Legal services precarious in the
   

                                   Liu Sida

On the basis of:

Decided to put this has not yet been finalized the articles posted here, requires a lot of courage to me, because I know, it will attract many lawyer friend kindly criticism, even there may have been some. But I eventually decided to stick it out, because about a year ago, I wrote an article called "rivers and lakes, bureaucratic and wood knife" article, the lawyer angle describes some problems in China's legal service market, also received a lot of lawyer friend. But in the grassroots legal service market after nearly a year of investigation, I found that the article for the grlsws exposition somewhat biased, following the insufficient words essay, even for those biased point correction. As a China legal occupation onlooker, either when writing the old post is now, I don't want to represent a certain benefits, but only to a relatively objective perspective to the legal services market and the realities of history faithfully presented. Of course, due to the limitation of, every effort will inevitably some errors and mistakes, and stand in different positions have different understanding of the text, I dare not ask what, just for their own conscience. I hope you lawyers and friends a lot of criticism. Thank you.
   


                                                    

In twentieth Century 80 in the early 1980s, the emergence of a unique phenomenon with the grass-roots political power, judicial administrative and legal service territory Chinese on, this is the township legal service office, the National Lawyers a total of only twenty thousand or thirty thousand people age, this initiative greatly to fill the gaps in our daily legal services. Twenty years later, township legal service have already changed its name to "grassroots legal service", its practitioners have already developed into hundreds of thousands of people, and these have Chinese characteristics of legal services by the current state of survival, but only with the "precarious" four words to describe.
   

    In the legal service in the work, once called "the township legal workers", the official name of legal service now called "grass-roots workers", the general is referred to as the circle of colleagues as "legal workers" or "method", this paper for the sake of convenience, they will be collectively referred to as the "grassroots legal service workers". This is a group of semi invisible legal professionals, they have no lawyer hands that bright "red children", but doing and lawyers are basically the same work -- for the parties to provide legal advice, legal documents, the litigation and arbitration, for the state organs, enterprises and institutions as a legal advisor, and so on, the only difference is not acting criminal cases. The primary legal workers living at the bottom of the country's legal system for more than 20 years, but few people know them this awkward sounding name, unknown to the people and the media have called them "lawyer", even many judges to call convenient also called them "lawyer", and some see the difference. Are they dubbed the "two law". Even in the late 90's grassroots legal service's heyday, in addition to meet the grassroots legal service workers in the name of the judicial administrative organs internal publications, this group is almost never received any publicity countries. Legal services on such "partly veiled" existence and development, through a national policy changes impact and baptism.
   

    About the origin of legal services, can be said to be Public opinions are divergent., but generally can be identified, township legal service began in 1982 about the streets and villages in the economically developed areas in Beijing, Liaoning, Guangdong, Fujian, Zhejiang, in. Arrived 80 time metaphase, these from grass-roots practice initiative has been approved by the Ministry of justice, as a supplement to the serious shortage of lawyers, township legal service to start a nationwide promotion, legal services throughout the township streets are established and justice "a set of troops, two brands" of the the judicial assistant, provide legal advice, to the local people of township enterprises and the litigation and other legal services, the Ministry of justice in 1987 "Interim Provisions" of township legal service office is legally established legal service in China's legal service market. Because the work Chinese lawyer 80's are still in belonging to various departments and units of the public law firm, basically concentrated in large and medium-sized city, practicing in the district where lawyers are rare, the township streets and this is one of the most basic legal services unit is almost completely dominated by the legal services. Moreover, since the 80's most of the lawyer's business is mainly in criminal cases, the lawyers in practice and the grassroots legal service workers can be said to be different, there is no intense direct competitive relationship between the two.
   

    By the age of 90, things began to change gradually. On the one hand, fundamental changes have taken place in our country law, cooperative and partnership law firms such as bamboo shoots after a spring rain as appeared in large numbers, and the law firm also gradually from restructuring, became independent, self-sustaining economic entity. Then, the lawyers "a secure job" no, they are from the judicial system of countries kicked out, a large number of new entrants lawyers were pushed to the bottom of the law service market, the beginning and the grassroots legal service workers to compete in the same level. In a sense, restructuring and even can be said to the lawyer industry triggered a large-scale invasion of lawyers to the originally belong to the grassroots legal service workers "sphere of influence". In addition, in 1997 the "Lawyers Law" promulgated and implemented also let grassroots legal service has lost legitimacy. "Lawyers Law" fourteenth stipulation: "has not obtained a lawyer's practice certificate, shall not practise law under the title, not for the sake of economic interests or defend a client in litigation", then, has been through the judicial administration examination and approval or a simple test and obtained the practicing qualifications of grassroots legal workers seem to overnight by the close to the masses national legal workers become illegal seek improper interests "black lawyer", appeared for the first time the survival crisis of legal services. Of course, the legislation is triggered by the "crisis of legitimacy" is only a form, it does not affect the nature of the right to development, legal services. In fact, since the late 90's nationwide grassroots legal service in time like a raging fire.
   

    On the other hand, legal services by itself in the 90's created many new forms, I summarized all kinds of these new forms of four words, namely "for the" "society" "law firm" and "legal service center". "Listing" refers to the legal service agency as long as a person qualified as a lawyer, the service can be linked to the "firm" brand, "the law firm" refers to the legal services to be unconditionally allowed to hang with the "firm" only one word "law firms" brand, the two form has blurred the boundaries of the legal service and law firm, caused a lot of confusion in practice. "Society" refers to those who are not attached to a town, street, community oriented but similar to the partnership law firm provides legal services, autonomous, self financing legal services; "legal service center" can be seen as "a special form of the society", and in some places it known as the "straight", which belongs to the judicial administrative organs at all levels, from the Ministry of justice, the Department of justice, judicial bureau to the District Bureau of justice, once all follow suit to set up their own "legal service center" or "legal affairs center", some of which in fact is a law firm (such as the Department of justice under the "Chinese legal affairs center"), and most of the "legal service center" is not a lawyer involved in the legal service, the staff are mostly Judicial Bureau and the public security organs of retired cadres.
   

    In this period, as China's market economy reform, grassroots legal service economic benefits many higher than 80, its business scope has become diversified, legal services by acting as the legal consultant for local enterprises phenomenon appeared in large numbers, and even the emergence of some legal service annual income of millions and even tens of millions, the income has far exceeded the number of law firms. Then, in the law firm is from the judicial administrative organs gradually stripping out at the same time, grassroots legal service became the "formerly, the Hanlin Academy" in a rare "fat", and especially those of grassroots judicial offices "a set of troops, two brands" and "street", a large part of its business income directly into the township streets and judicial administrative organs, even the form is independent of the administration of justice "society", every year to pay a hefty fee to the local bureau of justice. In the legal service income Everfount into judicial bureau cadre welfare at the same time, the Judicial Bureau and the public security organs in Everfount for legal services provided by the reserve force, grassroots legal service to a large number of judicial system of retired cadres play paradise. So, between legal services and judicial administrative organs formed a close "symbiotic relationship" -- legal services by the Bureau of justice as their own "God", the Bureau of justice of the legal services as their own "army", the justice department legal publicity, when people's mediation work needed the basic law, workers will unconditionally within call, and legal service encounter various difficulties in daily operation, judicial bureau will proceed without hesitation to exclude the difficulty and anxiety, such a close contact is in the national judicial system outside lawyers incomparable.
   

    With the rapid development of legal service for the vast number of lawyers to cherish an undying, some unfair competition phenomena have gradually begun to breed in the legal service market. For example, many local bureau of justice to the grassroots legal service workers equipped with unified uniforms or similar uniform clothing, so that they in the process of handling cases received many conveniences, also is "outside the system" lawyers are more likely to win people's trust, who was born in the judicial system of the grassroots legal service workers can be more directly using his case in court and procuratorate. In addition, some basic legal workers have often deliberately or laissez faire posing as lawyers, such as the "lawyer" are printed on the card, documents and power of attorney, some and grassroots legal professionals familiar with the judge even in the trial and verdict also tacitly called them "the lawyer". What is more, the individual legal services in Beijing are actually in various districts and counties set up a number of branch, recruiting large numbers of no local licensed foreign lawyers to conduct activities in legal services in the name of the grassroots legal service workers, in criminal cases the law "the last virgin land", often can see the grlsws figure. All these phenomena are greatly disturbed the legal service market order, the parties and the general public can not distinguish the two different legal occupation, and the judicial administrative organs in the 90's are not against these problems to make any effective standard, in practice it often plays an important role.
   

    However, when grassroots legal service in twenty-first Century, legal services and judicial administrative organs between "be in perfect sympathy with each other, sharing weal and woe" symbiotic relationship is a rift. Due to the continuous development of lawyer industry in China has grown, in the internal administration of justice system began to hear different voices about grassroots legal service, some long-term leadership in the work of competent lawyers urge to clean up and rectify the legal service market, restrict or even completely cancel the legal services, through a lot of political conflict and game, this concept is gradually in justice prevailed. Then, in 2000, "basic legal services management approach" and "legal service workers at the basic level management approach" (commonly known as "No. 59" and "60 orders") enacted shortly after, the Ministry of justice was once known as the "Shanghai conference" of the National Working Conference on the on the grass-roots level legal services "12 character principle", namely "restrictions on the development, gradually shrinking, finally destroy". From 2002 onwards, the Minister of justice Zhang Fusen mentioned several times on different occasions, grassroots legal service in 3-5 years from the big city and litigation, and in 2004 the "administrative licensing law" promulgated and implemented more make the grlsws survival "No. 59" and "60 orders" into a mere scrap of paper, the development of law service is really to the most dangerous time.
   

    In this guidance, from 2002 onwards, grassroots legal service in the national scope are different degree began to shrink, the restrictions of legal services policies have been promulgated, such as the prohibition of the use of "legal" brand, "society" and "straight" must be placed under the township, prohibited except the township name brands, only agents of the jurisdiction of cases, judicial assistants shall not concurrently hold the position of the grassroots legal service workers, etc.. Although the implementation of these policies are more or less discount, but overall it was made very significant results -- the total number of grassroots legal professionals in the 2001-2006 years in a short span of five years from 120000 sharp reduced to 80000, a decrease of 1/3. At the same time, in order to avoid the previous situation of each department acting on its own, serious conflicts of interest, grassroots legal service management authority is the Ministry of justice from the grass-roots Department moved to the notary department. This change led to all kinds of consequences in the local judicial administrative organs: because there have all kinds of connections with links between grassroots legal service and the judicial administration at the local level, many provincial Department of justice and the judicial bureau did not follow the Ministry of justice practice, but still consists of a base layer and basic science to direct management of legal services; and in some places the Ministry has not changed, the Council has changed; and the place is the Ministry changed, city bureau did not change, legal services, district and County Bureau of justice has established include lawyers, notaries and grassroots legal service ""...... So, the lawyer and notary reform with steady steps are carried out at the same time, legal services seem to be increasingly nobody tube, grassroots legal workers from the "mother's child is a treasure" into "motherless child is grass", in the judicial administrative system is becoming more humble.
   

    However, to be sure, in the face of this kind of extreme adverse department policy, grassroots legal service and won't like some policymakers expect rapid demise. The Justice Department did a study on legal services nationwide survey in 2004, found that China's 206 counties without a lawyer, but only a state law firm is far more than 206 county. That is to say, in the legal services in the border area, if the cancellation of legal services of high quality and inexpensive, so the local people have almost completely lost "to enter the court gate key", but can only rely on legal aid is an utterly inadequate measure. But even in those seemingly lawyer number is not the lack of large and medium-sized city, due to high cost of lawyers practicing, charge of natural increase, can not afford the high legal fees people also There are plenty of people who, even some of the Beijing suburbs there are lots can not afford a lawyer and lack of legal aid can only rely on the standard and legal services and even "black lawyer" agency action for the party. Although the Justice Department has begun to vigorously promote the "lawyers into the community" obligations advisory and promotional activities at present, but a fact that does not dispute is in between, in Western dress and leather shoes, in the office of attorney and community, rural grassroots people also has great economic and psychological distance, for cost considerations, the vast most lawyers are not willing to also may not like the grlsws so embedded in the community services to the people, but the enterprise legal adviser of the so-called high-end scramble for business, which makes the "substantive law into the community" activities of the big discount. Visible, in the development of China's legal service market at present, grassroots legal service has important position in the market and social function, extreme policies "make it rigidly uniform" any type can only be produced from the negative effects of social justice.
   

    Perhaps aware of this point, after got the grassroots legal service management authority, once holding against legal services lawyers notary department banner became silent. As a grassroots legal service has lost the legal basis in the "administrative licensing law" promulgated after, if no new legislation of the people's Congress or to the State Council for approval, so the judicial administrative organ has no right to reissue the grlsws qualification certificate, the legislative difficulties became a bottleneck that restricts the development of grassroots legal service. Although the local judicial department on this issue many times to the Justice Department to reflect the situation, but until today, there is still no relevant policies, and between the grlsws began circulating a statement, the Ministry of justice to let the grassroots legal service "emerge of itself and perish of itself". So, the legal service centers across the country are somewhat jittery, people take the initiative to retirement, was diverted to the enterprise, people pass the judicial examination to the lawyers, some even become "black lawyer", the citizen agent in the provision of legal services, and those holding people almost can not see the future, do not know their job which one day will be a paper executive order state thoroughly hit off.
   

    On the other hand, with the popularization of legal education in recent years, with the judicial examination pass rate is extremely low, and the large number of graduates of law school graduate can not timely access to lawyers, law graduates so many interested in legal practice are chose to start their occupation career in the legal services. However, because the certificate grassroots legal professionals have been cancelled, these graduates only in practice to provide legal services, and can not effectively supplement to the grassroots legal service workers to the team. Their only hope, is through the judicial examination "liyutiaolongmen", and once it passes the examination, the law graduates will almost invariably left the legal services. Faced with this reality, many people consider legal services called law firms "training base", the more serious is, if the status of "entrance not free" long continued, with the old basic legal workers more and more out of the team, our grassroots legal service is really to emerge of itself and perish of itself. In order to deal with the situation of legal workers lack the basic qualification cancelled, the local judicial administrative organs have a headache, some local judicial bureau, even at the risk of unlawful administration for approval the grlsws without qualification certificate in case of practicing certificate, with local personnel departments organize local grassroots legal service qualification examination, or by the local people's Congress to local regulations in the form of rules for lack of ministries and commissions. But in the absence of a unified national legislation situation, all these save the grassroots legal service efforts can only be an utterly inadequate measure.
   

    In fact, since it may not "make it rigidly uniform" for legal services from the big city and litigation, we should take effective measures to grassroots legal service norms, legal services to the masses to play its positive role in practice, and avoid a negative factors disrupt the legal service market. To do this, you must first clear different role and status of grassroots legal service system and lawyer system in China's legal service system in two, completely change the current scope of work seriously overlapping condition. There are three main ways to distinguish between possible scope of work: first, legal distinction between the two services, such as legal services grassroots legal professionals engaged in some type of; second, geographical distinction between the two services, such as the prohibition of grassroots legal workers enter the city; third, the distinction between the two levels of service procedure for example, prohibition of grassroots legal professionals in the intermediate court court. I think, the first two methods are not feasible. In legal field, although the grlsws has been prohibited from engaging in criminal defense, but China's legal service market of the greatest numbers, yields the highest civil and commercial business is very difficult to be careful to distinguish, because it has a strong link between the fields of civil and commercial law, no person is separated from the apart. And in the geographical area, as stated before, even in the big city, if the cancellation of legal services, will also cause a lot of small claims and low-income litigation no agent dilemma.
   

    Therefore, in the legal field and geographic regions are unable to lawyers and grassroots legal service effectively distinguish between the situation, to distinguish the only option is to the two level will appear in court litigation, jurisdiction grassroots legal workers at the grass-roots court and people's court. In my opinion, this is a kind of grassroots legal service in China is currently the most practical reform measures. As the name suggests, the grass-roots legal service field is the base, is also the street, township and its subordinate community and rural. The grlsws a lawyer's greatest advantage lies in close to the base, it is easier to communicate with the local people, and once out of the local social environment, they are legal professional knowledge and occupation accomplishment of the weakness is completely unmasked. A noteworthy phenomenon I found in the fieldwork, the intermediate court judges generally to the grassroots legal service workers more disgusted, and grass-roots court judge on their attitude to ease many, some judges even think that there is no essential difference between the lawyer and the grlsws level. This is because, the intermediate court handling cases were mainly the appellate cases, is "legal trial" rather than "trial of fact", emphasizes the legal professional skills rather than on the local situation awareness, which is the biggest disadvantage relative to the grlsws lawyer; in contrast, in the more stressed case the first fact cognizance and dispute resolution, especially in Civil Mediation Program, the accumulation of the grassroots legal service workers in the long legal practice localized knowledge will play a more obvious.
   

    To be clear, this kind of to distinguish right to lawyers and grassroots legal professionals and not I indulge in the wildest fantasy, in fact, in many countries have similar institutional arrangements. For example, in our neighbor Japan, the number of lawyers has been very limited, a lot of basic disputes are resolved by a known as "legal occupation judicial warlock" to complete, in recent years, the warlock has achieved in the court of first instance trial right, to complement the lawyer system. The lawyer system is the most glorious England, also have distinction between barristers and solicitors, lawyers from twentieth Century since 90 also has been allowed to appear in the court of first instance. A similar system in the history of the development of the French lawyer also has existed for a long time. Although the development of China's legal occupation with the above countries are not the same, but such a multi-level legal service system which is worthy of our reference. If only the name of "international practice" under the banner of monopoly on American lawyer prostrate oneself in worship formed in the very special social and historical conditions of the industry, we can only ever wandering between "0" and "1" paradox, but unable to seek truth from facts to find the real close to Chinese actual legal service market structure.
   

    After distinguished lawyers and grassroots legal workers right to appear in court, the two working ranges overlap problems will be greatly improved. Specifically, the case in the case of relatively simple, little possibility of appeal, the parties can choose according to need a lawyer or grassroots legal professionals as an agent; and in the possibility of greater appeal (such as large cases, legal relation subject is not clear or the parties differ greatly) cases, for instance is expected to the choice of law rather than the grlsws as agent; finally, in all cases of second instance or above the intermediate court in a case directly accepted, lawyers actually obtained monopoly rights paid agent. In this way, the grassroots legal service workers can really take root base, service to the community and rural, lawyers also can have a limited monopoly for cases of appeal right, has more advantages and grassroots legal professionals in the competition, thus changing the current confusion grassroots legal service market in all kinds of legal service main dogfight. Of course, such a trial law in practice can affect the operation is still the implementation of civil agency system, how to prevent the grassroots legal service workers and other legal service subject engaged in paid agency activities with civil agent, is a chronic illness in our litigation system is constructed, which must be solved a good legal problems of the service system.
   

    In addition to distinguish the scope of work, another problem that should be solved quickly is the access of grassroots legal service industry. In the "administrative licensing law" and the unified judicial examination system, then the organization of local or national as the grlsws qualification examination or even directly by the judicial administrative organ for examination and approval may not, the only way out is to the grlsws admittance into the judicial examination system. At present, the judicial examination is divided into A, B, C three, its purpose lies in demand and supplement of the legal occupation personnel care area, if the grassroots legal service in this system, can consider to extend the B card or C card, allow to obtain such qualifications as a grassroots legal workers, supplement to the grassroots legal service team. No doubt, such a move will damage the lawyer industry interests, thus come under strong pressure from the bar, but if the face of China's grass-roots legal service market realities demand, in order to better regulate the market, realize social justice, so that more ordinary people can obtain high quality legal services at less cost, a some industry interests of the sacrifice shall be acceptable. Moreover, the grassroots legal service workers to the right limit has asked the lawyer to obtain a certain degree of monopoly, under the premise of the legal workers into what substantive impact the judicial examination system and not to our country the development of lawyer industry, it can effectively limit the finance retirees to examination and approval way be an easy job to enter the legal services.
   

    Of course, before the system design has not yet become a reality, the judicial administrative agencies is the most important point, is there should be necessary to face the grassroots legal service and its practical value, and positive publicity for the law occupation this long "partly veiled" exists, so that the whole society to understand the difference between lawyers and grassroots legal workers. In fact, a source of lawyers, grassroots legal service workers complaints of unfair competition, is the confused the two occupation, so that a large number of grassroots legal service workers in practice actively or passively a lawyer. It is puzzling, as the judicial administrative organ undertakes national legal publicity and education functions, this twenty years but rarely in the publicity and education of grass-roots people involved in this distinction, which encourage the confusion in practice. I think, the fundamental reason for this approach, which is referred to the judicial administrative organ and the legal services between the "symbiotic" relationship, in the confusion of lawyers and grassroots legal professionals can bring benefits to their own circumstances, the judicial administrative organ will choose to "profiteering". In recent years, most legal services has been like law firms as their restructuring, no longer and justice "a set of troops, two brands", but the use of similar to the partnership form of organization, judicial assistants also cannot take part in the work of the grassroots legal service workers, so between legal services and grassroots judicial administrative organs the connection was more directly to pay an annual management fee. In order to better regulate the grassroots legal service, the judicial administrative organs at all levels must from his operation, completely give up all kinds of interests from legal services, its role in industry management rather than rent seekers. And if it be placed in jeopardy in grassroots legal service in the future today, around the judicial bureau still put the legal services as a system behind the "plot" and not be positive norms and publicity, so tens of thousands of grassroots legal service workers will only under the lawyer industry thriving shadow hard living.
   

    At the end of this essay, it must be added, in order to understand the history and current situation of China's grass-roots legal service market, I interviewed 10 provinces hundreds of grassroots legal professionals, lawyers and judicial administrative organs of the staff in the past year. With the older grassroots legal professionals engaged in grass-roots work of the communication process, I have more than once deeply felt heaviness of history -- they are the lawyers lack age unknown to the public to provoke the burden of grassroots legal service, with their own hard work to develop a legal service market is local, and when the market gradually mature, replace the honorable man was in Western dress and leather shoes lawyers, even being relentlessly denounced as "black lawyer". Although the development of grassroots legal service was out of control in the 90's, the trouble in early twenty-first Century, but this is only the national related policy of radical and swing the consequences, and can not deny that those at the bottom of the legal system of a country long dedicated grassroots legal workers in the process of China's legal system with. In this semi contact law occupation, not only those who disrupt the legal service market for lawyers "an evil member of the herd", there are from the country's top universities, law professor, retired judges in the judicial circle be of noble character and high prestige, actively engaged in public welfare lawsuit rights defender, as the poor peasants who barefoot lawyers, etc....... Perhaps the above mentioned in the reform and standardization of grassroots legal service measures can and can not be implemented because of various reasons, perhaps one day grassroots legal service really in China legal service market territory emerge of itself and perish of itself, but in any case, we should all remember "grassroots legal workers" of the name, and its bearing in more than 20 years ago, China's contemporary legal reform in the unique social function and historical mission. If the grassroots legal service is a carved "China manufacturing" on the ship, then in more than 20 years of flight it has become dilapidated, let it swim, this boat will sink sooner or later, and the ship for a engine, it may be a lawyer and together the sails.
   

(the writer is a doctoral candidate America the Sociology Department of University of Chicago, Bachelor of law, Peking University School of law.)