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外国律师事务所驻华代表机构管理条例 Administration of Representative Offices of Foreign Law Firms in China Regulations1

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国务院令第338号
(Promulgated by the State Council on 22 December 2001 and effective as of 1 January 2002.)
颁布日期:20011222  实施日期:20020101  颁布单位:国务院

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in accordance with the PRC, Lawyers Law in order to regulate the establishment and legal services of Representative Offices of foreign law firms in China.

  Article 2 These Regulations are applicable to Representative Offices established by foreign law firms in China (the Representative Offices) engaged in legal services.

  Article 3 In the course of providing legal services, Representative Offices and their representatives shall abide by China's laws, regulations and rules, and shall observe the professional ethics and practice discipline of Chinese lawyers, and shall not do harm to national security or the public interest of China.

  Article 4 Representative Offices and their representatives engaged in the provision of legal services in accordance with these Regulations are protected by China's laws.

  Article 5 Foreign law firms shall bear the civil obligations for legal services provided by their Representative Offices and representatives in China.

  PART TWO ESTABLISHMENT, CHANGE AND CANCELLATION OF REPRESENTATIVE OFFICES

  Article 6 Foreign law firms shall be approved by the judicial administrative department of the State Council for setting up Representative Offices and for the dispatch of representatives in China.

  No foreign law firms, other foreign institutions or individuals may engage in the provision of legal services in China in the name of a consulting company or under other names.

  Article 7 If a foreign law firm applies to establish a Representative Office and to dispatch any representative in China, it shall meet the following requirements:

  1. the foreign law firm has practised law in its own country and has not been disciplined for any violation of professional ethics or practice disciplines;

  2. the representatives of the Representative Office must be lawyers and members of the bar associations where they are qualified as lawyers, and have practised law outside China for not less than two years and must not have been penalized for criminal offences or for violations of professional ethics or practice disciplines. The chief representative must further have practised law outside China for not less than three years and shall also be a partner of the foreign law firm or hold an equivalent position; and

  3. there shall be an actual need for setting up a Representative Office to provide legal services in China.

  Article 8 If a foreign law firm wants to establish a Representative Office in China, it shall submit the following documents to the judicial administrative department of the province, autonomous region or municipality directly under the central government where the proposed Representative Office is to be established:

  1. an application letter signed by the person principally in charge of the foreign law firm to set up the Representative Office and to dispatch representatives. The proposed Representative Office shall be named "XX Law Firm (Chinese translation) XX (name of Chinese city) Representative Office";

  2. documents evidencing that the foreign law firm has been lawfully established in its own country;

  3. a partnership agreement or Articles of Association of the foreign law firm and a list of responsible persons and partners;

  4. authorizations from the foreign law firm to each of the proposed representatives of the Representative Office and the Confirmation Letter indicating that the proposed chief representative is a partner of, or holds an equivalent position in, the foreign law firm;

  5. documents evidencing the qualifications of the proposed representatives to practise law, and evidencing that the proposed chief representative has practised law outside China for not less than three years and that the other proposed representatives have practised law outside China for not less than two years;

  6. documents from the bar association in the country where the foreign law firm is established confirming the membership of each of the proposed representatives; and

  7. documents from the judicial administrative institution in the country of the foreign law firm confirming that the foreign law firm and the proposed representative(s) have not been penalized for criminal offences or violations of professional ethics or practice disciplines.

  The documents listed above shall be notarized by the notary office or notary in the applicant's home country and certified by the foreign affairs authority or an organization authorized by the foreign affairs authority of the applicant's country, and shall further be certified by the embassy or consulate of China in the applicant's home country.

  Foreign law firms shall submit the documents in triplicate with Chinese translations attached for any document that is written in a foreign language.

  Article 9 The judicial administrative department of the people's government of a province, autonomous region or municipality directly under the central government shall, within three months from the receipt of application documents, complete the review and hand over the documents to the judicial administrative department of the State Council, together with their review opinions. The judicial administrative department of the State Council shall make a decision within six months. Where an application is approved, a practice licence shall be issued to the Representative Office and practising certificates shall be issued to its representatives. Where an application is not approved, reasons shall be given in writing.

  Article 10 A Representative Office and its representatives shall take its practice licence and practising certificates to undergo the registration procedures with the judicial administrative department of the province, autonomous region or municipality directly under the central government where the Representative Office is located. A Representative Office cannot provide the legal services set out in these Regulations before the registration formalities are completed. Registration of Representative Offices and their representatives shall be renewed every year.

  Judicial administrative authorities of the people's government of provinces, autonomous regions or municipalities directly under the central government shall, within two days from the receipt of the application for registration, complete the formalities of the registration.

  Article 11 Representative Offices shall undergo the relevant formalities with respect to taxation, banking, foreign exchange, etc. in accordance with the relevant laws and administrative regulations.

  Article 12 If a Representative Office of a foreign law firm wants to change the name of the office or reduce the number of representatives it shall, prior to making such change, submit an application letter signed by the principal person in charge and the other relevant documents to the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government, which shall be forwarded to the judicial administrative department of the State Council for approval. Once approved, the practising certificates of the persons who are no longer representatives of the office shall be withdrawn.

  Where a Representative Office is merged, split or a new representative is appointed, it shall go through the approval procedure in accordance with the stipulations of these Regulations on the procedure to set up a Representative Office.

  Article 13 Where a representative of a Representative Office is in any of the following circumstances, the judicial administrative department of the State Council shall revoke his practice permit and withdraw his practising certificate; and the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall cancel his practising registration accordingly:

  1. his practising licence from his own country has become invalid;

  2. his representative status is cancelled by the foreign law firm; or

  3. his practising certificate or practice licence of the Representative Office is suspended according to law.

  Article 14 Where a Representative Office is in any of the following circumstances, the judicial administrative department of the State Council shall revoke its practice permit and withdraw its practising licence; and the relevant judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall cancel its practising registration accordingly:

  1. the foreign firm that it belongs to is dissolved or its registration is cancelled;

  2. the foreign firm that it belongs to applies to cancel the Representative Office;

  3. the foreign firm that it belongs to no longer meets the requirements set out in Article 7 of these Regulations; or

  4. the practice licence of the foreign law firm that it belongs to is cancelled according to law.

  A Representative Office that falls within the above conditions shall enter into liquidation procedures according to law; and before the procedures are completed, its property shall not be transferred out of China.

  PART THREE SCOPE AND RULES OF BUSINESS

  Article 15 A Representative Office and its representatives can only engage in the following business activities, excluding Chinese legal affairs:

  1. to provide clients with consultancy on the legislation of the country/region where the lawyers of the law firm are permitted to engage in lawyer's professional work, and on international conventions and practices;

  2. to handle, when entrusted by clients or Chinese law firms, legal affairs of the country/region where the lawyers of the law firm are permitted to engage in lawyer's professional work;

  3. to entrust, on behalf of foreign clients, Chinese law firms to deal with Chinese legal affairs;

  4. to enter into contracts to maintain long-term entrustment relations with Chinese law firms for legal affairs; and

  5. to provide information on the impact of the Chinese legal environment.

  Entrustment allows the foreign representative office to directly instruct lawyers in the entrusted Chinese law firm, as agreed between both parties.

  Representative Offices and their representatives should neither engage in any legal services other than those set out in (1) and (2) of this article, nor engage in any other profit-making activities.

  Article 16 The Representative Offices should not employ lawyers admitted to practise law in China; the support personnel they employ shall not provide any legal service to clients.

  Article 17 The Representative Offices and their representatives may not:

  1. produce any false evidence, conceal any facts or intimidate or lure any person by promise of gains to produce any false evidence, or impede the other party's lawful obtaining of evidence;

  2. take advantage of the opportunity to provide legal services to accept clients' properties or any unlawful benefit; or

  3. disclose any of its clients' trade secrets or breach their privacy.

  Article 18 The representatives shall not hold representation in two or more than two Representative Offices simultaneously.

  Article 19 Representatives of the Representative Offices shall stay in China for no less than six months within one year; those who fail to do so will not be permitted to renew their registrations in the following year.

  Article 20 The Representative Offices may charge their clients for the provision of legal services set out in these Regulations and such fees must be settled within China.

  PART FOUR SUPERVISION AND ADMINISTRATION

  Article 21 The judicial administrative department of the State Council and of the people's government of provinces, autonomous regions and municipalities directly under the central government will be responsible for the supervision and administration of Representative Offices and their representatives.

  Article 22 The Representative Offices shall, by 31 March every year, submit to the relevant judicial administrative departments of the people's government of provinces, autonomous regions or municipalities directly under the central government where they are located their practice licences, duplicate copies of the practising certificates of the representatives and the following materials of the previous year for annual inspection:

  1. circumstances concerning its legal services, including entrustment to Chinese law firms for handling legal affairs;

  2. its annual financial statements audited by an accounting firm and the settlement receipts and tax payment receipts in China;

  3. change in representatives and in employment of Chinese support personnel;

  4. information about the representatives' residence in China;

  5. circumstances of registration of the Representative Offices and their representatives; and

  6. other matters regarding the Representative Office's fulfilment of other obligations under these Regulations.

  After a judicial administrative department of the people's government of a province, an autonomous region or municipality directly under the central government has completed the annual inspection of a Representative Office, it shall prepare an inspection opinion and submit the same to the judicial administrative department of the State Council for its record.

  Article 23 Fees charged by the judicial administrative departments of the people's government of provinces, autonomous regions or municipalities directly under the central government according to law for registration of the Representative Offices and the representatives and for annual inspection should be in strict compliance with the standards applicable to domestic Chinese law firms and practising lawyers set by the department for pricing under the State Council. The fees collected shall all be handed over to the State treasury.

  The decision to impose penalties and the collection of fines shall be conducted separately in accordance with relevant laws and administrative regulations when the judicial administrative department of the people's government of provinces, autonomous regions or municipalities directly under the central government imposes fines as an administrative penalty according to law. The fines collected and the illegal income confiscated according to law shall all be handed over to the State treasury.

  PART FIVE LEGAL LIABILITY

  Article 24 If a Representative Office or its representatives commit any activity endangering State security, public security or disrupting the social order, criminal liability shall be pursued in accordance with provisions on crimes of endangering State security, crimes of endangering public security and crimes of disrupting the social order of the Criminal Law, and the judicial administrative department of the State Council shall revoke the practice licence of the Representative Office or revoke the practising certificate(s) of the representative(s). If the activities do not meet the standard of criminal punishment, punishment in respect of public security shall be pursued according to the law, and the judicial administrative department of the State Council shall also revoke the practice licence of the Representative Office or revoke the practising certificate(s) of the representative(s).

  Article 25 If a Representative Office or any of its representatives conduct activities in violation of Article 15 of these Regulations and unlawfully engage in legal services or other profit-making activities, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall impose a suspension of business within a time limit; where the circumstances are serious, the judicial administrative department of the State Council shall revoke the practice licence of the Representative Office or revoke the practising certificate(s) of the representative(s).

  If a Representative Office or its representative conducts any of the activities set out above, their illegal income shall be confiscated by the relevant judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government; and a fine of not less than Rmb 50,000 and not more than Rmb 200,000 shall be imposed on the chief representative and the other representatives who are directly responsible.

  Article 26 If a Representative Office is found to be in any of the following circumstances, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall issue a warning, and order the Representative Office to rectify its action within a certain period; where the circumstances are serious, the authority shall impose a suspension of business within a time limit; if those circumstances are not rectified within the period, the judicial administrative department of the State Council shall revoke the Representative Office's practice licence:

  1. hiring any lawyer admitted to practise law in China, or providing legal services with its support personnel;

  2. not settling fees for the legal services within China; or

  3. failing to submit the materials for annual inspection on time or failing to pass the annual inspection.

  If a Representative Office conducts activities set out in Item (2) above, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall impose a fine of not less than one time and not more than three times of the amount of fees that should have been settled within China.

  Article 27 If a Representative Office or its representatives are in any of the following circumstances, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall issue a warning and confiscate its illegal income; where the circumstances are serious, the department shall impose a suspension of business within a time limit and a fine of not less than Rmb 20,000 and not more than Rmb 100,000:

  1. a representative holds representation simultaneously in two or more than two Representative Offices;

  2. a representative or a Representative Office reveals any trade secret of a party involved or any private affair of an individual involved; or

  3. a representative or a Representative Office takes advantage of provision of any legal service to obtain any property or other benefits from a client.

  Article 28 Where a Representative Office is cancelled and its property is transferred out of China before all debts are cleared, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall order the transferred property to be returned for the repayment of debts. If the interest of a third party is severely impaired by such property transfer, criminal liability of the chief representative or other directly responsible personnel will be sought in accordance with provisions of crime of concealment of property of the Criminal Law. Where the situation is less severe for criminal punishment, the judicial administrative department of the province, autonomous region, or municipality directly under the central government shall impose on the Representative Office a fine of not less than Rmb 50,000 and not more than Rmb 300,000, a fine of not less than Rmb 20,000 and not more than Rmb 100,000 shall be imposed on the chief representative and other directly responsible personnel.

  Article 29 A representative of a Representative Office who produces false evidence, conceals facts or threatens or induces any other person by promise of gains to produce false evidence or conceal facts, will be subject to criminal liability in accordance with provisions on the crime of disrupting evidence in the Criminal Law, and the practising certificate of the representative shall be revoked by the judicial administrative department of the State Council.

  Article 30 Regarding foreign law firms, foreign lawyers or other foreign institutions or individuals who provide legal services within China without an official permit, or Representative Offices or representatives whose practice permits are revoked but who continue to provide legal services within China, the judicial administrative department of the people's government of the province, autonomous region or municipality directly under the central government shall ban such persons or institutions. All illegal income shall be confiscated and a fine of not less than Rmb 50,000 and not more than Rmb 300,000 will be imposed.

  Article 31 If a foreign law firm's Representative Office practice licence is revoked according to law, it shall not apply for establishment of a Representative Office in China within the following five years. If the practising certificate of the representative of a Representative Office is revoked according to law, he shall not be appointed as a representative in China within the following five years.

  If a representative of a Representative Office is punished according to law in a crime endangering State security, public security or the social order, the foreign law firm that appointed the representative cannot apply for the establishment of any Representative Office in China. The representative may never again be appointed as a representative of any Representative Office in China.

  Article 32 Where any personnel of a judicial administrative department commits any of the following illegal acts, the person(s) in charge or other directly responsible personnel will be punished according to law with such administrative penalty as being recorded with a demerit or a serious demerit, or demotion:

  1. failure to examine or verify the proof of documents in regard to any proposed Representative Office or representative in accordance with these Regulations;

  2. failure to conduct registration or annual inspection of Representative Office in accordance with these Regulations; or

  3. failure to collect fees in accordance with the charging items or charging standards stipulated by the State.

  Article 33 Where any person of a judicial administrative department commits any of the following illegal acts, the administrative penalty of demotion, dismissal or expulsion shall be imposed on the person(s) in charge who is/are responsible or other directly responsible personnel according to law:

  1. issuance of a practice licence or practising certificate to a proposed Representative Office or representative that fails to meet the conditions set out in these Regulations;

  2. taking advantage of their office to accept money or property, or to seek other personal gain;

  3. failure to revoke or withdraw the practice licence of a Representative Office or practising certificates of representatives that should be revoked or withdrawn in accordance with these Regulations, or failure to cancel the practising registration that should be cancelled;

  4. failure to issue a receipt or recording an incorrect amount on the receipt when collecting fines;

  5. failure to separate the collection and imposition of fines, or failure to hand over all paid fees, collected fines or confiscated illegal income to the State treasury;

  6. failure to investigate and impose punishment on any Representative Office or its representative who is in violation of these Regulations; or

  7. other acts that fail to enforce the law strictly or that constitute abuse of power with serious consequences.

  Those who cause great loss to public property or harm State or public interest by committing any of the illegal conduct above will be subject to criminal liability in accordance with the provisions on the crime of abuse of power, the crime of dereliction of duty or the crime of accepting bribes under the Criminal Law.

  PART SIX SUPPLEMENTARY PROVISIONS

  Article 34 Procedures for the administration of establishment of Representative Offices in China by an Independent Tariff Zone's law firms will be formulated separately by the judicial administrative department of the State Council according to principles set forth in these Regulations.

  Article 35 These Regulations will come into effect as of 1 January 2002. Representative Offices that have already been approved by the judicial administrative department of the State Council and have operated on a trial basis and their representatives approved to practise on a trial basis prior to implementation of these Regulations shall re-apply for examination and approval within 90 days from the date on which these Regulations come into effect.

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