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刘春泉律师电子商务专栏

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上海段和段律师事务所合伙人。 信息网络及知识产权专业领域资深律师。业务涉及商业地产,民航,企业商务法律事务,兼并收购,诉讼仲裁,高新技术企业认定,外商投资,等。 中国电子商务协会政策法律委员会副主任。

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Beijing Review's report  

2005-09-14 19:59:08|  分类: 媒体采访和报道 |  标签: |举报 |字号 订阅

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Improving Lawyer Administration
The role of lawyers’ associations should be strengthened, while the
influence of administrative management reduced
By WU WENHE

EXPLAINING THE LAW: Lawyer Zhang Dianying of the Harbin-based Xincheng Law Office explains related law articles to clients
One of the most important challenges in the revision of China’s law relating to the legal profession is to further improve the lawyer administrative system.
China’s current lawyer administrative system is a combination of the supervision and guidance of the judicial administration department and the administration of lawyers associations. This combination is known as a “dual administrative system.”
In the Law on Lawyers, Article Four of Chapter One stipulates that the judicial administration department under the State Council shall supervise and guide lawyers, law firms and lawyers associations in accordance with this law. Some scholars think the judicial administration department should only be engaged in “macro-administration” instead of the direct administration provided for in this provision. However, this law also stipulates in Chapter Seven of legal liabilities that the judicial administration department shall impose a penalty of cessation of practice on lawyers or law offices that have violated this law. This regulation regards the judicial administration department as the subject of administrative penalty, meaning it possesses direct administrative power. This contradicts stipulations in Article Four.
The contradiction prompted a proposal to delete the seventh chapter of legal liabilities in the Law on Lawyers during the revision process, while relevant contents are proposed to be stipulated in detail by the All-China Lawyers Association in rules related to lawyers’ standard vocational behavior. This will help highlight the role of professional management of the lawyers association.
There is also a consensus within the legal fraternity that the future lawyer administrative system should focus on strengthening the role of the lawyers’ association in professional management and reducing the influence of administrative management. The revision of the lawyers law is expected to involve related contents, but most legal practitioners feel pessimistic about making fundamental changes to the dual administrative system.
Wang Jinxi, associate professor of the law school at the China University of Political Science and Law, said it is essential to insist on the dual administrative system at present. According to Wang, the legal profession not only has special professional attributes, but also clear attributes of public service. And the dual administrative system is a reflection of the two attributes in terms of the administrative model. The essence of this kind of dual system exists in the lawyer administrative system of many other countries. In practice, the operating mechanisms of lawyers associations needs fine tuning, and much work lies ahead before they can achieve total self-governance, meaning the judicial administration department will be playing a role in the foreseeable future.

SHARP ARGUMENT: A lawyer (center) in Chongqing Municipality engages in a courtroom debate
However, Wang also advocates improvement of the current dual administrative system. First of all, he said, the judicial administration department functions well in terms of administration but is rather weak in terms of service. This is especially reflected in the exclusive right of the department in carrying out the administrative penalty on lawyers, as well as its inadequate function in managing and integrating the law service market. All these need to be addressed in the revision process.
And further reform of the lawyers associations is most important in perfecting the dual administrative system, said Wang.
Wu Yuhua, Director General of the Beijing Judicial Bureau, believes that the lawyers associations’ function of punishing lawyers needs strengthening through the revision of the Law on Lawyers, in order to reflect the authority of these organizations. Presently the decision on discipline penalty given by the lawyers associations belongs to professional management and still lacks legal force. As a result, in practice lawyers or law firms usually do not carry out the decisions of lawyers associations when the need for discipline arises.
To combat this, Wu suggested the Law on Lawyers should entitle lawyers associations with other rights of discipline, apart from the right of revoking the certificate of lawyers or law firms, as well as the right of investigating and collecting evidence. As for those who do not follow the disciplinary procedures in due time, the lawyers associations can require relevant authorities to enforce implementation.
Liu Chunquan, a lawyer at the Shanghai office of Guangsheng Law Firm, agreed with the revision of relevant articles to strengthen the disciplinary function of the lawyers association. He said that lawyers associations should set up a commission for punishment which is composed of lawyers, judges and scholars with high social standing. But Liu also thought that the disciplinary penalty of lawyers association cannot replace the administrative management of the judicial administration department at present.
In addition, whether the range of the organizational structure of law firms will be expanded is also a hot topic in the revision of the lawyers law.
Currently, the law has stipulated three kinds of structures: state-owned, cooperative and partnership law firms. Since the law was implemented eight years ago, partnership law firms have developed rapidly and now represent the dominant structure.
It has been suggested that the revision of the law should include a form of limited partnership law firms. Wang Li, founder of the Deheng Law Office, believes that it will help law firms grow stronger. Established in 1993, Deheng is the first law firm in China to practice a global partnership system. Headquartered in Beijing, it has branches in nine other cities in the country and cooperative organizations in Hong Kong, Holland, the United States, France, Germany, Canada, Australia, Japan, the Republic of Korea and India. Wang Li said that according to the present law, the law firms bear unlimited liabilities, which burdens in their development.
Wang Li also suggested that while developing limited liability partnership law firms, an effective corresponding professional insurance system needs to be promoted in order to ensure the clients’ interests.
    
 
 
 

 
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