Regulations of Shenzhen Special Economic Zone on Lawyers

From: Shenzhen Municipal Legislative Affairs Office | Updated: 2018-11-27

(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 I General 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 Ⅱ 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 cannot 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 Ⅲ 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 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 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 from 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 documents mentioned above are absent, it shall be submitted supple mentally 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 Ⅳ 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;

(8) to accept authorization to represent the client to appeal;

(9) to accept authorization of a party involved in non-litigation case to provide legal services or act as agent to participate in mediation;

(10) to provide legal advice and represent clients in writing litigation documents and other documents regarding legal matters;

(11) to accept authorization to conduct witnessing business involving foreign elements, except being stipulated by laws and regulations otherwise;

(12) 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 areas 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 Ⅴ 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 Ⅵ 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 and 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 Ⅶ 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 Ⅷ 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.

(Note: The text above is a translation of the Chinese version for reference only. In case of any discrepancy between the two versions, the original published Chinese version shall prevail.)

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