Experiencing China again for the first time
By Willis P. Whichard Special to the Smoky Mountain Sentinel Editor's note--Willis (Bill) Whichard is a former member of the North Carolina State Senate; a former Justice of the North Carolina Supreme Court and has recently retired as Dean of the Law School at Campbell University. He and his wife, Leona, are part-time
residents of Clay County. A report of his trip to China is being published as a 12-part series in the Sentinel.

Part V --China--a look at its legal system

On the morning of our third day we met with Gong Xiaobing, Director-General of the Department of Lawyers and Public Notary, Ministry of Justice, People's Republic of China, who made a formal presentation on the Chinese legal System and the work of the Ministry of Justice.

The Chinese Legal System, he said, is derived from the continental system and differs from the Anglo-American common law approach. an alleged criminal act is investigated and brought to trial by the police. An arrest occurs only after the criminal facts are verified. It is the people's prosecutor who decides whether the case will proceed to trial. If the Court does not find the evidence satisfactory, however, it can return the case to the people's prosecutor for further investigation.

Before a trial convenes, the defendant is told of his/her right to a lawyer. The trial lawyer is usually different from the lawyer at the investigatory stage. At trial the prosecutor represents the state, while the judge decides the case and announces the punishment. Prisons are under the jurisdiction of the Ministry of Justice.

There is a right to appeal. if the punishment is from 15-years imprisonment up to a death sentence, a middle-level court must rule; local courts can only mete out punishment for lesser offenses. The Supreme Court must confirm the decision before a death sentence is administered.

In response to a question, the Director-General said that although 15 years ago a judge might have dismissed a lawyer during trial,thus leaving a defendant without counsel, this would not happen now. Approximately half the suspects request an attorney, and Legal Aid attorneys are available for poor defendants. There is considerable disparity in income among the lawyers in China. There are rich lawyers who represent corporations and wealthy individuals, and poor ones who may not have a lot of work (they "are still at leisure" was his expression). The director- General saw in increasing need for "strictly business" lawyers in the larger cities and lawyers to help the poor, especially those accused of crime,elsewhere.

As in the United States, judges sometimes leave the bench and go into practice of law to earn more money. This session ended with an exchange of gifts.

Later that morning the delegation had a productive meeting with representatives of the All China Lawyers Association (ACLA), which is the Chinese Bar Association. Mr. Yu Ning, the President, provided an overview of the current legal system in China, which was restored only 27 years ago from its decimation during the Cultural Revolution. There are 130,000 lawyers and 160,000 legal assistants in China, primarily concentrated in the coastal cities. There are not many in the rural areas. The lawyers have an important role in all areas of social life and in international relations.

All Chinese lawyers and law firms must join the ACLA, which has as its goals negotiation and communication with the government, and attorney discipline. The ACLA believes the legal profession in China has a bright future because there has been policy reform and the government supports the idea of the rule of law. Since the Chinese legal profession is in its early stages of development, it seeks to learn from lawyers in the U.S.and other countries. It is the Association's view, which our delegation shared, that there should be more exchanges between our two courntries.

The leader of our delegation stated that we can learn from them as well. The American Bar Association(ABA) for example, has always aspired, without success, to include all American lawyers. The ACLA has succeeded at that.

A question was asked as to how the ACLA interacts with the Ministry of Justice. The Ministry, we were informed,regulates the legal profession as well as jails and prisons.The ACLA is a self-regulating professional organization, with its officers elected by the lawyers.

Our delegation was particularly interested in the topic of safeguarding a Chinese lawyer's right to represent a client without governmental or third-party interference. The Chinese lawyers were interested in our views and in getting help from the ABA on this. We were interested in whether we could become ex officio members of the ACLA, but there is no procedure for that.

The final topics included the structure of law firms in China (currently sole practitioners are not allowed, but that restriction is under review), the resolution of disputes between lawyers and clients (generally these are mediated, but sometimes they are litigated), and an overview of labor law, personal injury, civil procedure and business law in China.

At their request, we explained the American tort law and workers compensation systems. Our delegation leader noted that lawyers in China are facing many of the same business law issues as are lawyers in the U.S. He concluded the session by noting that American lawyers are generally deferential to judges, and that since our next session was at China's National Judicial college, this one had to end.

The ACLA attorneys with whom we met clearly were bright and committed, reflecting a positive direction for the Chinese legal system.

Next week: Part VI- China--training judges

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