国际律师协会发表《中国法律职业状况研究报告》(上)

国际律师协会（IBA）发表

《中国法律职业状况研究报告》

[陈有西按于伦敦政治经济学院]本周，国际律师协会发表了我和国际律协驻中国12年的意大利律师马可先生一起研究完成的《双城记——中国法律职业状况研究报告》。我的学生、中国人民大学律师学院的法律硕士研究生刘芸，参与了中英文互译和校对工作。这是一份面向国际社会，介绍中国法律职业主要是中国律师业现状，和面临的真实场景的报告。介绍的情况尚不完整全面，但是是一份比较真实的报告。新《刑事诉讼法》实施等相关新的进展，尚有待观察，以后补充。

双城记

中国法律职业状况报告

A tale of two cities

The legal profession in China

发布人：国际律师协会，伦敦

By IBA

研究作者：

By Marco Marazzi and Chen Youxi

[国际律协意大利律师]Marco Marazzi [中国律师]陈有西

[研究助理]：中国人民大学律师学院法律硕士研究生 刘芸

This paper will analyze the current situation of the legal profession in China, the difficulties faced by lawyers and the prospects for improvement.

The paper will argue that while the legal profession in China is acquiring increasing importance and strength, with the number of lawyers now exceeding 230,000 (as opposed to only over  2000 30 years ago), lawyers’ independence remains an aspiration more than a reality: depending on their area of practice, lawyers can suffer great constraints in what they can realistically achieve and in the exercise of their rights. This is gradually leading to a bifurcation within the system, between lawyers dealing mostly with civil and commercial matters who benefit from an increasing ability to exercise their rights and from growing financial rewards, and lawyers who deal with more sensitive administrative and criminal cases, who face often insurmountable challenges and as consequence tend to be much less successful financially and enjoy a much lower status within the legal profession as a whole.

This has led to the outcome that the brightest and more capable lawyers often tend to refrain from handling precisely those types of cases where a lawyer can make a difference in the protection of fundamental human rights.

本文将分析中国法律职业的现状和律师所面临的困难，以及探讨其发展前景。文中将会讨论到随着中国律师数量的不断增长（如今已超过23万，与30年前只有2千多人的情况截然相反），法律职业在中国日益强大并且越来越受重视，但是，律师的独立性仍然只是一个憧憬而非现实：依据律师职业领域的不同，有些律师实际能够做的事和自身权利的实现会受到极大的限制。这种情况逐渐导致了律师体系内部的分化：主要从事民商法律业务的律师，有着不断增强的践行自己权利的能力并且享受着不断提高的物质报酬；而那些处理更加敏感的行政诉讼业务和刑事法律业务的律师，则时常面临着难以应付的困难，和相比之下不太可观的利益收入，并且在整个行业之中处于较低的地位。

这样的现状直接导致了一个结果：那些最聪明和更有能力的律师经常抑制住自己，不去涉足维护基本人身权利的法律领域，而正是在这些领域，律师往往能发挥很大的作用。

Background

In China which is under the administration of the Communist Party, the earliest birth of legal defensive system can be traced back to the period of the revolutionary bases. In 1932, the defensive system had already been adopted inside the base areas, and we can see the specific cues in the Interim Organizations and Regulations of the Judge Department enacted by the central executive committee of Chinese Republic of Soviet. It stated that with the approval of the court, the defendant can appoint a representative to defend in the court in order to protect his own benefits.

Following the establishment of the People’s Republic of China in 1949, the then existing legal profession suffered several significant setbacks. And with the abolition of the Six Laws Book legal systems adopted by the former Nationalist Government, many legal professions were listed as the “reactionary and old laws members”and were cleaned in that way. Then, lawyers almost vanished.

背景

中国共产党领导的中国，法律辩护制度的最早发端，是根据地时期。早在1932年中国共产党领导的革命根据地内便开始实行辩护制度。中华苏维埃中央执行委员会颁布的《裁判部暂行组织及裁判条例》规定“被告人为本身的利益，可派代表出庭辩护，但须得法庭的许可”。

1949年中华人民共和国成立之后，那时存在的法律职业遭受了巨大的挫折。随着废止原国民政府的“六法全书”等法律体系，对法律职业人员也列为“反动旧法人员”进行清洗。律师职业基本消失。

First, although the General Rules of the Organization of the People’s Court regulated that the defendant should be guaranteed to have the right to defend and appoint others to defend for him, in December 1950, the Ministry of Justice issued the “Circular concerning Banning “Evil-Minded Lawyers” and Pettifoggers” , which explicitly outlawed bar associations and other “lawyering” activities existing during the period of the Nationalist Government. The criminal defendant was trialed in a mass revolutionary way without the defence from neither himself nor the lawyer.  

The very existence of lawyers was not recognized until the enactment of the first “Constitution of the People’s Republic of China” in 1954, which stated clearly in the article 76: the cases which are heard by the court should be openly operated except some special situations stated by the law, and  the accused has the right to defense.

首先，虽然1950年《人民法庭组织通则》规定了“应保障被告有辩护及请人辩护的权利”。1950年10月，司法部则下发了有关禁止“黑律师和讼棍”的通知，这一举措明确地将律师协会排除在法律保护之外，同时也排除了其他国民政府时期存在的“以律师之名”的一切活动。刑事被告被以群众革命的方式审判，不能进行自我辩护和没有律师辩护。

直到1954年新中国第一部《中华人民共和国宪法》颁布后才得到承认，在这部《宪法》第七十六条规定：人民法院审理案件，除法律规定的特别情况外，一律公开进行。被告人有权获得辩护。

In 1956, the Ministry of Justice issued the first Report for Instructions Concerning the Establishment of Lawyers, creating the first professional lawyer system since the foundation of the People’s Republic. And the Chinese government cultivated his own lawyers to serve his new regime, among whom the lawyers were the students who came back from the Soviet Union and the ones who received law education during the period of Nationalist Government. However, the “anti-rightist” campaign initiated in 1957 by Mao Zedong identified most of the lawyers(the total number of the lawyer at that time was over 2000, nearly half of whom)as “rightists” and therefore subjects of persecution.

During the Cultural Revolution (1966-1976), which led to a period of almost total lawlessness in the administration of justice, law faculties were closed, lawyers qualifications exams were suspended and law firms and lawyers associations practically ceased to exist.

Following Mao’s death in 1976, the trial of the Gang of Four and the ascent to power of Deng Xiaoping, China adopted a new Criminal Procedure Law re-affir ming the right to defense of the accused, then the lawyer system began to retrieve. This right was subsequently recognized also in the new Constitution adopted in 1982.

1956年，司法部发布了第一份有关成立律师制度的指示文件，这一举措创立了新中国成立以来的第一个执业律师制度。中国政府培养自己的新政权律师，主要是留学苏联回国和从国民政府时期获得过法学教育的人充任。然而，1957年，毛泽东发起了反右派运动。在这场运动中，总数二千多的中国律师，有一半以上都被打成右派并遭到迫害。1966年至1976年的文化大革命期间，这是一个在司法军管化、行政化环境下，几乎无法治的时期，法律学院被关闭，律师职业资格考试停止，律师事务所和律师协会、律师执业实际上已经不复存在。1976年毛泽东逝世之后，随着四人帮的审判和邓小平掌权，中国颁布了新的刑事诉讼法，重申被告的辩护权，中国律师制度开始恢复，在随后的1982年新宪法中也得到了确认。

The Criminal Procedure Law enacted in 1979 used an exclusive chapter to regulate the defense. It stated that the accused can ask for legal help since the investigation started. And during the case was heard, the accused not only had the right to defend by himself, this meant that he can argue for himself; had the right to apply for collecting evidence and investigation; had the right to make a final statement and appeal to the case, but also he can commit a lawyer to defend. The law also stated that the following 3 kinds can be appointed as a defender: (1) lawyer; (2）a civilian who is recommended by the accused ‘s work place or the mass organization, or permitted by the court; (3) the close relatives or custodian of the accused. The responsibility of the defender is to offer the materials and suggestions based on the facts and law that can prove the accused not guilty, misdemeanor or can reduce or avoid the criminal responsibility, and to protect the legitimate rights and interests of the accused. The lawyer can consult the materials concerning the case, meet with the accused and communicate with him through letters. All of this can be done by other defenders through the permission of the court. Apart from the entrusted defense, in the cases with the attendance of the prosecutor, if the accused doesn’t have a defender, the court can appoint a defender for him. And if the accused is deaf, mute or a juvenile without a defender, the court also can appoint one for him. During the trial, if the accused thinks the defender who was entrusted by himself or appointed by the court couldn’t protect his legitimate rights, he can either refuse the defender to continue defending for him or entrust others to defend for him.

1979年公布的《中华人民共和国刑事诉讼法》对辩护作了专章规定。被告人辩护权从侦查开始法律帮助，被告人在法庭审理阶段不仅自己有权辩护，即有权进行辩解，有权申请调取证据，有权做最后陈述，有权对裁判提出上诉或申诉等，还可以委托辩护人进行辩护。辩护人有以下3种：①律师;②人民团体或者被告人所在单位推荐的，或者经人民法院许可的公民；③被告人的近亲属、监护人。辩护人的责任是根据事实和法律提出证明被告人无罪、罪轻或者减轻、免除其刑事责任的材料和意见，维护被告人的合法权益。辩护律师可以查阅本案材料,了解案情,可以同在押的被告人会见和通信。其他的辩护人经过人民法院许可，也可以了解案情，同在押的被告人会见和通信。除委托辩护外，公诉人出庭公诉的案件，被告人没有委托辩护人的，人民法院可以为他指定辩护人。被告人是聋、哑或者未成年人而没有委托辩护人的，人民法院应当为他指定辩护人。在审判过程中，被告人对于自己委托的辩护人或者人民法院为他指定的辩护人，如认为不能维护他的合法权益时，可以拒绝该辩护人继续为他辩护，也可以另外委托辩护人进行辩护。

In 1980, China adopted the Interim Regulations on Lawyers of the People’s Republic of China, followed in 1981 and 1986 by other regulations issued by the Supreme People’s Court[1], the Supreme People’s Procuratorate and the Ministry of Public Security. This legislation formed for over a decade the backbone of the legal framework regulating the establishment of law firms and the participation of lawyers in court proceedings. Following the re-opening of law faculties at the beginning of the 80s, the first lawyers qualifications exams were held again in 1986, the same year when the All China Lawyers Association was founded. Therefore, one may say that the legal profession in the “new” China (i.e. the China emerging from Mao’s totalitarian period) is barely 30 years old.

Under the 1980 “Interim Regulations” , lawyers were defined as “workers of the state” who “represented the state” and “protected the interests of the state”. In other words, lawyers were seen as civil servants( they were salaried by the state and not like the free professions) and a component of the overall administration of justice and were expected to assist in the enforcement of laws and regulations and to uphold the cause of socialism[2]. Accordingly, virtually all law firms and legal advisory offices created in the decade following the re-opening of law faculties were in a way or another affiliated to government departments or entities.

1980年，中国出台了《中华人民共和国律师暂行条例》，随后，1981年和1986年最高人民法院[3]，最高人民检察院和公安部相继出台了其他的规定。这一系列规定的出台为接下来近十年的律所成立和律师参与庭审奠定了法律框架的基础。随着80年代法学院的重新建立，1986年再次举行了第一次律师资格考试，同年，中国国家律师协会成立。因此，可以说“新”中国（从毛泽东的专政时期开始）的法律职业真正恢复，仅仅有30年的历史。

在1980年《暂行条例》之中，律师被定义为“国家工作人员”，“代表国家”并“维护国家利益”。换言之，律师被视作公务员，领取国家薪俸，不是自由执业，是整个司法部门的一部分，协助法律的实施并坚持社会主义事业[4]。因此，实际上所有在那时随着法学院重新办学而建立的法律顾问处、律师事务所，都是某一种形式的政府部门的附属机构。

At the end of the 80s, the first foreign law firms also started flocking into China, initially in the form of consulting companies, working on the non-litigation practice and not present in the court, quickly achieving an almost total monopoly on commercial and corporate legal advice given to the large number of foreign investors entering the country. In 1992, the Ministry of Justice issued rules restricting the scope of the foreign firm’s activities: while still able to hire locally qualified lawyers and law students, they were restricted to the practice of the law of their home countries and deal with the non-litigation practice concerning the enterprises from their own countries.  In other words, they could not practice local law even if they employed locally qualified lawyers. This situation has not changed until today. At the same time, foreign firms have contributed actively to the training of a new generation of PRC commercial and corporate lawyers, some of whom were able (also thanks to scholarships offered by the same firms) to receive master degrees in the US or Europe.

在80年代末，第一批外国律师事务所也开始群集到中国，最初是以公司咨询顾问的方式进入，从事非法律诉讼的业务，不得在中国出庭，而后很快成功地在面向大量进入中国的外资商事和公司提供法律咨询业务中占据了几乎是垄断的地位。1992年，司法部下发了限制外国律师事务所活动范围的规定：尽管可以招聘本地有能力的律师和法学院毕业生，但是执业范围被限定在为本国企业机构进行法律非诉讼服务之内。换言之，即使他们招聘当地的合格律师，也不能够受理案件出庭代理诉讼。这一情况直到今天也没有改变。同时，外国律师事务所在培养新一代中国商事和公司法律业务律师方面做出了积极的贡献，向中国律师传播了经验，培养了一些中国的了解国际商事的涉外律师，一些人（同时也要感谢这些事务所的奖学金资助）还通过律师所培养，在美国和欧洲获得了硕士学位。

At the beginning of the 90s, the first firms organized along the private partnership model were established under the reform of China. Many state-owned law firms started to convert their system into the partnership model like the company and the personal partnership model assuming unlimited joint and several liability. Junhe Law Offices (now one of the largest) was founded in 1989 and King & Wood in 1993. During the same years, the first firms registered after the name of an individual lawyer also were founded. In 2008, with the amendment of the Lawyer Law, over 90percent of the law firms have become the personal partnership model, named by their own names, besides some state-owned law firms were still remained in some remote and less developed areas, all of the company-like partnership law firms have been canceled. Meanwhile, some legal aid centers have been set up in the Justice Bureaus, aiming to help those needy civilians to litigate funded by the state. Some of the big law firms such as Da Cheng, Jin Du, Jin Tiancheng, Jing Heng and so on have hundreds of thousands of lawyers, and they have specific divisions of professions. However,

Most ost PRC lawyers who practice in a moderate and small law firms  tend to be “generalists” and to do litigation (often both civil and criminal) as well as commercial and corporate work.[5] In the past few years, however, the largest firms (especially those with a large nation-wide network) have focused mainly on commercial/corporate work and related commercial/civil litigation, for two main reasons: first, because these remain the most profitable practices. Second, because (as further explained later) criminal cases and administrative litigation cases to a large extent still remain the less rewarding ones both financially and from a professional point of view, and more risky, thus, it fails to appeal to the successful lawyers.

90年代初，第一批以私有合伙制为组织形式的律师事务所在中国改革产生。很多国办的律师所开始转换体制，成为类似公司的合作制律师所和承担无限连带责任的个人合伙律师事务所。1989年，君合律师事务所（现在是最大的律所之一）成立。1993年King&Wood律师事务所成立，同时期，以个人名字注册的一些小型的律师事务所也在中国出现。2008年，中国修改了《律师法》，90%以上的律师所成为合伙性质的个人所，个人名号的个人所，另外还有边远经济不发达地区保留了少量国家办的所，所有的公司类似的合作所全部取消。同时，中国在司法局里成立了一些法律援助中心，由国家对一些困难民众的诉讼事务进行国家出资的法律帮助。中国的一些大型所，像大成、金杜、锦天城、京衡等都有数百名上千名律师，有专业分工，而大部分在中小律所执业的中国律师，都是“通才”，既处理刑事诉讼，又处理民事诉讼，同时还兼顾商事和公司业务[6]。然而，在过去的几年中，许多大律所（尤其是那些覆盖全国的）已经主要将业务集中于商事/公司和商事/民事业务上。这样做有两点原因：第一，这些领域一直保持着较好的收益水平。第二，从物质收益和专业角度来看，刑事业务（后面会提到）和行政诉讼业务在很大程度上来说，在中国依然收益少而风险大，吸引不了成功律师。

The Lawyers Law

The development of private firms and the increasing role played by lawyers in the judicial system in the 90s led to the adoption in 1996 of the new “Lawyers Law” . This law (further amended in 2007) is recognized as the real first “code” regulating lawyers in the “New China”.

Under the Lawyers Law, a lawyer is defined as “a practitioner who has duly obtained the lawyer’s practicing certificate according to the law and who, by way of accepting an appointment or through designation, provides legal services to a concerned party” a very different definition from the previous one of “worker of the state”. The Law also states that, in its practice, a lawyer must “abide by the Constitution and the law, and adhere to the ethics of the legal profession and practice discipline”, but also that he “shall be subject to the monitoring by the state, the public and the concerned party”. Still, article 3 (4) of the law states very clearly that “a lawyer practicing in accordance with the law shall be protected by the law and no organization or individual may infringe upon his/her lawful rights and interests”.

90年代末私人律所的兴起以及律师在司法系统中的作用越来越重要，直接促使了1996年新《律师法》的出台，这部法律（2008年又进行了修改）被认为是新中国第一部真正的管理和规范律师的“法典”。在律师法中，律师的定义为：“依法取得律师执业证书，接受委托或者指定，为当事人提供法律服务的执业人员”。这与之前的“国家工作者”非常不一样。同时，该法宣称，在执业过程中，律师必须：“遵守宪法和法律，恪守律师职业道德和执业纪律”，同时，律师“应当接受国家、社会和当事人的监督”。再者，该法第3条第4款规定：“律师依法执业受法律保护，任何组织和个人不得侵害律师的合法权益”。

In order to qualify as a lawyer, an individual must “uphold the Constitution” and must have passed the state judicial examination (since 2002, China holds every year a “unified bar exam” which opens the any legal profession). The individual also is required to have completed a full year’s training in a law firm and, similarly to requirements found also in other jurisdictions, to “being of good conduct”.

The practicing certificate allows the lawyer to practice nation-wide, i.e. it is not subject to any territorial limitation. More importantly, however, lawyers cannot practice “solo” and must do that only through duly established law firms; in addition, they cannot work for more than one firm. In other words, the practicing certificate cannot be used by a lawyer unless he is registered as a practitioner with a law firm. Any appointment needs to be accepted by the firm as a whole and fees need to be collected by the firm. At the same time, the state evaluates and operates lawyers through annal renewal system and asks the lawyers to become the member of the bar, also in that way can the state conduct bar regulation.

为了成为一名合格的律师，一个人必须“拥护宪法”以及必须通过国家司法考试（自2002年起，中国每年举行面向所有法律职业领域的统一国家司法考试）。同时，还要满足在律所实习满一年并且“品行良好”，相似的要求还可以在其他司法制度规定中找到。职业资格证允许一个律师在全国范围内执业，没有地区区域性的限制。然而更为重要的是，律师不得以个人名义执业，必须通过已经成立的律师所进行执业，另外，不能同时为两个以上律所工作。换句话说，资格证书不能被一个单独的律师所使用，除非他是一个律所的执业律师，任何指派都要得到律所的允许并且费用都要由律所进行收取。同时，中国以每年年检的方式，对所有律师进行考核管理。并通过全员会员制，要求每个律师都成为律师协会的会员，进行协会管理。

Once registered as a lawyer, the individual is subject to an yearly renewal system for his practicing certificate. The practicing certificate may be revoked or cancelled if it was procured through improper means (fraud or bribery) or if the applicant didn’t meet the conditions required to be issued a license. The assessment of whether an individual meets the requirements to be registered as a lawyer or to have his license renewed falls within the powers of the local bureau of justice, rather than the bar association. This peculiar feature of the lawyer’s licensing system still remains today under the revised Lawyers Law.

一旦注册为律师，其执业资格证书就要经历每年一次的年检。其间，如果资格证书是通过不正当手段获得的，或者在执业中有违反规则的情形，例如欺诈和贿赂，或者申请者无法达到发放执照的要求，他的资格证书可能会被撤销。由当地的司法局而不是律师协会来考核一个人，是否符合发放执照的要求和评估律师执照是否能更新，在修改律师法之后，这种律师执照体系的特点依然保留了下来。

Under the Lawyers Law, lawyers have a duty to “safeguard the legal rights and interests of their clients”. When acting as defense counsels, they would offer the legal aid to the suspects with the presence of the police and the police usually prevent and constraint their meeting with their clients, what’s more, they are given broad rights to present materials and evidence, to review, extract and copy files related to the case even when it is examined by the prosecution.

As mentioned above, administratively, the Lawyers Law, entrusts the Ministry of Justice and in particular the local department of justice at city level with the responsibility of administering the lawyers’ licensing system, assessing the qualification of lawyers and taking disciplinary actions against them. The local bar associations are given the more limited role of representing the category as a whole, carrying out training activities and handling professional liability insurance matters (for instance, several bar associations applied for insurance covering all firms practicing in their jurisdiction). Bar associations are also empowered to issue fines and penalties if the lawyers within their jurisdiction breach the bar association’s own rules.

在律师法中，律师的职责是维护和保障当事人的合法权益，当作为辩护律师时，中国律师往往要获得警察在场的情况下，对嫌疑人的法律帮助。会见经常受到警察的阻止和限制。在检察起诉阶段，他们有权获得控方的指控材料证据，查阅、摘取、复印案件卷宗。正如上面所提到的，从行政角度来讲，律师法实际上是委托司法部和市级司法部门去管理律师的执业证件系统还有评估律师资格能力以及对律师进行纪律处分。从整体上说，当地的律师协会在代表律师时的作用受到了一定的限制，他们负责开展培训活动、对律师进行评比优秀和通报处理违规，和处理律师的责任保险事宜（例如，一些律师协会为在自己管辖区域内的所有律所都申请了职业保险），在其管辖范围内的律师违反律协自己《章程》和规则，协会有权对其处通报和惩罚。

In addition to exercising control over the lawyers, the judicial bureaus exercise broader control also over law firms by requiring them to submit an annual practice report and the results of the assessment of their lawyers’ practice. In practice, law firms are required to submit a brief description of the main cases handled and describe any specific issues encountered during their practice in the previous year. In addition, law firms are also subject to the annual registration renewal system. These features of the Lawyers Law allow the executive branch substantial control over the legal profession.

The Lawyers Law also contains provisions for the establishment of a legal aid system, allowing individuals free support from a qualified lawyer in cases related to family support, work-related injuries, criminal actions, state compensation claims or payment of pensions for deceased persons. Each law firm in China is required to allocate a number of days each year to discharging assignments coming through the Legal Aid system, and the lawyers can get a few allowance from the state. . Views differ on whether legal aid centers have been effective in increasing access to justice. [7]

除了对律师进行管理，司法行政部门还要对律师事务所进行更广泛的监督和管理，律所要向其提交年度执业情况报告和律师执业考核结果。实际中，律所要上交一份对其在前一年的执业过程中所遇到的特殊事项和本所主要处理案件的简要描述报告。另外，律所还要接受每年的年度考核。这些律师法中所规定的条款，允许行政机构在实际上控制和监管法律职业。

律师法中同样存在建立法律援助制度的条款，在家庭、工伤、刑事、国家赔偿或者是死亡赔偿金的案件中，公民求助者可以从一名合格的律师那得到免费的帮助。在中国，任何一家律所每年都需要分配出一些时间来处理法律援助系统派发的任务。而国家会给律师少量的办案补贴。然而，对于法律援助中心在提升社会正义中是否发挥了有效的作用,社会上存在着不同的观点。[8]

Challenges Facing the Legal Profession

The challenges faced by lawyers in China can be broadly divided into two broad categories. The first category includes those facing any lawyer practicing in China. The second includes those facing in particular lawyers which represent certain categories of cases.

法律职业所面临的困难

在中国，律师所面临的困难大致可以分为两大类：第一大类是所有在中国执业的律师都会遇到的困难；第二大类是一些代理特定案件的个别律师所遇到的困难。

Category 1:

1. Constraints faced due to the structure of the judicial system.

Various Chinese scholars have noted that, as designed, the PRC judicial system does not ensure independence of the judges. This extends both to “internal” independence (i.e. the ability of the judge to exercise its functions without influence from his superiors or from higher level courts) and “external independence”, i.e. the ability of the judge and of the court as a whole to take decisions without undue influence from external organizations.

Although since the 2002 Judges Law China has made significant progress in “professionalizing” its judges (for instance, all candidates are now required to pass the unified qualification exam and to have a law degree – a requirement that did not exist before the 2002 reform), and there are timid movements towards a reform of the funding system of the courts, there are significant roadblocks remaining on the path to independence. [9] For instance, under the Law of the Organization of People’s Courts, the adjudication of “important cases” (sic) is taken from the judges who attended the hearings and given to an “adjudication committee” presided by the Court’s President and composed of judges who are often more senior than the one who heard the case.

第一大类：

司法体系结构所造成的限制

许多中国的学者提出：正如立法所规定的一样，中国的司法体系不能确保法官的独立性，这既包括内部独立（例如，法官发挥作用不受上级法院及更高级别法院的影响）又包括外部独立（法官作出决定不受任何外界组织的影响）。

2002年的中国《法官法》使得法官的专业化取得了巨大的进步（例如，所有的法官候选人都必须通过统一的国家司法考试，并且要获得法学学位，这一要求在2002年改革之前并不存在），以及一些指向法院财政供给系统的改革举动已经在缓慢而又谨慎的开展，尽管这样，在通往独立的道路上仍然困难重重。[10]例如，在《法院组织法》中，对“重要案件”（原文中就是如此描述的）的审判需要由主审法官移交给审判委员会审理，由法院院长和比先前法官更高级别的法官组成审判委员会。

While the stated intent of the legislator in designing this system was to ensure that “junior” judges could benefit from the opinion of more senior and experienced ones especially when facing complex or sensitive cases, the system has several obvious set-backs: first, the judges comprising the adjudication committee receive only a written report of the case prepared by the presiding the hearing and therefore do not benefit from the actual experience of the trial, the exchanges between litigants or the defense and the prosecution; in addition, due to the special role played by the President of the court (who often sits also on the Political and Legal Committee within the local Party’s Commission[11]) and the importance of his opinion in deciding the case, the adjudication committee can become a vehicle through which exercise local political influence on the outcome of the case. In these circumstances, the arguments and counterarguments made by the lawyers (especially the defense team in criminal trials or the plaintiff’s counsel in an administrative case where the local government is being sued) may lose relevance when the final decision is made. All above mentioned are pervasively criticised by all of the Chinese legal scholarship—— a case has been heard but without a verdict and a case has a verdict but without a trial. The right of the adjudication committee is always be replaced or made as a figurehead.

立法机关宣称：设计这一体系的目的是为了确保初级法官能够从高级和有经验的法官那里得到有益的建议，尤其是遇到复杂和敏感案件时。然而这一体系有着明显的缺点：第一、组成审判委员会的法官所得到的资料只有先前主审法官准备的案件书面报告，因此他们不能经历实际的法庭审判和控辩双方的诉讼质疑，另外，由于法院院长的特殊地位（经常是当地政法委的一员[12]）和他的意见在决定案件中的重要作用，审判委员会往往变成了当地政治势力对审判结果产生影响的通道和工具。在这种情形下，双方律师的辩论和抗辩（尤其是刑事案件的被告律师和起诉政府行政案件中的原告律师）都不会对案件的判决结果产生影响。即中国法学界普遍诟病的“审的不判，判的不审”。合议庭的权力经常被代替和架空。

In addition, due to the fact that administrative precincts almost invariably coincide with judicial precincts, the local People’s Congress (which due to the nature of the political system is largely dominated by Party’s members) appoints all judges working in the courts within the same precincts. More importantly, courts rely almost entirely on the local government for their funding, personnel and resources. This creates additional difficulties for lawyers arguing a case in which local interests are at stake or a case deemed politically “sensitive” from the perspective of the local government or the local Party’s organization, which – as explained – oversees the overall administration of justice at local level through the Political and Legal Committee.

此外，基于行政管辖区与司法管辖区的一致性，当地的人民大表大会（由于政治体制的本质，人大很大程度上都是由党员组成）任命所有法官在同一辖区范围内工作。更重要的是，法院的经费、人事和资源都全部有赖于当地政府，这就给那些为会使得当地政府利益受损的案件和被当地政府或者当地党委会（正如前面所提到的那样，这一组织通过党组织控制的政法委员会，监管当地的司法机关）认为是具有政治敏感性案件辩护的律师，增添了更多的困难。

Finally, lower courts oftentimes seek “guidance’ on difficult or sensitive cases from higher level courts and ,in order to exclude themselves’ responsibility and keep identical with the upper power politically. This is called report to the authority in advance, in this way can the committee has a inner discussion about the nature of the case, whether the accused is guilty or not and decides the measurement of the penalty, thus, leading to the involvement of the higher level court in the case at an earlier stage than the appeal phase. One of the reasons why lower court judges seek the opinion and support of higher level courts in their decision is that judges are rewarded and penalized based on a complex “points” system, with points taken away for the judge whose rulings have been overturned in appeal. This system, however, has the obvious downside of compromising the utility and importance of the appeal phase (as a matter of fact, most judgments – especially those in criminal cases – are confirmed in appeal –and it makes more difficult to get the judicial remedies during the appeal, because the judge charged with the first instance is worried about the change, he will do what he can to dominate the court charged with the appeal period not to change his verdict, furthermore, the judge who already has given his reply in the inner discussion won’t deny his own opinion. Therefore, in most cases, some important cases gained the attention both from the authority and the society are unlikely to get a changed verdict when it is retrial.

最后，低级别的法院在处理复杂和敏感性案件时，为了免除自己的责任和表示政治一致，经常向上级法院寻求“帮助”，即所谓的“事先汇报请示”，对案件的性质、能否定罪，如何量刑进行事先的内部研究答复，提出指导性意见。这就导致上级法院更早地介入了案件而不是在独立审判的上诉阶段，导致了二审实际上成了一审终审。低级别法院这样做的原因之一，是因为中国法官们年末考核时会根据“办案质量”都是依据复杂的评分系统来获得奖励和接受处罚，在这个体系中，那些自己审理的案件被当事人提出上诉而二审改判和发回重审的法官将会被“扣分”。然而，这种体系反而使得上诉阶段的司法救济变得更为困难，因为一审的法官往往担心改判而用各种方式影响二审法院维持原判不要改判，而事先内部答复的过的法官自然不会去自己否定自己。因此，在多数情况下，一些官方和社会都关注的重要案件，中国法庭的二审改判是非常困难的。

2. Case filing system

Another major stumbling block for lawyers is the ability to get their case heard, due to the existence of the “filing division” in each People’s Court. In China, the court adopt the Examination and Approval system before it accepts and hears a case, which is different from the registration system, as a result, the court can refuse to hear a case even when it’s time to realize the litigation rights.

1、立案系统

律师所面临的另外一个障碍是立案难的问题，这是由每个人民法院都设有立案庭所导致的。中国的法院受理案件是审批制，而不是登记制。有很多的案件，在诉权环节就被法院不予受理。

The case filing division works as a de facto “filter” for any lawsuits. It is separate from the trial division and gives judges substantial discretion in accepting or rejecting cases without affording any access or accountability to the public. Although it plays many other functions, for example, it can priorly avoid the irrational charge which misuses the ligation rights, some have noted that the case filing divisions is often an obstruction to the administration of justice because in certain “politically sensitive cases” it may deprive plaintiffs of their right to procedural and substantive due process[13]. Cases where a state department or administration is named as defendant, most of the actions taken by the Chinese government are free from the judicial examine, as well as “collective actions” (i.e. actions with multiple plaintiffs) or mass mobilizing cases are those that are more difficult to file. The lack of clear and uniform guidance under national law or Supreme People’s Court interpretations about what types of cases can be filed creates additional difficulties for lawyers. Sometimes, several courts will join hands with the government to enact some documents stating that certain kinds of cases can not be heard, such as the nationalization of the coal mine in Shanxi ; sometimes, the courts will offer special protections toward the government and some state-owned enterprises, even may leading to violate the law regulations, such as a famous tort case: the descendant of the Ming dynast cellar sues the Yin Bin government and WULIANGYE Group.

这种做法实际上是对所有诉讼进行“过滤”，与审判庭不同，立案时先经过立案庭给了法官，在不考虑公众利益、尚没有经过实体审理的前提下的实质上的自由裁量权。尽管这一举措发挥了很多其他的作用（比如使一些滥用诉权的无理起诉行为被事先防止），但是许多人指出设立立案庭是司法公正的一个障碍，因为在某些特定的“政治敏感”的案件中，原告正当的程序性权力[14]被剥夺。还有些案件是很难立案的，例如以政府或行政机关作为被告的案件，中国政府的很多行为不受司法的审查、或者是集体诉讼（有众多原告参与的公益诉讼案件）以及群体性案件。国家立法和最高法院解释，对可立案审理的案件类型没有一个清晰统一的规定，有的法院会同政府一起联合发出文件，某一种案件不准受理（例如山西的煤矿国有化案件），有的法院会对政府和大企业进行特别的保护，违背法律规定不受理原告的诉讼（例如著名的明代古窖的传人诉宜宾市政府和五粮液公司侵权案），这给律师们增添了额外的困难。

Speaking to litigators in China, one of the most often-heard complaint is precisely the inability to file a lawsuit due to the decision taken by the filing division. There seem to be little avenues for lawyers to circumvent the decision of the filing division and have their case heard. This remains particularly true for administrative litigation cases.

在与中国律师的交谈中，其中一个被提及最多的抱怨就是因为设有立案庭而导致的“立案难”的问题，而且似乎也没有任何途径去防止它，这种情况在行政诉讼案件中尤其明显。

3. Lack of administrative autonomy for lawyers

As mentioned above, lawyers, law firms and bar associations are subject to the administration and supervision of the local judicial bureau. Though it is stated that the judicial bureau just “instruct” them, in reality, the right to renew annal license and to punish the lawyer through canceling their licenses is curbed by the bureau. Although the Chairman and the Vice Chairman of the All China Lawyers Association and of the vast majority of the local bar associations are legal practitioners, the judicial bureau maintains substantial control over the process of selecting the bar associations’ leadership through various means, as evidenced also by the recent Beijing Bar Association case[15]. Actually, nearly all the bar associations in the other provinces are formed like this, only in Shenzhen Guangzhou which is the most opening city in China had the bar association elected by themself, however, it was corrected into the same model like others.

The local bureau of justice is also able to exercise substantial control on lawyers and law firms through the annual reporting and registration renewal system. Although denial of renewal or withdrawal of a license for a law firm or lawyer constitute exceptions rather than the rule, they play an important deterrent role for any law firm wishing to maintain “good relationship” with the local justice bureau (on which it relies for the ability to continue to be in business) as well as with the bar association itself. Moreover, the need to verify whether an application meets the “good conduct” requirement under the Lawyers Law can also involve a review of the applicant’s political views and compliance with state-endorsed policies such as the one-child policy. More recently, the MOJ has circulated a notice reminding all local bar associations to require lawyers who intend to apply for or renew a practicing certificate to swear allegiance to the Constitution, the law, but also the Party. The consequence of a failure to take the oath according to the requirements are unclear, and will probably be more clear if and when there will be particular individuals who will refuse to take such an oath. In fact, this kind of oath is not actually taken in many places.

2、律师缺乏自治权

前文已经提到，律师、律所和律师协会都要由当地司法局进行管理和监督。虽然《律师法》中规定的是“指导”，实际上中国律师的每年的执照年检和吊销执照的处罚权都在司法厅（局）。同时，中国律师还受政府色彩浓厚的律师协会的管理。这个协会往往不是一个律师自治组织，而是一个以服务的方式出现的半政府的机构。往往帮助政府对律师进行管理和政治性的限制。虽然绝大多数省区的中国的律师协会的会长和副会长都是由律师担任，但是司法局依然通过各种途径来以安排和选举追认的方式产生律协的领导，这样他们实际上掌握了控制权。最近北京律协的案例就是一个很好的证明。实际上其他的所有省份和市一级的律师协会基本上都是这样产生的。只有中国最为开放的广东省深圳市产生过一届真正律师自己选举的律协，其后也被修正为其他地方一样的模式。

当地的司法局通过每年的报告和执照每年一次的更新注册（中国通称为“年检”）系统，实际上操控着律师和律所，拒绝更新和放弃执照对于一个律师或律所来说意图味着失业或不再当律师。对任何一个想要与司法局“保持良好关系”的律所以及律师协会本身来说，这种措施是具有很强的威慑力的。而且，考查申请者是否符合律师法中所规定的“品行良好”，主要的是指政治上是不是同官方的要求保持一致。其他如遵从基本国策的情况(例如计划生育）也考虑在内的。最近，司法部（MOJ）发布了一个通知，告知所有当地的律师协会，要求凡是要进行执照年检的律师都要发誓效忠于党和宪法、法律。由于要求规定的不明确，可能只有当某个个人不进行宣誓的时候，我们才能知道其后果是什么。事实上，很多的地方这种宣誓也并不真正进行。

The approach to sanctioning and punishment of lawyers who behave in an unethical manner or in violation of the rules is also a “top-down” , administrative one. MOJ and the local counterparts conduct periodical “campaigns” against unethical behavior in the legal profession. In one particular campaign in 2004 several hundred lawyers were punished for violation of the code of ethic.(as the statistics are inaccurate, the number of the punished lawyers is far more than that)  In recent years, the power to impose certain sanctions on lawyers has progressively shifted towards the bar associations, but the MOJ and its local counterparts retain the power to suspend the license or deny renewal, which is for obvious reasons the most serious sanction.

处罚行为不端和违反规定的律师，其方法也是一道“圣旨”，司法部和当地司法局为抵制法律从业者的不良行径，发起了定期的整顿活动。2004年的整顿活动中，几百名（由于数据不明，实际上这样的处理数据远不止此数）律师因违反职业准则而受罚。最近几年，对律师进行处罚的权力，渐渐地转移到了律协的手上，但是司法部和当地司法局依然掌控着执照的颁发和吊销的权力，以及延迟和拒绝更新执照的权力，而这些无疑是最严厉的惩罚。

Both the bar associations and the MOJ can also issue instructions to lawyers on how to handle specific types of cases, especially those defined “sensitive” or “important”. For instance, in May 2006 the ACLA issued a formal Guiding Opinion to all lawyers associations and law firms in China on accepting and handling collective cases (like mass tort cases) and cases of “great social significance” like appropriation, environment pollution and rights protection. In particular the ACLA recommended that local lawyers associations should “aid, guide and supervise” lawyers in handling such cases and that caution shall be placed in briefing the media, especially foreign media.[16] More recently, in the aftermath of the deadly accident involving a high-speed train nearby Wenzhou in 2011, the Zhejiang province bar association circulated a notice warning lawyers in the province from representing tort cases related to the incident, warning them to pay attention to the overall situation and their own safety. Also, the judicial bureau established a regulation stating that the lawyers in charge with the cases concerning about the political, religion and some sensitive cases are not allowed to commit a not guilty defense and they should report to the local judicial bureau ahead of the defense. What’s more, some lawyers with strong-willed defending can be expelled from the court and recalled by the bureau that sent out his license, since then, he is not allowed to take part in the defense, such as the famous Li Zhuang case, Beihai case, Xiaohe case in Guiyang.

律师协会和司法部都有权下发对于律师如何处理一些特殊案件的指导性意见，尤其是那些被称为“敏感性”和“重大的”案件。例如，2006年5月中华全国律师协会颁布了对于代理集体性案件（如集体侵权）和拨款、环境污染、维权等“有较大社会影响力的”案件的指导意见。中华律协特别指出当地律师协会应该“帮助、指导和监督”处理这些案件的律师，并且要谨慎处理媒体信息的发布，尤其是国外媒体舆论。[17]最近，继2011年温州高铁事故之后，浙江省温州市的律师协会就发布了一则通知，以此提醒市内代理此次事件侵权案件的律师要注意大局和自身的安全。司法局和律师协会还对一些政治性、宗教类、敏感类的案件，规定了不准律师作无罪辩护和辩护前要事先向司法局报告的制度。有的重大案件中辩护坚决的律师，被法院逐出法庭，并被发放执照的主管司法局和律师协会召回，不得参加辩护。比如著名的北京李庄案、广西北海案、贵阳小河案中，都发生了这样的情况。

Category 2

1.. Constraints Faced by Criminal Lawyers

Criminal defense lawyers are probably the category subject to the most significant constraints.

First, there remains a gap between the rights given to defense lawyers under the law and the rights they are actually able to enjoy, especially in an overall legal culture that sees the police, the prosecution and the courts as having a more important role. Second, there continue to remain inconsistencies between the Criminal Procedure Law and the Lawyers Law, which go to the detriment of the lawyers. The new Criminal Procedure Law which will go into effect in January 1^st in 2013 made some coordinations to the problem, however, whether the conflict can be substantially solved is still unknown.

第二大类

4、刑事辩护律师面临的限制

刑事辩护律师恐怕是受到限制最多的一类律师。

首先，在普遍认为警察、法院和检察院有重要作用的法律环境下，辩护律师实际能够行使的权利与法律所赋予他的权利被严重压缩。其次，《刑事诉讼法》和《律师法》中的相关规定，一直存在着不统一，这也造成了对律师的危害。将于2013年1月1日实施的新的《刑事诉讼法》对这个问题进行了一些协调和一致化，但是能否真正解决这种矛盾仍然是个未知数。

In particular, under the Lawyers Law, a lawyer has the right to meet the suspect (during investigations) or the defendant (during the trial) and to “be informed of matters pertaining to the case” simply on the strength of what are often referred to as “Three Certificates” (his lawyer’s license, a letter of engagement from the client and – importantly – a letter from a law firm confirming that the lawyer is employed there).

尤其是以下这些内容，律师法中规定：律师在侦查阶段有会见犯罪嫌疑人的权利，在检察审查起诉阶段、审判阶段有会见被告人的权利，这些权利的实现仅仅出示要求的“律师证、委托书、律师会见函”这“三证”即可会见。

In practice, however, criminal lawyers continue to have difficulties meeting clients during the police investigations, often with no reason given. The balance of power is too much tipped in favor of the public security authorities for the lawyer to be able to challenge the police’s behavior. Since most of the criminal investigations are conducted under the situation that the suspect is detained in the lockup place for prisoners awaiting trial, the prosecutor and the police can manipulate the power to constrain the suspect for the sake of the convenience of the investigation, not allowing him to meet with his lawyer, in this way, they can get more testimony. The difficulty in meeting clients is also due to the fact that legal advisers not necessarily are notified by the police that their client has been detained and where. Recent changes to the Criminal Procedure Law require the police to notify the family of the suspect in most cases (however, still with important exceptions as we will see below) and it is hoped that this will also allow the defense counsel to be properly and timely notified. Still, the consent of the public security bureau for a lawyer to meet his client is de facto required in most cases, whereas such approval should only be required under the law in “important, complicated cases and cases concerning state secrets”. The Criminal Procedure Law does not give lawyers any meaningful legal remedy in this respect against a recalcitrant public security bureau.

而在实际操作中，刑事辩护律师经常在侦查阶段无法会见到自己的委托人，而且往往没有得到任何合理的解释。力量对比的悬殊往往使律师无法与公安部门的这种行为对抗。由于中国的刑事侦查采取的是大部分羁押侦查，看守所是由公安机关管理，因此检察院和公安局远用这个权力，为了侦查的方便，限制嫌疑人的权力，不让他们见到律师，以方便获取到有罪口供。实际上大部分案件，律师都需要取得公安机关的同意才可会见当事人，另外一个造成会见难的原因，是因为侦查机关故意不告知嫌疑人家属和他的律师，其当事人已被拘留和拘留地点。最近新《刑事诉讼法》修正案规定绝大多数情形下，公安机关要告知犯罪嫌疑人的家属（但是，一些重要的例外情形会在下文中看到），而且希望他们也可以适当地及时地告知犯罪嫌疑人的辩护律师。只有那些法律规定的“重大案件、复杂案件和关系国家秘密案件”例外案件才需要得到公安机关的允许。以期绝大多数刑案能够得到无障碍的会见。但是，这个新的《刑事诉讼法》同样没有给律师在对抗顽固、不服从法律的公安机关时，带来任何实质性有意义的法律帮助。比如法律明确的起诉和控告权。

Even when meetings are allowed, they are often monitored by the police, in contradiction with the Lawyers Law’s provision that “meeting with the suspect or defendant shall not be subject to monitoring”. As a result, it is difficult for the lawyer to provide legal advice or coordinate a legal strategy during these meetings. Again, the Criminal Procedure Law does not offer any legal remedy (in the form of penalties or ability to seek legal redress against public security officials) if monitoring occurs. In addition, there is also no clear prohibition for monitoring of the meeting by video camera. On the contrary, many lawyers who meet with their clients through a lawful way could be arrested by the police because of the revenge. A famous case caused by this conflict: Li Zhuang, a lawyer from Beijing, met with his criminal defendant in Chongqing, unfortunately, he was sent to the prison for one and a half year because of the charge of coaxing the client to change his testimony.

即使被允许会见，律师也要被警察监视，在中国称为“警察在场权”。这样权力是没有法律规定而实际上又普遍存在的。这违背了《律师法》中的规定“律师会见犯罪嫌疑人、被告人，不被监听”。结果就是律师很难在会见时，提供法律建议和与当事人协商诉讼策略。再次要指出的是，如果被监视，《刑事诉讼法》没有提供任何法律上的帮助（在与公安机关对抗时寻求法律救济的能力）.此外，没有任何一条明确的规定禁止在会见时通过摄像机、照相机监视。相反有很多的案例导致了依法会见的律师被警察报复拘捕。北京律师李庄在重庆会见刑事被告，结果被以引诱当事人翻供的罪名，判刑一年半，就是这样的冲突引起的。

http://blog.sina.com.cn/s/blog_6b804b510101ixf9.html