Zhang Jiahui's case involved bribery lawyers, how to rectify the "improper interaction of the lawyer"?

Text/Tong Xizhong

From January 9 to 10, the Central Political and Legal Work Conference was held. The meeting mentioned that in the new year, we should vigorously grasp the rectification of stubborn and chronic diseases, focus on law enforcement and judicial issues such as not filing cases, not investigating cases under pressure, and not prosecuting crimes, "sports-style" and "one-size-fits-all" law enforcement, improper contacts and exchanges between judicial personnel and lawyers, and handling of sentence commutation, parole, and temporary execution outside of prison in violation of laws and regulations, especially "serving sentences on paper," and carried out special rectification in depth.

Tackling the ills of justice is not a one-day effort. Previously, the Ministry of Justice had issued special documents on the construction of lawyers' professional ethics, and five departments, including the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice, had also jointly issued regulations regulating judicial personnel's contacts and exchanges with parties and lawyers.

At the Central Political and Legal Work Conference, it was mentioned that judicial personnel and lawyers should rectify improper interactions, which is the first time since the Eighteenth National Congress.

Zhang Jiahui's case involved a bribery lawyer

Judicial personnel and lawyers have improper contacts, the most typical of which is the case of Zhang Jiahui, former vice president of the Hainan Higher People's Court.

Zhang Jiahui was dismissed in May 2019 after being reported by many people. At the time, whistleblowers said Zhang Jiahui was "worth at least 20 billion yuan" and was "the richest judge in the history of China's court system."

After she was investigated, the wealth empire she and her husband Liu Yuansheng built was also bottomed out by the media. The outside world can get a glimpse of its "getting rich". The "double-open" circular also mentioned that it violated a number of disciplines. Such as violating organizational discipline, violating work discipline, interfering in and interfering in judicial activities, and accepting huge amounts of money and property.

In early December 2020, Zhang Jiahui was sentenced to 18 years in the first instance for accepting bribes, administrative perversion of justice, and fraud. The relevant judgment documents were subsequently published by the media. The issue of collusion between judges and lawyers has also surfaced.

According to the judgment, 18 lawyers directly or indirectly paid bribes to Zhang Jiahui in the amount of more than 20 million yuan, of whom 2 were members of the Hainan Provincial Committee of the Chinese People's Political Consultative Conference and 5 were serving in the Hainan Lawyers Association. Two of the bribery lawyers are vice presidents of the Hainan Lawyers Association, and their positions are removed after the bribery list is made public.

Later, the Hainan Political and Legal Affairs Commission mentioned in an official circular that the local discipline inspection and supervision organs were working with the judicial administrative organs to deal with the relevant issues of the lawyers involved in the case; in cases where Zhang Jiahui's greeting affected the outcome of the adjudication, the local government also urged the Hainan Higher People's Court to initiate an internal supervision procedure to review and review.

Up to now, Hainan officials have not informed the results of the follow-up handling of the bribery lawyer and the results of the case review that Zhang Jiahui has said hello to. A number of civil and commercial lawyers and criminal defense lawyers interviewed told China News Weekly that bribery lawyers have squeezed the legitimate rights and interests of normal defense lawyers and should be dealt with severely.

Lawyer Wang Fu, a partner at Beijing Simpang Law Firm, believes that the rule of law is a process that cannot be achieved overnight. No matter how strong the efforts to eliminate judicial corruption, the authority of the trial must be guaranteed. In cases of violation of procedural justice, the State also has a review function.

Multiple causes of the "old problem"

The improper interaction between judicial personnel and lawyers is an "old problem", and many lawyers told China News Weekly that there are multiple reasons behind such a problem.

Wu Danhong, director of the Research Center for Difficult Evidence Problems at China University of Political Science and Law and a part-time lawyer at Beijing Youbang Law Firm, told China News Weekly that in combination with the practice of lawyers' work, this has a certain relationship with the nature of the case itself, and the phenomenon of greeting in civil and commercial cases is more than that in criminal cases.

"The civil and commercial fields involve large interests, the judges' discretion is relatively large, the criminal field involves many public procuratorial and legal departments, many cases still need to be collegial, and the collusion and airborne landing is relatively small." He said.

Criminal defense lawyer Shang Manqing analyzed to China News Weekly that judicial personnel themselves have certain characteristics, most of them come from the same university or several universities, and the circle is not large. There may be a crossover of work experience, and it is more obvious that some people have worked in courts and procuratorates for many years, and then become lawyers.

He argues that the existing recusal system sometimes makes it difficult to completely block the improper interaction between judicial personnel and lawyers. If someone "has a certain relationship," he can work in a local branch of the law firm and does not appear as a professional lawyer.

According to Shang Manqing, there are many ways and forms to circumvent the avoidance system. For example, some people can issue legal risk opinions in a non-lawyer capacity, because only litigation requires that they must be lawyers. Some people can also hold shares in law firms and be the bosses behind the scenes.

Wang Fu said that the acts of improper interaction in judicial practice are often difficult to define, and the occasions are relatively private. In the judicial ecology, lawyers are relatively weak.

He believes that the Chinese people often have the concept of "finding relations when things happen, and everything depends on relations to settle things", which is also an important inducement for judicial personnel to have improper contacts, and this culture should be changed. But cultural change doesn't happen overnight.

In fact, on the one hand, it is difficult to define the improper interaction between judicial personnel and lawyers, and on the other hand, there is a strong need for normal litigation communication between the two.

Wu Meng, the director of the law firm, has worked in the court and is now a lawyer. He told China News Weekly that in judicial practice, many judges and lawyers want to have normal and adequate communication with each other on the case. But communication is often inadequate.

Wu Meng said, "Judicial personnel and lawyers are from the same door and the same source, and they have classmates, teachers and students, colleagues, and even husband and wife relations, and it is impossible to isolate contact."

A number of lawyers also mentioned similar issues, and many believed that the disclosure of information on the progress of the case was not timely enough.

In addition, Shang Manqing also mentioned that among all the parties involved, the parties to the case are often the most motivated to pay bribes, because the lawyer is only a defender, and the parties are stakeholders. In addition, although there is a filing and registration system in terms of greeting, whether it can be implemented in place is still a problem.

Experts recommend the development of a guiding code of conduct

China News Weekly noted that at the institutional level, the management of improper interactions between judicial personnel and lawyers by relevant departments is becoming increasingly strict.

As early as 2014, the Ministry of Justice issued a special document on the construction of lawyers' professional ethics. The document mentions that some lawyers "engage in improper contacts, handle relationship cases, personal relationship cases, and even act as judicial brokers and bribe judicial personnel."

Later, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, the Ministry of Justice, and other five departments jointly issued a number of provisions regulating judicial personnel's contacts and exchanges with parties and lawyers (hereinafter referred to as the "Provisions").

Among them, Article 5 of the Provisions lists 6 types of prohibited acts. Such as accepting gifts or other benefits from parties, lawyers, special relationships, or intermediary organizations, recommending or introducing agents ad litem or defenders for the parties, or introducing cases to lawyers or intermediary organizations.

It is worth noting that in mid-December 2012, just after the Zhang Jiahui case involved bribery lawyers, Xuzhou, Jiangsu Province, issued the first local normative document, the Interim Provisions on Further Regulating the Contact and Interaction between Lawyers and Judicial Personnel (hereinafter referred to as the Interim Provisions).

The Interim Provisions are the first local normative document in China to regulate the contact and interaction between lawyers and judicial personnel from the perspective of lawyer management. A major innovation is to clearly list the "negative list" of judicial personnel's contacts and exchanges with lawyers, and at the same time strengthen the accountability for law firm management negligence.

Gan Weidong, a lawyer at Xinjiang Silk Road Law Firm, told China News Weekly that a major reason for the improper interaction between judicial personnel and lawyers was insufficient information disclosure.

He suggested strengthening information disclosure. Disclosure should include the identity of the adjudicators, the process of the case, and other such content, and do not engage in black-box operations, so that the judiciary can run under the sun. "The more adequate the information disclosure, the smaller the space for relevant personnel to collude."

Peng Xinlin, director of the International Anti-Corruption Education and Research Center at Beijing Normal University, told China News Weekly that the Central Political and Legal Work Conference mentioned persistent diseases such as vigorously grasping unfair exchanges between judicial personnel and lawyers, which reflects the importance attached by the top level to such issues.

He suggested that relevant departments formulate guiding codes of conduct, issue special implementation opinions, rules or measures, and publish typical cases so that the rules can take root. At the same time, the intensity of punishment for violations of the law will be increased