摘要
With the advent of the new millennium and a rapidly changing international outlook, Japan, China, and Korea' have been at the forefront of recent media attention, focused primarily on the rapidly gaining influence and power that these countries wield on a level no longer limited to Asia. Some observers argue that these countries have untapped economic potential, especially with regard to China, which is in the position to become a global economic powerhouse as its economy continues to grow and expand internationally. Furthermore, participation in the World Trade Organization and other multilateral agreements, such as GATS, has created the need for a global standardization of services offered to support and safeguard the rights of foreign investors.
The gradual opening of these three major players in East Asia to international organizations and standards suggested to many observers that the legal services market, under the same premise, would also be opened to foreigners who wished to practice the law of their home countries abroad. However, the current trend suggests otherwise. Recent revisions to China's Lawyers Law put stricter standards and compliance measures on foreign lawyers and foreign law firms, while Japan still prevents Japanese lawyers (bengoshi) from being hired by non-Japanese firms. Korea won't even permit foreign law firms to set up shop in their country. What force is behind the protectionist nature of the largest East Asian economies regarding legal services and the relationship between domestic and foreign lawyers?
One important difference between these three countries' legal systems is the role of the lawyer within the system, and more specifically, the number of "lawyers" currently existing within the system. China, with over 110,000 lawyers, has structured a very different legal community than Japan, where the exceedingly strict pass rate on the Japanese bar exam means that only 1,000 Japanese can become lawyers each year. This number does not, however, include the separate positions of patent agent (benrishi), tax agent (zeirishi), in-house corporate attorneys, drafters of private legal documents (shiho shoshi) and document drafters for administrative agencies (gyosei shoshi), which greatly increases the number of the legal community if the definition of "lawyer" is an open one.
Another fundamental difference in the legal systems of these three countries lies in the structure of their bar associations. While China's Ministry of Justice ("MOJ") has actively played the functional role of China's bar association, Japan's tiered bar system and Korea's independent bar association have remained separate from each country's Ministry of Justice, creating at times inconsistent policy decisions between the bars and the governments. The differing connections between the state and the lawyer population for each of the three countries might also suggest something about the level of strictness with which each country chooses to regulate its foreign lawyer population. For example, a more tightly controlled, government-regulated community might implicate a different set of regulations and barriers than a country where there is a more loosely structured relationship between the state actor and the private community.
This paper argues that the interplay between each country's Ministry of Justice and its local bar association creates a pervasive protectionist atmosphere surrounding the legal profession, with strongly perpetuated domestic worries over job security being the driving factor behind the stringency of recent changes to the regulations. While the degree and means of protectionism vary by country due to individual characteristics inherent to each nation, the uniform concept of state management and involvement in the private legal sector shared between these countries helps to create pervasive protectionist control over the legal profession in all three. With the government and, in certain cases, the local bar associations having so much pull over regulations dealing with foreign lawyers, this effectively creates a lockout for foreign lawyers in certain crucial sectors of the legal services market. While cooperation with the WTO and other multinational standards is likely, at least more openly than before, the protectionist force in each of these countries will be hard to unseat through the simple threat of defaulting on international agreements.