Regulatory Regimes for Lawyers Ethics in Japan and China: A Comparative Study

• Author: Richard Wu and Kay Wah Chan
• Pages: 50-69

WU AND CHAN (DONOT DELETE) 9/29/13 8:6:24 下午

50

TSINGHUA CHINA LAW REVIEW [Vol. 5:49

REGULATORY REGIMES FOR LAWYERS’ ETHICS IN JAPAN

AND CHINA: A COMPARATIVE STUDY

Richard W.S. Wu



and Kay-Wah Chan



ABSTRACT

China and Japan are the two largest economies in Asia, and both

countries are similar in their adoption of a civil law system. This

article undertakes a comparative study of the regulatory frameworks

for lawyers’ ethics in the two countries. This article first considers

the development of legal profession, particularly their rapid growth

in the past decade. It then analyses and compares the regulatory

regimes on lawyers’ ethics in both countries, with reference to six

‘professional virtues’ of competence, independence, loyalty,

confidentiality, responsibility and honourable conduct. It reveals that

Japan adopts a model of self-regulation, while China implements a

‘hybrid’ mode, namely, both state and self-regulation. It also argues

that China is improving in its growing recognition of such virtues as

‘competence’, and that it has room for improvement in such virtues

as ‘independence’, ‘confidentiality’ and ‘honourable conduct.’

I. INTRODUCTION

China and Japan are two of the largest economies in Northeast

Asia. China and Japan share similar culture roots. Both countries are

heavily influenced by Confucianism, which has lasting impact on

their public perception of moral and ethical standards. Moreover,

both countries have witnessed radical changes in their political,

economic and social systems from the demise of the feudalism to

today. They are now the second and third largest economies in the

world, respectively.

In comparison with many Western economies such as the United

States, the legal systems and legal professions in China and Japan

have short histories. Unlike the United States, which implements a

common law system, both China and Japan adopt a civil law system.

Japan only introduced the modern legal profession in the 19th

Century during the Meiji Era when it undertook radical reforms in its

political, economic and legal systems. The lawyer system was

modified in the post-World War II period. As a result, supervision



Associate Professor, Faculty of Law, University of Hong Kong. The research for this article was

supported by the Sumitomo Foundation Fiscal 2010 Grant for Japan-related Research Projects (Project

Reg. No. 108081).



Senior Lecturer in Law, Faculty of Business & Economics, Macquarie University.

DOCUMENT1 (DONOT DELETE) 9/29/13 8:6:24 下午

2012] Lawyers’ Ethics

51

and disciplinary power and authority were taken away from the

government and the legal profession1gained self-regulatory rights.

In China, the legal profession did not develop until the late 1970s

when the country adopted the Open Door Policy.2Lawyers in China

are regulated by the state, and the Ministry of Justice is the

government department responsible for their supervision. In 1986,

China established the All China Lawyer Association, which marked

a milestone development of self-regulation for the legal profession.

At present, China practices a ‘hybrid’ model of regulation, namely,

state-regulation supplemented by self-regulation.

In the past, there was a paucity of lawyers in Japan and China but

both countries have witnessed a substantial increase in the number of

lawyers in recent years. This article attempts to undertake a

comparative study of the regulatory regimes for lawyers’ ethics in

Japan and China. The article first considers the development of the

legal profession in the two countries, particularly their rapid growth

in the past decade. It then analyses and compares the regulatory

regimes for lawyers in both countries, with reference to the six

‘professional virtues’ as identified by Hazard and Dondi as the

framework for comparison.3It concludes with a summary of the

development of the legal profession and comparison of the

regulatory regimes in Japan and China.

1

In Japan, the legal professions (hôsô) comprise of lawyers, judges and prosecutors. However, in

this article, the term “legal profession” is used in the common law tradition to mean lawyers/attorneys

only.

2

The Open Door Policy was adopted by Deng Xiaoping after he returned to power in China in

the late 1970s. For an account of the Open Door Policy, see ERZA F. VOGEL, DENG XIAOPING AND THE

TRANSFORMATION OF CHINA (2011).

3

GEOFFREY C. HAZARD, JR. & ANGELO DONDI, LEGAL ETHICS: A COMPARATIVE STUDY

(2004).