法律与创新 / Law and Innovation

法律与创新

China Law Blog最近就国务院新闻办公室发布的《中国的司法改革》白皮书中的某些内容展开了讨论。

其中,让我大吃一惊的是中国注册律师数的增加:目前已达到21万人,相比之下,十年前这一数字仅为11万,20年前就更少得可怜,只有区区200人。

这种增长令人为之一振,但仔细一想也在情理之中。因为它反映出这一时期中国国内以及国际商业环境的巨大变迁,也折射出国内新的(商业及民事)法律法规的迅速发展。

China Law Blog建议企业界不要对在中国的法律风险和诉讼案件掉以轻心。按照传统思维,人们往往认为在中国被起诉的可能性不大。

但时过境迁,中国现有律师事务所18,000多间,2011年受理的案件总计230万起。这意味着在中国遭受起诉的风险要高于在日本或韩国。

不过要在律师人数和诉讼案数量上赶上美国,中国还有很长的路要走。据美国律师协会统计,美国共有110万名律师,相当于每300人就拥有1名律师。(很多美国人都认为美国的律师太多,导致社会上诉讼案过多。)

China Law Blog指出,中国法官的增长速度要落后于注册律师。目前,中国共有法官20万名,几乎和10年前的数字完全相同。

尽管中国法官受理的案件数量急剧增加,但某些流程上的改进还是对他们的工作有所帮助。这包括最高法院和其他高级法院颁布了更多关于民法适用的细则和指南;推行了更加先进的案件管理体系,加快了从立案到审理的进程。判决的执行和强制执行虽然还有很多不足,但也得到了改善。

在中国,涉及知识产权违法案件的合理判决以及判罚的执行和强制执行一直都是争议的焦点。

这个不足削弱了中国在加强知识产权保护方面的整体努力。而坚定不移地保护知识产权是刺激研发投入的关键要素,进而也影响到了对本国创新文化的提倡。

要在中国创造更高层次和更广泛的创新环境是个长远而复杂的目标,但保护企业和个人的知识产权是朝这个方向前进的重要一步。

作为对比,2011年底香港的数字显示,在这个弹丸之地,共有初级律师7,000多名,另有可在全球28个司法管辖区域高等法院出庭的大律师1,100名、注册外籍律师1,300名。

上世纪七十年代,香港大学开设了法律专业,在此之前香港还没有自己培养的律师。

如今香港的执业律师既有本土精英,也有国际人才,构成了香港依法治港、司法独立的重要资产,也为香港巩固国际金融中心地位提供了强有力的支持。

根据《基本法》,只有香港特别行政区高等法院终审法庭的大法官必须为香港华人,其他法官可以由任何种族、任何国家精通普通法的人士担任,并构成香港司法体制的基础。目前终审法庭的15位非永久法官中有10位来自英国、澳大利亚、新西兰等其他普通法辖区。

补充一点关于法律行业的资料,香港60%的初级律师为女性,而美国这一比例仅为25%。

我没有中国21万注册律师的性别统计数据,但凭经验我认为它应该更接近于香港(60%为女性),而不是美国(25%为女性)。

Law and Innovation

The China Law Blog recently discussed some of the findings contained in the State Council Information Office’s “White Paper on Judicial Reform in China”.

One fact which struck me was the increase in the number of registered lawyers in China : 210,000 today, as compared with 110,000 just ten years ago, and a paltry 200 twenty years ago.

That’s an impressive increase. On further reflection, it makes sense, given the huge changes in China’s domestic and international commercial environment during this period, as well as the rapid development of new domestic (commercial as well as civil) laws and regulations.

The China Law Blog advises businesses not to be complacent regarding the risk of litigation and law suits in China. Traditionally, the risk of being sued here was considered to be relatively low.

That’s gradually changing, with the assistance of China’s 18,000-plus law firms, which handled 2.3 million cases of litigation in 2011. That means the probability of being sued in China is higher than in Japan or Korea.

China has a long way to go in matching the U.S. for lawyers and litigation. According to the American Bar Association, the U.S. has 1.1 million lawyers, or roughly 1 lawyer for every 300 people. (Many Americans argue that we have too many lawyers and have become an overly litigious society.)

According to The China Law Blog, the rapid growth in registered lawyers in China has not been matched by an increase in the number of serving judges. There are 200,000 judges working in China today, which is about the same number as ten years ago.

Despite the dramatic increase in caseloads that China’s judges are coping with, there have been some process improvements to assist them, including more clarifications and guidelines on the applications of civil law issued by the Supreme People’s Court and other high courts; and a more advanced case management system which speeds the pace of lawsuits proceeding to trial. There has also been progress in execution and enforcement of judgments, although there is still plenty of room for improvement on this front.

Execution and enforcement of appropriate judgments and penalties has long been a bone of contention in cases in China involving alleged intellectual property rights infractions.

This has been a weak link, which undermines the overall effort to improve China’s intellectual property rights (IPR) regime. A solid IPR protection environment is crucial to spur more investment in research and development (R&D), which in turn is essential to promote a rich national culture of innovation.

Achieving a higher-level and broader-based climate of innovation in China is a complex long-term goal, but protecting companies’ and individual’s IPR is an essential part of the way forward.

Meanwhile, in tiny Hong Kong, figures as of late 2011 stated the number of practicing solicitors as slightly more than 7,000, with 1,100 barristers and 1,300 registered foreign lawyers qualified to practice in 28 different jurisdictions around the world.

Hong Kong did not really begin to produce home-grown lawyers until the 1970s when Hong Kong University established its faculty of law.

The current universe of legal practitioners in Hong Kong is a thorough mix of local and international talent, which is a key asset supporting Hong Kong’s robust rule of law environment, independent judiciary, and thriving status as an international financial center.

According to the Basic Law, only the top judge in the Court of Final Appeal and the High Court must be Hong Kong Chinese. Other judges can be citizens of any nation well-versed in the common law, which forms the basis of Hong Kong’s legal system. Currently, 10 out of 15 non-permanent judges on the Court of Final Appeal come from other common law jurisdictions such as Britain, Australia and New Zealand.

As a footnote on the legal profession generally, it’s interesting to note that 60% of Hong Kong’s solicitors are female, as opposed to only 25% in the U.S.

I don’t have statistics on the gender ratio among China’s 210,000 lawyers, but my anecdotal experience suggests it would be closer to Hong Kong’s (ie 60% female) rather than to the US ratio (only 25% female).


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