Wei Jingsheng Foundation News and Article Release Issue: A201-M23
魏京生基金会新闻与文章发布号：A201-M23
Release Date: April 30, 2006
发布日：2006年4月30日
Topic: Chinese Lawyers Are Beset with Countless Difficulties in Their Work (An Interview of Mr. Zhang SiZhi) -- by Li WeiPing
标题：中国律师从业困难重重（张思之先生访谈）―― 李卫平
Original Language Version: Chinese (Chinese version at the end)
此号以中文为准（英文在前，中文在后）
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Chinese Lawyers Are Beset with Countless Difficulties in Their Work
-- by Li Weiping
Mr. Zhang Sizhi is the most renowned lawyer in China today, and takes on many major cases. He has witnessed the bumpy road that Chinese lawyers have traveled over the last fifty years, and deeply understands the difficulty in defending lawyers today. After the “law on lawyers” was passed, five hundred Chinese lawyers were detained, yet the international lawyers community, surprisingly, did not make a sound.
Zhang Sizhi is the leading authority in the Chinese legal community. He has witnessed the generation of the Chinese legal system after 1949, its collapse, revival, and development, and has taken on many important cases that are historically significant, such as the case of Lin Biao and the Gang of Four, Wei Jingsheng's case, Wang Juntao's case, and others. After being immersed in it for decades, his understanding of the Chinese legal system is extremely deep, and he often sighs with emotion when discussing it.
Mr. Zhang is quite old, but sits with his back ramrod straight, and moves as swift as the wind. His mind is still unusually nimble. If Mr. Zhang didn't tell you himself, you wouldn't know that he was about to hit eighty years old next year. Even though he has gone through many hardships in life and experienced the ups and downs of history, Mr. Zhang has maintained his calm demeanor: he is clear about what to love and hate, he hates evil like an enemy, and does what he thinks he should. Since Mr. Zhang is now old, he no longer wants to accept cases, but when people who have suffered injustices come to him from far away because of his great renown, he sits down and listens to them, and then goes into action to help.
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The Collapse of the Legal Community in the 1957 Anti-Right Movement
Question: Could you introduce us to your legal career?
Zhang: I received my lawyer's credentials in 1956, but the Chinese legal community completely collapsed in 1957. The system of lawyers existed in name only, and had disappeared in reality. Since I was considered a rightist, I was sent out from Beijing to do grass roots labor and reform through labor. In July 1979 I returned to Beijing and worked as a member of the preparation committee to plan for the revival of the Beijing Lawyers' Association. That work has continued until today. After 1949, the old lawyers' system was banned by decree. In 1954, after the announcement of the first part of the constitution, the high-level central authorities thought that a system of lawyers was needed, or to put it more accurately, a system of legal defense was needed. The Ministry of Justice then stipulated that a few major cities establish systems of lawyers. In my recollection, that system was first tried out in 1955 officially.
Question: Before 1955, there wasn't any system of lawyers at all? If so, how could defendants protect themselves?
Zhang: That's true, defendants basically had their right to defense stripped away from them. So basically, since there were still some vestiges of the old system, defendants could defend themselves. In reality, there were very few cases where people defended themselves after 1955. In 1956, I entered the legal community and established the Beijing City No. 3 Legal Consultation Office. At that time, Beijing had three legal consultation offices, with a total of just over ten people working there. Moreover, it was still in the experimental stages (they participated in very few cases). I myself only handled one and a half cases. I wasn't able to finish a divorce case I was handling because I was sent to be reformed through labor. At the time, all the directors of the Beijing City's three Legal Consultation Offices were without exception all “rightists”. I was the first “rightist” in the legal community. Before the “anti-rightist movement”, the lawyers' system in China was developing with a full head of steam all over China, but afterwards, everyone kept silent and lay low until 1979.
Question: What was the situation like after 1979?
Zhang: The 50s was the experimental stage. The 60s and 70s were when things were totally banned, and there was a new stage after 1979. The first part was about rehabilitating the legal community. When the "Temporary Ordinances for Lawyers" first came out, things began to develop steadily, and things started developing quickly when the "Laws for Lawyers" came out. After the "Laws for Lawyers" were put into effect, it comes restriction period. During the mid-80s, the Ministry of Justice said that the term "Legal Consultation Office" wasn't beneficial for China's legal system to getting on international track, and that it wasn't beneficial to the masses' understanding of lawyers, so it was changed to "Lawyer's Office." This suggestion was very good, but was wrong at the time. After the "Temporary Ordinances for Lawyers" was put into law, the term "Legal Consultation Office" was the legal terminology. I had a very clear suggestion: revise the law first, and then change the term. Would not it be an embarrassment if the legal entity itself violated the law? They didn't accept this. This is because the infringement of rights is a fundamental characteristic that permeates every level of the Chinese legal system.
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Without a Democratic Political System, the Legal System Cannot Be Comprehensive
Question: What are the strong points and weaknesses of the Chinese legal system?
Zhang: China's legal system has established the legal status of lawyers. Today's lawyers are totally different from those of the 1950s. The most important difference between them is that today's lawyers have a legal status, and won't allow them to be trampled upon any more. This is the most important advance. As for the inadequacies of the lawyer system, there are too many of them. For example, the defense system holds a subordinate status, people can't take the initiative much, they don't have many occupational rights, and their ability to develop their roles has been severely restricted. For example, when prosecution offices handle a criminal case, they only provide taped information to the courts, not to the lawyers. Or for example, not long ago, the Public Security Department allowed lawyers to enter a case during the investigation stage. They made this stipulation very elaborate and extravagant, as if it were a huge advance and a great favor to lawyers. We had some lawyers that applauded (went along with) it. They haven't researched practical issues in China. When the Public Security offices handle cases, especially so-called "major cases," when they interrogate suspects, there are two stipulations: one, it happens at night, and two, they interrogate continuously. I ran into one case where they interrogated someone for 68 straight hours. They take turns doing it. Could lawyers really enter in and get fully involved at that point? In reality, they have very little capacity to operate. In democratic countries, it is stipulated that if the lawyer is not present, the suspect has the right to refuse to answer questions. It protects suspects' rights very well. I've held on to a view on this: if the environment doesn't change in two ways -- one, the political system doesn't become democratic, and the market economy doesn't follow the rule of law -- it will be impossible to have a healthy legal system.
Question: What was the situation like after the "Laws for Lawyers" were announced?
Zhang: Currently, China has three procedural laws: criminal procedural code, the law of civil litigation, and administrative suits. If the three procedural laws aren't revised, lawyers' duties and rights will never be effectively standardized, and there will never be a lawyers' law that meets lawyers' professional needs. Is it possible to have a set of stipulations for criminal procedural code and another for lawyers? It's not practical! Currently there are people crying out very loudly for the "Laws for Lawyers" to be revised, but I am completely indifferent to this. In the beginning, I suggested to the authorities that they should first revise the "Transitional Ordinances for Lawyers" and postpone the drafting of the "Laws for Lawyers". I kept calm and waited to see what would happen. China's officials, however, love to brag and show off, so in order to gain some merit in the public eye, they insisted on coming out with the "Laws for Lawyers." When they announced this, the Ministry of Justice held a conference on it and made me to attend. Since I had read the "Laws for Lawyers," I couldn't be happy about it at all. The only thing I did, though, to pour cold water on their happiness was to tell them: don't get happy too early. When tears come from your eyes, then we'll see what happens. After the "Laws for Lawyers" was enacted, it's said that five hundred people were detained. Isn't it a joke if a country detains hundreds of lawyers? When they detained dozens of reporters, the international journalists' associations took this as a major incident. But we had several hundreds of lawyers who were detained; the international lawyers' associations did not make any sound. This is outrageous.
Question: Is there a possibility for a new outlook for the Chinese legal system?
Zhang: There is. Improving the quality of individual lawyers will help to perfect the legal system. Many lawyers don't read legal texts. How terrible this is! Of course, we can't expect lawyers to have that extensive knowledge, but they should at least keep up with the pace of new knowledge! The American lawyers' system stipulates that lawyers have to spend a certain period of time each year studying texts.
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The Extreme Difficulties and Obstacles for Lawyers in Getting Evidence
Question: What are the restrictions Chinese law places on the lawyer's profession?
Zhang: The most fundamental issue is that lawyers have not had their legal and lawful rights affirmed while doing their professional duties. No matter what the legal status of lawyers is, their rights are not protected. This problem exists in all related laws. The most prominent conflict exists in the issue of evidence. On the one hand, it's extremely difficult for lawyers to obtain evidence. They have to face layer after layer of obstacles. In some cases, you have to get permission from the prosecute office to get the evidence. This is absurd! Horrible! On the other hand, related laws and stipulations have infringed or even stripped away litigants' defense rights. For example, the Ministry of Justice stipulated that a defendant can only have two defense council members, and they only have three days to read through all papers. For major, complicated cases, thirty days isn't enough even if you have ten people, let alone three days for two. Then what do you do? I ran into one case where there were 2,991 pages of records. According to regulations, those two people would have to finish reading that in three days. Who can do that? This is a constraint.
Question: The American legal profession is very advanced. What characteristics does their system of lawyers have?
Zhang: Speaking broadly, the focus of their system is on fully bringing lawyers' ability to defend clients and assist litigants into play, whereas the main function of the Chinese system for lawyers is to restrict lawyers from bringing their abilities into play.
Question: What would the ideal system for lawyers in China be?
Zhang: Recently, Lawyer Gao Zhisheng's law office was closed. I wrote a letter to the director of the Beijing Lawyers' Association. My main point was to tell them that the association and the director should stand up to back him, or at the very least to be a dignified individual. If on every matter we do things according to how the Ministry of Justice wants it, then what are lawyers' association for? What are you directors for? The ideal system for lawyers would be one in which the basic stipulations is that lawyers can manage themselves independently in their field, accompanied by a good "Laws for Lawyers." The "Laws for Lawyers," at the least, should satisfy the following requirements: it should guarantee that lawyers, when handling their affairs, can fully utilize their subjective initiative and handle real cases on behalf of the public.
Question: What should you and your fellow lawyers do in order to establish this kind of system?
Zhang: Looking at it from the current reality, I maintain that lawyers should do things solidly and firmly, develop their work step by step, handle every case solidly, and push forward the construction of a good system for lawyers through individual cases, instead of pontificating their calls without any action. Pontificating won't bring you a politically democratic system or legal democracy. Basically I don't talk about an independent legal system, because I know that the legal system can't be independent. Although over all it's impossible for the legal system to be independent, we can still strive for legal independence in individual cases. Doing this will bring about genuine results and will truly be meaningful. It's worth it for China's lawyers to dedicate themselves to this cause.
March 4, 2006 in Xiangshan, Beijing
(From the April 2006 version of "Open" Magazine. The Wei Jingsheng Foundation is responsible for this version of the English translation.)
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中文版
Wei Jingsheng Foundation News and Article Release Issue: A201-M23
魏京生基金会新闻与文章发布号：A201-M23
Release Date: April 30, 2006
发布日：2006年4月30日
Topic: Chinese Lawyers Are Beset with Countless Difficulties in Their Work (An Interview of Mr. Zhang SiZhi) -- by Li WeiPing
标题：中国律师从业困难重重（张思之先生访谈）―― 李卫平
Original Language Version: Chinese (Chinese version at the end)
此号以中文为准（英文在前，中文在后）
如有中文乱码问题，请与我们联系或访问:
http://www.weijingsheng.org/report/report2006/report2006-04/ZhangSZ060430lawyersA201-M23.htm）
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中国律师从业困难重重（张思之先生访谈）
作者：李卫平
张思之先生是当代中国最负盛名的律师，办过很多大案。他见证中国律师业五十年的坎坷沧桑，深知今日辩护律师之难为，律师法实施以来有五百名律师被捕，国际律协竟然不吭一声！
张思之先生是中国律师界泰斗。他见证了四九年后中国律师制度的产生、覆灭以及恢愎与发展，办理了多起有历史影响的重大案件，如林彪四人帮案，魏京生案，王军涛案等。数十年浸润其间，对中国律师制度的认识非常深刻，访问时感慨良多。
张老满头银丝，但坐如松、行如风，思维异常敏捷，如果不是张老亲口相告，怎么也不会相信老先生明年将届满八旬。虽然历尽磨难，阅尽世间沧桑，张老却保留了性情中人的本色：爱憎分明，嫉恶如仇，表里如一，坦荡执著。由于年事已高，张老本来已不接案子，但面对全国各地蜂拥而至的冤怨叫屈者，面对那些慕名而来殷殷期待的目光，张老坐不住了。老先生又披挂上阵，亲力亲为。
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一九五七年反右律师界全军覆没
问：请您介绍一下您的律师生涯，好吗？
张思之：我是一九五六年取得的律师资格，一九五七年中国律师界就全军覆没了。律师制度名存实亡，实际上取消了。我个人因为划了右派，从北京发配基层劳动改造，一九七九年七月才重新回到北京，参加恢复北京市律师协会筹备委员会的工作，直到今天。一九四九年后，旧的律师制度被明令取缔；一九五四年，第一部宪法公布之后，当时的中央高层觉得还是需要律师制度，更准确地说是需要辩护制度。在这个背景下， 司法部提出，在全国几个重点城市试点律师制度。在我的记忆中，一九五五年正式开始试点。
问：五五年前完全没有律师制度吗？如果是这样，被告的辩护权如何维护呢？
张思之：是的。被告的辩护权基本上被剥夺了。所以说基本上，是因为还有一点残余，被告可以自我辩护。实际上一九五五年后有辩护的案件也很少。一九五六年，我进入律师界，组建了北京市第三法律顾问处。当时北京共有三个法律顾问处，一总才十多个人，而且处于试验状态，（参与案件很少）。我个人也不过才办了一个半案子。即一个离婚案件还没有办完，我就劳动改造去了。当年，北京市三个法律顾问处主任都是右派，无一例外。我是律师界第一个右派。反右前，律师制度在全国有很好的发展势头，之后，便一锅端，销声匿迹了，直到一九七九年。
问：一九七九年后的情况怎样？
张思之：五十年代是试验阶段，六、七十年代完全取缔了，七九年后是一个新阶段。先是恢复筹备阶段，到《律师暂行条例》出台是稳步发展阶段，至《律师法》出台是高速发展阶段，《律师法》实施之后是限制束缚阶段。八十年代中期，司法部提出，“法律顾问处”这个名称不利于中国律师制度与国际接轨，不利于群众对律师的了解，应该改为律师事务所。这个意见很好，但在当时是错的。因为《律师暂行条例》规定，法律顾问处是律师机构的法定名称。我的意见很明确，先修法再改名称。否则，律师机构违法，不太好意思吧？！但他们不接受。因为权力侵犯是贯穿中国律师制度各个阶段的根本特征。
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政治不民主律师制度不会健全
问：中国律师制度的优劣各在什么地方？
张思之：中国律师制度确立了律师的法律地位。现在的律师和五十年代的律师完全不同， 最重要的区别就是，今天的律师具有一定的法律地位，不会再任人宰割了。这是最大的进步。说到律师制度的不足，那太多了。例如，辩护制度实质上处于附属地位，主动性很小，职业权利很少，能够发挥的作用受到很大的局限。比如，检察机关办理刑事案件时的全程录像只提供给法院，不给律师。又比如，不久前，公安部允许律师在侦查阶段介入案件。讲得天花乱坠，似乎是很大的进步，好像对律师也是个恩赐。我们有些律师也鼓掌（应和）。他们不研究中国的实际问题。公安机关办案，尤其是在所谓大案要案上，他们提审犯罪嫌疑人有二条（规律）：一，夜间；二，连续作业。我就碰到过审讯长达六十八小时的案件。他们是轮换的，律师（真正全面）介入，可能吗？实际操作性太差。民主国家规定：律师不在场，犯罪嫌疑人有权拒绝回答任何问题。很好地保护了犯罪嫌疑人的权利。我坚持这样的观点：大的环境不改变，一、政治不民主，二、市场经济没有走上法制化轨道，要想有健康的律师制度是不可能的。
问：《律师法》颁布之后，情况如何？
张思之：我国现在有三部诉讼法，刑事诉讼法，民事诉讼法，行政诉讼法，三部诉讼法不修改，律师的权利和义务就得不到有效的规范化，就不可能产生一部符合律师们业务需求的律师法。刑事诉讼法规定一套，律师法另行一套，这可能吗？不现实嘛！现在修改《律师法》的呼声很高，我对此十分冷淡。当初，我曾向权威人士建议，先修改《律师暂行条例》，暂缓制定律师法。沉住气，等等看。但中国的官员好大喜功，为了争取政绩，硬弄出现在这部《律师法》。《律师法》颁布时，司法部召开座谈会，盛情难却，我勉强参加了，因为看了《律师法》， 我怎么也高兴不起来。我是惟一泼冷水的：你们不要高兴得太早了，有你们掉眼泪的时候，咱们走着瞧。《律师法》实施以来，据说律师被关者已经有五百人了。一个国家关了几百名律师，这可不是开玩笑！关了几十名记者，国际记协就认为是大事了，关了几百名律师，国际律协居然他妈的不吭一声，这国际律协也混蛋一个。
问：中国律师制度有改观的可能吗？
张思之：有。提高律师个人素质对健全与完善律师制度很有帮助。数律师都是不读书的，这可怎么得了！当然，我们不能要求律师的知识有多么广博，但至少应该跟上知识更新的步伐吧！美国律师制度规定，律师每年都必须有一段专门时间读书。
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律师取证十分困难障碍重重
问：中国法律对律师执业的束缚有哪些？
张思之：最根本的问题，律师在执业过程中的权利没有得到合理合法的确认。尽管律师的法律地位确立了，但权利没有保障。这一问题存在所有各相关法律中，最尖锐的矛盾表现在证据方面。一方面，律师取证十分困难，障碍重重，有一些证据需要检察院法院同意才能取得。这太荒唐了！太可怕了！另一方面，有关法律、规定侵犯乃至剥夺了当事人的辩护权。例如司法部规定，一个被告只能有两个辩护人，阅卷时间为三天。大的、复杂的案件，别说两个人、三天，十个人、三十天都不够，你怎么办？我碰到过一个案子，案卷有二千九百九十一页。按照规定，两个人三天必须看完，谁做得到？这都是制约。
问：美国的律师业非常发达，他们律师制度的特点是什么？
张思之：概而言之，他们制度的着眼点在于，充分发挥律师的辩护作用，充分发挥律师对当事人的协助作用。而中国律师制度的主要功能是限制律师发挥作用。
问：中国理想的律师制度应该是怎样的？
张思之：最近，智晟律师事务所停业整顿，我给北京律师协会会长写信，主要的意思就是律师协会和会长本人都得挺起腰杆来，起码得有一个独立的人格，如果事事处处都看司法局的眼色行事，还要你律师协会干什么？还要你会长干什么？理想律师制度的基本条件是行业自我管理和一部好《律师法》。《律师法》最起码要满足如下要求：保证律师在办理实务时能够充分发挥主观能动性，替老百姓办实事。
问：为了建立这样的律师制度，您和您的律师同事应该做些什么？
张思之：从当今的实际情况出发，我主张律师应该扎扎实实、一步一个脚印地开展工作，办一件事就办扎实，通过个案推进良好律师制度的建设，而不是在那儿空喊。空喊喊不出政治民主与司法民主。我基本上不讲司法独立，因为我知道它独立不了。但是，虽然在总体上司法无法独立，但个案中我们可以争取司法独立。这样做有实效，有实际意义。中国律师为此献身，值得。
二○○六年三月四日 于北京香山
转自《开放》２００６年４月号
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