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Annual Inspection on Chinese Legal Practitioner Legal Profession Facing Stricter Controls (5 September 2020)

Over 1,200 practicing certificates were revoked in the Hunan Provincial Department of Justice from April to August 2020, representing a whopping 8% of the number of total practitioners in the province. In August alone, over 600 lawyers’ practicing certificates were invalidated.

 

According to official account, the Ministry of Justice decided to carry out the large-scale operation of invalidating licenses because of a case in April 2020 where the former vice-president and chief legal officer of Shandong Yantai Jereh Group was accused of sexual assault, and was held violating the law for holding two or more concurrent positions.

 

Reasons for Invalidation: Holding a Foreign Passport, or Holding Concurrent Positions

In this operation, most of the lawyers had their practicing licenses invalidated since they held two or more employments concurrently, or because they possessed a foreign passport. According to Article 47 of “Lawyers Practicing Measures”, except legal scholars who engage in academic legal research, lawyers cannot hold positions other than as a lawyer, for instance a position in the management level. Another condition where applicants would be granted the license is that they need to produce a valid identity proof (of Chinese nationality). According to Articles 3 & 9 of the “Nationality Law of the People's Republic of China”, China does not recognize dual nationality. As such, lawyers who possess foreign passports would not be able to obtain practicing licenses, or would have them invalidated.

 

Annual Inspection Regulates the Granting of Practicing Licenses

The two aforementioned stipulations fall within what is called the “Annual Inspection System”, where all legal practitioners are required to apply for the practicing license each year regardless of their years of experience. Yet, there is no clear enunciation of what consideration would be included in determining whether a license would be granted. Applicants who are being rejected also do not have a clear and transparent mechanism to defend or appeal the decision. Similar system can also be found in the “Annual Inspection Measures on Law Firms” that authorities can invalidate or refuse granting law firms the prerequisite practicing licenses to prohibit the operation of law firms.

 

“Annual Inspection System” to Suppress Human Rights Lawyer

In fact, in recent years relevant authorities have marginalised human rights lawyers through measures like invaliding their practicing licenses or demanding law firms to sack them (or otherwise the licenses of the firms would be invalidated). A number of human rights lawyers were disqualified after they represented in sensitive cases, or made sensitive defence or speeches. Authorities can also circumvent criticisms of impeding lawyers’ rights by demanding law firms not to employ some lawyers – according to Article 23 Section 4 of “Lawyers Practicing Measures”, their practicing certificates would be automatically invalidated after not having an employment in a firm for over 6 months.

 

Xie Yang, who was arrested in the “709 Crackdown”, recently had his practicing license revoked. He stated that albeit the authorities argued for the legitimacy of this purging operation, this measure would inevitably be used against human rights lawyers. They would not be able to re-apply for a license after they are disqualified. He further denoted that the purge currently carried out by the Ministry of Justice is the initial step of suppression and lawyers in China would only face a more stringent surveillance.

 

“Basically, lawyers in China do not have right of speech now. Even in ordinary administrative cases, the defence submission would be screened by the departments. You can only say what is allowed to be said.” Without clearly circumscribed standards regarding the granting of licenses, many lawyers would elect to avert all risks to stave off a deliberately uncertain red line to secure earnings. Ultimately, legal practitioners would self-censor to avoid representing for sensitive civil rights or human rights cases, or refuse to make submission or speech even though it may entirely be legally sound.

 

Way Forward

As a Member State of the United Nation, China has the responsibility to strive to achieve the principles listed in the UN’s “Basic Principles on the Roles of Lawyers”, especially Articles 16 and 27, which respectively stipulates that: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;… and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics” and “charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice”.

“Governing the country by law” is one of the key themes of development in China. Yet, the current regulatory framework promulgated on lawyers are quite distant from the standards explicated in the “Basic Principles on the Roles of Lawyers”, as manifested by the plights that China human rights lawyers currently face, such as being disqualified after representing in sensitive or making sensitive defence or speeches, or being subject to arbitrary scrutiny related to the “Annual Inspection” mechanism. It is hoped that China would actively take up the obligation to improve its rule of law conditions so as to eradicate incidents like, to confer a clearly defined rubrics for its license granting procedure, and to provide an open and a transparent mechanisms for lawyers to dispute any rejection of licenses application with effective and legal-based defence and claims.

 

Source

http://www.gov.cn/gongbao/content/2016/content_5113014.htm (Lawyers Practicing Measures)

https://www.immd.gov.hk/hks/residents/immigration/chinese/law.html (Nationality Law of the People's Republic of China)

http://www.moj.gov.cn/government_public/content/2010-04/10/fggz_6423.html (Annual Inspection Measures on Law Firms)

http://www.gov.cn/gongbao/content/2016/content_5109321.htm (Law Firms Measures)

https://www.rfa.org/english/news/china/lawyers-purge-09012020100642.html... (Radio Free Asia Report on 660 Lawyers in Hunan Have Law Licenses Revoked in China Attorney Purge)

https://sohfrance.org/zhongguolvshijiezaozheng-hunanyuqianlvshizhengbeiz... (Sound of Hope Europe Report on "China Lawyers are Impeded    More than a Thousand Lawyers' Praciticing Certificates were Invalidated in Hunan")

https://www.un.org/zh/documents/treaty/files/OHCHR-1990-2.shtml (United Nation's Basic Principles on the Roles of Lawyers)