Author: Lawyer Zhou Xiangen, December 28, 2016

Since the restoration and reconstruction of the lawyer system in 1979, China's lawyer management model has always been a single administrative management. Since 1993, in the "Plan of the Ministry of Justice on Deepening the Reform of Lawyer Work" approved by the State Council, it was explicitly proposed to implement the "two combinations" management of the lawyer system, although there have been different expressions of the "two combinations" management; This must be a progress in history and an innovation in the management system. After nearly fifteen years of exploration and practice, there has been no breakthrough in the reform of the dual management system; The self-discipline management of the lawyer industry has not achieved the desired results of the reform. Industry associations and judicial administrative agencies sometimes have disharmonious voices on how to do a good job in the management of "dual integration", leading to concerns about why a "dual integration" management system should be established? How to carry out dual combination management has caused confusion. I think, as far as local bar associations are concerned, it is not about whether to manage the industry, but rather about the proportion of the combination of judicial administration management and industry management. The current "dual combination" management model is actually a "administrative management first, supplemented by industry management" model, and industry associations have not yet reached the level of self-discipline stipulated in the Lawyers Law. From today's development perspective, local bar associations may belong to the sun at 7 or 8 o'clock in the morning, with good vitality and insufficient foundation; From the perspective of its future development, its organizational structure, personnel selection, and decision-making procedures need to be continuously improved. We have been overjoyed by the direct election of the president in Shenzhen, but also moved and confused by the recall scandal. All of this is caused by our own system, which mainly focuses on:

One confusion: the uncertainty of legal status. The newly revised Article 43, Paragraph 2 of the Lawyers Law stipulates that cities with districts may establish local lawyer associations as needed. The legal status of local bar associations that can be established according to needs but do not need to be established is very weak; The "Bar Association" in the dual management system we are working on today is mainly the All China Bar Association and the Provincial Bar Association; This is also reflected in the dual management system, where local bar associations find it difficult to play their role, resulting in many local bar associations only implementing industry management for lawyers according to the requirements or intentions of administrative agencies, without their independence.

Puzzlement 2: Uncertainty in the exercise of responsibilities. There is no clear definition as to whether the eight responsibilities of bar associations stipulated in Article 46 of the Lawyers Law are common responsibilities of all levels of bar associations. However, in practical operation, they mainly belong to the responsibilities of the All China Bar Association and provincial bar associations; For example, the training of lawyers, the development of industry norms and disciplinary regulations, etc; There is currently no specific administrative or industry rule to determine the responsibilities of local bar associations.

Puzzle 3: The lack of independence in personnel and funding. Although various local bar associations have elected governing bodies such as councils, executive councils, presidents, vice presidents, and secretaries, the selection of candidates for these bodies is mostly determined by the party groups or committees of judicial administrative organs; As an organizational structure, the Bar Association itself has no right to recommend personnel. At the same time, the funds of many local bar associations are not managed by the council, and the president even has no authority as an advisor, let alone the issue of signature rights.

Confusion 4: The nature of a bar association is still a self-discipline organization. Although there is a one-word difference between self-discipline and autonomy, there are essential differences in their responsibilities. We can reflect from the chapters on lawyer practice permits, establishment of law firms, and legal responsibilities in the revised Lawyers Law that the responsibilities of law associations are extremely limited, and law associations are still unable to play their due role in the admission of lawyers or law firms' practice permits; In this situation, it is even more difficult for local bar associations to play their role in the dual management system.

Puzzle 5: There is currently no clear connotation of what "dual combination management" means, and we are not very clear about the management responsibilities and permissions of "dual combination". According to the "Report on the Development of China's Lawyer Industry Policy" released by the Ministry of Justice in 2004, in the dual management system, the management of the lawyer team by judicial administrative organs mainly involves macro management, policy management, and coordination management; The management of the Bar Association aims to establish a sound organizational system for the management of the lawyer industry. But there is no clear answer on how to combine the two.

Based on the above confusion, I believe that in order to leverage the role of local bar associations in the dual management system, we must find countermeasures. In this process, we cannot simply equate the appointment of a practicing lawyer as the president with the appointment of a dual management team. The appointment of a practicing lawyer as the president is only the first step in the initial stage of the dual management process. Lawyers need to achieve a true sense of dual management, and industry maturity is the key. The key sign of industry maturity is that the industry has a strong sense of social responsibility and can make significant contributions to society. Lawyers can enter the mainstream society, receive acceptance and full and genuine respect from the mainstream society. Nowadays, the Bar Association is gradually recruiting practicing lawyers into the leadership team of the Bar Association; The leadership of the Bar Association is assumed by practicing lawyers, which is undoubtedly beneficial for the maturity and development of the industry. At present, there is a tendency to believe that practicing lawyers holding leadership positions in the legal association achieve a combination of two management, which is one-sided. From the objective facts, some practicing lawyers who serve as the president of the bar association have gradually transformed from practicing lawyers to "non practicing lawyers" due to their dedication to the work of the association; However, other presidents are basically busy practicing and do not focus on the work of the bar association, becoming "honorary presidents", and the leadership positions of the association are in name only. The above two phenomena are by no means the essential meaning of the concept of "two combinations", but due to the universality of this phenomenon, we have to further consider and explore the management system of "two combinations". There are generally two types of lawyer management systems in foreign countries: one is the management system of bar associations under the supervision and guidance of judicial administrative agencies. This management system is most typical in Germany, but the Federal Bar Association still has the power to represent the national legal community to reflect and negotiate issues involving the common interests of the lawyer profession to judicial, government, and other relevant departments, Responsible for arranging the continuing education of lawyers and preparing for the training of lawyers; Another type of industry management is the bar association, which is more common in British and American countries. But in reality, the court has regulatory power in obtaining lawyer qualifications, punishing lawbreakers, and formulating lawyer regulations. The management of the Hong Kong legal industry is a management model in which the government conducts legislative management, the courts implement supervision, and professional management groups of lawyers engage in industry self-discipline. From the perspective of China's "dual integration" management system, it reflects the issue of how to combine national public power with social power, but the exercise of social power must not exceed the scope of public power. I think it should be improved from the following aspects:

One of the countermeasures is to streamline the division of management functions between judicial administrative agencies and bar associations. The division of labor in this management function must be standardized in the form of administrative legislation. The judicial administrative organs are mainly responsible for the following aspects of work: (1) formulating industry development policies, promoting the introduction of relevant laws, regulations, and rules to improve the legal system of the lawyer system; (2) Strict admission and exit of practicing lawyers, including law firms and lawyers' practice licenses, revocation of practice license licenses, responsible for annual inspection and registration of practicing lawyers, and organizing supervision and liquidation; (3) Coordinate and improve the practice environment, mainly by coordinating with relevant departments such as public security and courts to ensure lawyers' rights to conduct investigations, gather evidence, meet, and review papers; (4) Adjusting the supply-demand relationship of legal services, including fulfilling legal aid obligations, and solving the contradiction between supply and demand of legal services through the combination of market mechanisms and policy regulation measures; (5) Supervise and guide the work of the Bar Association, and promote the improvement of the industry management system. The Bar Association is responsible for all affairs related to the industry, except for the above-mentioned functions, including: (1) organizing the implementation of Article 46 of the Lawyers Law; (2) Improve and strengthen the role of party organizations in lawyer associations. Establish a sound mechanism for the supervision and guidance of judicial administrative organs over bar associations; (3) Establish and improve the lawyer management mechanism between lawyer associations and judicial administrative agencies, forming a three-dimensional and closely coordinated functional management system.

Countermeasure 2: Streamline the organizational structure management system of the association. (1) Streamline the personnel management system. The Bar Association should have a dedicated staffing structure, which is a prerequisite for personnel protection. Especially, the Secretariat should have dedicated staff, and administrative personnel should not be included in the Secretariat as much as possible; At the same time, the relevant directors, executive directors, presidents, and vice presidents of the bar association must be full-time personnel engaged in the work of the bar association, ensuring the public welfare and fairness of the bar association. (2) Clarify the management rules of the organizational structure itself, including the methods and procedures for selecting the Secretary General and Deputy Secretary General, as well as the methods and procedures for selecting directors, executive directors, and association leaders; Especially in the selection process, whether the previous association is the main selection or the judicial administrative selection, etc. (3) Clarify and formulate rules for the use of funds to ensure the necessary authority of the Bar Association to independently carry out activities; To avoid disputes caused by the Shenzhen Lawyers Association due to property purchases. The most difficult part at present is that the membership fees of the bar association are not managed and controlled by the bar association itself, which will fundamentally restrict the independence and management functions of the bar association.

Countermeasure 3: Establish a fixed contact system between lawyer associations, judicial administration, and law firms, and improve the management of the combination of the two. The work report system and the filing system for internal disciplinary management documents should fully leverage the guidance and supervision role of judicial administrative organs; For the bar association, it is necessary to strengthen communication and contact with the law firm, continuously guide the management and business expansion of the law firm, improve the lawyer's practice environment, cultivate the lawyer's legal service market, formulate the law firm's culture, beliefs, values, management, and distribution standard system, so that the bar association's management system in the four in one management system includes judicial administration management, bar association industry management, and law firm self-management In the management of other functional institutions in society, the association plays a role as a bridge and link, making it truly a home for lawyer self-discipline management.

Countermeasure 4: The bar association itself must undergo reforms. In order to strengthen the self-discipline organization construction of the Bar Association and for the future of the Bar Association, the Bar Association must undergo reforms; Through change, lawyers have clear and positive expectations for the future state of the organization; Stimulate lawyers' pride, self-esteem, activity, and sense of achievement in this industry; Set a standard of excellence that reflects the high ideals of the industry, and establish a standard that aligns with the industry's history, culture, and values; Attract lawyers to draw widespread attention to the vision and goals of this industry and consciously participate in the organization to strive for it. To this end, it is necessary to establish, improve and improve the internal supervision mechanism of the Bar Association; Give full play to the role of the Party organization of the Lawyers' Association in industry management; Strengthening the construction of a lawyer's integrity system; Formulate industry rules, implement industry sanctions, guide the development of industry norms, and never be lenient in imposing industry sanctions on lawyers who violate discipline and laws; Avoid confusion about roles for industry associations.

In short, exploring a dual management system is important in finding patterns; The law of competition is important, and the law is simple. Finally, I would like to conclude by telling the graduating students of the United States Military Academy at West Point that there are two rules to keep in mind: first, "important things are always simple"; Secondly, 'Simple things are always difficult to do'.

Organized by Lawyer Zhou Xiangen