adopted by the 15th meeting of the Fifth National People's Congress Standing Committee on 26th August 1980 shall be abolished at the same time.