Legal Work in China
Published January 2011
Since Mao’s death and the fall of the Gang of Four in 1976, China’s economy has grown drastically in scale and importance. Starting with the Reforms and Openness (gaige kaifang) under Deng Xiaoping, China has increasingly enabled private enterprise, privatized government industries, and encouraged foreign investment. Today, it is often said both in China and abroad that the economy is communist in name only. Along with increased foreign business involvement in China has come increased demand for corporate legal services, leading many firms to establish offices in Beijing or Shanghai and offering American lawyers the opportunity to work in China. The first part of this article outlines the steps to entering China’s legal industry as a foreigner; the second part explores the options available to a Chinese citizen interested in a legal career.
Part I: Information for the American looking at legal work in China
As in the United States, a foreign law degree does not license one to practice law in China; in both countries, only people who have passed that country’s bar exam may practice law. China is unlike the US, however, in that it does not allow non-citizens to sit the Chinese bar. This means that, without gaining Chinese citizenship (and the fluency required to pass the bar exam), an American lawyer will never practice Chinese law.
However, s/he can use his/her American legal training to work for an American firm’s office in China. Foreign law firms are prohibited from practicing Chinese law, which means they cannot engage in legal practice that might involve the interpretation of Chinese law. Foreign firms may, however, perform legal services that do not involve Chinese law. For instance, an American firm office could handle a Chinese company's legal affairs in America, provide consulting services regarding American or international law, and entrust matters of Chinese law to Chinese law firms on behalf of foreign clients.
There is also a regulation that foreign lawyers must have practiced in another jurisdiction for two years before working in China. However, for the law student who is interested in working in China immediately after graduation, it is worth noting that practicing for a year in another jurisdiction actually just means practicing for the majority of a year. So, once you have graduated from law school, if you worked for seven months in America, then five months in China, then another seven months in America, and then another five months in China, you would have satisfied the two-year practice requirement and would then be allowed to work year-round in China.
Because of the restrictions on what foreign firms can do in China, the most valuable thing an American attorney brings to a China office is knowledge of US law. For this reason, legal experience in America is likely to be more useful than an L.L.M. program in China. Because the work will revolve around US law, Chinese language skills may not be required; however, a useable knowledge of Mandarin might make a candidate more attractive to a firm for the purpose of client relations.
Part II: Information for the Chinese national considering a legal career (and for interested Americans)
In China, as in many other countries, legal education can be obtained at the undergraduate level. To become a lawyer, a student must first achieve a Bachelor’s degree and then pass the Chinese bar, which is called the China National Judicial Examination (zhongguo guojia sifa kaoshi). There are three main types of jobs for which a candidate must have passed the judicial examination: judges, prosecutors, and lawyers. Prosecutors are considered civil servants and are therefore classified separately from other types of lawyers. In addition to passing the judicial examination, judges and prosecutors must also pass the civil service exam, while lawyers must complete a year of work with a law firm to be fully licensed. The standardized judicial examination is fairly new; before its inception in 2001, prospective judges and prosecutors took examinations through the court system, and lawyers through the Ministry of Justice. Like the American bar, the National Judicial Examination uses both multiple-choice and essay questions to test a candidate’s knowledge and application of the law.
The student may choose to major in law as preparation for this exam, but majors in any subject may take it. If a student does not feel comfortable sitting the exam after graduation (because, for example, s/he majored in something other than law), s/he may study law in a three-year Master’s program and then sit the exam. In addition to holding a Bachelor’s degree, an applicant to a Master’s program must take exams in politics and a foreign language.
To major in law at the undergraduate level, a student must obtain college entrance examination scores high enough to permit entrance into a university that has a law department. China’s college entrance examination is called the gaokao, and is a grueling, three-day exam consisting of three required subjects (Chinese, a foreign language, and math) and six electives (biology, chemistry, physics, history, geography, and political education).
A student’s chances of admission do not depend solely on gaokao scores, as there are other considerations that are taken into account. Firstly, the student cannot apply to unlimited universities but must list the universities and department s/he is most interested in. This means that the student must choose strategically which universities to apply to, similar to an American law student bidding for interviews with a firm or positions on a secondary journal. Secondly, national universities set quotas for how many students can be admitted from each province (based on hukou, or residency registration), each university favoring its home province. This means that the standard for a Beijing resident to be admitted to Beijing University is lower than for a student from another province to be admitted. This is analogous to how some state schools in America, such as the University of Virginia, are required to fill a certain percentage of their classes with state residents, with the result that a Virginia resident might be admitted with scores that would earn him/her a rejection or waitlist were s/he a Maryland resident. So a student must be mindful of his/her projected gaokao scores as well as his/her hukou-based restrictions as s/he evaluates potential undergraduate programs.
Unlike with fine arts or foreign language, there are no minimum scores in certain subjects on the gaokaorequired for a student to be eligible to major in law; the student must simply obtain scores high enough for entrance into that particular university and list law as a preferred field of study. However, high scores in the humanities electives (history, geography, and political education) will reflect best upon a candidate wishing to major in law. The four best known law programs at national universities are at Peking University, Jilin University, Wuhan University, and Renmin University. There are also many privately run specialist law colleges, the most famous of which are Beijing Institute of Political Science and Law, Southwest Institute of Political Science and Law, South Central Institute of Political Science and Law, Northwest Institute of Political Science and Law, and East China Institute of Politics and Law.
Citizens who have passed the bar may pursue careers as judges, state prosecutors, or private lawyers. They may also be hired by foreign law firms as legal assistants. As part of the restrictions on the activities of foreign law firms, these firms are prohibited from hiring Chinese lawyers to practice Chinese law. A foreign firm may hire a licensed Chinese lawyer, but s/he must work in the capacity of an assistant only. In America’s current legal market, working as a legal assistant would be an unprofitable and unstimulating avenue of last resort for a licensed attorney, but foreign firms in China can offer very competitive pay to interested Chinese lawyers, as well as the opportunity to gain experience working for foreign clients and alongside foreign-licensed lawyers. Additionally, even though it is technically disallowed, the foreign firm will almost certainly be making full use of the Chinese attorney’s legal knowledge. In fact, the Shanghai Bar Association released a memo in 2006 demanding that local offices of foreign firms be sanctioned for violation of many of China’s limitations on their practice, and one of the specific allegations made was that foreign firms had hired many Chinese lawyers ostensibly as assistants but in reality to perform in a lawyer-like capacity. It is understandable, therefore, that working as an “assistant” at a foreign law firm can be a fairly attractive option for Chinese attorneys. However, if an attorney stays with a foreign firm for longer than two years, s/he will have to surrender his/her license to practice Chinese law.
Prospective Chinese lawyers should be aware that this career path is very challenging due to a huge increase in the number of universities offering legal studies without a corresponding increase in legal jobs. In fact, according to a list compiled by the Chinese Academy of Social Sciences and the Mycos Institute, law was the second-hardest major with which to find a job in 2007 and the hardest in 2008. Additionally, whereas in America the majority of law school graduates will pass the bar and become eligible to work as lawyers, in China the judicial examination pass rate is only about 10%. Accordingly, prospective law students should take care to research the jobs that will be available to them if they major in law but never become licensed to practice law.
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