Regulations of Shenzhen Special Economic Zone on
Lawyers
|
(Originally adopted
at the twenty-eighth Meeting of the Standing Committee of the
First Shenzhen Municipal People's Congress
on February 24, 1995.
As revised in accordance with the Decision on Revising of
Regulations of Shenzhen Special Economic Zone on lawyers of
the fourteenth Meeting of the Standing Committee of the Second
Shenzhen Municipal People' s Congress on April 9, 1997
for the
first time. As revised in accordance with the Decision on
Revising of Regulations of Shenzhen Special Economic Zone on
lawyers of the thirty-first Meeting of the Standing
Committee of the Third Shenzhen Municipal People' s Congress on
April 16,
2004 for the second time) |
|
Chapter¢ñGeneral
Provisions |
|
Article 1
In order to safeguard the lawyers' practice according to law,
and exert the lawyers' functions in the economic and
social
fields in Shenzhen Special Economic Zone (hereinafter referred
to as "Special Zone" ), these regulations are
formulated in
accordance with the basic principles of national laws and
regulations as well as the actual circumstances
of Special Zone. |
Article 2
"Lawyer" means the legal professional who has obtained the
qualification of lawyer, holds the lawyer' s practice certificate
and provides the legal services for the public. |
Article 3
The lawyer' s duty is to maintain the lawful rights and interests
of the parties as well as the correct implementation
of laws and
regulations by handling legal affairs. |
Article 4
The lawyer' s practice according to law shall be protected by
laws. No organ, group or individual may hinder, intervene
and
threaten the lawyer' s exercise of rights according to law. No
actions will be taken against the statement of defense
or agency
issued by the lawyer in the lawsuit unless the statement impairs
the lawful rights and interests of the society
and the citizens. |
Article 5
Lawyers shall practice in accordance with laws, regulations,
professional ethics and practice disciplines. Lawyers and
law
firm shall pay taxes according to law. |
Article 6
The judicial administrative department of Shenzhen Municipal
People' s Government (hereinafter referred to as the "municipal
judicial administrative department" ) implements supervision and
guidance over lawyers, law firms and lawyers association. |
|
Chapter
¢ò
Qualification and Practice Access of Lawyers
|
|
Article 7
Anyone who wants to obtain the qualification as a lawyer shall
firstly pass the national examination of justice or the
qualification check, be examined by the municipal judicial
administrative department, and be granted the lawyer
qualification by the superior judicial administrative department
with approval. |
Article 8
The following persons, who want to practice as a lawyer, shall
apply to obtain a lawyer' s practice certificate: |
(1) possessing the
qualification as a lawyer, having had practice training at a law
firm for one year, and requiring to
engage in the lawyer' s
practice as a full time lawyer; |
(2) possessing the
qualification as a lawyer, having practice training at a law
firm for one year, and engaging in legal
teaching or researching
in a college or a legal research and study institute, requiring
to engage in lawyer practice
as a part-time lawyer. |
A trainee shall not
practice independently as a lawyer during the period of
training. |
Article 9
If an inhabitant of Hong Kong, Macao or Taiwan, who has acquired
the qualification as lawyer and requires to practice
as a
lawyer, he shall follow the procedures stipulated by relevant
national provisions. |
Article 10
The persons applying for the practice certificate as a lawyer
shall submit an application to the municipal judicial
administrative department. The municipal judicial administrative
department shall issue the opinion of review within 15
days from
the date upon receiving the application and report it to the
superior judicial administrative department for
review. |
Having received the
opinion of review and the lawyer' s practice certificate issued
by the superior judicial administrative
department, the
municipal judicial administrative department shall issue the
notice of authorizing practice to the applicant. |
Article 11
The applicant shall get the lawyer' s practice certificate from
the municipal judicial administrative department within
15 days
from the date upon receiving the notice of authorizing practice,
and apply to the municipal lawyers association
for accession. |
Article 12
The persons applying for accession shall submit the following
documents: |
(1)
the
application for accession; |
(2)
the notice
of authorizing practice, lawyer' s practice certificate and its
duplication; |
(3)
the lawyer' s
qualification certificate; |
(4)
the
duplication of the inhabitant' s certificate of identity; |
(5)
the
certificate needed for engaging in full-time or part-time
lawyer' s practice; |
(6)
the relevant
certifications of the law firm where the lawyer applying to
practice works. |
Article 13
The municipal judicial administrative department conducts
examination and registration over the practicing lawyer annually
together with the municipal lawyers association. When applying
for the annual-examination and registration, the lawyer
shall
submit the following documents: |
(1)
the
application for annual-examination and registration; |
(2)
the
duplication of the inhabitant' s certificate of identity and
lawyer' s practice certificate; |
(3)
the annual
work summary; |
(4)
the tax
payment receipt and the evidence of paying the
annual-examination fee, registration fee and member fee; |
(5)
the
documents that the superior judicial administrative department
requires to submit. |
If the documents
mentioned above are absent, it should be submitted
supplementally within 15 days from the date of application,
otherwise, the practicing lawyer shall not be annually examined
and registered. |
Article 14
If the lawyer can not practice because of withdrawing from
business, being fired, leaving the work-post of lawyer under
order or other reasons, he shall go to the municipal lawyers
association to cancel the accession, and turn back the lawyer'
s
practice certificate to the municipal judicial administrative
department. If the lawyer refuses to turn it back, the
municipal
lawyers association shall cancel the accession directly. |
Article 15
The accession, change and cancellation of the lawyer-register
shall be announced by the municipal judicial administrative
department together with the municipal lawyers association at
the designated newspapers. |
|
Chapter
¢ó
The Organ of Lawyer' s Practice |
|
Article 16
A law firm is the organ where lawyers practice, which receives
the administration and supervision from the municipal
judicial
administrative department and municipal lawyers association. |
The forms of law
firms are classified into legal-person law firm, cooperative law
firm and individual law firm. A lawyer
can only practice in one
law firm. |
Article 17
A law firm has the qualification of civil subject, enjoys the
rights and bears the obligations in civil affairs independently
from the date of approval. |
Article 18
The establishment of legal-person law firm shall meet the
following conditions: |
(1)
having more
than 3 practicing lawyers possessing 3 years' experience as a
lawyer; |
(2)
having the
authorized size of an institution; |
(3)
having its
own name and fixed working place; |
(4)
having at
least 100,000 yuan RMB as the establishment funds. |
The legal-person
law firm shall undertake liability for its debts with its entire
assets. |
Article 19
The establishment of cooperative law firm shall meet the
following conditions: |
(1) having more
than 3 practicing lawyers that resign the present post and have
5 years experience as a lawyer; |
(2) having its own
name and fixed working place; |
(3) having at
least100,000 yuan RMB as the establishment funds. |
The partners shall
undertake unlimited joint liability for the debts of the law
firm. |
Article 20
The establishment of individual law firm shall meet the
following conditions: |
(1) acquiring an
undergraduate legal education in a college, or a higher
educational level; |
(2) resigning the
present post and having practiced as a full-time lawyer for at
least 5 years; |
(3) naming the law
firm after the lawyer' s own name and having fixed working place; |
(4) having the
establishment charges of at least 100,000 RMB. |
The individual law
firm shall undertake the unlimited liabilities for the debts of
itself. |
Article 21
To apply to establish a law firm, a person shall submit the
following documents to the municipal judicial administrative
authorities: |
(1) the
application; |
(2) the name lists,
resumes, legal profession qualification certificates or lawyer
qualification certificates, lawyer
practice certificates and
their duplications of all practicing lawyers; |
(3) a duplication
of the certificate of identity; |
(4) the
constitution of the law firm; |
(5) a certificate
of capital; |
(6) a certificate
for use of the working place; |
(7) other documents
that the approval department requires to submit. |
Article 22
As to the application for establishing a law firm, the municipal
judicial administrative department shall examine it
over within
15 days from the date upon receiving the application, provide
the written opinion of examination about the
establishment of a
law firm, and file the written opinion together with the
application documents to the superior judicial
administrative
department for examination and approval. |
Having received the
notice of approving establishment, the applicant shall receive
the practice license for law firm within
30 days with the notice
and apply for accession to the municipal lawyers association.
With the accession, the law firm
may begin to practice. |
Article 23
The incorporation, split and changing name of a law firm must
obtain the approval from the original approval authorities. |
If a law firm
doesn' t carry out business within 6 months from the date upon
receiving the practice certificate or stops
practicing for a
full year, it will be deemed terminated. With an approval form
the superior judicial administrative
department, the municipal
judicial administrative may cancel the law firm. |
Article 24
If a law firm
in Shenzhen establishes branch offices outside, the
establishment should be reported to the municipal judicial
administrative department for examination and be subject to the
examination and verification by the judicial administrative
department of the province, autonomous region or municipality
directly under the Central Government where the proposed
branch
office is to be located. |
If a law firm
outside establishes branch offices in Shenzhen, the
establishment should be conducted by municipal judicial
administrative department in accordance with relative
provisions. |
Article 25
A
law firm exercises the following functions and powers: |
(1) to decide the
setup of internal agencies and the management form; |
(2) to accept the
authorization and designate lawyer to undertake business; |
(3) to draw
distribution plan; |
(4) to hire and
fire lawyers and auxiliary personnel; |
(5) to manage and
dispose the property of law firm; |
(6)
other
functions and powers that shall be exercised by law firm. |
Article 26
Legal-person law firm and cooperative law firm shall have a
director to preside the work of law firm. A law firm may
have a
deputy director to assist director' s work. |
The appointment and
removal from post of director or deputy director of legal-person
law firm is decided by the general
meeting of lawyers of this
law firm. |
The appointment and
removal from post of director or deputy director of cooperative
law firm is conducted in accordance
with the constitution drawn
by the law firm. |
The appointment and
removal from post of director or deputy director of law firm
shall be reported to municipal judicial
administrative
department and municipal lawyers association for record. |
Article 27
A law firm shall draw the development fund of no less than 10
percent from the total business income every year. |
Article 28
A law firm shall establish the system of compensation. The
agreement signed by the law firm and the parties shall have
the
article of compensation. If a lawyer causes losses to a party
due to his fault, the law firm in which he practices
shall bear
the liability for compensation in accordance with the amount of
compensation agreed on in the agreement with
the party. |
After the law firm
has paid the compensation, the lawyer having fault shall
undertake partial or total compensation. |
Article 29
The municipal lawyers association carries out annual-examination
and registration over the law firm and its branch office.
A law
firm and its branch office shall submit the following documents
when applying for annual-examination and registration: |
(1) the application
for annual-examination and registration; |
(2) the practice
license of law firm and its duplication; |
(3) the annual
report on the personnel, organization and business work; |
(4) the annual
financial report and auditing report; |
(5) the tax payment
receipt and the evidence of paying the annual-examination fee,
registration fee and member fee; |
(6) the certificate
of drawing the development fund; |
(7) the report on
the self-examination of lawyers' professional ethics and
practice discipline; |
(8) other documents
that the superior judicial administrative department requires to
submit. |
If the document
mentioned above are absent, it shall be submitted supplementally
within 15 days, otherwise the law firm
shall not be
annual-examined or registered. |
Article 30
If a law firm terminates because of one of the following
reasons, its accession shall be canceled by municipal lawyers
association, and be reported to municipal judicial
administrative department for record: |
(1) a law firm
applying for dismissal and being examined and approved by the
original approval authorities; |
(2) the practice
license being suspended in accordance with law for violating
laws, regulations or practice disciplines; |
(3) being renounced
bankrupt; |
(4) not satisfying
the conditions of establishment because of the separation of the
organ and the change of personnel; |
(5) other reasons. |
If a law firm
terminates in accordance with law, it should be liquidated. |
Article 31
The law firm and its branch offices, if being annual-examined
qualified or being terminated, shall be published in the
newspapers and periodicals designated by municipal lawyers
association. |
|
Chapter
¢ô
Lawyer' s Business |
|
Article 32
A lawyer may conduct the following legal affairs: |
(1) to accept
authorization to offer legal help for parties being taken
compulsory measure or restricted personal freedom
by
investigative, procuratorial, judicial and other organs, unless
laws have separate provisions; When meeting and corresponding
with the party, the lawyer shall not disclose the investigative
secrets; |
(2) to accept
engagement of national authorities, enterprise, institutions,
social organs, other organs or individuals
to act as legal
counselor; |
(3) to accept
authorization of a defendant in a criminal case or accept
appointment of a People' s Court to act for the
defense and
participate in the lawsuit; |
(4) to accept
authorization by a private prosecutor in a case of private
prosecution or by the victim or his close relatives
in a case of
public prosecution to act as agent and participate in the
lawsuit; |
(5) to accept
authorization of a party in a civil or administrative law-suit
to act as agent and participate in the lawsuit; |
(6) to accept
authorization of a party in an arbitration case to act as agent
and participate in the arbitration; |
(7) to accept
authorization to represent the client to apply for
administrative review; |
(7)
to accept
authorization to represent the client to appeal; |
(8)
to accept
authorization of a party involved in non-litigation case to
provide legal services or act as agent to participate
in
mediation; |
(9)
to provide
legal advice and represent clients in writing litigation
documents and other documents regarding legal
maters; |
(10) to accept
authorization to conduct witnessing business involving foreign
elements, except being stipulated by laws
and regulations
otherwise; |
(11) to undertake
other legal affairs. |
A person who has
not obtained a lawyer' s practice certificate shall not act as
agent or defend a client for the purpose
of seeking economic
benefit. |
Article 33
A practicing lawyer who
once served as a judge, prosecutor or arbitrator shall not act
as agent in the legal affairs that
he once conducted. |
Article 34
If the foreigners, stateless persons, foreign enterprises and
organizations as well as the inhabitants, enterprises and
organizations from the area of Hong Kong, Macao and Taiwan
participate in lawsuits in Special Zone and need to authorize
a
lawyer to act as agent or defender, he must authorize a lawyer
from the People' s Republic of China. |
|
Chapter
¢õ
Rights and Obligations of Lawyers |
|
Article 35
A lawyer as a defendant
in a criminal case enjoys the following rights: |
(1) to consult and
duplicate files and materials of this case; |
(2) to address
inquiries to and obtain evidences from relevant units or
individuals; |
(3) to meet and
communicate with the criminal suspect or defendant held in
custody alone; |
(4) to defend a
case in court; |
(5) to state the
facts of encroachment and provide evidences to the court, if the
lawful rights of the defendant are encroached
when the case is
placed on file for investigation as well as review and
prosecution; |
(6) to obtain the
duplication of the legal documents of this case and duplicate
relative materials about the activities
of court trial in
accordance with the law; |
(7) to apply to the
people' s court for deferring the time of holding a court within
the legal time of winding up a case,
because of Act of God or
fortuitous event; |
(8) to exercise
other rights stipulated by laws and regulations. |
Article 36
When a lawyer acts as an agent in the criminal, civil and
administrative law-suit or conducts non-legislation legal
affairs, with the lawyer' s practice certificate and the special
letter of introduction for investigation of the law firm,
he has
the right to address inquires, obtain evidence as well as make
extract and duplicate materials pertaining to the
case he is
undertaking from national authorities, relative units and
individuals. |
Article 37
When a lawyer acts as an agent for appeal of the criminal, civil
and administrative case having come into force, he has
a right
to consult the files of the original trial; When a lawyer act as
an agent for the criminal appeal, he has a right
to meet
separately and correspond with the prisoner held in custody. |
Article 38
When executing his duty, a lawyer shall perform the following
obligations: |
(1) to keep
confidential the state secrets, commercial secrets and personal
privacy that he learned; to keep confidential
the details of a
case that the principal provides and doesn' t wish to be open
unless the law has separate provisions; |
(2) to behave
within the scope of the authorization by the principal and not
to damage the lawful rights and interests
of him when accepting
authorization to conduct legal affairs; |
(3) not to accept
the authorization privately to conduct legal affairs; |
(4) not to collect
remuneration or other fees from the principal except those
already agreed; |
(5) not to
influence the judicial department, administrative law
enforcement department and arbitral department to make
judgment
or award of the case with unfair manners and means; |
(6) to present
lawyer' s practice certificate when participating in litigation; |
(7)
to accept
professional training organized by municipal lawyers
association. |
Article 39
A lawyer shall not
represent both parties in the same civil, administrative case. |
A lawyer shall not
act as a defender of two or more than two defendants in the same
criminal case. |
A lawyer shall not
act as an agent for another party in the same case after
dissolving the delegation relationship with
the principal
according to law. |
A lawyer shall not
act as agent for another party having interests with the
principal of his law firm. |
Article 40
Lawyers and law firms shall not compete for business with unfair
means of belittling the fraternities, lowering the charges
and
propagating falsely. |
Article 41
Lawyers and law firms shall not draw up the money and articles
that the party deposited in the law firm without the party'
s
permission. |
|
Chapter
¢ö
Lawyers Association |
|
Article 42
The municipal lawyers association is a public organization with
the status of a legal person registered and established
according to law, and shall be the lawyers' self-disciplinary
organization. |
Article 43
The establishment of the institution of municipal lawyers
association as well as the election, appointment and removal
of
the director and executive director, are conducted according to
the constitution of the municipal lawyers association. |
Article 44
The municipal lawyers association shall perform the following
duties: |
(1) assuring
lawyers to practice according to law and protecting lawyers'
lawful rights and interests; |
(2) conducting the
accession, start of business, annual-examination, registration,
cancellation and announcement of the
lawyers and law firms; |
(3) organizing
members to carry out the activities of studying and disusing the
theories and practices of lawyers, summarizing
and exchanging
business experience, propagandizing the system governing the
lawyers and promoting the development of
lawyers' business; |
(4) carrying out
professional training for lawyers; |
(5) carrying out
education of professional ethics and practicing discipline for
lawyers |
(6) mediating
disputes arising between lawyers and parties; |
(7) carrying out
the association with lawyers and law firms from the areas of
Hong Kong, Macao, Taiwan and foreign countries; |
(8) conducting the
affairs authorized by the corresponding-level or superior
judicial administrative department. |
Article 45
A practicing lawyer
shall join the municipal lawyers association to be a member,
otherwise he shall not accessed and registered.
A lawyer having
obtained the qualification as lawyer but not practicing, shall
become a non-practicing member of municipal
lawyer association. |
Article 46 Members
of lawyers association enjoy the rights and bear the obligation
in accordance with the constitution of municipal
lawyers
association. |
Article 47
The municipal lawyers association establishes disciplinary
commission for lawyers, which produces opinions in accordance
with the disciplinary rules for lawyers enacted by Judicial
Ministry about the activities of lawyers and law firms violating
law, regulation, professional ethics and practicing discipline
and according to its circumstances, and reports it to
the
municipal judicial administrative for examination and approval. |
The disciplinary
commission for lawyers consists of the working staff of
municipal lawyers association and municipal judicial
administrative department, as well as full-time practicing
lawyers and social famous persons, with the number no less
than
7 but not more than 9. |
Article 48
The municipal lawyers association shall receive the supervision
from municipal judicial administrative department in
the
following aspect: |
(1) The municipal
judicial administrative department shall accredit personnel to
participate in the general meeting of
members' representatives
and the meeting of board of directors of the municipal lawyers
association; |
(2) If the
decisions made by municipal lawyers association violate laws or
regulations, the municipal judicial administrative
department
may order them to be modified or annulled; |
(3) The municipal
lawyers association shall report the development of its work and
financial conditions to the municipal
judicial administrative
department periodically; |
If the municipal
lawyers association is not satisfied with the decision of
modification or annulment made by the municipal
judicial
administrative department, it may apply to superior judicial
administrative department for review. |
|
Chapter
¢÷
Punishment and Legal Liability |
|
Article 49
The kinds of punishment to lawyers are the following: warning,
suspending practice for 3-6 months, 6-12 months or 2 years
and
revoking lawyer' s practice certificate. |
The kinds of
punishment to law firm are the following: warning, fine, ceasing
practice for consolidation and revoking
practice certificate. |
Article 50
If the disciplinary commission for lawyers considers that the
punishment of warning, suspending business for internal
rectification or suspending practice for 3-12 months shall be
given, the punishment shall be approved by the municipal
judicial administrative department. |
If the disciplinary
commission for lawyers considers that the punishment of
suspending practice for 2 years, or revoking
practice
certificate, it shall be examined by the municipal judicial
administrative department and be reported to the
superior
judicial administrative department for approval. |
Article 51
The joint lawyers in the cooperative law firm that has been
annulled shall not be a copartner of cooperative law firm
in 5
years. |
If the individual
law firm is annulled, the lawyer shall not apply to establish
individual law firm again and shall not
engaged in lawyer
business within 5 years. |
Article 52
If a lawyer discloses the state secrets, investigative secrets,
commercial secrets and personal privacy, he shall be
punished by
the disciplinary commission for lawyers; If it constitutes a
crime, the lawyer shall be prosecuted for the
criminal
responsibility according to law. |
Article 53
A person who violates
the provisions of Article 32 (2) of these regulations shall be
ordered to cease the illegal practice
of law by the municipal
judicial administrative department, which shall confiscate any
illicit income and may also impose
a fine of no less than 1 and
no more than 3 times the amount of the illicit incomes. |
Article 54
If a lawyer or law firm violates the provisions of Article 38
(2), (3),(4),(5), Article 39 and Article 40 of these
regulations, punishment shall be given by the disciplinary
commission for lawyers. |
Article 55
If a lawyer or law firm violates the provisions of Article 41 of
these regulations, punishment will be given by the disciplinary
commission for lawyers; If they violate laws, legal
responsibility shall be pursued. |
Article 56
If a lawyer or a law firm doesn' t accept the punishment decision
examined and approved by the municipal judicial administrative
department, it may apply for administrative review or bring
administrative lawsuit according to law. |
Article 57
Administrative responsibility will be pursued to the person
obstructing the lawyers to practice according to law; If
it
constitutes a crime, criminal responsibility shall be pursued in
accordance with law. |
Article 58
If the working staff of the municipal administrative department
and the municipal lawyers association violation of law
and
discipline, they shall be given administrative punishment by the
competent department according to the circumstance;
If it
constitutes a crime, criminal responsibility shall be pursued. |
|
Chapter
¢ø
Supplementary Provisions |
|
Article 59
The administrative regulations governing the administrative
bodies established by the law firm from Hong Kong, Macao,
Taiwan
and foreign countries in Special Zone shall be enacted by the
municipal judicial administrative department in
accordance with
national relevant regulations separately. |
Article 60
The regulations about the establishment of the system governing
legal assistance, charging standards of lawyers, lawyers
conducting witnessing business involving foreign elements shall
be enacted separately by the municipal judicial administrative
department in accordance with the actual circumstances of
Special Zone, and be reported to the municipal People' s
Government for approval and implementation. |
Article 61
"More than" referred to in these regulations includes the number
per se; "Less than" referred to in these regulations
doesn' t
include the number per se. |
Article 62
These regulations shall go into effect as of May 1, 1995. |