Author: Lawyer Jin Yingbo, December 28, 2016

Summary: The reform and opening up have promoted the rapid development of the legal service market, but the current fragmentation and disorder of the legal service market have also seriously affected the healthy and orderly development of the market. There are various reasons for the above problems, and the most prominent reason is the non-standard and perfect access system of the legal service market. Facing this issue correctly and improving the system and management is an important guarantee for establishing a unified, standardized and orderly legal service market.

Key Words: Legal Service Market Access, Separation, Disordered and Orderly Supervision System

The recovery, comprehensive construction, and gradual development of China's legal service market have played a significant role in promoting democracy and legal system construction, especially in the more than 20 years after the reform and opening up, China's legal service market has entered a new stage of development. As the leading force in the legal service market, the number of lawyers and legal workers has significantly increased, the quality of legal services has significantly improved, and the business field has continuously expanded, receiving praise from the parties involved. Overall, the tremendous achievements made in China's legal service market have been fully recognized by the people and various sectors of society. However, there are also some contradictions and problems that seriously affect its continued development in the process of development, resulting in a fragmented and chaotic legal service market. The main reason for this situation is the defects in the access system of the legal service market. This article aims to explore the causes, hazards, and changes in the situation of this issue.

1、 Analysis of the reasons for the fragmentation and disorder of the legal service market

1. The defects in the legal service market access system are the main reasons for the segmentation and chaos of the legal service market.

Article 58 of the Civil Procedure Law stipulates: "Lawyers, individuals recommended by social organizations or units related to the close relatives of the parties, and other citizens approved by the people's court may be appointed as litigation agents; Article 32 of the Criminal Procedure Law stipulates: "The following persons may be entrusted as defenders; (1) lawyers; (2) people's organizations or guardians, relatives and friends of suspect and defendants;" Article 29 of the Administrative Procedure Law stipulates: "Lawyers, social organizations, close relatives of citizens who initiated litigation or persons recommended by their units, as well as other citizens with the permission of the people's court, may accept the appointment as agents ad litem." Article 29 of the Arbitration Law stipulates that "parties and legal representatives may entrust lawyers and other agents to participate in arbitration activities." Article 19 of the Regulations on the Handling of Enterprise Labor Disputes stipulates that "parties may entrust one to two lawyers or other persons to participate in arbitration activities." It can be seen from the provisions of the three major litigation laws and two types of arbitration procedure laws mentioned above, There are no substantive restrictions on the access of legal service entities in the litigation or arbitration process in China, but rather they are open to the entire society. Anyone who meets certain conditions can intervene in this market and become a direct participant in this market.

The reason why China is not certain in legislation that lawyers are the sole subject of the legal service market is due to historical and objective factors. In the early stages of legislation, the main consideration was the serious shortage of lawyers in China, as well as the uneven living standards of the people. Not all litigation participants could afford to hire lawyers, which is an objective reality. It should be said that these legal provisions are in line with the level of social and economic development. However, considering the current situation of China's economic development and the integration with the international legal service market after joining the WTO, there are significant problems in this legislation. The most serious adverse consequences it causes are the artificial division of the legal service market, causing a large number of subjects without legal service capabilities to enter the market, mixing fish and fish, good and bad, and establishing a sound legal service market system to create a standardized legal environment, Promoting the country's legal system construction is contrary. Therefore, the root cause of the segmentation of China's legal service market lies in the three major procedural laws and two types of arbitration procedural laws, which stipulate that citizens can represent in litigation and other legal affairs, without legally canceling or restricting citizens' participation in representing or defending.

2. The abuse of professional qualifications is another important reason for the serious chaos in the legal service market.

In the legal service market, the phenomenon of abusing professional qualifications is very common, which has caused legislative conflicts. According to the Lawyer Law, the lawyer qualification system has been changed to a unified judicial qualification granting system for judges, prosecutors, notaries, and lawyers. Lawyers can handle seven major legal affairs, which is the highest level in the legal affairs market. At the same time, according to departmental rules and regulations, nine qualification systems have emerged, including legal worker qualifications, enterprise legal advisor qualifications, patent agency, and trademark agency. The legal basis for the emergence of legal workers is the "Management Measures for Grassroots Legal Service Stations" (issued by the Ministry of Justice on March 31, 2000), the "Management Measures for Grassroots Legal Service Workers", and the "Detailed Rules for the Work of Township Legal Service Businesses" (issued by the Ministry of Justice on September 20, 1991); The legal basis for the emergence of enterprise legal advisors is the Provisional Regulations on the Qualification System for Enterprise Legal Advisers and the Implementation Measures for the Qualification Examination for Enterprise Legal Advisers (jointly issued by the Ministry of Personnel, the State Economic and Trade Commission, and the Ministry of Justice on March 12, 1997). Although the business scope of legal professionals does not include criminal defense and agency, only civil, commercial, economic cases and legal advisors who can participate in agency must also be within their jurisdiction; Enterprise legal advisor is a professional who has passed the national unified examination and is hired by the enterprise to work full-time in enterprise legal affairs and is registered. The scope of business is within the enterprise. However, it should be said that the legal basis for the qualification of legal practitioners, corporate legal advisors, and other practitioners - various departmental regulations - has already contradicted the provisions of the Legislative Law and the Lawyer Law. Although there have been joint proposals and inquiries from lawyer representatives among the National People's Congress, unfortunately, this issue has not been resolved.

3. The lag in industry management and loopholes in coordinated management among relevant departments are also important reasons

To put it a step further, even if the legal service market entities are determined according to various current rules and regulations, such as strict law enforcement inspections and implementation, the severity of the problem is still not significant. However, due to various historical and objective reasons, the management of judicial and other administrative agencies lags behind or neglects management, the practice of non lawyer personnel in law firms, and legal workers handling cases beyond the scope and across regions, Individual citizens engaged in paid legal services and other behaviors have become commonplace. Although relevant judicial departments in various regions have also dealt with such violations and violations, they cannot fundamentally eliminate them.

And more importantly, the main venues of the legal service market, such as courts, procuratorates, public security, arbitration commissions, etc., do not have the management power over the legal service market entities and do not understand the corresponding rules and regulations, resulting in unqualified or qualified individuals exceeding the scope of legal services. Moreover, the judicial administration and other departments with management power do not understand the illegal and disciplinary situations of lawyers, legal workers, and citizens in litigation or arbitration, As a result, they are unable to exercise their management power, which gives these individuals an opportunity to take advantage of it.

2、 The harm of fragmented and disorderly legal service market.

Due to a large number of untrained citizens representing litigation, some even impersonate lawyers to practice; Originally a legal worker, today they can openly carry out their legal business on a large scale in the name of lawyers; The legal service office has also been transformed into a law firm and a legal firm, with lawyers' logos and text everywhere on the facade and business cards. However, the quality of legal services cannot reach the expected level, causing serious harm.

Firstly, the fragmented and chaotic state of the legal service market has seriously damaged the image of lawyers. Lawyers are professional representatives of the rights and interests of citizens, enterprises, and other organizations, and are the main participants and promoters of the country's rule of law construction. They play a very important role in promoting economic and social development. To damage the image of lawyers is to damage the country's legal system.

Secondly, it seriously disrupts the order of trial and arbitration. Due to the significant gap between the professional level of citizens, legal workers, and lawyers, the court's trial of cases has shifted from authoritarianism to partisanism. The trial process is mainly driven by the parties and their agents, and the effectiveness of the trial without the participation of professional lawyers will be greatly reduced. Moreover, some non lawyer personnel confuse black and white, gossip, and mix food to listen, making the trial unable to proceed normally and effectively, greatly damaging the seriousness of China's laws.

Thirdly, it has become an obstacle to the integration of China's legal service market with the international legal service market. After China's accession to the WTO, the domestic legal service market has been mutually open to the legal service markets of other WTO member countries. The Chinese legal industry urgently needs to expand its scale and accelerate its development. If the chaotic situation in the market does not change, it will be empty talk that the Chinese legal industry needs to have significant development. Therefore, the legal service market in China urgently needs to be regulated and standardized.

3、 Improving the system and management is an important guarantee for establishing a unified, standardized and orderly legal service market.

1. A market access system should be implemented with lawyers as the main body and legal professionals as supplements. By legislation, it is established that legal services can only be provided by lawyers and legal workers, and the personal representation and defense of citizens are limited to close relatives. Such close relatives should refer to the provisions of the Marriage Law and be limited to direct blood relatives or collateral blood relatives within three generations. When citizens, legal persons, or other organizations need legal assistance, they can only hire lawyers, legal workers from their jurisdiction (rural areas), or legal aid personnel to provide legal services. If non lawyers, legal workers, or legal aid personnel engage in legal services, it is illegal. If legal workers operate beyond the scope or across regions, it is illegal and should be punished. For the legal service market, no one other than lawyers, legal workers, or legal aid personnel is allowed to enter, and lawyers should be the protagonist of the legal service market. Based on the process and characteristics of rural economic, social, and cultural development, rural grassroots legal services will still exist and develop. However, we should see that rural legal services still have a transitional nature, and at the same time, it is necessary to have a reasonable positioning and clear development direction for rural grassroots legal services. Therefore, it should be allowed to exist as a necessary supplement to lawyers in a transitional manner, And it is uniformly managed by the Lawyer Industry Association. The illegal engagement of paid legal services by individual citizens should be resolutely banned and cracked down on, and the public security organs and judicial administrative organs should punish such behavior within their respective scope by impersonating lawyers to engage in legal services. Nowadays, illegal paid services provided by legal advisors, retired personnel from courts, procuratorates, and government legal offices have become rampant, seriously disrupting the market order of legal services.

2. Judicial administrative organs should coordinate and divide labor with relevant departments such as courts, procuratorates, arbitration commissions, etc., jointly manage and block loopholes in the legal service market. The venue for legal services is in courts and arbitration tribunals, therefore, courts and arbitration tribunals should strictly review various procedures of agents or defenders, including law firms and legal service agencies. The effective way to plug loopholes from the source is to review the practice certificate and stipulate from a legislative perspective that a copy of the practice certificate should be included as one of the materials in the case file. Official letters, power of attorney, and personal practice certificates are indispensable, which will completely prevent those without practice certificates from representing or defending, and will have a substantive impact on the clean legal service market.

3. Establish a scientific and reasonable lawyer fee system that is suitable for China's economic development level as soon as possible. The imperfect lawyer fee system is an important reason for the current chaotic legal service market in China. As mentioned earlier, the first issue encountered in establishing a monopoly system for lawyer services is the issue of lawyer fees. Currently, there is no scientific and reasonable charging method for lawyer fees in China. After the abolition of the "Lawyer Service Fee Management Measures" and "Lawyer Service Fee Standards" in 1990, there is no unified normative document on lawyer fee standards, Each region has made corresponding regulations based on local conditions. In the absence of basic standards for fees, implementing a monopoly on the legal profession is undoubtedly a mandatory way to charge lawyer agency fees to the parties, which is obviously unfair to the parties. Therefore, establishing a scientific and reasonable method for lawyer fees is a necessary measure to implement monopoly in lawyer business and also a necessary step to regulate the legal service market.

4. Establish and improve a supervision mechanism for lawyer practice. Lawyers should consciously fulfill their obligations in practice, which is determined by the consistency of the rights and obligations of lawyers in China. Lawyers consciously fulfilling their professional obligations is not only conducive to the realization of lawyer rights, but also promotes the development of the entire lawyer system. However, relying solely on the lawyer's own self-awareness to constrain their behavior is far from enough for the goal of regulating the legal service market. The standardization and supervision of legal services should adapt to new situations and tasks, and constantly explore new means, methods, and measures. ② "We should actively promote the practice disclosure system and place lawyer practice activities under social supervision Therefore, establishing and improving a supervision mechanism for lawyers to fulfill their obligations outside of themselves, such as the evaluation mechanism of lawyer practice institutions for lawyer practice, the integrity system of lawyers, and the complaint, record, and disclosure system of lawyer violations and violations, plays a crucial role in promoting the cleanliness of the legal service market. Only in this way can we achieve the goal of regulating the legal service market by regulating lawyers themselves.

Comment:

① Chinese Lawyer, Issue 9, 2003, "Several Issues that Need to be Focused on Research and Solution in Expanding and Regulating Legal Services" by Duan Zhengkun

② Chinese Lawyer, Issue 4, 2002, "Further Improving the 'Two Combinations' Management System" by Duan Zhengkun

③ Chinese Lawyer, Issue 4, 2002, "Further Improving the 'Two Combinations' Management System" by Duan Zhengkun

Organized by Lawyer Jin Yingbo