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タイトル Legal Education in : A Great Leap Forward of Title Professionalism 著者 Jｉ, Weidong Author(s) 掲載誌・巻号・ページ Kobe University law review,39:1-21 Citation 刊行日 2005 Issue date 資源タイプ Departmental Bulletin Paper / 紀要論文 Resource Type 版区分 publisher Resource Version 権利 Rights DOI URL http://www.lib.kobe-u.ac.jp/handle_kernel/00422145

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Legal : A Great Leap Forward of Professionalism*

Ji Weidong** INTRODUCTION

Legal education has been going ahead by leaps and bounds in the People’s Republic of China in the last twenty-five years. As a result, the conception of legal professionalism began to strike root among the law circles and the technocrats of governmental organs, and to set off a rapid chain reaction in this party-state. It is common knowledge that in modern China, the activities of attorneys at law had been held back since 1957, and afterwards the judicial system was almost entirely destroyed during the said “Cultural Revolution” period of 1966-1976. The legal education was also under the similar circumstances (See Graph 1).1 In about eight years (1964-1970, 1972), all of the universities and colleges did not enroll new law students, and in eleven years (1966-1976), all of the educational institutions of law were closed except two departments of law left in ( University) and Jilin University, and many professors of law had to change their job then. For example, Prof. Wang Yuhua (J.S.D. of Indiana University) became a shop employee, and Prof. Xu Kaishu (LL. B. of Soochow Law School) taught in a middle school for about thirty years.2 The judicial system currently in operation was reconstructed in 1976, and in reality, it has been normalized and enhanced since 1980 when the Organic Law of the People’s Courts began to be put into effect and the role of attorneys in litigation was defined by a new legislation, the Interim Regulations of the People’s Republic of China on Attorneys at Law. Correspondingly, legal education has also been forgoing rapidly ahead since 1978 when the entrance examination system of universities/colleges was

* Earlier versions and parts of this article were presented at the JASL International Symposium “The Role of the Judiciary in Changing Societies” in Tokyo, 9-10 June 2001, the EAI Seminar in Singapore, 1 March 2002, and the 18th LAWASIA Biennial Conference “A Dynamic Asia Pacific: Legal Issues in 2003 and Beyond” in Tokyo, 1-5 September 2003. ** Professor of the Graduate School of Law, Kobe University.

1Cf. Han Depei and Stephen Kanter, “Legal EducationAmerican in JournalChina”, of Comparative Law Vol.32 No.3 (1984), Zhang Youyu and Wang Shuwen (eds.) Forty Years of the PRC’s Legal Science: 1949-1989 (: Shanghai People’s Press, 1989) pp.12-19, Tang Nengsong and others, Tracks of Exploration : A History in Brief of the Development of Legal Education in China (Beijing : Law Press, 1995), Huai Xiaofeng, “A Introduction to China’s Legal Education System”, China Law (quarterly, Hong Kong) 1997 No.4 (1997) pp.10-12, Fang Liufang, “A Survey of Legal Education in China”, in He Weifang (ed.) The Road of China’s Legal Education (Beijing: The China University of Political Science and Law Press, 1997), pp.3-53, Li Huade and Guo Meisong, “Legal Education in China”, Hiroshima Shudo Legal Studies Vol. 24 No. 1 (2001). 2 See Wan Jingbo and others, “The Legal Elites Who Had Been Forgotten for Thirty Years”, The South Weekend (weekly; Guangzhou) No.987 (January 9, 2003) pp.1-2. 2 KOBE UNIVERSITY LAW REVIEW [ No. 39 resumed. Thus I have to limit the coverage of discussions about the development of legal education in China within the present stage of the last twenty-five years, the existing situation and the unfinished reform project for the near future. In China today, it is possible to divid the legal education into four parts: (1) regular undergraduate education undertaken in universities or colleges, (2) professional education of Juris Master program which is modeled on the American style J. D. program, (3) continuing education (including adult education) for legal practitioners on the job, and (4) vocational education at the high school level such as judicial schools. This article will center on the first two types, namely regular university/college courses of legal education and higher professional training programs.

I Recalling the Rapid Development of Legal Education

(1) Changes of Some Important Statistics

As mentioned above, the end of the “Cultural Revolution” ushered in a new era for legal education in China. Two law departments and one legal college as the rare survivals began to recruit 256 students through national entrance examination of universities and colleges in 1977 after being suspended for many years. The size of enrolment steeply rose to 995 (of three departments and three colleges) the next year, 2041 (of six departments and four colleges) in the third year, and 2838 in 1980. The admission system of legal postgraduates (LL.M. degree course) began to resume activities in 1979. In 1987, 51 universities and colleges had set up their law department or legal courses, and 5 special colleges/universities of political sciences and law were in a period of great prosperity. The total number of law students in campuses this year was 42,034 (not counting 3951 postgraduates for legal research), 73 times of 576 law students in 1977. China’s legal education in the 1990s had a more rapid development (See Table 1, Table 2), and law became a very hot major in universities and colleges. According to the statistics publicized in 1999 by the Ministry of Justice, there were 214 universities which had law faculties, and it was reported that the number had gone up to about 240 at the end of the 20th century, among them five special legal universities/colleges are directly subordinated to this Ministry 3. And the annual number of graduated law

3 “A Survey and Prospects of the Legal Education in China” (August of 1999), in Huo Xiandan (ed.) The Development and Transformation of China’s Legal Education (1978-1998) (Beijing: Law Press, 2004) pp.129-133. In addition, The Ministry of Justice also had two cadre training colleges: Central Political-Legal College for Management Cadres (1985-1997) and the Central Educational College for Judicial and Police Officers (1956-2000, the predecessor of the Central Institute for Correctional Police). Since the late 1980s, this Ministry has been running the China National Attorneys Correspondence Centre, which was a form of distance legal education for the practising lawyers. 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 3 students in 2000 was approaching 20,000.

(2) Two Periods of the Developing Legal Education and the Trend

Table 1 shows some primary data of legal education of three symbolic and important years. 1987 may be considered as the starting point of legal professionalism in China, because the National Bar Examination began to be held in the preceding year, and the Ministry of Justice issued a circular on engaging foreign academic lawyers as a teacher or consultant to improve legal education on April 27, 1987. And 1993 is the turning point of legal education, because two crucial national conferences on legal education were held and the concept of legal service market was officially accepted in this year. It is also able to say that 2000 is the gestational period of a unified community of legal interpretation, because Judges Law and Procurators Law were both amended for heightening the professional requirements, and the unified National Judicial Examination for judges, procurators and attorneys was designed in this year (the amended laws and judicial examination plan were adopted in the next year). According to Table 1 and its historical context or related narrative, the legal education during the last twenty-five years thus may be divided into two periods taking the year of 1993 as the watershed. By the end of that year, China has rebuilt or newly set up 135 regular colleges/ departments of law, 114 continuing higher educational schools of law, and 58 vocational judicial schools and police schools.4 The first period before 1993 was the restoration phase of legal education, which was characterized by legal instrumentalism and the seeds of legal professionalism; and the second period after 1993 until 2002 had been the phase of legal education development in an all-round way, which was characterized by legal commercialism and the steep rise of legal professionalism. In the 21st century, legal education in China will surely have a qualitative leap toward the higher stage of legal professionalism. According to the “Ninth Five-Year Plan of Legal Education and the 2010 Prospects of Development of Legal Education” made by the Ministry of Justice, the percentage of law graduates in all of regular college graduates is going to rise from 4% in 2000 to 4.5% in 2010 when the population of attorneys become 150,000, and the long-term aim for attorneys growth was fixed to 300,000 by Deng Xiaoping in the 1980s. It is clear that legal education in China still has very great potentialities.

4 See Huo Xiandan, “Legal Profession and Legal Education”, available at webpage http://www.iolaw.org.cn/shownews.asp?id=569 (access date: June 26, 2003). As for the development of legal profession, especially attorneys at law and law offices/firms, cf. Ji Weidong “Professionalità e Dimensione Internasionale Dell’ avvocatura in Cina” (trans, by Maria C. Reale) Sociologia del diritto n. 2, 1993, pp.99-121. 4 KOBE UNIVERSITY LAW REVIEW [ No. 39

II Prerequisites and the Training System for Judges

(1) The Court Personnel According to incomplete statistics, the number of judges and associate judges increased by 416% from about 50,000 in 1980 pass through 131,460 in 1990 to 258,000 in 2000 during the past twenty years (See Graph 2-a, b). The court personnel of 2000 is composed of as follows: altogether 150,000 judges, 58,000 associate judges, over 2,000 law enforcement officers, 44, 000 law clerks, 20,000 court policemen and 48,000 other staff members. Attention should be paid to the fact that in the last decade from 1990 to 2000, the number of judges increased by 40.6% from 89,114 to 150,000, and in contrast, the number of associate judges increased by 37.0% from 42,346 to 58,000. Clearly, the increase rate of judges and associate judges is still very high, but began to slow down, especially reflected in the lower increase rate of associate judges.

(2) The Appointment of Judges

China has been building up a career judge system based on the European continental tradition. But there are also some very different features as well. One of the most typical examples for showing the difference is the electoral procedure for the appointment of judges. According to the Constitution of the People’s Repulic and the Organic Law of the People’s Courts, the President of the Supreme People’s Court is elected and subject to recall by the National People’s Congress (NPC); the vice presidents, chief judges and associate chief judges of divisions as well as judges of the court are appointed or removed by the Standing Committee of NPC upon submission of the President of the Supreme People’s Court. The president of a local court at various levels is also elected and subject to recall by the relevant local people’s congress; and its vice-presidents, chief judges of divisions, the relevant other members of the adjudication committee as well as judges of the court are appointed or removed by the relevant standing committee of the local congress at the same level upon submission of the president of the said court. Incidentally, associate judges are appointed or removed by the court where they work.

(3) Professional Qualifications Provided for Judges by the Law

In accordance with the Judges Law, which was first adopted in 1995 and revised in 2001, general qualifications for judges include: (1) to be a Chinese citizen; (2) to have reached the age of 23 and over; (3) to endorse the Constitution of the People’s Republic; (4) to have fine political and professional quality and to be good in conduct; (5) to be in good health; (6) to 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 5 accord with the educational requirements.5 The professional qualifications, particularly the requirements of academic degree and working experiences have been heightened in the new Judges Law: to become a judge, it is necessary for LL.B. graduates or non- law graduates with a bachelor degree but possessing professional knowledge of law, to have worked in the legal field for two years.6 For those who will work at a Higher Court or the Supreme Court, three years of legal working experiences are required. For those graduates with LL.M. or J.S.D. degrees, one year of working experience is required.7 Another important revision in the new Judges Law is that from January 1, 2002, entry-level judges and procurators must be selected from those who not only meet the above requirements, but also have passed the National Judicial Examination.8 During March 30-31, 2002, China held the National Judicial Examination for the first time, which combines the National Bar Examination and different qualification tests for the bench, public procurators and notaries together into a unified one. 360,000 people entered themselves for the judicial examination until the closing day, January 30 of that year, and 310,000 people took the examination in fact. It was reported on May 27, 2002 that among them only 24,000 passed the examination. In other words, the predetermined pass rate was 7%, lower than the pass rate (10%) of the national bar examination in the former years.9 Taking the local conditions into account, the new Judges Law allows those regions which have difficulties to implement the above professional requirements may appoint, subject to a certain examination and determination by the Supreme People’s Court, judges with three-year professional training certificates (da-zhuan-wen-ping) in law within a certain time limit.10 For those in-service judges who do not hold bachelor degrees must receive professional training so as to meet the above qualifications. As for the training ways and means, the Supreme Court will lay down detailed measures in line with laws. However, the 2001 Judges Law does not mention whether unqualified judges will be dismissed when they are unable to meet the requirements even after the training, nor specify a time limit for the legal training. In fact, these kinds of problems have recently

5 Judges Law, Article 9 Section 1. As for the recruitment of judges before 1995, Cf. Guo Jisheng, Introduction to the Count Management (Beijng: People’s Court Press, 1992) pp.146-148. 6 In the 1995 Judges Law, it was only one year of working experiences asked for LL. B halders. 7 There was no such requirement in the 1995 Judges Law. 8 See Art.12 Section 1 the of the new Judges Law. There were different kinds of examinations on qualifications for judges (from local tests in the courts to the National Bench Examination) prior to 2002. 9 According to the journalist report available at http://www.cer.net/article/20020702/3060542.shtml (access date: June 25, 2003). Cf. also Suzuki Ken, “The Legal Profession in China”, in Seigo Hirowatari (ed.). The Legal Profession in Transition: A Comparative Socio-legal Study (Tokyo: University of Tokyo Press, 2003) pp.378-379. 10 Judges Law, Article 9 Section 3. 6 KOBE UNIVERSITY LAW REVIEW [ No. 39 been resolved by local rules of courts at different levels. The same qualifications have also been hedged with for procurators under the 2001 Procurators Law. To meet the professional requirements provided for by the Procurators Law, the Supreme People’s Procuratorate also set up its own training colleges and prepared a training program for procurators in the period of 2001-2005. According to this program, by the end of 2005, 90 per cent of the procurators should have college diplomas, of whom about 100 possessing J.S.D. degree and 4,000 possessing LL.M. degree, and 40 per cent of the procurators possessing LL.B. degree.11

(4) The Training System of Judges

The Supreme People’s Court has strengthened the professional training for judges at their posts over the last decade. The State Judges Institute was set up in 1997, and its predecessor, National Sparetime University of Judicial Bureaucrat (1985-2001) and China’s Training Center for Senior Judges (1988-1997), came into being about ten years ago. It started as a part-time professional institute and has turned to be full-time regular college in reality since the end of December 2001. Under this training system, senior judges have been trained by the State Judges Institute, while other judges trained in the same kind of sub-institutes (13 branches in 2002) run by the high courts. Up to the end of 1999, 11,000 senior judges have already received professional training at different levels. Among them, 63 persons attained J.S.D. degree, 2,248 attained LL.M. degree. In the period of 1997-2002, the State Judges Institute trained 5599 senior judges. The Supreme Court also has made a new training program for the period of 2001 to 2005.12 It was reported that those passers of the National Judicial Examination who will become associate judges must all start their career after a certain period of practical training in the form of apprentice immediately or at the State Judges Institute (National Judges College at present) in the future.

III Qualifications for Attorneys at Law

(1) Bachelor Degree, Bar Examination and Practice Certificate

Attorneys at law and their law offices/firms have been enjoying a rapid growth. During the period of 1986-2001, the number of attorneys increased by about five times; and during the period of 1990-2000, the size of

11 See “Five-Year Education and Training Programme for Procuratorate”, People’s Daily (Beijing), March 14, 2001, p. 6. Cf. Ordinance for Training Procurators (January 18, 2002). 12 See Xiao Yang, “Work Report of the Supreme People’s Court (March 10, 2001)”, in http://www.court.gov.cn/work/200302120015.htm (access date: June 28, 2003). Cf. Ordinance for Training Judges (October 20, 2000). 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 7 attorneys increase by an average of 12.1 % each year (See Graph 3). Attorneys at law are no longer disadvantaged as in the pre-reform period, but a profession having a very strong appeal to the society. The population of full-time attorneys has gone up sharply since 1992, from 22,124 in the same year to 76,558 in 2001, and the number of law offices/firms has increased sharply since 1995, from 7,263 in the same year to 10,225 in 2001. However, the proportion of the bar and the bench in China is very much exceptional and oppose each other with the other modern countries. The ratio between judges and attorneys is now about 2.5 to 1. It means that, although the number of attorneys at law increased by about five times during the period of 1986-2001, it is still very much smaller than the size of judges. Including procurators, the proportion between the judicial bureaucrats and the agents for the pepople is about 4 to 1, namely one attorney to four judges and procurators (Cf. Graph 4). This is a kind of unique structure of legal profession. Until June, 200513, the population of full-time attorneys has amounted to 103,389, including 1,817 public defenders, 733 house counsels of companies, and the number of law offices/firms has amounted to 11,691. To form a contrast, however, the number of part-time attorneys has decreased gradually since 1995, from 17,994 in the same year to 13,699 in 2001, and to 6,841 in the middle of 2005. Under this background, it is necessary for law circles to pay more and more attention to the quality of legal service besides the increase in quantity. In other words, attorneys have been asked to raise their professional level speedily for satisfying the needs of the clients and establishing high prestige. Therefore, it is especially significant to discuss the qualifications for practising lawyers in China today. The qualifications for attorneys at law are stipulated in the 1980 Interim Regulations of the People’s Republic of China on Attorneys at Law previously, and the 1996 Attorneys Law afterwards. The term “attorney (lüshi)” here means a legal practitioner who has obtained a practice certificate, and provides legal services to the public pursuant to law.14 For those who will have a practice certificate, it is necessary for him or her to pass the National Bar Examination (held 12 times during 15 years of 1986- 2001) for qualification to be an attorney.15 In addition, a person who wishes to obtain the attorney’s qualification should have attained the education in law faculties of universities/colleges or above, or attained the same level of professional skills and also received the education in other faculties of universities/colleges or above. But the most important requirement is that anyone who want to be an attorney must pass the National Bar

13 The new data is available at http://www.legalinfo.gov.cn/moj/lsgzgzzds/2005-06/14/content_154886.htm (access date: July 4, 2005). 14 Attorneys Law, Article 2. 15 Attorneys Law, Article 5. 8 KOBE UNIVERSITY LAW REVIEW [ No. 39

Examination (before 2001) or National Judical Examination (now) at first.16 The matter meritting attention here is that the requirements for legal education have been heightened in the new amendment of Attorneys Law, which was adopted in 2001, from the higher vocational training of three years (zhuan ke) to regular college course of four years (ben ke).17 This revision is consistent with the amended Judges Law and Procurators Law. The Ministry of Justice recently required the practising lawyers and notaries who do not have bachelor’s degree must obtain such a degree within five years from 2002.18 After Judges Law and Procurators Law were amended, the professional requirements for judges and procurators are now higher than those for attorneys. Previously, attorneys at law must sit for the National Bar Examination to get the qualification, but judges and procurators could even be appointed from the retired military servicemen who received only short- term training in laws. But now, a person who wishes to be a judge or procurator, he or she must have passed the National Judicial Examination together with certain years of legal working experiences, while there is no working experience requirement for the qualification of an attorney. According to the explanation of the Chinese authorities on the National Judicial Examination, those who have held the attorney’s certificate can continue their legal services as practising lawyers, but when they wish to work at the court, they must sit for the new examination again.19 Clearly, the access to judiciary or procuraterate is more difficult from 2002.20 The further tightening of the professional qualifications for judicial personnel brings new challenges and more tasks to institutions of legal education.

(2) The Professional Training Programs for Attorneys at Law

There is a special full-time educational institute at regular college level for training attorneys, the Deheng College of Attorneys, in Changchun City, which was jointly set up by the Center of Chinese Attorneys at Law Affairs (currently Deheng Law Firm) and Jilin University in 1993, and supported by the legal assistance project of the World Bank in 1996. The college is

16 Attorneys Law, Article 6. 17 See “Decision on the Revision of Attorneys Law of the Standing Committee of the National People’s Congress” (December 29, 2001). 18 “Ministry of Justice Urge Practising Lawyers and Notaries to Finish Higher Professional Education”, available at webpage http://news.xinhuanet.com/zhengfu/2001-12/24/content-207919.htm (access date: June 29, 2003). 19 “Answers to certain questions related to the National Judicial Examination”, available at webpage http://www.legalinfo.gov.cn/news/news111208.htm (access date: June 27, 2003). 20 Some measures on legal education requirements have been already taken in practice. For example, a recent selection of judges in Beijing Municipality proved that the educational level of the judges has been raised: among 252 presiding judges and 329 individual judges selected, one has a Ph.D., 25 have Master’s degrees, 307 have Bachelor’s degrees and 215 are junior college graduates. See “New Selection Procedure for Improving the Judicial System”, China Daily (Beijing), March 31, 2001. 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 9 now composed of 25 professors, 19 associate professors and 26 lecturers, and became a multiple functioning base of professional education in 2002.21 By the approval of the Ministry of Justice, China East College of Political Science and Law set up China’s International Attorney Training Center in 1994, to supply educational programs for domestic and foreign practising lawyers.22 And with the support of the All China Lawyers Association, Tsinghua Law School and Department of Law, Shanghai Institute of Foreign Trade jointly founded the Professional Training Program “Master Lawyer” for young attorneys at the end of 2001. It invited about fifty senior lawyers in Beijing and Shanghai as teachers, and supplied each class an educational plan of 45 weeks or 225 days. The first class was opened on September 16, 2002, and the second class was opened on March 10, 2003.23 Department for International Development, UK Government had carried out a ten-year program for training young attorneys from China since 1989. This educational program was extended for another ten years in 2001. According to the new memorandum jointly signed by the Ministry of Justice of the PRC, the All China Lawyers Association, Lord Chancellor’s Department, General Council of the Bar and Law Society of England and Wales, 15 young attorneys at law each year will be trained in the United Kingdom under the support of British Chinese Law Association (BCLA; founded in 1999). The Chinese attorneys are arranged to spend four months in SOAS, University of London for learning British law, and to try their prentice hand at legal service for three months in solicitors’ offices, three months following barristers, and finally two months in the law firms in Hong Kong.24 Up to now, there has been only one nation wide professional training institute for legal practitioners, the China National Attorneys Correspondence Center. It was reported that the Ministry of Justice decided at the beginning of 2002 to set up the National Attorneys at Law College in the near future.25

21According to introduction in http://www.dhl.com.cn/college/collegecontent.ht(access date: June 29, 2003). 22 According to introduction in http://www.cscse.edu.cn/laihua/c-gaoxiao/c_hdzf.html (access date: June 28, 2003). 23 See the related information in website http://www.masterlawyer,com and http://www.tsinghua.edu.cn/docsn/flx/flx.htm (access date: June 29, 2003). 24 See the related information in website of British Council in China http://www.britishcouncil.org.cn/chinese/governance/law/lawyer.htm, and webpage of the All China Lawyers Association http://www.chineselawyer.com.cn/artiucle/20030176023.html (access date: June 29, 2003). 25 See news (January 10, 2002) at http://www.acla.org.cn/pg/article.php?articleID=56 titled “There Is Hope of the Base for Training Attorneys at Law” (access date: June 29, 2003). 10 KOBE UNIVERSITY LAW REVIEW [ No. 39

IV Ways and Means of Legal Education

(1) Two Responsible Ministries, Two Typical Examples

Legal education comes generally within the jurisdiction of the Ministry of Education. But the Ministry of Justice had also been playing a very much important role until 2000, because of the unique conception of legal order in China as well as the professional features. The Ministry of Justice had the Department of Law and Education to guide specialization of legal knowledge in general, and the legal education in the Ministry-subordinated five law colleges/universities and some training centers in particular.26 It is not so clear, however, how the two ministries coordinated each other to guide legal education. Of course, the legal education in the five special colleges/universities should fulfill the quality requirements and basic guiding opinions of the Ministry of Education like the other kind of regular colleges and universities, but at the same time, they had to meet the specialized needs of the Ministry of Justice. And in reality the textbooks and reference materials related to law prepared under the Ministry of Justice were considered more authoritative than those from the Ministry of Education side. However, all of the special law colleges/universities were divorced from the Ministry of Justice, and put in charge of the Ministry of Education or its local departments at province level in 2000, together with the other special colleges/universities belonged to the other ministries. Only the institute for adult education, the Central Educational College for Judicial and Police Officers is still left to belong to the Ministry of Justice.27 With regard to legal education today, let me take the Faculty of Law, Peking University and the Law School of as typical examples, and brief you on the basic situation there. In the Faculty of Law, Peking University, students need to fulfill total 150 credits in mandatory courses (106 credits),28 optional courses (20

26 See the webpage of the Department of Law and Education, the Ministry of Justice, available in website http://www.legalinfo.gov.cn/joa/apparment/aptfgjy.htm (access date: June 27, 2003). As for the reality at destination, see Yearbook of Chinese Law (Beijing) 1999, pp.174, 182 and 1038. 27 According to the Circular on reform of ministries-subordinated educational institutions that was issued by the General Office of the State Council (February 12, 2000), see Yearbook of Chinese Law (Beijing) 2001, pp.428-440. 28 They include general mandatory courses (such as College English; Introduction to Mao Zedong Thought; Deng Xiaoping Theory; Principles of Marxist Philosophy; Principles of Marxist Economics; Accomplishment of Moral Character; Contemporary World Economy and Politics; Sports; Computer Fundamentals and Application; and Military Theory), law faculty mandatory courses (i.e., the core courses of the legal education in China, such as Jurisprudence; Chinese Legal History; Constitutional Law; Administrative Law and Administrative Procedure; General Theory of Civil Law; General Theory of Criminal Law; Private International Law; Intellectual Property Law; Enterprise Law/Company Law; International Economic Law; General Theory of Commercial Law; International Law; Civil Procedure; Economic Law; Criminal Procedure; Introduction to Law; Law of Property; Law of Obligation; Introduction to Legal Method; and Advanced Mathematics). The information is available at website http://www.law.law.pku.edu.cn/display.asp?id=349 (access date: June 28, 2003). 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 11 credits),29 short-term legal practice as prentice and a graduation thesis within four years of schooling. According to the Faculty statistics, in the schooling year of 2000, there were 1,821 law students in Peking University, among them 866 (including 170 new students) for bachelor degrees, 720 (including 232 new postgraduates) for LL.M. degree and 235 (including 84 new postgraduates) for J.S.D. degree. By the way, the number of students for continuing education the same year was 1,300.30 In this year, 213 undergraduates finished the regular college course, among them 203 received bachelor degrees. The Tsinghua Law School was restored in 1995 after it had been merged into the Faculty of Law, Peking University in 1949 when the People’s Republic of China was founded. Since it is relatively new in comparison with many other faculties of law, it is relatively easier to introduce a new-style curriculum and to reform the schooling system. At present, the Tsinghua Law School provides different curriculums for Bachelor Program (LL. B.), Dual Bachelor Program, Master Program in Laws (professional education of Juris Master Program), Master Programs in Legal Science (LL. M.) and Doctoral Program in Civil & Commercial Law (J.S.D.). In 2001, there are 16 compulsory and 27 optional courses for law students on LL.B. course in this school.31 One of the characteristics of that school is the requirement for law students to learn some courses on natural sciences such as Advanced Mathematics, Introduction to Physics, and Introduction to Modern Biology, in which Tsinghua University has the strongest capacity of schooling in the country. In addition, students are required to conduct the so-called “social practice” including Community

29 They include Introduction to Logics; History of Western Legal Thought; History of Chinese Legal Thought; Foreign Legal History; Foreign Criminal Law; Legal Writing; Family and Succession Law; Criminology; Competition Law; Fiscal and Taxation Law; Financial and Banking Law; Labour and Social Security Law; Law of the Sea; Legal English; International Taxation Law; Maritime Law; International Law of Technology Transfer; Forensic Medicine; Judicial Psychiatry; Foreign Constitutional Law; Comparative Judicial Systems; Foreign Civil and Commercial Law; Law of Negotiable Instruments; Criminalistics; Studies of Legislation; Roman Law; Foreign Administrative Law; Insurance Law; Law of Criminal Enforcement; Science of Medical Legal Expertise; Legal Profession and Legal Ethics; Environmental Law; Introduction to Laws of Hong Kong, Macao and Taiwan; International Investment Law; Introduction to Anglo-American Law; Practice of Law; International Financial Law; Accounting and Audit Law; Foreign Procedural Law; International Air Law; Real Estate Law; Law of International Organisation; Criminal Jurisprudence; Introduction to Law; International Law; Intellectual Property Law; Juvenile Jurisprudence; Sociology of Law; International Environmental Law; International Human Rights Law; British and American Tort Law; Introduction to Foreign Legal Thought; and Introduction to Pyschotherapy. The information is available at website http://www.law.pku.edu.cn/display.asp?id=349 (access date: June 28, 2003) 30 “Introduction to PKU Faculty of Law”, available at http://www.law.pku.edu.cn/display.asp?id=124 (access date: June 28, 2003). 31Compulsory ones include: Introduction to Law, Constitutional Law, Basic Legal Theories, Civil Law, Criminal Law, Chinese Legal History, Civil Procedure, Intellectual Property Law, Commercial Law, Criminal Procedure, Law on Natural Resources and Environment, Economic Law, Administrative Law and Administrative Procedure, International Law, Private International Law, International Economic Law, and optional ones are Comparative Constitutional Law, Family Law and Succession Law, Foreign Criminal Law, Foreign Commercial Law, Foreign Civil Law, Legal Practices, Legal Clinic, Maritime Law, Introduction to Comparative Law, Special Legal Lectures I, II, III, Criminology, Evidence, Law & Society, Arbitration, Jurisprudence, History of Chinese Legal Thoughts, History of Western Legal Thoughts, International Trade Law, Insurance Law, Financial and Banking Law, Law of E-commerce and Legal Reading I, II, III, etc. See the pamphlet School of Law Tsinghua University, pp.24-28. 12 KOBE UNIVERSITY LAW REVIEW [ No. 39

Service, Legal Internship, and Moot Court and other related activities.

(2) The Uses of Digital Technology in Legal Education

Information technology opens the door of new forms of education, such as the distance education through the Internet or other means. Some faculties of law began to use this facility to create distance legal education. The Faculty of Law, Peking University is a pioneer in this respect and has established a three-year program through the Internet. The Supreme People’s Court has intensified its training programs by cooperating with the Faculty of Law, Peking University to carry on an “online program” for training the judges in accordance with the qualifications set forth in the amended Judges Law.32 In addition, several professors actually also tried to lecture regular college students on line during anti-SARS isolation period when spring is changing into summer in 2003.33 This faculty has also been constructing and keeping a digital law library, the “China Law Retrieving System”, since the mid-1980s. This system began to be operated by the Legal Information Center of Peking University in 1986, and now provides Internet online services via its web site (http://www.chinalawinfo.com) as well as the eighth version of “Magic Means of Law 2002” in CD-ROM format. The full text of laws and regulations on the Internet is a fee-based service and the databases are updated biweekly. A free access to the statutes in recent times and the selected cases has been provided, and the information is updated daily. In addition, the net news about legal developments at home and abroad are forthwith supplied, and a public sphere of rolling cyber debate about current legal problems is arising here as well as other net forums. The slogan of the “China Law Retrieving System” is “for e-law and 0-gap”, to show the possibility to reduce time difference or relational distance of law and society in this digital age.

(3) Clinical Education and Case Method

In most faculties of law, the teaching method of legal education in China has been mainly to use the most common pedagogical technique, i.e., one-way lecturing in a big classroom. Although there are classroom discussions or group discussions occasionally, the seminar system has still not been established yet. To remedy the weakness resulting from

32 See “To Establish a Professional Judges Team of High Quality”, People’s Daily (Beijing), November 13, 2001, p. 6, “The Supreme Court Issued Opinions for Strenthening the Professionalization of Judges”, China News Net (Beijng) July 29, 2002, at http://news.sina.com.cn/c/2002-07-29/1028652312.html (access date: June 28, 2003). 33 See “Peking University Legal Net Education Program”, available at the website http://edu.chinalawinfo.com/education/jihua.php and the net-forum/net-school “Atheneum”, at the website http://law-thinker.com/cgi-bin/yadian/index.asp (access date: June 28, 2003). 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 13 traditional teaching method, some innovative Socratic methods including clinical education and the moot court training began to be introduced recently, and the Law School of Tsinghua University has been playing a leading role in this aspect. Clinical lagal education method was introduced into China in September of 2000 with the partly financial support of the Ford Foundation. Tsinghua Law School cooperated with the Consumers Protection Association of Beijing’s Haidian District to open a “legal clinic” through which students began to know laws and regulations concerning consumer protection and to learn how to deal with cases as lawyers do.34 The clinical method has proved to be a feasible and good means of legal education in China as well, not only to teach law students the necessary knowledge of law, but also to train them to obtain skills, capacity, professional ethics, and how to apply law in practice, which could not be taught and obtained by the traditional lecturing method in a big classroom. At present, besides Tsinghua Law School, altogether eleven faculties of law in China have established clinical courses, and they set up a national coordination organization “The Committee of Chinese Clinical Legal Educators (the abbreviation is CCCLE)” on July 28, 2002. The Law School of Tsinghua University has also introduced case method and the moot court model. As a result of this effort, the LSTU team won the second place in the 2000 Asian Cup International Law Moot Court Contest, and attended the 2001 International Moot Business Arbitration Contest held in Viena on behalf of China. Tsinghua Law School also organized two moot court competitions within its campus.35

V Educational Exchange Between Academic and Practicing Lawyers

(1) Going Out Among the People, Inviting Practitioners Into the Campus

There has been a wide gap between legal education and legal practice in China. Many graduates complain that what they learnt from professors in regular college courses cannot meet the needs of their legal practice. Generally speaking, the legal education in universities or colleges does not concern very much about the demand of legal services or judicial work in deed. On the other hand, however, the specialized organizations related with legal practice are usually not involved in the development of legal

34 Wang Cheng-guang and Chen Jianming, “A Practical Law Teaching and the Reform of Legal Education”, Law Science (monthly; Shanghai), 2001 No.7, p. 4, Wang Cheng-guang, “The Purpose of Legal Education”, Law and Social Development (bimonthly; Changchun) 2002 No. 6. 35 See ibid. pp.4 f. Cf. also the pamphlet School of Law Tsinghua University, p.37. 14 KOBE UNIVERSITY LAW REVIEW [ No. 39 education. For example, the All China Lawyers Association (ACLA) was established in July 1986 and there had not been a provision relating to legal education in its constitution, and there had not been a sub-organization being in charge of legal education until June 8, 2002 when the ACLA Committee for Education was set up.36 Although the Chinese Law Society rebuilt in 1982 may be involved in legal education through studies in law and advanced research about jurisprudence according to its constitution, in reality, it has also been out of decision process and practice of higher legal education. To overcome the shortcomings of legal education divorced from legal practice, some measures have been suggested as following: (a) to invite part-time teachers from judicial departments and law firms; (b) to establish legal practising bases for law faculties of universities; (c) to organize law teachers participating in practical activities related to the construction of legal order; and (d) to invite government officials, managers of enterprises and practising lawyers giving lectures in the campus.37 In fact, the College of Law, Zhejiang University, has invited a few senior judges to teach some courses as a part-time professor, and famous attorneys at law to give lectures for the Juris Master Program only. The same college has also been trying to build up a community of legal profession including professors of law, judges, procurators and attorneys to exchange information about legal theory and cases, and to this end there is a net-forum organized for studies in law and discussions on typical cases.38

(2) Merits and Demerits of the Establishment of a Law Office Within a Law School

In fact, one of the characteristics in China’s faculties/colleges of law is the establishment of law firms within the schools. This is a response to the development of China’s economy and the lack of financial support for higher education. For example, China University of Political Science and Law holds Beijing Fada Law Office, and the Faculty of Law, Peking University even set up two independent law offices (named as Tonghe and Yanyuan respectively). The Luojia Law Office directly managed by the Faculty of Law, Wuhan University mainly consists of core faculty members. Superficially, this kind of legal activities look like a reflection of integration of legal education and legal profession, but in nature it is a commercial activity which definitely disrupts the normal operation and quality of legal

36 Its constitution contains 15 functions of the All China Lawyers Association, such as organizing and implementing works relating to the national bar examination, involved in legislation, but none is concerned with legal education. However, the ACLA rules were revised on May 21, 2002, the function of legal education and training is added to the Constitution as Article 5 No. (7). 37 See Ma Kechang and Luo Mingda, “Reform of Legal Education”, in Guo Daohui (ed.), Essays on the Legal System in the Last Ten Years (Beijing: Law Press, 1991) pp.435-436. 38 See http://www.chinalegaltheory.com/default.asp (access date: June 28, 2003). 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 15 education. Because Chinese legal authorities defined the concepts of legal aid and legal aid providers in a broad sense considering the objective conditions, many legal aid centers have been set up by law students in universities or colleges such as Peking University, Tsinghua University, Fudan University, Wuhan University and the Middle South College of Political Science and Law, etc., among which some have been supported by foreign foundations.39

VI Toward the American Style Educational System: J.M. Program

(1) The Whole Course of Americanization in Legal Education

The plan of introducing the American way of legal education began to be discussed in 1993 and was approved by the Academic Degree Committee of the State Council, the Ministry of Education and the Ministry of Justice in 1995. The pilot scheme of Juris Master educational program (enrolling 539 graduates) was launched in 1996, and the J.M. course for in-service training (1072 students recruited) began to be offered in 1998 after the related ministries decided to set up the National Committee for Guiding Juris Master Degree Education.40 No matter what kind of training programs, according to the rules of the Ministry of Education, curriculum of J. M. education in any school must include the 14 core courses as following: Criminal Law, Criminal Procedure, Civil Law, Civil Procedure, Intellectual Property Law, Administrative Law and Administrative Procedure, Commercial Law, Economic Law, International Law, Private International Law, International Economic Law, Constitutional Law, Jurisprudence, History of China’s Legal System, besides different optional courses and practice teaching. In November of 1999, the number of experimental units of J. M. professional education reached 28 (in 2006, the number has jumped to 48), which covered almost all of the first-rate law faculties/universities.41

39 Cf. Xu Yongjun, “Who Are Legal Aid Providers?” Chinese Lawyer (Beijing) 1997 No.8 pp.10f, Ji Weidong “Legal Aid in the People’s Republic of China: Past, Present and Future”, in L. G. Trubek and J. Cooper (eds.) Educating for Justice Around the World: Legal Education, Legal Practice and the Community (Brookfield: Ashgate Publishing Ltd., 1999) pp. 93-117. 40 Cf. Huo Xiandan, “The Explorations and Reform of Juris Master Professional Degree Education in China”, at http://www.iolaw.org.cn/shownews.asp?id=580, and Zeng Xianyi, “The System of Legal Education and Its Reform in China”, at http://www.iolaw.org.cn/shownews.asp?id=578 (access date: June 26, 2003). 41There was not any change in 2003. The universities with J.M. educational program ware as following in that year: Nanjing University, University, Jilin University, Liaoning University, Peking University, university of International Business and Economics, Nankai University, Tsinghua Univeristy, Shanxi University, Renmin University of China, China University of Political Science and Law, University, Anhui University, Fudan University, Zhejiang University, China East College of Political Science and Law, Soochow University, Xiamen University, Lanzhou University, China Northwest College of Political Science and Law, Yunnan University, University, China Southwest University of Political Science and Law, Wuhan University, Zhongnan University of Economics and Law, Xiangtan University, Zhengzhou University, Sun Yat- Sen University. The information is available at webpage http://www.fudaoban.com.cn/fashuo/news/004.htm (access date: June 26, 2003). However, the number of universities holding J. M. has shot up since 2004. The latest information is available at http://www.chinakaoyan.com/article.php/2401. 16 KOBE UNIVERSITY LAW REVIEW [ No. 39

During the period of 1996-2001, throughout the country all together 6433 J.M. postgraduates (full-time schooling) were enrolled. And all together 5469 J.M. postgraduates on the job (part-time schooling) had been enrolled since 1998.42 The J.M. educational program has been becoming hotter and hotter in college students, but law graduates have been excluded from the candidates for J. M. entrance examination since 2000.43 Thus in this year, only 8,000 graduates form different study fields except law entered themselves for the J. M. entrance examination. However, the number of applicants went up to 18,000 the next year, and further leaped to 27,000 in 2002, and then 34,200 in 2003.44 According to the plan of governmental organs, J. M. professional training program will become the major channel of higher legal education in about 10 years from now on.45

(2) The Prospects of Professional Education in Law

Therefore, in the near future, China’s legal education in universities/ colleges will be divided into two parts: one is traditional way and for fostering academic lawyers which includes (1) LL.B. of 4 years plus LL.M. of 3 years and (2) LL.B. (4 years) plus LL.M. (3 years) and plus J.S.D. (3 years). The another is for practising lawyers which includes three kinds of programs, namely, (a) LL.B. (4 years) only for law related jobs, (b) LL.B. (4 years) plus short-term professional training (1 year) for legal practice, and (c) regular college graduates of non-law fields (4 years) plus J. M. (3 years) for legal practice as well as the other professional work.46 Here we can find that the reform plan of legal education in China is similar to a certain extent with the said “Law Schoolization” reform in Japan’s universities today. China has also paid attention to the reform of legal education in other countries besides the United States, and organized a series of international conferences on legal education including 21st Century World Meeting, Sino- US joint meeting and Sino-EU joint meeting of Deans of the Famous Law Schools, and the “Legal Education and Development in the 21st Century Asia Forum” in December of 2001. It was reported that attendants came

42 According to Huo Xiandan, op.cit. at http://www.iolaw.org.cn/shownews.asp?id=580. 43 J. M. entrance examination composed of two unified test courses of foreign language and politics, and three special test courses of Law in General (including Jurisprudence, Constitutional Law and History of China’s Legal System), Criminal Law and Civil Law. See ibid. 44 See news “The Quotations of J. M. Entrance Examination Continued Running High” (Xinhua Net, August 16, 2002), available at webpage http://www.chinalawjob.com/essay/shownews.asp?newid=235 (access date: June 26, 2003) and Chronicle of Events Concerning with J.M. Education (until May 16, 2003), available at webpage http://www.yuloo.com/FS/FS-ZHXX/20030516133616856.HTML (access date: July 2, 2003). 45 Huo Xiandan, op.cit. at http://www.iolaw.org.cn/shownews.asp?id=580. Cf. also He Weifang, “Legal Education is Turning to JM Education”, available at http://www.iolaw.org.cn/shownews.asp?id=1678 (access date: June 26, 2003). 46 See Huo Xiandan, “Legal Profession and Legal Education”, op.cit., available at webpage http://www.iolaw.org.cn/shownews.asp?id=569 (access date: June 26, 2003). 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 17 from more than 60 major law schools in the world. 47

Concluding Remarks

Thus it can be seen that the legal education in China is in the eve of professionalism revolution. Of course, a thoroughgoing reform of legal education must be presupposed by the thoroughgoing reform of the whole educational system. In fact, the overall education reform toward American style system has already been switched on recently by the Reform Plan of Peking University, which was made public on May 12, 2003 and has been causing a commotion in the education circles.48 In brief, although there is still a long march for the revolution in China’s legal education, the prospects are becoming very bright from now on.

47 See the related information at website http://www1.cnlawschool.com/ (access date: July 2, 2003). As for the exchanges on legal education among Asian countries, cf. also “Legal Education and Development in the 21st Century Asia Forum was held”, People’s Daily (Beijing), December 17, 2001, p. 6, and the summing up report at webpage http://www.lawplan.nccu.edu.tw/html/3-3-5.htm (access date: July 2, 2003). 48 See journalist report “The Curtain of Personnel System Reform Rose in Peking University” (June 26, 2003), available at http://202.84.17.73:7777/Detail.wct?RecID=3&SelectID=1&ChannelID=4255&Page=1 (access date: July 3, 2003). As for the different opinions about that reform plan, cf. also Focal Talk Online at http://news.xinhuanet.com/focus/2003-06/30/content_945710.htm (access date: July 3, 2003). 18 KOBE UNIVERSITY LAW REVIEW [ No. 39

Graph 1 Size of Legal Education in China (1949-1989)

100000

10000

1000

100 Number

10

0

1949 1952 1955 1958 1961 1964 1967 1970 1973 1976 1979 1982 1985 1988 Year

Colleges/Departments Teachers Graduates Postgraduates

Sources: Adapted from Yearbook of Chinese Law (Beijing) 1987-1990. 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 19

Table 1 Statistical Figures of Legal Education At Three Turning Points of Professional Development Items Year 1987 1993 2000 Regular Higher Legal Education Univ. Law Departments/Faculties 63 127 240* Special Colleges of Law 5 5 5 Graduates of Law Field 12,639 10,695 19,806 Legal Postgraduates (certified) 1,294 1,214 Juris Master (J.M. certified) 1,818 Professors of Law 138 1,003 Associate Professors of Law 740 3,642 Lectures of Law 1,296 5,752 Continuing Legal Education Schools 56 114 197** Sources: Adapted from Yearbook of Chinese Law (Beijing) 1988, 1994 and China Statistical Yearbook (Beijing) 2001. Note: The blank space is unknown. The * marked number is a rough number. The ** marked number is of 1998. By the way, 1987 is the starting point of legal professionalism, 1993 is the reform year of legal education, and 2000 is the gestational period of a unified community of legal interpretation.

Table 2 Regular College Graduates by Field of Study (1995 & 2000) Field of Study 1995 Percentage 2000 Percentage Law 17,650 2.77 19,806 4 Economics 80,981 12.70 78,205 15.77 Literature 92,928 14.58 53,826 10.86 History 16,794 2.63 6,755 1.36 Philosophy 2,117 0.33 775 0.15 Education 35,234 5.53 17,939 3.61 Science 87,845 13.78 49,215 9.92 Engineering 228,922 35.91212,905 42.95 Agriculture 27,856 4.37 19,154 3.86 Medicine 47,090 7.39 37,045 7.47 Total 637,417 100 495,624 100 Sources: Adapted from China Statistical Yearbook (Beijing) 1996, 2001. Note: Students under the category of “Law” include laws and political science, etc. 20 KOBE UNIVERSITY LAW REVIEW [ No. 39

Graph 2-a Annual Numbers of Three Major New Cases (1987-2001) Compared to the Size of Judges

4000000 3500000 3000000 2500000 2000000

Number 1500000 1000000 500000 0

1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 Year

number of judges new criminal cases new civil cases new economic cases

Graph 2-b The Growth of Judges, Associate Judges and Law Clerks (1981-2001)

160000 law clerks 140000 associate judges 120000

judges 100000

80000 Number 60000

40000

20000

0 1981 1991 2001

Year

Sources: Yearbook of Chinese Law (Beijing) 1987-2002 and some annual reports of the Supreme People’s Court. 2004] LEGAL EDUCATION IN CHINA: A GREAT LEAP FORWARD OF PROFESSIONALISM 21

Graph 3 The Growth of Attorneys at Law (1986-2001)

100000 90000 80000 70000 60000 50000 40000 Number 30000 20000 10000 0 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 Year

full-time attorneys part-time attorneys law offices/firms

Sources: Adapted from Yearbook of Chinese Law (Beijing) 1987-2002.

Graph 4 Proportion of Judicial Bureaucrats and Agents of the People: 4:1 (in 2000/01)

judges

85,000 attorneys procurators

attorneys

138,000 procurators 208,000 judges

Sources: Yearbook of Chinese Law (Beijing) 2001, 2002 and the annual report of 2001 by the Supreme People’s Court.