SU Zhiqiang*

 

Abstract: As an important rectifying mechanism to the involved parties-oriented civil litigation model, the mandatory attorney system requires the involved parties of a lawsuit to appoint a lawyer to represent them in the litigation, otherwise they will be rejected because the litigation requirements aren’t met. This seems to restrict the litigants’ right to initiate a lawsuit by themselves. Through the arrangement of the system for the participation of lawyers in some litigation procedures, stages, and cases, coupled with the legal principle of litigation costs, the litigation costs sharing mechanism, legal aid, and other related supporting systems, it is not only a substantive guarantee for the litigants’ right of action, but also can even strengthen the protection of the litigants’ right of action in civil litigation. Based on the need to effectively protect and strengthen the litigants’ right of action, combined with its civil litigation system and judicial operation environment, China should adopt a phased and gradual strategy to introduce and implement the mandatory attorney system in civil litigation while constantly improving its lawyer system, litigation costs system, legal aid system, and other related supporting systems.

 

Keywords: mandatory attorney system · protection of the right of action · lawyer system · legal aid system

 

With the constant extension of the denotations of the basic rights of citizens and the enrichment of the connotations of the right of action, the right of action has become a basic human right in many international conventions and a basic constitutional right stipulated in the constitutions of countries (regions). The civil procedure law of each country (region) is a concrete embodiment of the right of action as a basic human right and a basic constitutional right, and the civil litigation system is also centered on the protection of the litigants’ right of action. The original intention of implementing the mandatory attorney system in civil litigation is to make up for the deficiency of the litigants’ capability of debating and disposing of in the involved parties-oriented litigation model, and meanwhile, to protect the equality of arms, restrain indiscriminate lawsuits, promote litigation, reduce the interpretation burden of judges, so as to realize the value goal of substantively protecting the litigants’ right of action. However, the practice of a mandatory attorney system is based on the premise of limiting the litigants’ capacity to initiate a lawsuit. Both Germany’s abolishment of its mandatory attorney system and Japan’s denial of a mandatory attorney system take the restriction of litigants’ right of action as an important argument and deny the implementation of a mandatory attorney system in civil litigation. In the context of exploring the introduction of a mandatory attorney system in civil litigation in China, it is necessary to examine whether the restriction on a mandatory attorney system on the litigants’ formal right of action follows the general principle of the restriction of the right of action and consider how to substantively protect and strengthen the litigants’ right of action by improving the strategy of introducing the mandatory attorney system and related supporting systems, starting from considering whether the right of action as a basic right can be limited and what principles should be followed when the right of action is limited, based on the legislative experience in the mandatory attorney system of typical countries (regions).

 

 

Modern countries monopolize the provision of dispute resolution mechanisms and derive citizens’ right of action from it, while the cognition and protection of the right of action is a deepening process from the integration of the right of procedural claim and the right of substantive claim, to the separation of the right of procedural claim, as a separate procedural right, from the right of substantive claim, and then to escalation of the right of action as a procedural right to a constitutional right and a basic human right. The main line is to respect the litigants’ right of action and strengthen its protection.

 

 

According to the political logic of modern democratic countries, natural persons transfer part or all their rights to life, liberty, and property to form a country, and the State has an obligation to protect the life, liberty, and property of its citizens. The State’s protection is externally represented by the protection of the State against aggression by force and internally embodied in the protection of its citizens’ rights through the dispute resolution mechanism. The State’s protection of its citizens’ rights is embodied in the Constitution as a written guarantee of the rights of citizens. In addition to life, liberty and property, there is also the right to self-help among the rights transferred by natural persons to the State. As the people transfer all the right to self-relief to the State, the State is obliged to provide a dispute resolution mechanism. The famous modern German thinker Wilhelm von Humboldt made a classic interpretation of the relationship between the State and litigation in his book The Limits of State Action written in 1792. “That on which the mutual security of the citizens chiefly depends is the entire transfer to the State of all that concerns the redress of wrongs. Along with this transfer, the duty is imposed upon the State of securing to the citizens that which they could not obtain of themselves; hence, of deciding on the right where it comes under dispute, and further of protecting him on whose side the right is found to be.” Also, he stressed that one of the highest priorities of the State is to investigate and adjudicate disputes concerning the rights of citizens.¹ Since citizens transfer the right of self-relief to the State, the State has an obligation to provide a public remedy way to resolve disputes, which is the logical starting point of citizens’ right of action.

 

 

Before the emergence of the State and law, there was neither the right of action, nor the right of action theory.² The right of action and the right of action theory are the product of the emergence of the State, especially the development of law to a certain stage. So far, it is generally believed that the earliest provisions of the right of action appeared in the “actio” system of Roman law. Justinian’s The Institutes of Justinian defined the right of action as the right to claim by trial what is due to one.³ But in Roman law, every right or legal relationship has its corresponding form of litigation as a measure of protection and relief. Even, people often judge whether there is a specific right by considering whether there is a corresponding right of action.⁴ In that context, substantive law and procedural law were not separated in Roman law. Therefore, they were integrated into the provisions of Roman law. As a result, in the system of action or right of action in Roman law, the word “actio” covers both substantive and procedural claims in the modern sense. The compilation style of Roman law that combined substantive law and procedural law influenced the enactment of the French Civil Code in 1804. The French Civil Code retains the provisions of the integration of the substantive law and procedural law in Roman law and provides lots of substantive law provisions with only abstract legal requirements. The emergence of substantive law clauses with a large number of abstract legal requirements in the French Civil Code marks the beginning of the collapse of the compilation style that combines substantive law and procedural law.

 

After many centuries of silence, in 1856, German scholar Uinte Idau’s study on the Litigation of Roman Private Law made the content of the right of action attract people’s attention again. This also marked the beginning of the study on the right of action in the modern sense. However, in the 1860s and 1870s, the concept and theory of private law were still dominant in the German legal circle. They emphasized that the right of action is a part of private law, civil litigation is the process or method of exercising private law rights in the trial, and the right of action is a kind of private right, a product of private rights being infringed and transformed. This theory of the right of action advocated by German scholars such as Friedrich Carl von Savigny, Uinte Idau, and Windscheid is called the doctrine of the right of action in private law. This doctrine was dominant in the 1860s and 1870s, and even directly influenced the formulation of German civil procedure law in this period.

 

However, from the mid-19th century, the liberal movement flourished in Germany. In the context that the thought of Rechtsstaat (State of law) which emphasized the responsibility of the State to protect citizens’ rights and the theory of public law continued to develop and gain popularity, and that the function of the litigation system and the theory continued to develop, the theory of the right of action in public law highlighting that the right of action is no longer the right attached to the substantive civil law, but the right of procedural law and the right of claim in public law, independent of substantive civil rights, and is the right of the national judicial organs rather than the right of the defendant gradually replaced the theory of the right of action in private law and became the dominant theory. The formulation of the German Civil Code in 1896 was deeply influenced by the idea of the right of action in public law. This code did not adopt the compilation style that combines the substantive law and procedural law, but was completely composed of abstract legal norms, which marks the complete disintegration of the litigation right system that combines the substantive law and procedural law as stipulated by the Roman law. With the theory of the right of action in public law as the core, the theory of the right of action includes the abstract right of action theory, the specific right of action theory, the theory of claim for judgment of the case, the theory of claim for a judicial act, etc. After the Second World War, the Japanese scholar Akira Mikazuki proposed the denial of the right of action, and the Soviet scholar Georges Gurvitch proposed the multi-theory of the right of action.

 

Compared with the different definitions of the content of the right of action and various theories of the right of action formed by scholars in civil law countries, scholars in common law countries pay more attention to the practicability of the right of action and the rationalization of procedural rules. In view of the complexity of the right of action theory, so far, only France has clearly stipulated the right of action in its code of civil procedure. The French New Code of Civil Procedure stipulates the content of the right of action in Article 30-32, Part II, and defines the concept of the right of action in Article 30. According to the concept of the right of action in this article, the right of action in the French civil procedure system contains two meanings: the right of the person who makes a claim to apply to a judge for a decision on the claim; and the right of the person who makes a claim to make a substantive request to the other party on the claim.⁵

 

 

After the Second World War, the right of action of citizens achieved more substantial results in its development. The right of action in the sense of traditional public law realized a modern transformation, represented in two approaches. First, the right of action was seen as a constitutional right. The Constitution and constitutional documents of countries (regions) successively stipulated the right of citizens to bring an action; second, the right of action was regarded as a human right. The right of action of citizens was recognized by various international human rights conventions and became a basic human right. For example, Article 32 of Japan’s Pacifist Constitution, which came into force on May 3, 1947, stipulates that no one shall be deprived of the right to be tried in a court of law.⁶ Article 24 of the Constitution of Italy, adopted on December 22, 1947, stipulates that anyone has the right to bring an action to protect his lawful rights and interests. Taking an overview comprehensive view of the constitutional content of citizens’ right of action stipulated in the Constitution of various countries and regions, the specific expression is not exactly the same, but they all have the same connotations, and all confirm that citizens have the right to request the court for judicial relief. Apart from the constitutional provisions of many countries and regions, a series of international conventions also regard the right of action as a basic human right, and require member States to respect and protect it. Among them, the most influential conventions are the Universal Declaration of Human Rights adopted at the United Nations General Assembly on December 10, 1948, the European Convention on Human Rights concluded on November 4, 1950, and the International Covenant on Civil and Political Rights adopted at the United Nations General Assembly on December 16, 1966. These conventions generally provide that, on the basis of equality before the courts, citizens have the fundamental right to an open and fair hearing by a legally established tribunal when they are accused of criminal charges and when their civil rights and obligations are distributed.

 

The cognition and protection of the right of action is a developing process from the integration of the right of procedural claim and the right of substantive claim, to the separation of the right of procedural claim, as a separate procedural right, from the right of substantive claim, and then to escalation of the right of action as a procedural right to a constitutional right and a basic human right. The main line is to respect the litigants’ right of action and strengthen its protection. The right of action is a basic human right that is equally protected, like the right to life, liberty, and property. The remedy right embodied by the right of action has the same value as the substantive right, and the procedural law norm bearing the right of action becomes the normative law of the same rank as the substantive law norm. With the continuous development of the economy and society, the cognition of the right of action will be further deepened, the connotation of the right of action will be continuously enriched, and the protection of the right of action as the final form of manifestation will be strengthened.

 

 

After it is confirmed that the right of action is a basic human right and a constitutional right, it is necessary to explore whether the right of action as a basic human right and a constitutional right can be restricted or not, under what circumstances it can be restricted, and how to restrict it. As for the restriction of the right of action, whether it can be restricted is a problem of the first level, and the circumstances and methods of restriction are problems of the second level.

 

 

Just as theorists have said, people tend to show extreme tendencies when they emphasize the protection of rights, and therefore the other side of rights, that is, the restriction of rights, is ignored.⁷ The protection of rights is accompanied by the restriction of rights. However, the advocacy and emphasis on the protection of rights have long made the restriction of rights that accompanies the protection of rights and is even more important hidden in the halo of the protection of rights. In fact, western scholars who emphasized the protection of basic rights in modern times also realized the relativity of basic rights and considered the restriction of rights while vigorously advocating the protection of basic rights. Montesquieu’s “legal liberty,” Mill’s “prevention of harm to others,” Green’s “limited intervention of the State,” Hart’s “legal paternalism,” Devlin’s “legal moralism” and Rawls’and Dworkin’s related theories all involve the criteria and limitations of rights restriction.⁸

 

Actually, the logic that natural persons transfer part of their rights to form a country determines the incompleteness of their basic rights, such as the death penalty for the restriction of the right to life, the imprisonment penalty for the restriction of the right to liberty and the fine penalty for the restriction of the right to property. It can be seen that even the most basic rights, such as the right to life, liberty, and property, are not absolute, and so is the right of action as a basic right. Up to now, there are still debates about whether basic rights can be restricted, and there are still some voices defending the absoluteness of the right of action as a basic right⁹, but the theory circle has basically recognized the relativity of basic rights, including the right of action and the fact that basic rights can be restricted, and the international human rights conventions and the Constitution of various countries (regions) also stipulate the restriction of rights while stipulating the protection of rights. For example, the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights(1966), the Pacifist Constitution of Japan (1947) and the Russian Constitution (1993) all stipulate that citizens shall not abuse their basic rights and stipulate the restriction of citizens’ basic rights based on the need of promoting social public welfare while providing for the protection of basic rights. Article 51 of the Constitution of the People’s Republic of China also stipulates that the exercisinge of civil liberty and rights shall be limited to the extent that the lawful rights and interests of the Statestate, society, collectives, and other citizens shall not be harmed. Article 16 of the “Basic Law” of Taiwan, China, includes the right of action in the list of basic rights. Interpretation No.507 of the “Conference of Chief Justices” in Taiwan, which interprets the “Basic Law,” points out that the exercise of the right of action should be regulated by law. The law may reasonably limit prosecutions or self-initiated proceedings to prevent the infringement of liberty by vexatious litigation or to avoid wasting limited judicial resources.¹⁰

 

 

Montesquieu once said, “If one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.”¹¹ The restriction of rights is the requirement of rights and their corresponding obligations. It involves the whole social rights order. In the real world, the requirements of the right order are manifested in two forms: The protection of the rights of others as individual interests and the protection of social public interests as the overall interests. In this way, the boundary of the exercise of basic rights or the line of rights restriction is deduced, that is, the interests of others and public interests. The restriction of rights based on others’ interests or public interests can be divided into two levels. First, the exercise of rights shall not infringe upon the rights and interests of others or public interests. This may be seen as the absolute restriction of rights or what the restriction of rights should be. Second, as for the public interests as the overall interests of society, the basic rights of individuals may be subject to necessary restrictions in order to promote the overall public interests of society. This can be considered as the relative restriction of rights or what the restriction of rights may be.

 

In terms of what the restriction of rights may be, there are two problems. First, when do rights need to be restricted in the face of public interests? This is a problem of value judgment. Second, how will rights be restricted? This is an operational problem. According to the theory of the restriction of rights, international human rights conventions, and constitutional documents of countries (regions), it is generally believed that individual rights can be restricted when the value goal of public interests is greater than individual rights. However, because of the ambiguity of value judgment, there is no objective answer to the question of which value is greater.

 

Operationally, the restriction of rights involves the degree, scope, and methods of restriction. Specifically, there are two main modes for the restriction of citizens’ basic rights: one is the differential restriction adopted in Germany, that is, stipulating the protection area of each basic right as well as restrictive provisions on that right in the basic law or law;¹² the other is the general restriction widely adopted in international conventions and other countries (regions), that is, stipulating in constitutional documents that the exercise of citizens’ basic rights may not infringe upon lawful right and interests of others or public interests, and that the basic rights of individuals may be subject to necessary restrictions by legal means in order to promote the overall public interests. Compared with general restriction, the differential restriction mode adopted by Germany shows more advanced technology in legislation. However, such enumerating restrictive provisions also have certain limitations. Namely, they must be constantly adjusted to the development of basic rights and changes in the social environment.

 

The countries and regions that adopt the general restriction model in their constitutions mainly restrict the rights under the framework of a series of principles. Considering the comprehensive factors such as the protection of rights and the prevention of abuse of power in the restriction of rights, as well as the abstraction of experience in the restriction of rights in various countries and regions, including Germany, the basic principles that should be followed in the restriction of rights are concluded as below. First, the principle of proportionality. It is known as the imperial principle in administrative law, and applies to the restriction of rights. The principle of proportionality required in the restriction of rights includes two levels of meanings: If the restriction of rights can achieve the goal of promoting public interests, it is necessary to restrict rights, which is the principle of necessity; When restricting rights, the ways or means that limit or damage the rights to the minimum level must be used, and the means of restriction should be proportional to the value goal, which is the principle of least restrictive alternative. Second, the principle of legal reservation, also known as the principle of legality. This principle derives from the idea of rule of law in the model of decentralization, namely, the trust in public opinion organs and the fear of administrative power.¹³ It requires that the basic rights of citizens must be restricted by the legislature in the form clearly stipulated by the Constitution or the laws authorized by the Constitution. Third, the principle of non-discrimination. The principle aims to prevent the restriction on rights from becoming a tool of discrimination against a few people. It requires that the restriction of rights should not be targeted at a few people, but should be equally oriented to all citizens, and the equal protection of rights should be reflected in the restriction of rights. Fourth, the principle of prohibiting the abuse of rights restriction. The principle requires that the State be prohibited from abusing restrictions on the basic rights of citizens. This principle contains two levels of meanings, including prohibiting the State from expanding the scope of the restriction of rights, and prohibiting the State from arbitrarily narrowing the scope of the protection of rights.¹⁴

 

Back to the citizens’ right of action as a basic right, its content and exercise are not absolute, but relative. First, the exercise of the right of action shall not damage the lawful rights and interests of others or public interests; meanwhile, at the level of value judgment, the exercise of the right of action may be subject to necessary restrictions to promote public interests. However, in terms of concrete operation, the restriction on the exercise of the right of action should follow the principle of proportionality, the principle of legal reservation, the principle of non-discrimination, and the principle of prohibiting the abuse of rights restriction.

 

 

The mandatory attorney system is a basic institutional arrangement in civil litigation in civil law countries (regions) where the litigants-oriented litigation model is implemented. Its restriction on the litigants’ capacity to action in litigation seems to be a disguised restriction on the litigants’ right of action in the form. According to the legislation examples of mandatory attorney system in various countries (regions), the restriction of mandatory attorney system on the right of action conforms to such basic principles as the principle of proportionality, the principle of legal reservation, and the principle of prohibiting the abuse of rights restriction. The original intention of the system is to protect the litigants’ right of action substantively and further strengthen the protection of the right of action under the premise of the substantive protection of it through the perfection of the system design and supporting system.

 

 

The modern civil procedure system generally implements the litigants-oriented litigation model which is based on the doctrine of disposition and the principle of debate. The premise of this litigation model is to respect the disposition and debate rights of the litigants. However, there are two different models in terms of the mandatory attorney system, namely, the doctrine of mandatory attorney system and the doctrine of the litigants’ conduct. The mandatory attorney system refers to the fact that in some procedures and cases of civil litigation, the litigants must entrust lawyers to file or respond to an action, or they will be unable to continue the action because of illegal elements of the action; The doctrine of the litigants’ conduct means that the litigant can file or respond to an action by himself or appoint a lawyer to act for him.

 

According to the theory of civil procedure, the conditions for enjoying the right of action or the necessary conditions for the acceptance of claims include: Having the right to claim, having interests of litigation, having the capacity for litigious rights, having the capacity to action or having the ability of litigation implementation.¹⁵ In the litigation of a mandatory attorney system, the litigants lack the ability to attend and effectively carry out the litigation in a specific court; that is, the litigants lack the ability to debate.¹⁶ But, the theory of civil procedure holds that the ability to debate is the prerequisite of the litigants’ capacity to action, and the capacity to action is a validity requirement of the action.¹⁷ In the litigation where the mandatory attorney system is implemented, the litigants shall have no capacity to action and the action made by the litgants shall have no effect unless the law specifically provides that the litigants have no capacity to action.¹⁸ In the mandatory attorney system, because of the lack of necessary conditions, namely, the lack of capacity to action, the right of action is not complete, and the exercise and realization of the right of action are obviously restricted. Hence, the following question arises. It remains to be discussed whether a litigant’s right of action will be restricted in civil litigation where the mandatory attorney system is implemented because he is forced to entrust a lawyer to act for him and deprived of his right of action.

 

As for the relationship between the mandatory attorney system and the exercising of the right of action, some argue that there is a formal freedom to approach the court under the circumstance that the mandatory attorney system is not required and the litigants are allowed to bring an action to the court.¹⁹ However, implementing the mandatory attorney system in civil litigation and prohibiting the litigants from bringing an action to the court seem to restrict the litigants’ right of action in the form. This understanding is also reflected in the discussion on establishing the mandatory attorney system in civil litigation in relevant countries and regions, especially in those who oppose and advocate the abolition of the mandatory attorney system. For example, when Japan enacted the Civil Procedure Law with reference to German law in 1890, it opposed the adoption of the mandatory attorney system in German law, partly for the following reasons: First, the right of citizens to sue for their own interests should not be denied. That is to say, the so-called mandatory attorney system directly restricts the right of action; second, people may not afford to sue because of high legal costs, or they worry that it costs too much to bring an action. This emphasizes the indirect suppression of mandatory attorney system on the right of action.²⁰ When Japan enacted the New Civil Procedure Law in 1996, it once again took the implementation of mandatory attorney system as a legislative subject, but this was opposed by the bar association. One of the reasons they gave was that litigants should not be deprived of their right to appeal.²¹

 

 

Whether the implementation of the mandatory attorney system in civil litigation restrains the right of action or protects it involves two levels of problems: Whether the mandatory attorney system should be implemented and how it should be implemented. The former is a problem that involves a value judgment, while the latter is a problem of technical specification, which involves the perfection of the supporting system.

 

As for the problem of whether to implement the mandatory attorney system, it involves a value judgment and requires a comparison and balance between the public benefit nature of litigation (judicial) operation and the litigants’ exercising of the right of action. If, in terms of the value of the order, the public benefit of judicial operation is greater than the litigants’ exercise of the right of action, the mandatory attorney system should be implemented in order to protect their interests. But because of the fuzziness of value judgment, it cannot be used as a core factor to decide whether to implement a system. Therefore, as a problem of technical specification, how to implement the system, namely, how to perfect the supporting system, should be the factor that determines the implementation of the mandatory attorney system in civil litigation. As Professor Qiu Liangong said, “The implementation of the mandatory attorney system depends on the adequacy of surrounding systems.”²² However, the adequacy of support systems determines whether the implementation of the mandatory attorney system in civil litigation is a restriction or protection of the litigants’ right of action.

 

The implementation of the mandatory attorney system in civil litigation formally restricts the litigants’ right to bring or respond to a lawsuit. Therefore, even the countries and regions that implement the mandatory attorney system took have taken an extremely cautious attitude and repeatedly considered and demonstrated it when establishing the system. This is especially reflected in the relevant regulations in of Taiwan, China. When the current “Civil Procedure Law” in Taiwan was first formulated based on German law in 1930, it hesitated to adopt the mandatory attorney system in civil litigation. This system was finally established in 2000 when the “Civil Procedure Law” was revised. During the nearly 70 years, Taiwan amended its laws several times and took the adoption of the system as a legislative subject every time. Though the system was established in 2000, it was only applied in the third instance, the trial of law. Similarly cautious are Germany, an early adopter of the mandatory attorney system, and Japan, which has yet to do so. Germany focused on the improvement of the mandatory attorney system when revising the civil procedure law, while Japan took whether to introduce the mandatory attorney system as a legislative subject for discussion every time it revised the civil procedure law. Therefore, judging from the legislative examples of countries and regions that implement the mandatory attorney system, it does not violate the principle of prohibiting the abuse of power, one of the principles of rights restriction.

 

Besides, as a basic institutional arrangement in civil litigation, the implementation of the mandatory attorney system involves the basic structure of judicial operation. In countries and regions that implement the system, the implementation of the system is clearly stipulated by the legislature in the basic law of civil litigation. The provisions on the mandatory attorney system in civil procedure law conform to the principle of legal reservation or the principle of legality.

 

In the legislative examples about the implementation of the mandatory attorney system, this system is not implemented in all the procedures and cases of civil litigation, but used as appropriate, according to the type of proceedings, the type of cases, and the trial class system, reflecting the characteristics of implementation in different procedures, cases, and stages. For small claims, summary proceedings, and ordinary cases of first instance, generally, the litigant or an agent without the permission of a lawyer will participate in the action; while for cases of a first instance involving relatively complex legal relations, a large number of people and great influence, the mandatory attorney system may apply. Besides, according to the legislative examples of the implementation of the mandatory attorney system in German civil litigation, even in civil litigation where the mandatory attorney system is implemented, there are still exceptions that allow the litigants to participate in an action in person. For example, as stipulated in Article 137 (4) of the German Civil Procedure Law, the court allows the present litigant to make a statement at his request, despite the implementation of the mandatory attorney system.²³ The implementation of the mandatory attorney system conforms to the principle of proportionality or the principle of necessity for the restriction of the right of action.

 

In the implementation of the mandatory attorney system, some litigants are likely to be unable to sue because they cannot afford lawyers’ fees, so that the inequality in identity and economy between litigants is transformed into the inequality in the use of litigation relief, and thus the equal protection of the right of action cannot be realized. Therefore, in countries and regions where the mandatory attorney system is implemented, there is a legal aid system for those who cannot afford lawyers’ fees, which ensures that economically disadvantaged litigants will not be unable to sue due to their economic weakness, eliminates discriminatory factors brought by the mandatory attorney system, and realizes equal protection of the right of action. In terms of establishing a perfect legal aid system in countries and regions that implement the mandatory attorney system, it does not violate the principle of non-discrimination, one of the principles of rights restriction. The mandatory provision on the implementation of the mandatory attorney system in some cases of civil litigation helps effectively protect the interests of the litigants, which is consistent with the purpose of protecting the litigants’ access to judgment in Article 6 of the European Convention on Human Rights.²⁴

 

 

To strengthen the protection of citizens’ right of action, we should actively create conditions for the realization of the right of action. The implementation of the mandatory attorney system in civil litigation realizes the protection of the litigants’ right of action and strengthens such protection with the compulsory participation of lawyers and the assistance of related supporting systems.

 

The most prominent characteristic or essence of the mandatory attorney system is that it guarantees the participation of lawyers in civil litigation. The participation of lawyers realizes the equality of arms between the litigants, and between the litigants and the court in civil litigation, and makes up for the deficiency of legal literacy of both litigants. Lawyers, as agents with the same legal literacy as judges, can protect the lawful rights and interests of both parties to the greatest extent. In the proceedings, the equality of arms of the litigants is one of the principles of effectively protecting the right of action stipulated in the Constitution.²⁵ As an important way to realize the equality of arms in civil litigation,²⁶ the participation of lawyers can help guarantee the effective protection of the right of action. Also, the participation of lawyers can restrain the litigants from filing frivolous lawsuits, entering a plea without legal basis and lodging an appeal with no chance of success, enhance the efficiency of legal proceedings, and encourage the judge to make a judgment trusted by the litigants. In this sense, in addition to helping the plaintiff reduce the burden of litigation, the participation of lawyers is also beneficial to the defendant and the judicial authority. It protects the lawful rights and interests of both parties to the maximum extent and saves the judicial resources of the court, and maintains the judicial authority.

 

The design of related supporting systems in the mandatory attorney system, such as the legal principle of litigation costs, the mechanism of costs to follow the event, and the legal aid system, reflects the guarantee of the effective access of litigants to lawyers and the court. The legal principle of litigation costs eliminates the litigants’ concern about litigation costs, including lawyers’ fees. The mechanism of costs to follow the event can effectively restrain the abuse of process, promote reconciliation, and reduce litigation burden. The legal aid system ensures that those who cannot afford legal expenses can access lawyers and even senior lawyers. The mandatory attorney system allows lawyers to participate in litigation as agents of both parties, and is designed with related supporting systems such as the legal principle of litigation costs, the mechanism of costs to follow the event, and the legal aid system, which ensures the equality and effectiveness in the right of action of both parties, and conforms to the goal pursued by the movement of access to justice carried out in civil litigation worldwide since the 1970s. In this sense, the mandatory attorney system strengthens the right of action of any party in civil litigation, including the plaintiff and the defendant.

 

In conclusion, the implementation of the mandatory attorney system by stages, procedures, and cases can restrain the abuse of process and facilitate litigation, thus reducing the litigants’ burden of litigation and saving judicial resources. The public benefits generated are greater than the restrictions on individual rights, which conform to the concept of distributive justice. In this sense, the restriction of mandatory attorney system on the litigants’ right of action is legitimate. Through the participation of lawyers in civil litigation, the mandatory attorney system achieves the equality of arms between the two parties in litigation, and realizes that all litigants can have access to lawyers equally and effectively, thus having access to the court and justice. From this point of view, the implementation of the mandatory attorney system protects and strengthens the litigants’ right of action. The protection of rights seems to conflict with the restriction on rights. However, according to the practice of countries and regions in the world, in normal conditions, the starting point of the restriction of rights is to restrict the abuse of individual rights and freedom of citizens, but its ultimate goal is to realize the equality and effective protection of all citizens’ rights. The restriction of rights is essentially a means to protect rights, with the ultimate goal of realizing the protection of rights.

 

 

 

When introducing the mandatory attorney system, the purpose of establishing the system should be reconfirmed.²⁷ In terms of the value function, the mandatory attorney system is originally a correction mechanism of the litigants-oriented civil litigation model to make up for the deficiency of the litigants’ capacity to action. However, with the actual operation of the system and the deepening of people’s cognition, it is generally realized that the mandatory attorney system can also facilitate litigation, restrain the abuse of process, and alleviate the interpretation burden of interpretation on judges, in addition to the value function of ensuring the equality of arms of both parties, and thus substantially protecting and strengthening the litigants’ right of action. The mandatory attorney system in civil litigation of civil law countries shows a development trend that the countries that have implemented the system continue to implement it, the scope of implementation continues to expand, more and more countries and regions begin to implement the system, and the countries and regions that have not implemented the system consider the possibility of its implementation over and over again. From the perspective of necessity, as an important correction mechanism of the litigants-oriented litigation model, the mandatory attorney system can promote judicial public interest and protect the private interests of litigants. It would be ideal if the mandatory attorney system could be practiced in all proceedings. However, on the one hand, as a basic institutional arrangement of civil litigation, the implementation of the mandatory attorney system involves the redistribution of rights and obligations between the litigants and lawyers in civil procedure. On the other hand, a good operation of the mandatory attorney system requires the cooperation of a series of supporting systems.

 

As for the possibility of implementing the mandatory attorney system in civil litigation, two constraint factors should be considered: Substantive interests and procedural interests of individual cases and the completeness of supporting systems required for the operation of the mandatory attorney system. For the former constraint factor, the mandatory attorney system or litigants-oriented litigation should be adopted as appropriate, depending on the type of litigation procedures, the type of cases, and the level of trial. It is obviously not in line with the principle of the necessity of rights restrictions if the litigant is forced to appoint a lawyer to represent him in litigation regardless of individual circumstances and personal wishes. In cases where the procedure is simple, the situation is simple, and the parties themselves are qualified as lawyers, the litigants shall be granted the right to participate in the action. For the latter constraint factor, the application scope of mandatory attorney system shall be determined according to the completeness of supporting systems. Whether the mandatory attorney system can run well depends on whether the supporting systems are sound. It is generally believed that a mature lawyer system, a reasonable litigation costs system, and a perfect legal aid system are the three supporting systems for the implementation of the mandatory attorney system. If the mandatory attorney system is implemented rashly under the circumstance that the supporting systems are not sufficient or perfect, it will cause the danger that people will give up their right to obtain relief through litigation because they cannot afford lawyers’ fees.²⁸

 

Therefore, from the perspective of protecting the right of action, on the one hand, the substantive and procedural interests in individual cases should be balanced, and the litigants should be allowed to participate in the litigation or conduct some litigation activities, so as to protect the litigants’ right to sue; On the other hand, the application scope of the mandatory attorney system should be determined as appropriate, depending on the completeness of supporting systems. Viewed from the implementation of the mandatory attorney system in civil litigation in civil law countries and regions, including France, Germany and Taiwan, China, phased and progressive strategic arrangements are adopted. Countries Jurisdictions that established the mandatory attorney system when the civil procedure law was formulated generally adopted phased strategic arrangements. For example, France’s 1806 Code of Civil Procedure and Germany’s 1877 Civil Procedure Law stipulated the mandatory attorney system when they were formulated. France only implements the mandatory attorney system in cases at or above the level of the court of final appeal. In Germany, the first instance cases involving more than 5,000 euros, all appeals and protest cases, as well as all family cases, are required to be represented by lawyers. In legislative examples of introducing the mandatory attorney system into civil litigation, progressive strategic arrangements are likely to be adopted. For instance, when the island of Taiwan amended its “Civil Procedure Law” in 2000, it took the lead in enforcing the mandatory attorney system only in the trial of law. Currently, the problem of whether to implement the mandatory attorney system in some trials of facts in civil cases is under discussion.²⁹

 

Based on the characteristics of the mandatory attorney system, the civil procedure system, and the operating environment of civil justice in China, the introduction of the mandatory attorney system in civil litigation in China should also adopt the strategy of gradual implementation by stages, cases, and procedures.³⁰ First, we should explore the implementation of the mandatory attorney system in the cases where the litigants apply for retrial,³¹ the cases tried by the Higher People’s Court and the Supreme People’s Court, as well as the cases of first instance concerning companies, securities, intellectual property rights, public interest litigation and other new complex cases, and then expand the application scope of the mandatory attorney system in civil litigation when the constraint factors have developed to a mature level.

 

 

The mandatory attorney system does not exist independently. Its establishment and operation are restricted by relevant supporting systems. As the basis of the operation of the mandatory attorney system, the supporting systems are related to the litigants’ use of the mandatory attorney system, the efficiency of judicial operation, and the functional exertion of lawyers. Only when the basic provisions and supporting measures of the mandatory attorney system work together can the litigants’ right of action be substantively protected and strengthened. The lawyer system, including the positioning and affiliation of lawyers, the litigation costs system, including the legalization of litigation costs and the mechanism of costs to follow the event, and the legal assistance (aid) system, are considered as the most important supporting systems in the operation of the mandatory attorney system, which are directly or indirectly related to lawyers.

 

 

Lawyers are the most important participant in cases of mandatory attorney system. As a supporting system, the lawyer system is directly or indirectly related to other supporting systems. It is the most crucial link in mandatory attorney system. In the lawyer system, there are two main institutional arrangements related to mandatory attorney system: The positioning of the lawyer profession, and the lawyer affiliation system, that is, the relationship between lawyers and courts. The positioning of the lawyer profession determines different rights and obligations of lawyers in litigation. The countries and regions that implement the mandatory attorney system generally strengthen the public attribute of the lawyer profession. For example, Germany regards lawyers as judicial organs, and in Taiwan lawyers are regarded as law officers not in office. Strengthening the public attribute of lawyers can enhance the sense of professional mission of lawyers, help to give lawyers more public welfare obligations, and ensure that lawyers can still provide high-quality legal services with lower remuneration. The lawyer affiliation system requires that the practice of lawyers is confined to a certain court or courts. It has certain access requirements for lawyers to accept cases of mandatory attorney system, which ensures the practice level of attorneys while facilitating the handling of cases.

 

The modern lawyer system of New China started late, and the positioning of the lawyer profession has undergone a transformation from “national legal workers” as specified in the Interim Regulations of the People’s Republic of China on Lawyers in 1980, to “practitioners who provide legal services for society” as defined in the Law on Lawyers in 1996, and then to “practitioners who provide legal services for parties” as specified in the amendment to the Law on Lawyers in 2007. This reflects the transformation of the identity of lawyers from civil servants to freelancers and indicates the development trend of the lawyer system in China that the public nature of lawyers is weakening, and the liberal profession characterized by autonomy and self-discipline continues to be strengthened. France, Germany, and Taiwan, China, where the liberal profession of lawyers has been a tradition, have begun to strengthen the public nature of the lawyer profession. In contrast, the positioning of lawyers in China is still in the molding stage now. It is undergoing a transition from the extreme public attribute of the lawyer profession to the dual attribute orientation of freelance lawyers and public lawyers.³² In the process of introducing the mandatory attorney system in civil litigation, combined with the requirements of the modern lawyer system and the operation of the mandatory attorney system, China should still take the profession of lawyer as the development goal of the lawyer system, balance the relationship between independence and liberty and the public attribute, coordinate the rights and obligations of the three parties involved in mandatory attorney system, namely, the State, lawyers, and litigants, and stimulate and mobilize the enthusiasm of lawyers to the maximum extent.

 

From the Interim Regulations of the People’s Republic of China on Lawyers in 1980 to the latest revision of the Law on Lawyers in 2017, China did not implement the lawyer affiliation system since the establishment of the modern lawyer system.³³ Compared with the countries and regions that implement the lawyer affiliation system, the relationship between lawyers and courts in China is as follows: First, the practice of lawyers is not subject to geographical restrictions. Lawyers who have obtained the professional qualification certificate may carry out business activities anywhere in China. Second, the practice of lawyers is not restricted by the level of courts, and any lawyer can conduct business activities in any court. Last, all lawyers are equal, and there is no classification of lawyers based on education, personal conduct, practice experience, etc.³⁴ It can be seen from the implementation situation and development trend of the lawyer affiliation system in the countries and regions where the mandatory attorney system is implemented that, on the one hand, the lawyer affiliation system is appropriately implemented in the mandatory attorney system; on the other hand, the application scope of countries that implements the lawyer affiliation system is shrinking. However, the phased and gradual implementation of mandatory attorney system determines that it is first adopted in actions with complicated procedures, complicated situations and higher level of trials, which has high requirements for the professional ability of lawyers. Hence, it is still valuable and necessary to implement the mandatory attorney system in a phased and gradual way in civil litigation. For example, while implementing the mandatory attorney system in the third instance of civil litigation in 2000, Taiwan consulted the provisions of German law and stipulated certain qualification requirements for lawyers representing the case of mandatory attorney system in the third instance. China still needs to impose restrictions on the professional qualification, education, and professional skills of attorneys when implementing its mandatory attorney system.³⁵

 

 

As long as the mandatory attorney system is an indispensable part of the ordinary procedure structurally, how to deal with lawyers’ fees is a major problem determining the effect of cost policy.³⁶ Compared with the civil litigation of the litigants-oriented litigation model, litigation with mandatory attorney system presents the following characteristics in terms of litigation costs: First, the lawyers’ fees are inevitable. Second, the lawyers’ fees are generally lower than the normal charging standard. Third, the lawyers’ fees are more sensitive. There is a problem facing the lawyers’ fees in the mandatory attorney system; that is, even if the fees are charged normally, it will inhibit some litigants from seeking relief through litigation, which is to restrain the exercise of the litigants’ right of action; while if the charges are low, it is easy to induce the risk of abuse of litigation, and it will affect the enthusiasm of lawyers, the provision of good legal services, and even the sustainable development of the lawyer profession with the provision of legal services as a means of livelihood. Therefore, the sharing of lawyers’ fees is the most crucial and complicated problem in mandatory attorney system. How to protect the litigants’ right of action, arouse the enthusiasm of lawyers, and prevent the abuse of litigation in the design of the sharing mechanism of litigation costs with the lawyers’ fees as the main component have become the key to realizing the original intention of the system.

 

Viewed from the countries and regions that implement the mandatory attorney system, for the above problems, the level of legal services with low fees for lawyers can be effectively ensured by the public attribute positioning of lawyers, monopoly of legal services by lawyers, and expansion of case sources brought by the mandatory attorney system; the litigants’ concerns about the uncertainty of litigation costs are resolved by taking lawyers’ fees as part of litigation costs and implementing the legalization of litigation costs.

 

In the current system of litigation costs in China, the Measures on the Payment of Litigation Costs, which took effect in 2007, does not include lawyers’ fees as part of litigation costs. However, due to the inevitable generation of lawyers’ fees, the mandatory attorney system requires the transfer of lawyers’ fees in litigation. Otherwise, lawyers’ fees, which account for a large proportion of litigation costs, will become an obstacle restricting the litigants’ use of litigation means. When introducing the mandatory attorney system in civil litigation, first, China shall take the lawyers’ fees incurred in cases of mandatory attorney system as part of litigation costs, but only limited to necessary lawyers’ fees. Meanwhile, the bearing and sharing principle of litigation costs shall be established; that is, the litigation costs, including lawyers’ fees shall be borne by the party losing the lawsuit or shared in proportion to its liability. Second, in order to eliminate the uncertainty caused by high and unpredictable lawyers’ fees, the fees of lawyers should be law-based. When determining lawyers’ fees, the pricing model that focuses on the government-guided price and is supplemented by market regulation should still be adopted. In terms of the standard of lawyers’ fees, the case nature, amount of the claim, degree of complexity, workload of lawyers, as well as local development and price level, should be taken into overall consideration in the formulation of the fee standard of mandatory attorney system. The final lawyers’ fees should be determined by the court in accordance with the fee standard of mandatory attorney system and the actual situation of the case.

 

 

The mandatory attorney system requires that the party filing the lawsuit must appoint a lawyer to represent him, and that the party responding to the lawsuit appoint a lawyer to represent him. In a mandatory attorney system, lawyers’ fees are inevitable costs of litigation related to the lawyers of both parties. Even if the lawyers’ fees are greatly reduced through the public attribute positioning of the lawyer profession and the legalization of litigation costs, the litigation costs will still be borne by the responsible party according to the proportion of responsibility under the mechanism of costs to follow the event. Although litigation costs have the function of punishing the parties causing the dispute at the beginning of design, it is still to be discussed whether the mechanism of forcing the responsible party to bear the lawyers’ fees of both parties in the case of mandatory attorney system violates the principle of fairness. In order to solve the above problems, various countries and regions have generally established a perfect legal aid system when implementing the mandatory attorney system.

 

In a broad sense, the current legal aid system in China includes two sets of systems, namely the judicial aid system stipulated in the Civil Procedure Law and the narrow legal aid system established according to the Legal Aid Law. Among them, judicial aid mainly involves the system of deferring, reducing, and exempting legal trial fees, while legal aid refers to providing legal advice for parties and lawyer aid in litigation. The Legal Aid Law adopted in 2021, the three procedure laws, i.e., Criminal Procedure Law, Civil Procedure Law and Administrative Procedure Law, and the Law on Lawyers, constitute the current legal aid system in China. In line with the requirements of the mandatory attorney system, the current legal aid system in China presents the following characteristics: First, the guarantee channel of legal aid funds is relatively narrow, and the legal aid system in China combines the State’s protection with social participation. The Legal Aid Law stipulates that the people’s governments at or above the county level shall guarantee the legal aid funds with the financial budgets, and that the State encourages people’s organizations, public institutions, and social organizations to provide legal aid in accordance with the law under the guidance of judicial administration departments, and encourages enterprises, public institutions, social organizations, individuals and other forces of society in supporting the cause of legal aid through donation. Second, the scope of legal aid cases is relatively narrow, only involving criminal cases and some civil cases concerning disputes over the basic living allowance.³⁷ Third, either for judicial aid or for legal aid, the single economic standard of “financial difficulty” is applied in the application. Fourth, the cost-sharing system of legal aid funds does not provide full or partial support according to the degree of financial difficulty, nor does it implement a beneficiary compensation system according to the outcome of cases. Fifth, legal aid participants include full-time legal aid lawyers, social lawyers, and primary-level legal service workers, as well as legal aid volunteers from universities and scientific research institutions. Full-time legal aid lawyers and primary-level legal workers receive salaries and subsidies for case handling. Social lawyers receive subsidies for case handling that are lower than normal fees based on their legal aid obligations. Legal aid volunteers from universities and scientific research institutions basically provide legal aid services for free.

 

During the introduction of the mandatory attorney system in civil litigation, the legal aid system should be further enriched and perfected based on the operational requirements of the mandatory attorney system and the characteristics of the current legal aid system in China. First, the scope of legal aid should be expanded. Cases of mandatory attorney system should be included in the scope of legal aid cases and the expenses incurred by witnesses, appraisers, and interpreters in litigation should be included in legal aid fees. Second, the dual condition of legal aid should be used in terms of the standard of legal aid. For the review of legal aid cases, the dual standard of financial difficulty and reasons for the case should be applied. Regarding reasons for the case, legislative examples make a distinction between two different levels of standards, namely, the hope of success and the apparent absence of reasons. Since the standard of hope of success involves the substantive examination of the case, it is controversial in operability and value judgment. Therefore, the standard of the apparent absence of reasons should be used to exclude malicious and hasty actions, and we should give play to the role of legal aid and mandatory attorney system in restraining the abuse of process. Third, the applicant allowance system and the compensation system should be adopted for legal aid funds. The applicant should be granted full or partial financial aid, depending on the economic capacity of the litigants. If the economic situation of the legal aid beneficiary is significantly improved due to the litigation, the compensation for legal aid should be collected. The sustainable development of legal aid can be realized through the efficient use of legal aid funds and the increase of funding sources. Fourth, a system of necessary fees for lawyers’ remuneration should be implemented. Since the mandatory attorney system generally limits the scope of legal aid lawyers, it is necessary to implement the system of necessary fees, and the necessary fees for lawyers should be determined by the court according to the subject matter and complexity of the case and the workload of lawyers. Lawyers can receive a corresponding proportion of subsidies for case handling from the legal aid agency, according to the court decision. Fifth, the financial supply of legal aid funds should be strengthened. The inclusion of the mandatory attorney system into the scope of legal aid will inevitably increase the expenditure of legal aid significantly, which requires more overall planning of financial funds as the main source of legal aid funds. When implementing the mandatory attorney system in civil litigation, the bearing capacity of legal aid funds and the limit imposed by the government at the corresponding level on the increase of legal aid funds must be considered.

 

 

The problem of “more cases, fewer staff” facing the court system has become an urgent difficulty to be solved in the current judicial practice and civil litigation reform. The main idea of the current reform plan is to improve efficiency by promoting the separation of complicated and simple cases and streamlining procedures. As it is easy to make the right of action originally used to provide procedural protection for the litigants improperly compressed or even canceled, people worry that it will infringe on the litigants’ right of action, and weaken their procedural protection.³⁸ Also, the mandatory attorney system, which can improve the efficiency of litigation and solve the problem of “more cases, fewer staff”, has attracted attention again.³⁹ In cases of mandatory attorney system, on the one hand, the participation of lawyers can promote the use of legal proceedings, the formation of correct judgments, and promote the litigants to settle the case and willingly accept the judgment, thus facilitating the litigation and improving litigation efficiency. On the other hand, the incentive and constraint mechanism can be used to effectively reduce the litigation delay caused by lawyers’ subjective factors. Moreover, we can avoid as much as possible the impairment of the procedural interests of the litigants and the weakening of procedural rights protection due to the simple simplification of procedures in the process. Centering on the discovery of truth and litigation promotion, it should be one of the procedural countermeasures for solving the current judicial dilemma of “more cases, fewer staff” to re-examine the function of the mandatory attorney system in litigation promotion and procedural rights protection.

 

(Translated by QIAN Chuijun)

 

* SU Zhiqiang ( 苏志强 ), Associate Professor, Shanxi University Law School, Doctor of Laws.

 

1. Wilhelm von Humboldt, The Limits of State Action, translated by Lin Rongyuan and Feng Xingyuan (Beijing: China Social Sciences Press, 1998), 137.

 

2. Wang Xisan, “On the Theory of Modern Right of Action,” Modern Law Science 6 (1989): 16.

 

3. Justinian, The Institutes of Justinian, translated by Xu Guodong (Beijing: China University of Political Science and Law Press, 1999), 455.

 

4. Huang Feng, The Lexicon of Roman Law (Beijing: Law Press · China, 2002), 4.

 

5. French New Code of Civil Procedure, translated by Luo Jiezhen (Beijing: China Legal Publishing House, 1999), 9.

 

6. After the Second World War, Japanese scholars formed the theory of constitutional right of action based on the provision of the Constitution that “No one shall be deprived of the right to be tried in a court of law.” This theory combines the people’s right to trial in public law stipulated in the Constitution with the right of action, and suggests that the right to benefits from the action protected by the Constitution should be introduced into the theory of the right of action. See Qi Shujie, “On the Protection and Restriction of the Right of Civil Appeal,”Xiamen University Law Review (vol. 6) (Xiamen: Xiamen University Press, 2003), 39.

 

7. Zhou Yezhong and Li Delong, “Opposition and Unification of Protection and Restriction of Civil Rights,”Journal of the East China University of Political Science and Law 1 (2003): 27.

 

8. Ding Wen, “Interpretation of the Theory of Restriction on Rights,” Studies in Law and Business 2 (2007): 138.

 

9. Wu Yingzi, “The Human Rights Character of the Right to Sue — From the Perspective of Historical Evolution,” Social Sciences in China 6 (2015): 112-130.

 

10. Wei Daliang, “The Realization of Fundamental Rights of Litigation in the Civil Procedure Law,” The Taiwan Law Review 2 (2004): 122.

 

11. Montesquieu, The Spirit of Laws, translated by Sun Lijian (Xi’an: Shaanxi People’s Publishing House, 2001), 182.

 

12. Zhao Hong, “Limiting the Limitation: The Internal Reason of German Fundamental Rights Limitation Mode,” The Jurist 2 (2011): 156.

 

13. Hu Xiaohua and Xu Jing, “On the Legitimacy and Principle of the Restriction of Citizens’ Basic Rights,”Law Review 6 (2005): 7.

 

14. Mao Junxiang, “The Basic Principle of Rights Restriction in International Human Rights Conventions and Its Implications for China,” Political Science and Law 9 (2010): 139-140.

 

15. Jean Vincent, Serge Guinchard, Procédure Civile (vol. 1, vol. 2), translated by Luo Jiezhen (Beijing: China Legal Publishing House, 2001), 148.

 

16. Vgl. Jauerning/Hess, Zivilprozessrecht, 30. Aufl., 2011, § 21. Rn.8.

 

17. Ibid., Rn.9.

 

18. Vgl. Rosenberg/Schwab/Gottwald, Zivilprozessrecht, 18. Aufl., 2018, §53, Rn.20, 22.

 

19. Jiang Wei, Shao Ming and Chen Gang, Study on the Right of Civil Litigation (Beijing: Law Press · China, 2002), 434.

 

20. Tetsuichiro Ueda, Development of the Principle of Equality of Parties Involved (Tokyo: Yuhikaku, 1997), 60-61.

 

21. Xu Shihuan, “On the Legislation of Introducing the Mandatory Attorney System in Trial on Matters of Fact in Civil Litigation,” The Taiwan Law Review 6 (2011): 108.

 

22. Qiu Liangong, Modernization of Justice and Procedure Law (Taipei: San Min Book, Taiwan, 1992), 191.

 

23. Civil Procedure Law of Germany, translated by Ding Qiming (Xiamen: Xiamen University Press, 2016), 36.

 

24. Jiang Wei, Shao Ming and Chen Gang, Study on the Right of Civil Litigation, 434-435.

 

25. Cheng Mingxiu, “Right of Action (vol. 1),” Law Forum 31 (2005): 9.

 

26. Zhang Wenyu, “On Mandatory Attorney in Civil Litigation,” The Taiwan Law Review 1 (2013): 31.

 

27. Xu Shihuan, “On the Legislation of Introducing the Mandatory Attorney System in Trial on Matters of Fact in Civil Litigation”, 112.

 

28. Qiu Liangong, Modernization of Justice and Procedure Law, 187.

 

29. Wu Congzhou, “Analysis on the Key Points of the Draft Amendment to Some Articles of the Civil Procedure Law of the Judicial Council 2021,” Court Case Times 121 (2022): 72.

 

30. Su Zhiqiang, “Mandatory Attorney System in Civil Litigation: A Correction Mechanism of the Litigants-oriented Litigation Model,” Political Science and Law 12 (2019): 23.

 

31. The Decision of the Central Committee of the Communist Party of China on Major Issues concerning Comprehensively Promoting the Rule of Law, issued at the Fourth Plenary Session of the 18th CPC Central Committee in 2014, put forward that “For appeals due to dissatisfaction with effective judgments or decisions by judicial organs, gradually implement a system of lawyer representation.” This indicates that China has put forward the exploration to implement the mandatory attorney system at the appeal stage.

 

32. Su Zhiqiang, “Responsibility of Lawyers in the Governance of Abuse of Process”, Journal of Political Science and Law 4 (2020): 132.

 

33. In order to support the mandatory attorney system, countries and regions that implement the mandatory attorney system generally specify the courts to which lawyers are affiliated when dealing with relationship between lawyers and courts. Scholar Qiu Liangong called it the doctrine of lawyer affiliation (also known as the principle of affiliation and region). Qiu Liangong, Modernization of Justice and Procedure Law, 187.

 

34. In 1987, the Trial Regulations on the Titles of Lawyers stipulated that the professional titles of lawyers be divided into four classes, i.e., Class 1, Class 2, Class 3, and Class 4, while according to the Decision of the Ministry of Justice on Abolishing Part of the Regulatory Documents Issued before the End of 2000 (Sifatong [2002] No.62), the regulations have been invalid. In 2017, the Ministry of Justice began to implement a pilot program of professional level evaluation system and evaluation mechanism for lawyers, known as the professional recognition system for lawyers. See Wang Jinxi, “On the Background, Principle and Approach of the Revision of Lawyers Law,” Chinese Justice 11 (2017): 53.

 

35. In 2022, the Legal Aid Law set a threshold for legal aid lawyers of special criminal cases, stipulating that legal aid defense lawyers who accept cases where the judgment may be a life sentence or the death penalty and death penalty review must have at least three years of relevant practice experience, and that a complaint and punishment system for legal aid work shall be established and the quality standards for legal aid services shall be formulated to improve the quality of legal aid. Chen Weidong, “Three Innovations of Legal Aid Law,” The Chinese Procurators 19 (2021): 10.

 

36. Takao Tanase, The Settlement of Disputes and Justice System, translated by Wang Yaxin (Beijing: China University of Political Science and Law Press, 2002), 290.

 

37. Article 31 of the Legal Aid Law stipulates that a party may apply for legal aid only in the following circumstances: a claim for State compensation, a claim for social insurance benefits or social assistance, a claim for consolation compensation, a claim for payment of support for a parent, child, spouse or another dependent, a claim for confirmation of labor relationship or payment of labor remuneration, a claim for determination whether a citizen has no or limited capacity for performing civil juristic acts, a claim for compensation for personal injuries incurred by an occupational accident or disease, a traffic accident, a food and drug safety incident, or a medical incident, and a claim for compensation for environmental pollution or ecological damage. 

 

38. Li Hao, “On the Criteria and Methods for Distinguishing Complicated from Simple Civil Cases: A Study on Basic Issues of Separation Between Complicated and Simple Cases”, Law and Social Development (Bimonthly) 5 (2022): 96.

 

39. Zhang Weiping, “Procedural Solutions to the Dilemma of ‘More Cases, Fewer Staff’”, Research on Rule of Law 3 (2022): 97.