Forging a common bond
6 February 1998
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11 December 2012
China is enlisting the help of English lawyers in its race to create a modern legal system and profession, says Adrian Hughes. Adrian Hughes is a barrister at 4 Pump Court and co-chairman of the Bar/Law Society joint working party on China.
English and Chinese lawyers and legislators have been building up a relationship over the past 10 years. The results of this relationship can be seen in a number of areas.
For example, English case law is being used by lawyers in Chinese courts in cases in which Chinese law does not provide a solution to a particular problem, while the management practices of English firms and chambers are being introduced to emerging private law firms in Shanghai.
And, following an examination of English law and practice, the Chinese have recently enacted a criminal procedure law which introduces new provisions for the representation of defendants.
Since the late 1970s, China has sought to develop its legal system in conjunction with its transformation into a market economy. During the two decades before 1979 (the years of the "Anti-rightist movement" and the Cultural Revolution) China was virtually without a legal system or a legal profession. The rapid creation of a modern legal system for such a large population was a daunting task.
But within two decades China has introduced more than 320 laws through the National People's Congress and its standing committees. These laws have been implemented down the line through 750 administrative regulations issued by the State Council, 8,000 local regulations and 26,000 ministerial and departmental regulations.
With the aim of achieving a comprehensive legal system by 2010, the legislative process has picked up considerable momentum in the past five years. During this period, the Chinese authorities have placed particular emphasis on comparative study of foreign legal systems.
This process of comparative investigation started with legislation relating to the market economy but has since been extended to other areas including criminal law, the regulation of the legal profession and legal aid systems.
As part of the comparative study 34 Chinese delegations having visited the UK since 1985, with contact between the English and Chinese legal professions being channelled through a joint Bar/Law Society working party. Since 1989, and in conjunction with the School of Oriental and African Studies at London University, the working party has run a practical training scheme for young Chinese lawyers. It is funded by the British government through the Department for International Development.
The scheme takes 15 lawyers a year and consists of a year's academic and practical legal training in England.
Once they return to their Chinese practices, most of the scheme's graduates move rapidly through the ranks in their profession, many setting up their own partnerships.
Relationships forged with their English "mentors" continue throughout their careers.
More than 100 lawyers have passed through the scheme since its inception and can be found practising throughout China, from Beijing to Xinjiang and from Shanghai to Gansu.
The working party also fields visits by Chinese missions and has sent its own delegations to China on three occasions. The most recent visit was made this April when the chairman of the Bar Council, Heather Hallett QC and the president of the Law Society, Phillip Sycamore led a team to Beijing and Shanghai. Important discussions were held with the Ministry of Justice and the All China Lawyers Association (ACLA), which is the equivalent of the Bar Council and the Law Society.
Each visit consolidates the relationship between Chinese government officials, legislators and lawyers and English lawyers, so previous achievements in the various areas of law and legal practice can be built upon.
A previous delegation visit to China in 1994 and a programme of co-operation between judges and practitioners in England and legislators in China has led to exciting developments in Chinese criminal law and procedure.
China is drafting a uniform contract law, the development of which is being followed with particular interest by the team of English lawyers and academics who hosted a visit to this country two years ago by a Chinese delegation examining the subject.
As well as developing the legal framework for a modern society, China is having to build a qualified legal profession. There are now more than 100,000 lawyers (twice the 1994 figure) for a population of about 1.2 billion. The aim is to increase this number to 300,000, and ensuring that such rapidly increasing numbers of lawyers are properly trained and qualified is a vast project.
The philosophy of the early 1980s, by which lawyers were the Chinese state's legal workers, has now largely changed. New firms are more likely to be private partnerships (now making up more than one quarter of all firms) or the hybrid co-operative practices which are no longer funded by the state.
Under a 1996 law, the government has introduced an increasing element of self regulation for the legal profession. The ACLA, which is funded by subscription, is responsible for safeguarding the rights and interests of lawyers, for training, for continuing education and for discipline. The Ministry of Justice retains control of qualification but it is intended that this role will be transferred to the profession.
One of the most important objectives of the working party and the training scheme for Chinese lawyers has been to strengthen the legal profession as an autonomous force in China. Regular meetings are held with the ACLA and with the Ministry of Justice to discuss how to develop a system of self-regulation.
The existence of the English training scheme has been of critical importance in this regard. Not only has its success helped to develop trust but the lawyers who have passed through the scheme have returned to China to become influential figures in their profession who are encouraging the introduction of an increasing degree of independence. They are at the vanguard of the movement to establish independent forms of practice.
Although up to now it has been the Chinese who have needed British assistance with developing their laws and training their lawyers, the relationship has never been one sided and promises to become much more even in the future.
Chinese legal tradition has much to teach the English about mediation and alternative dispute resolution. It is chastening to have visiting delegations cast an incisive eye over aspects of English law and procedure as they choose the best aspects of international law and practice.
With the rapid development of its economy China is becoming a market in which English lawyers increasingly wish to participate and the working party is discussing the possibility of placements for young English lawyers in Chinese practices.
In October this year it is proposed that a team of English lawyers will travel to Beijing to hold an English law week, with mock trials and seminars on a variety of subjects, to coincide with the Prime Minister, tony Blair's visit to China.
This is likely further to increase the profile of English lawyers in China. But the bedrock of the relationship is the training scheme which is highly valued by the lawyers and the authorities in China. It is critical that this scheme is continued by the British government when it comes up for renewal.
At a time when international interest in China is reaching unprecedented heights, English lawyers already have a solid relationship with a wide spectrum of people in Chinese legal circles.