(OrderNo. Ministry of Justice 1 12)
The Measures for the Administration of Lawyers' Practice, which was deliberated and adopted at the ministerial meeting of the Ministry of Justice on May 28, 2008, is hereby promulgated and shall come into force as of the date of promulgation.
Minister Wu Aiying.
July 2008 18
Measures for the administration of lawyers' practice
Chapter I General Provisions
Article 1 These Measures are formulated in accordance with the Lawyers Law of People's Republic of China (PRC) (hereinafter referred to as the Lawyers Law) and other relevant laws and regulations for the purpose of standardizing lawyers' practice licenses, ensuring lawyers' practice according to law and strengthening the supervision and management of lawyers' practice.
Article 2 A lawyer refers to a practitioner who has obtained a lawyer's practice certificate according to law, accepted entrustment or assignment, and provided legal services to clients.
Article 3 Lawyers shall, through their practice activities, safeguard the legitimate rights and interests of clients, the correct implementation of laws and social fairness and justice.
Article 4 Lawyers' practice according to law is protected by law, and no organization or individual may infringe upon the lawful rights and interests of lawyers.
Judicial administrative organs and lawyers' associations shall safeguard lawyers' practice rights according to law.
Article 5 The judicial administrative organs shall supervise and guide lawyers' practice in accordance with the Lawyers Law and these Measures.
Lawyers' Association shall, in accordance with the Lawyers Law, the articles of association and industry norms, exercise industry self-discipline in the practice of lawyers.
Chapter II Conditions for Lawyers' Practice
Article 6 To apply for practicing as a lawyer, the following conditions shall be met:
(a) support the constitution of People's Republic of China (PRC);
(2) Obtaining the legal professional qualification certificate through the national unified judicial examination;
(3) Having worked as an intern in a law firm for one year;
(4) Good conduct.
The lawyer qualification certificate obtained before the implementation of the national unified judicial examination has the same effect as the legal professional qualification certificate when applying for lawyer practice.
Those who enjoy the relevant registration conditions and preferential measures for passing the national unified judicial examination and obtain the legal professional qualification certificate shall be handled in accordance with the relevant provisions.
Persons who apply for practicing as lawyers shall participate in the internship activities organized by the Lawyers Association in accordance with the provisions and pass the examination by the Lawyers Association.
Article 7 To apply for practicing as a part-time lawyer, the following conditions shall be met in addition to those stipulated in Article 6 of these Measures:
(a) to engage in legal education and research in institutions of higher learning and scientific research institutions;
(two) with the consent of the unit.
Article 8 To apply for the qualification as a practicing lawyer, one shall meet the requirements of the Lawyers Law and the relevant provisions of the State Council.
Article 9 A person under any of the following circumstances shall not engage in the profession of lawyer:
(1) Having no or limited capacity for civil conduct;
(2) Having been subjected to criminal punishment, except for negligent crimes;
(3) Being expelled from public office or having his lawyer's practice certificate revoked.
Chapter III Procedures for Licensing Lawyers' Practice
Article 10 A lawyer's practice license shall be accepted by the district (county) judicial administrative organ of a city divided into districts or a municipality directly under the Central Government. After preliminary examination, it shall be submitted to the judicial administrative organ of a province, autonomous region or municipality directly under the Central Government for examination and approval, and a decision shall be made on whether to approve the practice.
Article 11 To apply for practicing as a lawyer, the following materials shall be submitted to the judicial administrative organ of a city divided into districts or a district (county) of a municipality directly under the Central Government:
(1) Application for practicing;
(2) Legal professional qualification certificate or lawyer qualification certificate;
(3) Materials issued by the Lawyers Association that the applicant has passed the internship examination;
(4) the identity certificate of the applicant;
(5) A certificate issued by the law firm agreeing to accept the applicant.
When applying for a practice license, the applicant shall truthfully fill in the lawyer's practice registration form.
Article 12 To apply for practicing as a part-time lawyer, in addition to the relevant materials specified in Article 11 of these Measures, the following materials shall also be submitted:
(1) Experience and supporting materials in legal education and research in institutions of higher learning and scientific research;
(two) the unit agreed to the applicant's part-time lawyer's practice certificate.
Article 13 The judicial administrative organ of a city divided into districts or a district (county) of a municipality directly under the Central Government shall handle the applicant's application for lawyer practice according to the following circumstances:
(1) If the application materials are complete and conform to the statutory form, it shall be accepted;
(2) If the application materials are incomplete or inconsistent with the statutory form, the applicant shall be informed of all the contents that need to be corrected on the spot or within five days from the date of receiving the application materials. If the applicant makes corrections as required, it shall be accepted; Fails to inform, since the date of receipt of the application materials is accepted.
(3) If the application matters obviously do not meet the statutory requirements or the applicant refuses to make corrections or cannot make corrections to relevant materials, it shall not be accepted, and the reasons shall be explained to the applicant in writing.
Article 14 The judicial administrative organ that accepts an application shall complete the examination of the application materials within 20 days from the date of deciding to accept it.
In the process of examination, the opinions of the judicial administrative organs at the county level that apply for practice may be solicited; If it is necessary to investigate and verify the relevant information, the applicant may be required to provide relevant certification materials, or the judicial administrative organ at the county level may be entrusted to verify it.
After examination, issue examination opinions on whether the applicant meets the statutory requirements and whether the submitted materials are true and complete, and submit the examination opinions and all application materials to the judicial administrative organs of provinces, autonomous regions and municipalities directly under the Central Government.
Fifteenth provinces, autonomous regions and municipalities directly under the central government, the judicial administrative organs shall, within ten days from the date of receiving the examination opinions and all the application materials submitted by the organ accepting the application, make a decision on whether to approve the practice.
If a lawyer is allowed to practice law, a lawyer's practice certificate shall be issued to the applicant within 10 days from the date of decision.
If it is not allowed to practice, it shall explain the reasons in writing to the applicant.
Article 16 The materials, acceptance and examination and approval procedures to apply for practicing lawyer shall be handled in accordance with the relevant provisions of the State Council.
Article 17 An applicant may not practice as a lawyer under any of the circumstances stipulated in Article 9 of these Measures.
Article 18 A lawyer's practice certificate is an effective certificate for lawyers to practice according to law.
The contents, production specifications and the method for compiling the certificate number of a lawyer's practice certificate shall be stipulated by the Ministry of Justice. The practicing certificate shall be uniformly produced by the Ministry of Justice.
Article 19 Under any of the following circumstances, the judicial administrative organ of the province, autonomous region or municipality directly under the Central Government that made the decision to grant practice shall revoke the original decision to grant practice, and withdraw and cancel its lawyer's practice certificate:
(1) The applicant obtains the decision to approve the practice by fraud, bribery or other improper means;
(2) granting practice to an applicant who does not meet the statutory requirements or making a decision on granting practice in violation of legal procedures.
Article 20 A lawyer who intends to change his practice institution shall apply to the judicial administrative organ of the city or municipality (county) where he intends to change his practice institution, and submit the following materials:
(a) the certificate issued by the judicial administrative organ at the county level where the original practice institution is located that the applicant does not exist in the circumstances specified in Article 21 of these Measures;
(2) the certificate of termination of employment or partnership with the original practice institution and completion of business, archives, finance and other handover procedures;
(3) The practicing institution to be changed agrees to accept the applicant's certificate;
(4) Proof materials of the applicant's practice experience.
The accepting organ shall issue examination opinions on the application for change and the submitted materials, and submit them to the judicial administrative organs of provinces, autonomous regions and municipalities directly under the Central Government for examination together with all the application materials. If the change is approved, the examination and approval authority shall renew the lawyer's practice certificate for the applicant; If the change is not approved, the reasons shall be explained in writing to the applicant. The time limit for approval and replacement shall be handled with reference to the procedures stipulated in Articles 14 and 15 of these Measures.
If the change is approved, the applicant shall submit the original practice certificate to the original examination and issuance authority before receiving the new practice certificate.
Where a lawyer changes his practice institution across a city divided into districts or a province, autonomous region or municipality directly under the Central Government, the judicial administrative organ of the place where the original practice institution is located and the place where the changed practice institution is located shall hand over the lawyer's practice file.
Twenty-first lawyers shall not apply for changing their practice institutions during the period of being punished for stopping practicing; If the time limit for the law firm to be punished for suspension of business for rectification is not expired, the directly responsible person in charge, partners and lawyers of the law firm to be punished for suspension of business for rectification shall not apply for changing the practice institution; Where a law firm should be terminated, the persons directly responsible, partners and lawyers whose practice licenses have been revoked may not apply for changing their practice institutions before the liquidation and cancellation are completed.
Article 22 Where a lawyer is appointed by a law firm to practice in a branch office, the renewal and management measures of his lawyer's practice certificate shall be handled in accordance with the relevant provisions of the Ministry of Justice.
Twenty-third lawyers in any of the following circumstances, by the original examination and issuing authority where the practice is located to recover and cancel their lawyer's practice certificate:
(1) Being punished by revoking the lawyer's practice certificate;
(2) The original decision to grant practice has been revoked according to law;
(three) because I no longer engage in the profession of lawyers and apply for cancellation;
(four) due to the termination of the employment contract with the law firm or the cancellation of the law firm, it has not been employed by another law firm within six months;
(5) termination of lawyer's practice for other reasons.
If a person whose lawyer's practice certificate has been cancelled due to the circumstances mentioned in Items (3), (4) and (5) of the preceding paragraph applies for practicing as a lawyer again, he shall apply for practicing as a lawyer in accordance with the procedures prescribed in these Measures.
Chapter IV Standards for Lawyers' Practice
Article 24 Lawyers must abide by the Constitution and laws, and abide by lawyers' professional ethics and practice discipline.
Lawyers' practice must be based on facts and take the law as the criterion.
Lawyers' practice should be supervised by the state, society and the parties concerned.
Article 25 A lawyer may engage in the following businesses:
(a) to accept the entrustment of natural persons, legal persons or other organizations as legal advisers;
(two) to accept the entrustment of the parties in civil cases and administrative cases, to act as agents and to participate in litigation;
(3) Accepting the entrustment of criminal suspects in criminal cases, providing them with legal advice, representing appeals and accusations, applying for bail for arrested criminal suspects, accepting the entrustment of criminal suspects and defendants or the designation of people's courts, acting as defenders, accepting the entrustment of private prosecutors in private prosecution cases, victims in public prosecution cases or their close relatives, and representing them in litigation;
(four) to accept the entrustment and represent the complaints of various litigation cases;
(five) to accept the entrustment and participate in mediation and arbitration activities;
(6) Accepting entrustment to provide non-litigation legal services;
(seven) to answer questions about the law and write litigation documents and other documents related to legal affairs.
Twenty-sixth lawyers to undertake business, should be unified by the law firm to accept the entrustment, signed a written entrustment contract with the client, and obey the law firm's conflict of interest review and acceptance of business decisions.
Article 27 A lawyer shall not act as an agent for both parties in the same case, nor shall he act as an agent for legal affairs that have conflicts of interest with himself and his close relatives.
Lawyers who are members of the Standing Committees of people's congresses at all levels shall not engage in litigation agency or defense business during their term of office.
Lawyers who have served as judges and prosecutors shall not serve as agents ad litem or defenders within two years after leaving the people's courts and people's procuratorates.
Article 28 As a legal adviser, a lawyer shall, in accordance with the agreement, provide advice to clients on relevant legal issues, draft and review legal documents, participate in litigation, mediation or arbitration activities as an agent, handle other entrusted legal affairs, and safeguard the legitimate rights and interests of clients.
Article 29 When a lawyer represents litigation legal affairs or non-litigation legal affairs, he shall represent legal affairs within the scope of entrustment and safeguard the legitimate rights and interests of clients.
Article 30 When acting as a defender, a lawyer shall, according to the facts and laws, put forward materials and opinions on acquittal, lighter punishment or reduction or exemption of criminal responsibility of criminal suspects and defendants, and safeguard the legitimate rights and interests of criminal suspects and defendants.
Article 31 When giving legal opinions, lawyers shall perform their duties in strict accordance with the law, and ensure the truthfulness, accuracy and completeness of their opinions.
Lawyers providing legal advice and writing legal documents on their behalf should be based on facts, take the law as the criterion, and meet the requirements of legal advice rules and the style and format of legal documents.
Article 32 When undertaking business, a lawyer shall inform the client of the possible legal risks in handling the entrusted matters, and shall not make improper promises to the client in an express or implied way.
When a lawyer undertakes business, he shall promptly inform the client of the progress in handling the entrusted matters; Where it is necessary to change the entrusted matters and authority, the consent and authorization of the client shall be obtained.
After accepting the entrustment, a lawyer shall not refuse to defend or represent him without justifiable reasons. However, if the entrusted matter is illegal, the client uses the services provided by the lawyer to engage in illegal activities, or the client deliberately conceals important facts related to the case, the lawyer has the right to refuse to defend or represent him.
Article 33 When undertaking business, a lawyer shall guide his clients to claim their rights and settle disputes through legal channels and ways, and shall not incite or instigate their clients to take illegal means such as disturbing public order and endangering public security to settle disputes.
A lawyer shall not take advantage of the convenience of providing legal services to seek the disputed rights and interests of the client, accept property or other benefits from the other party, or maliciously collude with the other party or a third party to infringe on the rights and interests of the client.
Article 34 Lawyers participating in litigation, arbitration or administrative handling activities as agents shall abide by the disciplines and administrative handling rules of the courts and arbitration tribunals, and shall not commit any of the following acts that hinder or interfere with the normal conduct of litigation, arbitration or administrative handling activities:
(1) Meeting with judges, prosecutors, arbitrators and other relevant staff in violation of regulations;
(2) Offering bribes to investigators, promising to provide benefits or instigating or inducing clients to pay bribes;
(3) intentionally providing false evidence to judicial organs, arbitration institutions or administrative organs, or threatening or inducing others to provide false evidence, so that the other party cannot obtain evidence according to law;
(4) making statements in court that endanger national security, slander others and disturb the order of the court;
(five) other acts that hinder or interfere with the normal conduct of litigation, arbitration or administrative handling activities as prescribed by law.
Article 35 Lawyers shall respect their peers and compete fairly, and shall not engage in business by slandering other law firms and lawyers or paying referral fees.
Article 36 A lawyer shall keep the state secrets and business secrets he knows in his practice, and shall not disclose the privacy of his clients.
Lawyers should keep confidential the information and materials that their clients and others are unwilling to disclose in their practice activities. However, criminal facts and information that endanger national security, public safety and other serious personal and property safety of others are not included.
Article 37 When a lawyer undertakes business, the law firm shall charge the lawyer's fees and related handling fees from the client in accordance with the regulations, and shall not charge them privately, nor accept property or other benefits from the client.
Article 38 Lawyers shall perform their legal aid obligations in accordance with the provisions of the state, provide legal services that meet the standards for the recipients, and safeguard the legitimate rights and interests of the recipients.
Article 39 When undertaking business, a lawyer shall properly keep legal documents, evidential materials, business documents and work records related to the undertaking matters. After the legal affairs are concluded, they shall be filed in accordance with the relevant provisions and kept by the law firm.
Article 40 A lawyer can only practice in one law firm.
Lawyers shall practice full-time during their practice, unless otherwise stipulated by laws and administrative regulations.
When practicing law, a lawyer shall abide by the practice management system of his law firm, accept the guidance and supervision of the law firm, and participate in the annual examination of lawyer practice.
Article 41 A lawyer shall properly use and keep the lawyer's practice certificate, and shall not alter, mortgage, lend or lease it. If it is lost or damaged, it shall promptly report to the local judicial administrative organ at the county level, and the judicial administrative organ at the local municipal level or municipality directly under the central government (county) shall apply to the original examination issuing organ for replacement or replacement. If the lawyer's practice certificate is lost, a statement of loss shall be published in the local newspaper.
If a lawyer's practice license or certificate is revoked, the judicial administrative organ at the county level where his practice institution is located shall confiscate his practice certificate.
If a lawyer is punished for stopping practicing, he shall deposit his lawyer's practice certificate with the judicial administrative organ at the county level where his practice institution is located from the effective date of the punishment decision to the expiration of the punishment period.
Article 42 Lawyers shall participate in vocational training organized by judicial administrative organs and lawyers' associations in accordance with regulations.
Chapter V Supervision and Administration of Judicial Administrative Organs
Forty-third judicial administrative organs at the county level shall conduct daily supervision and management of the lawyer's practice activities of their practice institutions within their respective administrative areas, and perform the following duties:
(a) to inspect and supervise the lawyers' compliance with laws, regulations, rules, professional ethics and practice discipline in their practice activities;
(2) Accepting reports and complaints against lawyers;
(three) to supervise the implementation of administrative punishment and rectification by lawyers;
(four) to master the annual assessment of lawyers' practice in law firms;
(5) Other duties as stipulated by the Ministry of Justice and the judicial administrative organs of provinces, autonomous regions and municipalities directly under the Central Government.
In the process of daily supervision and management, the judicial administrative organ at the county level shall give a warning talk, order it to make corrections and supervise its rectification if it finds and verifies the problems existing in lawyers' practice activities; If a lawyer believes that his illegal acts should be given administrative punishment according to law, he shall put forward suggestions for punishment to the judicial administrative organ at the next higher level; If it is considered necessary to give disciplinary action to the industry, it shall be transferred to the Bar Association for handling.
Forty-fourth municipal judicial administrative organs with districts shall perform the following duties of supervision and management:
(a) to master the construction and development of lawyers in the administrative region, and to formulate measures and methods to strengthen the construction of lawyers;
(two) to guide and supervise the daily supervision and management of lawyers' practice by the judicial administrative organs at the next lower level, organize special inspections or special evaluations of lawyers' practice, and guide the investigation and handling of major complaints of lawyers;
(3) Commending lawyers;
(four) to impose administrative penalties on lawyers' illegal acts according to law; If the lawyer's practice certificate should be revoked according to law, the judicial administrative organ at the next higher level shall put forward suggestions for punishment;
(five) to supervise the filing of the annual examination results of lawyers' practice in law firms;
(6) Accepting and examining applications for practicing law, changing practice institutions and canceling practice certificates;
(seven) to establish a lawyer's practice file, and to be responsible for the information disclosure of lawyer's practice license, change and cancellation;
(eight) other duties as prescribed by laws, regulations and rules.
The district (county) judicial administrative organ of the municipality directly under the Central Government shall undertake the relevant duties stipulated in the preceding paragraph.
Article 45 The judicial administrative organs of provinces, autonomous regions and municipalities directly under the Central Government shall perform the following supervisory and administrative duties:
(a) to master and evaluate the construction of lawyers and the overall level of practice in this administrative region, formulate lawyers' development plans and related policies, and formulate normative documents to strengthen the management of lawyers' practice;
(2) To supervise and guide the supervision and management of lawyers' practice by the judicial administrative organs at lower levels, and organize and guide the special inspection or evaluation of lawyers' practice;
(3) Organizing commendation activities for lawyers;
(4) Revoking the lawyer's practice certificate for serious violations of the law, supervising and guiding the administrative punishment of the judicial administrative organ at the next lower level, and handling relevant administrative reconsideration and appeal cases;
(five) to handle the examination and approval of lawyers' practice, the examination and approval of changing their practice institutions and the cancellation of their practice certificates;
(six) responsible for the major information disclosure of lawyers, practice and management affairs within their respective administrative areas;
(seven) other duties as prescribed by laws, regulations and rules.
Article 46 Judicial administrative organs at all levels and their staff shall supervise and manage lawyers' practice, and shall not hinder lawyers from practicing according to law, infringe upon their legitimate rights and interests, ask for or accept lawyers' property, or seek other interests.
Article 47 The judicial administrative organ shall strengthen the hierarchical supervision over the implementation of lawyer's practice license and daily supervision and management activities, and establish a system of statistics, instructions, reports and supervision on related work in accordance with the provisions.
The judicial administrative organ responsible for the implementation of the lawyer's practice license, the filing or reward and punishment of the annual examination results of lawyer's practice shall promptly notify the lower judicial administrative organ of the relevant licensing decision, filing and reward and punishment, and submit it to the higher judicial administrative organ.
Article 48 The judicial administrative organ shall strengthen the guidance and supervision of the lawyers' association, support the lawyers' association to implement industry self-discipline on lawyers' practice activities in accordance with the Lawyers Law, the articles of association and industry norms, and establish and improve the coordination mechanism combining administrative management with industry self-discipline.
Forty-ninth judicial administrative organs at all levels shall regularly submit the statistical data and annual management summary of the construction and practice of lawyers in their respective administrative areas to the judicial administrative organs at the next higher level.
Article 50 If any functionary of the judicial administrative organ abuses his power or neglects his duty in the lawyer's practice license and supervision and management activities, which constitutes a crime, he shall be investigated for criminal responsibility according to law; If it does not constitute a crime, it shall be given administrative sanctions according to law.
Chapter VI Supplementary Provisions
Article 51 The judicial administrative organs of provinces, autonomous regions and municipalities directly under the Central Government may formulate specific implementation measures according to these Measures and report them to the Ministry of Justice for the record.
Article 52 These Measures shall come into force as of the date of promulgation. The regulations and normative documents formulated by the Ministry of Justice on the management of lawyers' practice are in conflict with these measures, and these measures shall prevail.