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Statement by Chinese Lawyers on Not Participating in Unlawful Annual Inspections and Assessments

March 15, 2015

[Translation by Human Rights in China]

Chinese Original

Both the 1980 Interim Regulations of the People's Republic of China on Lawyersand the 1997Law of the People's Republic of China on Lawyers(including the 2001 Law on Lawyersas amended) did not contain any requirement that lawyers undergo annual assessment or inspection.

Article 23 of the Law on Lawyersrevised in 2007 and effective on July 1, [1] 2008 — prescribes: “A law firm shall establish and enhance...annual assessment...and other systems, and supervise its lawyers’ compliance with the professional ethics and practice discipline in their practice activities.” [2]

Article 24 states: “After completing each year's annual assessment, a law firm shall submit its annual practice information report to the department for the administration of justice of the people’s government at the level of a city divided into districts or to that of a district of a municipality directly under the Central Government.”

In 1989 the Ministry of Justice enacted the People's Republic of China Management Measures for Lawyers' Practicing Licenses and Lawyer's (Guest) Work Permits (“Management Measures”), which require annual registration of a lawyer’s practice license, and failure to do so would result in the license becoming invalid; the annual inspection requires payment of an annual registration fee (which was later changed to membership dues payable to lawyers associations). Despite its being in conflict with both the Constitution, the Interim Regulations on Lawyers, and the Law on Lawyers the Management Measures had still not been abolished when the Legislation Law was implemented in 2000.

In April 2010, the Ministry of Justice promulgated the Measures for the Annual Inspection and Evaluation of Law Firms (Ministry of Justice Decree No. 121), which stipulates that annually, from March through May, bureaus of justice in cities divided into districts in all provinces should conduct annual inspections and assessments of law firms. It further mandates integrating lawyers associations’ annual assessments of lawyers' practices as well as the reviewing and stamping of the administrative filings of the results of those annual assessments of lawyers. To complement this effort, the All China Lawyers Association has established the Rules for the Annual Evaluation of Lawyers' Practice. All provincial-level departments (bureaus) of justice and lawyers associations followed suit and established corresponding implementation documents.

In order to compel annual inspections and assessments, the Ministry of Justice stipulates in its Decree No. 121, in violation of both the relevant provisions of the Law on Lawyers and the provisions of the Administrative Permits Law relating to the revocation of administrative permits, that law firms which do not participate in the annual inspections and assessments will be deemed voluntarily closed and have their practice license withdrawn or revoked. Further, all lawyers' licenses and law firms' practice permits produced and distributed by the Ministry of Justice are printed with special filing pages for annual inspections and assessments with text that underscores the necessity of participating in annual assessments.

Since then, both authorities for the administration of justice and lawyers associations across the country have been conducting cumbersome annual inspections and assessments of lawyers and law firms. Lawyers and law firms must first pay membership dues to the lawyers associations and engage accounting firms to perform financial audits. Subsequently they must conduct assessments of their lawyers and then submit the assessment materials to the county-level bureaus of justice for preliminary review. After which the materials must be forwarded to the city-level bureaus of justice and lawyers associations and shall publicly announce the results of the review after they have conducted it. Next, the city-level (or provincial-level if administered at the level of the provincial government) departments and bureaus of justice must stamp each lawyer's license (using a special seal for annual assessments) using one of the following three grades: “competent,” “basically competent,” or “incompetent.” They must also stamp each law firm's permit (again using a special seal for annual assessments) according to one of the following two grades: “pass” and “fail.” This tortuous annual process is not only a huge waste of human and financial resources of lawyers, law firms, lawyers associations, and authorities for the administration of justice, but also provides a pretext for suppressing lawyers and unlawfully restricting a great number of lawyers on taking up so-called “sensitive cases.” Lawyers who do not toe the line will not pass annual inspections and assessments.

Article 5 of the Constitution of the People's Republic of China stipulates: “All state organs, … political parties and social organizations, and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution and the laws must be investigated.” Article 90 of the Constitution stipulates: “The ministries and commissions issue orders, directives and regulations within the jurisdiction of their respective departments and in accordance with law and the administrative regulations, decisions and orders issued by the State Council.”[3]

Article 71 of the [2000] Legislation Law of the People's Republic of China stipulates: “The various ministries…under the State Council exercising regulatory functions may enact administrative rules within the scope of their authority in accordance with national law, administrative regulations, as well as decisions and orders of the State Council. Matters governed by the rules of departments shall be those for the enforcement of the laws or the administrative regulations, decisions and orders of the State Council.”

The 2013 Plan for the Institutional Restructuring of the State Council and Transformation of Functions Thereof (III) stipulates: “Apart from those prescribed by laws, administrative regulations or clearly laid out by the State Council, all other qualification assessment, performance ranking, appraisal and relevant inspection activities are abolished”; Article 11 of the General Office of the State Council Notice [2013] No. 22 Concerning the Division of Tasks for Implementation of the “Plan for Institutional Reform and Functional Transformation of the State Council" stipulates “the task of abolishing qualification assessment, performance ranking, appraisal and relevant inspection activities other than those prescribed by laws, administrative regulations or clearly laid out by the State Council” must be accomplished by the end of June 2013.

According to the above provisions, annual inspections and assessments of lawyers and law firms as well as the compulsory filing and stamping of those inspections and assessments (by authorities for the administration of justice at all levels of government) are in violation of the Constitution and the law. In addition, they undermine the proper implementation of the law, unlawfully add obligations and burdens to lawyers and law firms, and increase the costs for lawyers in obtaining and replacing their licenses. At the same time, annual inspections and assessments seriously mislead society and create tremendous obstacles to the practice of lawyers who have not undergone such annual inspections and assessments and filing and stamping processes.  This is because:

  • The three grades assigned for the annual inspections and assessments results are insulting and ludicrous (for example, a lawyer whose license is stamped with “incompetent” can still practice law).
  • Making the results of lawyers' annual inspections and assessments available to the public is an act of discrimination that categorizes lawyers into a group that requires special monitoring by the general public (by contrast, all kinds of assessment results or even administrative punishment records of civil servants are not made public).
  • These unlawful acts also protect lawyers associations which are illegally overcharging for membership dues, thus adding to the burdens of the lawyers.
  • And finally, for lawyers they dislike, they cause difficulties in their legal practice by setting up obstacles in their annual inspections.

Since 2014, many groups of lawyers have petitioned the National People's Congress, the State Council, and the Ministry of Justice demanding the abolition of both the Ministry of Justice's Measures for the Annual Inspection and Evaluation of Law Firms and the system for annual inspection of lawyers. Others have submitted applications for administrative reconsideration to the Ministry of Justice, asking for confirmation that the annual inspection and assessment of lawyers and law firms are in violation of the law. Unsatisfied with the response of the Ministry of Justice, petitioners sought a ruling from the State Council, but their application was not dealt with in accordance with the law. The Ministry of Justice has thus far declined to correct the matter.

Article 2 of the Law on Lawyers stipulates: “A lawyer shall protect the lawful rights and interests of parties, ensure the correct implementation of the law, and safeguard fairness and justice of the society”; Article 3 stipulates: “In his/her legal practice, a lawyer must abide by the Constitution and the laws.” According to the above provisions, lawyers have the obligation to comply with the law and ensure the correct implementation of the law. By conducting annual inspections and assessment of lawyers and law firms, authorities for the administration of justice at all levels are negating the effectiveness of Articles 23 and 24 of the Law on Lawyers, itself an unlawful administrative act. Lawyers and law firms who participate in the annual inspection process and seek the filing and stamping process are in fact accomplices of these authorities for the administration of justice in undermining the correct implementation of the law.

In fulfilling lawyers’ responsibilities at law and in safeguarding the law’s correct implementation, we solemnly state: Starting from this year forward, we will only participate in annual assessments organized by the law firms in accordance with the Law on Lawyers and shall no longer cooperate in participating in the unlawful annual inspections and assessments organized by authorities for the administration of justice at any level.

We request that the NPC Standing Committee and the State Council fulfill their responsibilities, ensure the integrity of the national legal system, safeguard the effectiveness and authority of the Law on Lawyers, and abolish Ministry of Justice Decree No. 121 and other related regulatory documents in accordance with the law.

We again demand that authorities for the administration of justice at all levels and lawyers associations at all levels comply with the provisions of the Lawyers Law! We demand that they immediately cease unlawful annual inspections and assessments! And we demand that they stop acting in defiance of the constitutional demands of the rule of law and our national government’s major policies! We call on all other lawyers nationwide to fulfill their legal responsibilities, ensure correct implementation of the law, cease participating in annual inspections and assessments organized by authorities for the administration of justice, and become lawyers that strictly adhere to the Law on Lawyers!

Submitted to:

The Ministry of Justice of the People's Republic of China, the All China Lawyers Association

Duplicates sent to: Standing Committee of the National People's Congress of the People's Republic of China, the State Council, Central Discipline Inspection Commission

Chinese lawyer signatories (38 people):

Cheng Hai (程海), Beijing, 18910535236
Zou Lihui (邹丽惠), Fujian, 13950309665
Ran Tong (冉彤), Sichuan, 18081150948
Tan Yongpei (覃永沛), Guangxi
Wu Youshui (吴有水), Zhejiang
Ge Wenxiu (葛文秀), Guangdong
Wu Kuiming (吴魁明), Guangdong
Wang Longde (王龙德), Yunnan
Lai Jianping (赖建平), Beijing
Xia Jun (夏钧), Guangdong
Fu Yonggang (付永刚), Shandong
Liao Yaozhong (廖曜中), Hunan
Meng Meng (孟猛), Henan
Ge Yongxi (葛永喜), Guangdong
Guo Lianhui (郭莲辉), Jiangxi
Sui Muqing (隋牧青), Guangdong
Liu Jinxiang (刘金湘), Shandong
Chang Boyang (常伯阳), Henan
Lin Qilei (蔺其磊), Beijing;
Peng Jian (彭剑), Beijing;
Xie Yang (谢阳), Hunan;
Mao Xiaomin (毛晓敏), Yunnan;
Liu Zhengqing (刘正清), Guangdong;
Yu Guoqiang (喻国强), Hunan;
Zhang Jianguo (张建国), Beijing;
Wang Shengsheng (王胜生), Guangdong;
Xue Zhanyi (薛占义), Yunnan;
Wang Liqian (王理乾), Yunnan;
Guo Jin (郭进), Shandong;
Han Jianxin (韩建新), Shaanxi;
Li Xinmin (李新民), Jiangsu;
Li Junquan (李浚泉), Liaoning;
Wu Hongwei (邬宏威), Beijing;
Yan Anle (闫安乐), Henan
Note: Cheng Hai's legal practice is unlawfully discontinued for a year (in litigation)
Priority signatories (temporarily unaffiliated but licensed lawyers)
Li Subin (李苏滨), Henan;
Jiang Tianyong (江天勇), Beijing;
Liu Shihui (刘士辉), Guangdong;
Wang Quanping (王全平), Guangdong
March 15, 2015

 

[1] Editor’s note: The Law on Lawyers became effective June 1, 2008.

[2] Editor’s note: Law translation by HRIC except where otherwise noted.

[3] National People’s Congress of the People’s Republic of China, Constitution of the People’s Republic of China, Amended March 14, 2004, available at: http://www.npc.gov.cn/englishnpc/Constitution/node_2825.htm [accessed 24 March 2015].

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