May 20, 2006
New regulations hobble lawyers in mass litigation
Various government and quasi-government bodies at both central and local levels have recently issued regulations designed (in my view) to inhibit lawyers from effectively representing plaintiffs in mass litigation and parties (perhaps including defendants) in other lawsuits deemed "sensitive."
In April, the Shenyang municipal government's Justice Bureau (the body in charge of lawyers) issued its "Several Opinions on Reporting and Requesting Instructions by Lawyers When Handling Important, Difficult, or Sensitive Cases" (沈阳市律师承办重大疑难敏感案件请示报告的若干意见). I don't have the original text, but according to a report on the Ministry of Justice's Web site, lawyers must report to, and seek instructions from, the Justice Bureau before undertaking "important," "difficult," or "sensitive" cases.
Just before that, on March 20, the All-China Lawyers Association issued its "Guidance Opinion on the Undertaking by Lawyers of Mass Cases" (中华全国律师协会关于律师办理群体性案件指导意见). Lawyers who take such cases must report to judicial bodies, government bodies, and the ACLA, and the Opinion is full of language suggesting quite clearly that they should be pretty darn careful about what cases they take and how they handle them. Its reporting requirements leave no room, among other things, for client confidentiality.
For a brief report from the China Digital Times, click here. Below is an analysis, reproduced here with the author's kind permission, contributed to the Chinalaw listserv by Keith Hand, visiting lecturer at the Yale Law School and senior fellow at YLS's China Law Center:
This appears to be a significant development. The opinion applies to both "collective" cases (cases involving more than ten people) and "major sensitive" cases. The opinion requires lawyers to immediately report to local lawyers associations and judicial administrative organs when they take such cases, "accept the supervision and guidance" from these entities, and keep the relevant organs informed when they discover problems that might "intensify" disputes. It admonishes them to have a "high sense of social responsibility" and "respect for the law," "uphold social stability," and focus on helping the parties resolve disputes through legal and peaceful channels. Lawyers are prohibited from encouraging or participating in "petitioning activities," activities that violate social order, or activities that disturb the normal work of state organs as they press for the resolution of disputes. The opinion also direct lawyers to "appropriately grasp" the relationship with media and to "cautiously approach" contacts with foreign organizations and media. Violations may result in professional sanctions. Authorities in some provinces have reportedly issued similar regulations.
The opinion clearly is an attempt to limit the impact of the growing right-upholding movement, which has been effective in accelerating systemic legal reforms in some cases. Interestingly, though, the opinion also explicitly encourages lawyers to pursue cases through the legal system. It recognizes that "the involvement of lawyers in these cases helps the government, enterprises, etc. behave in accordance with law" and that "by becoming involved in individual cases, lawyers can conduct analysis and inquiries and raise legal opinions and suggestions" and "help promote judicial and legislative activities" and "administration according to law." It also contains provisions directing lawyers associations to take action to protect lawyers who encounter difficulties. By limiting extracurricular activities but acknowledging the important role of lawyers using legal channels (and their need for protection), the opinion (presumably issued at the direction of government authorities) would seem to raise the stakes for the government to deliver effective legal channels for resolving disputes, and make it more awkward to repress lawyers who use such channels (sometimes effectively to promote systemic legal reform, as several cases have demonstrated in the past few years).
May 19, 2006
USTR seeks Senior Trade Representative in China
The Office of the USTR has an opening for a Senior Trade Representative in China, stationed in Beijing. The announcement is posted here. Note the deadline: May 31!
University of Washington's Chinese law research guide
Since I just mentioned the guide to Chinese law research published by Kara Phillips (my former student at the University of Washington School of Law), let me mention another fine product of that institution, Chinese Law Research at the University of Washington, prepared and newly updated as of January 2006 by their able comparative law librarian and my former colleague, Bill McCloy. Without prejudice to the many guides to Chinese law research now available - and here I must mention Wei Luo's long-standing Internet Chinese Legal Research Center as well as his and Joan Liu's Complete Research Guide to the Laws of the People's Republic of China - Bill's opus strikes me as indispensable for anyone starting out to research any Chinese law topic. Those who have been in the field for a while may be surprised by what's become available since they wrote their law school note.
I've compiled a list of all the guides and meta-guides I know of that's available here. Please send me the URL of any others you know of.
May 18, 2006
Attendance limited at trial of Zhou Yezhong case
The Beijing No. 2 Intermediate People's Court, whose quarters are displayed in the accompanying photo, has decided that its quarters are too cramped to allow for more than eight (that's right - eight) members of the public to observe the upcoming trial of the Zhou Yezhong plagiarism case, previously blogged on first here and later here. According to the blog posting of the plaintiff's attorney, Pu Zhiqiang (浦志强), he was notified by the court that the eight available seats would be divided fairly among the parties: two seats to each of the three defendants (Zhou Yezhong, his research assistant Dai Jitao, and their publisher the People's Publishing House) and two to the plaintiff, Wang Tiancheng.
Genuinely public trials thus remain more a theory than a fact in China. The Court Organization Law has called for open trials since it was promulgated in 1979, and yet open trials did not occur. Article 120 of the Civil Procedure Law has called for open trials since its promulgation in 1991, and yet open trials did not occur. In March 2003, almost a quarter of a century after the passage of the Court Organization Law, the Supreme People’s Court announced that the open trial system "was being successfully implemented." Yet courts still maintain tight control over who may observe their functioning. Obviously, courts do not have unlimited space, and certain restrictions are sometimes appropriate for the sake of maintaining order. But it is hard to avoid the suspicion that something else is involved here.
May 17, 2006
Visiting Scholar fellowship at Peking U's School of International Studies
Here's something that's potentially related to Chinese law, so I'm going to stretch a point and post it, as it may be of interest to readers.
Peking University's School of International Studies is offering fellowships to visiting scholars of several months at a time. There is a stipend of about RMB 16,000 per month (about $2000) as well as round-trip air fare. It's still not too late to apply for this fall; see the deadlines in the announcement: Download PKU_VS_Fund.pdf
May 16, 2006
China Law Reporter resurrected; new bibliography and guide to web-based resources for Chinese law
I'm pleased to announce the resurrection (of a sort) of the China Law Reporter, published by the China Committee of the ABA's Section on International Law. This incarnation of the China Law Reporter takes the form of a bimonthly electronic newsletter, although the editors hope to make it a monthly. The first issue (May 2006) is available here.
The China Committee has also put on its web site a guide entitled Web-Based Research Guides on PRC Legal & Business Resources, compiled by Kara Phillips of the Seattle University Law Library. This guide includes a partial bibliography of English-language literature on Chinese law.
May 15, 2006
Complaints about foreign law firms in Shanghai
The Shanghai Lawyers Association recently issued a memorandum decrying what it called the unauthorized practice of law by foreign law firms in China and calling for a crackdown by the authorities. For details of the memorandum, see the reports by China Confidential and the China Law Blog (not to be confused with this blog). The China Law Blog has posted Chinese and English texts.
A few comments (slightly modified from original posting):
- This is about protecting Shanghai lawyers from competition, not about protecting the public or the clients of the foreign lawyers. The memorandum does not even bother to pretend otherwise, and explicitly highlights the harm done to Shanghai lawyers. Remarkably, the memo does not ever claim that the foreign lawyers have actually given bad advice.
- It is not quite accurate to suggest, as does the China Law Blog, that everyone does the same thing. The China Law Blog says, "Foreign lawyers are not allowed to practice in any of the 50 U.S. states." The states typically (I think) do not distinguish between citizens and non-citizens. They distinguish between those who have passed the state bar and those who have not. LL.M. programs in the U.S. are heavily populated by foreign lawyers who, upon graduation, typically take the New York or California bar exams and then qualify to practice. By contrast, foreigners are not allowed to qualify as PRC lawyers. Even Hong Kong and Macao lawyers may not represent clients in court. These restrictions stem from the still-powerful conception of the legal system, and particularly courts, as part of the state security apparatus; the participation of persons over whom the government has incomplete authority must therefore be limited.
- This is not a WTO issue. The China Law Blog posting wonders why South Korea's complete prohibition of foreign lawyers is not a WTO violation. The answer is that the WTO agreements (the relevant one would be the GATS) do not require you to allow foreign lawyers to practice. China, unlike South Korea, has made some specific promises about legal services (as part of its accession agreement), and those are set forth in its Services Schedule. I doubt that a crackdown would violate any of the those promises, so there are no grounds for a WTO complaint.
- While lawyers in Shanghai and no doubt elsewhere are pushing for a crackdown, there are forces pushing in the other direction, and not just the foreign lawyers. Local bureaux of justice, for example, derive benefits from regulating foreign law firms that they would lose if the foreign firms were to be driven out or reduced in size. Thus, the struggle is not completely one-sided.
Thanks to China Law Blog for bringing this to everyone's attention.