I. Overview of the lawyer system in Hong Kong
Almost all laws in Hong Kong have inherited English law, and the lawyer system is no exception, especially in the classification of lawyers, which still retains the British practice of dividing lawyers into barristers and solicitors, which is rare in Commonwealth countries. Barristers, also known as litigators, specialize in defending court proceedings and enjoy full voice in court; Lawyers, also known as litigation lawyers, specialize in non-litigation business or part of litigation business, but their right to speak in court is limited in litigation. The development of the lawyer system in Hong Kong has a history of 100 years. Since the establishment of the first Supreme Court in Hong Kong, there have been practicing lawyers in Hong Kong. The Legal Practitioners Ordinance promulgated by the Hong Kong government from 65438 to 0858 was the earliest law to regulate lawyers' behavior. This law has been amended more than ten times. The current Law on Lawyers' Practice is revised by 198 1, with more than 70 articles, which mainly stipulate the acquisition and loss of various lawyers' practice qualifications, practice restrictions and lawyers' fees. In addition, lawyers' associations and lawyers' associations established in accordance with the law also stipulate the rules and ethics of lawyers' practice, and specially exercise the management duties of practicing lawyers, including arranging lawyer qualification examinations, registering lawyers, maintaining lawyers' professional and ethical standards, investigating and handling public complaints against lawyers, and punishing lawyers who violate discipline. In recent years, with the rapid development of Hong Kong's economy, the number of lawyers has been expanding. By 1992, there were more than 400 barristers, more than 2,000 lawyers and more than 300 lawyers employed by various departments of the British Hong Kong government as legal advisers to the government.
Second, the acquisition of lawyer qualification
Although there are barristers and lawyers in Hong Kong, there is actually no difference between them, but the scope of practice is different. However, to qualify as a barrister or lawyer, we must go through different channels. Generally speaking, whether you want to be a barrister or a lawyer, you must first obtain a Bachelor of Laws (LLB). At present, both the University of Hong Kong and the City Polytechnic of Hong Kong offer bachelor of laws courses with a duration of three years. Courses include Hong Kong's basic legal system, constitution, administrative law, contract law, property law, criminal law, tort law, trust law, commercial law, company law, insurance law, tax law, evidence law, family law and so on. After completing the above courses, students need to practice mock trial and complete their graduation thesis before they can get a bachelor of law degree. In addition, students can also obtain a bachelor's degree in law by studying the off-campus law degree courses offered by London University for overseas students. After graduation, students who are interested in becoming lawyers must also apply for a one-year Postgraduate Certificate in Law (PCLL). During PCLL, students who intend to become barristers will focus on case law, defense and procedural law; Students who intend to become lawyers focus on substantive laws such as commercial law, company law and contract law. After obtaining a diploma in law, I entered the internship stage. The business of a senior lawyer is different from that of a junior lawyer. To become a barrister, you must practice with a "master" as a student for l years. A "master" must be a barrister who has been qualified as a lawyer for at least 5 years. During the internship, students should assist the master in preparing various court documents, accompany the master in court, attend hearings and gain practical experience. In the second half of the internship, students can handle legal affairs independently under the guidance of the master. Generally speaking, intern lawyers have no income in the first six months of internship, and only have some remuneration when dealing with some simple cases in the last six months. After the internship expired, he passed the examination of the Bar Association and was qualified as a barrister. To become a lawyer, students should practice in a lawyer's office for at least 5 years, and practice as a lawyer in a law firm to master the practical skills needed to become a lawyer. During the internship, students can be paid a fixed salary by a law firm. After the internship expires, after passing the examination of the Law Society, apply to the Supreme Court of Hong Kong for registration and obtain the practicing certificate issued by the Law Society. In addition to the above-mentioned ways to qualify as a lawyer, I was admitted as a barrister or lawyer in the UK. You can also apply to practice in Hong Kong. In addition, legal professionals who have worked in the Legal Department of the Hong Kong Government or the law schools of Hong Kong institutions of higher learning can also apply for lawyer qualification on this ground.
Thirdly, the lawyer business in Hong Kong.
The law of Hong Kong clearly defines the scope of practice of barristers and lawyers. Barristers and lawyers must practice in strict accordance with the law and abide by the bar association and the discipline of the bar association.
The main duty of a trial lawyer is to represent the client in court proceedings. A barrister may participate in any court proceedings, including the Supreme Court and local courts, but a barrister may not directly accept a client's case, whether it is a criminal case or a civil case, and must be transferred to a barrister by a junior lawyer engaged in litigation. Barristers shall not refuse to accept the appointment of a lawyer unless they are pressed for time or unfamiliar with a case. A barrister may not directly contact with the client, nor may he directly collect remuneration from the client, but only from junior lawyers. In addition, the law stipulates that barristers must practice alone and may not practice in partnership with other barristers or junior lawyers. But usually, three, five or even more barristers will rent an office building to open as a big law firm. When I was studying in Hong Kong, I was invited by the famous Hong Kong barrister Michael Thomas Q.C. [1] to practice in his firm for nearly a month. This is a big law firm in Hong Kong, with 2 1 barristers, 5 of whom are Queen's Barristers (Q.C.) [2]. In a big law firm, every barrister has his own independent office and secretary, while some people use one secretary for two people. Each lawyer's legal business, financial and professional responsibilities are independent and have nothing to do with other lawyers in the same firm. One barrister is not responsible for the actions of another barrister. Therefore, lawyers from the same firm often compete in court as the original defendants in the same case. In the same firm, the relationship between barristers is to share the rent in proportion to the size of the office, and employ several staff members to be responsible for answering the phone, receiving, cleaning and other daily affairs. In addition, each lawyer's books and materials are open and can be borrowed from each other.
Lawyers play an important role in court proceedings. As Hong Kong's laws belong to the common law system, court trials are conducted in an adversarial manner, and both parties to the proceedings decide the trial to a great extent. So their performance in court often determines whether they can win the case. In addition, the laws in Hong Kong are huge and complicated, and many parties are not familiar with the laws and procedures. If they want to win the lawsuit, they must hire a lawyer. In a formal trial, it is customary for barristers to wear wigs and robes. Usually, the position of a lawyer can be identified from the robe of a barrister. The Queen's barristers wear silk robes, and ordinary barristers wear cloth robes. In criminal cases, the legal department brings a lawsuit on behalf of the government. In general cases, lawyers of the Department of Justice will appear in court for prosecution, but in cases involving officials of the Legal Department, private barristers will be appointed as prosecution lawyers. The procedure of the trial is as follows: first, the clerk reads out the charges of the defendant, and the judge asks whether the defendant pleads guilty. If the defendant pleads guilty, the defense lawyer only needs to plead with the judge, for example, he can ask the judge that the defendant has no criminal record, the special background that caused the crime deserves sympathy, and the defendant's family burden, so as to reduce or exempt the defendant from punishment. If the defendant denies the accusation, the lawyers of both the prosecution and the defense must defend whether the defendant is guilty or not. According to the regulations, the prosecution bears the burden of proof. The lawyers of the prosecution and the defense shall interrogate the witnesses of both parties by means of inquiry and cross-examination. In interrogation, the judge mainly acts as a notary, ensuring that lawyers of both the prosecution and the defense abide by the rules of the evidence law, and only questioning witnesses under certain unclear circumstances. If it is difficult to convince people that the defendant may be guilty after the prosecution lawyer makes a statement and gives evidence, the defense lawyer can put forward "no case to answer" to the judge or raise reasonable doubts about the case, so that the defendant can be released in court. Finally, if the case is tried by a jury, the jury will decide whether the defendant is guilty according to the facts and evidence provided by both the prosecution and the defense. If the case is minor and there is no jury to participate in the trial, the judge will rule alone. In civil cases, the first step is to provide evidence (discovery) and written consultation by the original defendant's lawyer. That is, before the trial, the lawyers of the original defendant provided each other with relevant interrogation materials, including indictment, defense, evidence, etc. So that both parties can make full preparations before the trial. After the exchange of documents, both parties may ask the other party questions in writing about the matters listed in the lawsuit, but it is not allowed to ask the names of witnesses and how the other party will sue. In court, facts not listed in the indictment may not be presented again. The trial of the case is mainly debated by the original defendant's lawyer on facts and evidence. Both sides should find out the relevant precedents in the past to support their claims, and the judge should study the evidence presented by each side to decide which side is more credible, so as to decide which side wins the case. Generally speaking, the court's decision rarely leads to fifty big boards, and the losing party not only compensates the other party for its losses. You must also pay the other party's legal fees (fees). In Hong Kong, the lawyer's fee of the court is very small. The court only charges for some projects that need technical treatment, but the lawyer's fee is very expensive. Some senior lawyers charge 3,000 to 4,000 Hong Kong dollars per hour. Some lawsuits are often higher than the amount claimed. Once you lose the case, you must not only bear your own lawyer's fees, but also compensate the other party's lawyer's fees. This makes some cases with small claims and no success, and the parties have to sigh. So the poor can't fight the lawsuit, it's not like this. In order to enable people with poor economic conditions to obtain legal aid, the Hong Kong Government has implemented a legal aid scheme. Regardless of criminal cases or civil cases, eligible parties can apply for legal aid and get free or low-cost services from lawyers. The legal expenses of this plan are paid by the government.
The two lawyers have different businesses. A junior lawyer can practice alone, set up a law firm in partnership with other lawyers, or be employed by a private law firm. The law firm is a partnership organization, and bears unlimited external responsibilities. In a law firm, it can generally be divided into partners, assistant lawyers and staff. Partners are prestigious lawyers and owners of law firms. They share the bonus in proportion to the partnership. An assistant lawyer, called an assistant lawyer, is a qualified lawyer employed by a law firm and usually receives a fixed salary every month. In addition, there are a large number of managers and staff responsible for handling the complex daily affairs of law firms. In some large law firms, there are hundreds of lawyers and staff.
The business scope of solicitors is much wider than that of barristers, mainly including the following aspects: First, real estate business. In recent years, with the development of Hong Kong's real estate industry, real estate business has become the main business of many law firms in Hong Kong. Real estate business includes real estate leasing and uncompleted residential flats sales, in which real estate sales are the main business. Lawyers play an important role in real estate sales. Usually, when a house or property is bought, sold or mortgaged, the parties entrust a lawyer to handle all the formalities. Take the process of buying and selling houses as an example. After the buyer chooses a house, he can entrust a lawyer to the lawyer's office. The lawyer will check the records of the land department and review the draft sales contract drafted by the seller. After the sales contract is formally signed, the buyer's lawyer is responsible for registering the contract with the Land Bureau and asking the seller about the property rights. Then, the buyer's lawyer drafts the property right transfer contract, which is signed by the buyer and the seller. The buyer paid the down payment, the seller handed over the key, signed the building contract, and the building was closed. Finally, the buyer signs the mortgage contract, and the buyer's lawyer registers the property right transfer contract and mortgage contract in the land department, and submits the registration deed to the loan bank until the buyer pays off the loan. Second, litigation business. Although a solicitor cannot represent the client in the High Court, he can represent the client in the Magistrate's Court and the District Court. Therefore, a large number of cases tried by magistrates' courts and local courts are represented by lawyers. According to the laws of Hong Kong, barristers are not allowed to accept the engagement of clients directly, and can only be engaged by barristers. Therefore, all cases handled by barristers must be assisted by barristers, who are mainly responsible for the preparatory work before litigation, including meeting clients and witnesses, collecting evidence, drafting defense and accompanying barristers in court. Third, business operation. Business covers a wide range, including company establishment, company transfer, joint venture, company listing, stock trading, partnership, bank loans, taxation, trust funds, etc. Trademark registration, drafting wills, handling inheritance and trust, divorce and alimony, etc. Fourth, consultation. Provide all kinds of oral and written legal advice to the parties; Act as legal adviser to banks, companies or individuals. Fifth, notarization business. Notarization business can only be handled by notary lawyers. There is no special notary office in Hong Kong, and all notarization activities are undertaken by lawyers with notarization qualifications. To apply for the qualification of a notary public, a junior lawyer must first practice 10 years or more, be recommended by 30 members of the society, reviewed by the British Hong Kong government, approved by the British royal family, and be registered in a Hong Kong court before he can obtain the qualification of a notary public. The business of a notary lawyer is to certify relevant legal documents for the parties. Notary lawyers only need to prove that the signature and seal on the legal document are true, that is, the signature and seal on the document are signed in front of the lawyer, without having to prove whether the content of the document is true. Therefore, the notary lawyer is only responsible for the authenticity of the parties' signatures and seals, and is not responsible for the authenticity of the documents.
Michael thomas. Q.C.: Former Attorney General of Hong Kong, now Queen's Counsel of Hong Kong.
[2]Queen Councel, referred to as Q.C., is a senior barrister with at least 65,438+00 years of practice experience and recognized achievements. Usually only hired to handle some complicated cases, and must be accompanied by an ordinary barrister when appearing in court. At present, there are over 40 Queen's Counsel in Hong Kong.
Originally published in The Jurist 1994, No.2.