Pluralism anxiety and globalization: development of constitutional law in the new framework.
Globalization permeates every pore of society, and the globalization of the legal profession is no exception. This Article provides the comprehensive analysis of the relationship between globalization of the legal profession and the development of constitutional rights in China and South Korea. The issue's significance is best illustrated by the theory of benefits from legal pluralism and analysis of legal globalization's positive influence on the promotion of constitutional rights, as well as on the idea of the evolution of global constitutionalism. This Article details the current hurdles in the development of constitutional rights in China. The solution needs to harmonize with China's unique political circumstance. While preparing this Article, I found the dysfunctional side of the role of Chinese human rights lawyers. Therefore, it is important to provide role models and success stories of human rights lawyers who have resisted inappropriate power, developed constitutional rights, and acquired peoples' respect. Chinese legal educators need to make an effort to find educational role models worldwide (global role models). In addition, this Article examines whether an opening in the area of domestic legal practice to Chinese lawyers in foreign-based global law firms in China could promote a flow of more diverse perspectives regarding fundamental rights to the courts. As of September 2013, Korea has partially opened its legal market, and it is scheduled to open its legal market completely in 2017. Unlike Korea, according to the law regulating foreign law firms in China, Chinese lawyers employed at foreign law firms in China may not become involved in Chinese legal affairs. My suggestion is to amend Articles 15 and 17 of the regulation and allow these PRC licensed lawyers of global law firms to practice Chinese domestic law. China could benefit from the promotion of creative interpretation of the Chinese Constitution by diversified legal professionals in global law firms in China.
"There is no war between the Constitution and common sense." (1)
--Justice Tom Clark
Globalization (2) permeates every pore of society, and the globalization of the legal profession (3) is no exception. The United States and the United Kingdom have been key countries in the globalization of the legal profession. The purpose of this Article is to examine the relationship between globalization of the legal profession and the development of constitutional rights. (4) Although there is no clear definition of the term "global constitutional law," (5) I categorize global constitutional law as the constitutional principles which should apply to the human being irrespective of cultural and legal differences between countries. This Article investigates how the globalization of the legal profession could be a useful tool for maximizing the recently well recognized notion of global constitutionalism in China and South Korea. The process of globalizing the legal profession includes denationalizing the legal markets. China--a country with a large number of global lawyers that also operates under a distinctive political system--provides a somewhat unique opportunity for examining the impact of global lawyers in terms of the public and private interests of the country where they practice. Demand for foreign legal services by multinationals in China has increased since China instituted their Open Door Policy in 1978. (6) The first American law firm to gain footing in China was Coudert Brothers in 1979. (7) As of December 31, 2011, 30 years after the establishment of the Chinese representative office of Coudert Brothers, the Ministry of Justice of China allowed 208 registered foreign law offices from several foreign countries, including the United States, the United Kingdom, France, and Germany. (8) In March 2009, the Korean National Assembly finally passed a bill authorizing a partial opening of the domestic legal services market. (9) The purpose of the Korean Foreign Legal Consultants Act is to establish prerequisites to qualify, register, and work as a Foreign Legal Consultant in South Korea. (10) After the implementation of the Korea-US and Korea-EU Free Trade Agreements (FTA), Korea opened its legal market to FTA member countries with Korea. (11) Several U.K. and U.S. based global law firms submitted applications for the approval and establishment of representative offices in Korea. As of November, 2013, the Ministry of Justice of Korea approved the applications of Korean representative offices from global law firms, including Clifford Chance, Ropes & Gray, Shepperd Mullin, Cleary Gottlieb, Simpson Thacher & Bartlett, Paul Hastings, McDermott Will & Emery, and Squire Sanders. (12)
A high speed of economic development, planned and controlled by the government, has often been used as a defense or excuse to ignore the fundamental rights of people. China (13) and South Korea have been no exception to the trend of recent economic development at the expense of concern for fundamental rights. (14) The production of a greater quantity of goods, and the economic success that results, can contribute to a higher quality of life. However, it is also important to increase quality of life by advancing the protection of fundamental rights. Now, China and South Korea need to concern themselves more seriously with maintaining a proper level of fundamental rights recognized by developed countries. (15) Although South Korea might have worked to address this concern earlier than China, the room for advancing fundamental rights in Korea is still huge. China, with its unique political system, might encounter more hurdles on the way to becoming a rule of law country that sufficiently protects fundamental rights. (16)
In this Article, the role of two main types of actors, "inside actors" (domestic legal professionals) and "outside actors" (foreign legal professionals) is discussed. This Article also examines the relationship between the broad scope of the legal market opening and further development of constitutional rights. Prior to the discussion of this relationship, Part I details current hurdles in the development of constitutional rights in China and South Korea, comparing their levels of protection with global standards of protection. (17) Part II discusses plausible development of constitutional rights through the globalization of the legal profession, including opening the legal market more broadly and the globalization of legal education - sharing role models in the global setting. This discussion is based on the theory of benefits from legal pluralism and analysis of legal globalization's positive influence on the promotion of constitutional rights, as well as on the idea of the evolution and convergence of global constitutionalism. (18)
II. COMPARATIVE STUDY OF THE LAWYER'S ROLE IN THE DEVELOPMENT OF CONSTITUTIONAL RIGHTS IN CHINA AND SOUTH KOREA: IMPROVING CONSTITUTIONAL RIGHTS IN THE DOMESTIC SETTING
A. Framework of Conflict in Constitutional Law in China
1. Conflicting Provisions in the Chinese Constitution and China's Separation of Powers
To understand the legal system of a country well, it is crucial to know the recent history of the country and the political environment. It is even more crucial to know the recent history of the country in order to study the areas of constitutional law and the human rights status of a country. Existence of a well established statute by itself is not enough to guarantee the protection of these fundamental rights. (19)
Western criticism of the Chinese legal system often focuses on criminal procedure. (20) In the practice of law, violations of Chinese criminals' constitutional rights, such as due process and presumption of innocence, have been noted. (21) Article 5 of the Chinese Constitution prescribes: "All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the constitution and the law. All acts in violation of the constitution or the law must be investigated." (22) The third amendment of the Chinese Constitution (1999) adopted for the first time the concept of the rule of law. (23) As Article 5 of the Chinese Constitution states, China is willing to recognize and respect the principle of the rule of law in the law itself. One commentator states: "China's Criminal Procedure Law per se transplants most of the rules in Common Law system including the evidence standards and burden rules." (24) However, as of 2013, in real practice, several criminal incidents show the insufficient function of the rule of law in China.
Based on constitutional analysis, one reason for the failure of rule of law in China might be found in the dysfunctional status of the separation of powers. Absolute power is centered in the Communist party. The Communist party's absolute power reaches over the administration, judiciary, and legislature in China. In fact, there is no system of checks and balances against the Communist party. (25)
Another important limitation to the rule of law in China can be found in the relationship between Article 5 and the Preamble (26) of the Chinese Constitution. (27) One commentator notes:
The Constitution itself illustrates the conflict between the authority of law and the authority of the Party in two contradictory provisions. On one hand, the Constitution provides that all organizations, including political parties, are subject to the law. On the other hand, the Constitution recites the "four cardinal principles" as the pursuit of socialism, adherence to Maoist-Leninist political theory, the method of proletarian dictatorship, and, not least, the leadership of the Communist Party. (28)
In other words, the Chinese Constitution states that the Communist party is subject to the rule of law without exception. However, the Chinese Constitution simultaneously purports to "elevate the Party to a privileged constitutional position." (29) This constitutional conflict brings about legal disorder in spite of a large volume of new laws and judicial renovations that have included an increasing number of legal professionals. (30)
Montesquieu stressed the importance of the separation of powers in his famous book, The Spirit of the Laws. (31) The principle of separation of powers is a foundation for the function of democracy. As Montesquieu noted, a power holder is "apt to abuse [power], and to carry his authority as far as it will go." (32) At this point, Montesquieu explains the need for separation of powers. Today, a common framework for the separation of powers in a governmental system is to have three separate branches which serve judicial, executive, and legislative functions. When these three branches are distinct and separate, and serve as checks and balances for each other, the principle of separation of powers works. However, countries such as China, whose one institution has ultimate and exclusive power, are more often illustrative of Montesquieu's concerns from more than 250 years ago.
2. What Are the Effects of the Conflicting Framework of the Constitution?--Incident of Li Zhuang
This section details the plausible problem of constitutional contradiction in related cases. In real practice, the Communist Party's policy prevails regarding politically sensitive cases, such as the incident of attorney Li Zhuang. Bo Xilai, the former governor of Chongqing and the Communist Party secretary, launched a campaign cracking down on gangsters in June 2009. (33) The campaign was called "hitting the black." (34) The campaign resulted in the arrests of prominent figures, including officers in the Municipal Bureau of Justice of Chongqing and the Chongqing Higher People's Court. (35) For the purpose of formal criminal process, opportunities for trials were given to the criminals in these sensitive political campaign cases. However, one commentator explains that the criminal process was only a formality and did not constitute actual due process: "[t]he arrest and trials in this campaign don't go through the regular legal process, but instead through political channels." (36) As such, Chinese lawyers think this campaign is a political event. (37)
Criminal defense attorney Li Zhuang represented some gangsters during Chongqing's gangster crackdown campaign. (38) Li's client, Gong Ganmo, was charged based on "several alleged crimes, including murder, leading a criminal organization, drug dealing and gun-running." (39) Chinese lawyers have complained about the application of Chinese Criminal law Article 306, which proscribes fabricating evidence. (40) According to Chinese lawyers' claims, this Criminal code Article 306 has been a tool to abuse and persecute lawyers. (41) Chinese law enforcement authorities accused over 100 lawyers of violating Article 306 (fabrication of evidence) and the authorities detained approximately 500 lawyers without proper legal reasons from 1997 to 2002. (42) As such, attorney Li was charged with fabrication of evidence, based on the prosecution's assertion that Li falsely advised his client Gong to claim that his confession was extracted by torture. (43)
However, during Li's trial, even Li's opportunity for cross-examination of the key witness as well as his client, Gong, was denied. (44) As a result, Li was convicted for violation of Article 306 of the Criminal law and sentenced to two and a half years in prison. (45) During the appeals process, but before the rendering of the final judgment, the Beijing Lawyers Association canceled Mr. Li's license to practice law. (46) One commentator notes: "All in all, any cases related to these Party Policies are regarded as politically] sensitive cases, which mean they will be handled not in accordance with law, rather according to the policies, and furthermore, the outcomes of these cases must be in consistence with the goal of the policies." (47) As discussed above, the Chinese Constitution does not provide any solution for the conflict between the application of rule of law and the policies of the Communist party. (48) In practice, Chinese Courts have shown a tendency to side with the Communist Party rather than the principle of rule of law in politically-sensitive cases. This suggests the need for discussion of judicial independence, which protects courts from the influence of the Communist Party.
In accordance with the growth of the Chinese people's understanding of their rights, they have sought to use the legal system to protect these rights. (49) However, the government often discourages lawyers from taking cases if they are against the Communist Party's policies. (50) This trend is one of the major hurdles that China faces in becoming a country that follows the rule of law.
3. What Are the Effects of the Conflicting Framework of the Constitution?--Incident of Qin
Mr. Qin, an innocent steel mill worker, was suspected as a criminal in a rape and murder case. (51) Later, the confession of the real criminal revealed Mr.Qin's innocence. (52) Joseph Kahn's discussion of Mr. Qin's case depicts one dysfunctional side of the Chinese criminal procedure system in his article, which was part of a Pulitzer Prize award-winning series. (53) Globally-recognized and invaluable doctrines of Criminal law, such as presumed innocence and the prosecutor's (or police's) obligation to prove beyond reasonable doubt were ignored in Mr. Qin's case. (54) Mr. Qin stated in his letter to his family: "Our public security system is the product of a dictatorship.... Police use dictatorial measures on anyone who resists them. Ordinary people have no way to defend themselves." (55) The unbalanced goal of punishing crime and promoting social stability will result in an other innocent victim. The doctrine of the fruit of the poisonous tree, a well known doctrine in many countries, stresses the importance of collecting evidence legally in a criminal case; "[t]he rule that evidence derived from an illegal search, arrest, or interrogation is inadmissible because the evidence (the "fruit") was tainted by the illegality (the "poisonous tree")." (56)
B. Current Status of Human Rights Lawyers in China
One of the hindrances to the implementation of the rule of law in China is the lack of a sufficiently independent legal profession. (57) An independent legal profession (58) requires that legal professionals be free to carry out their legal work without fear of interference or reprisal. (59) However, one commentator notes the low level of recognition of an independent legal profession by Chinese legal professionals and the Chinese Government. (60)
A human rights (61) lawyer works to support, protect, or promote human rights. In the history of the development of people's constitutional rights, the human rights lawyer has generally played the important role of fighting for the people against a power holder or abuser. A human rights lawyer can be considered progressive; the human rights lawyer is not satisfied with the current standard of legal protection provided by the government. In countries providing low levels of human rights protection, the human rights lawyer demands a globally-recognized standard of protection for constitutional rights. In many countries, a human rights lawyer even struggles to find hidden or unrecognized fundamental rights beyond the well-established norm of basic constitutional rights. (62)
It is important to generation expectations for the further development of human rights in China by checking the current status of human rights lawyers. Unless the appropriate function of human rights lawyers is guaranteed as previously noted, one might not expect further development in this area. In China, to prohibit the prompt expansion of concerns and thoughts regarding democratic and human rights, the Communist Party has sought to disable the function of lawyering. Most countries recognize lawyers' prominent role in social justice, but as I discussed earlier, in China, lawyers' role in demanding social justice has often been attacked by the Chinese government.
In addition, while I was interviewing a Chinese law student, I could identify the dysfunctional status of Chinese human rights lawyers. The student stated that:
[T]he life as human rights lawyer in China is not so good. The income of the human rights lawyer is usually very low. The lawyers and even their families are sometimes subject to harsh situations based on his position against the authority of the government in the case. I do not want to be a human rights lawyer, and other law graduates are thinking the same thing. (63)
These attitudes represent negative recognition and lesser status for human rights lawyers in the legal profession. Finding a solution to this problem is key to the long term development of fundamental rights in China. (64)
The Communist Party, the winner of the political ideology war, replaced the Republic of China, making China a communist country. Id. "In 1954 a new system of lawyers modeled after the Soviet system was developed on an experimental basis in several cities including Beijing, Tianjin, Chongqing, and Shenyang ... The new system was formally established in 1955, the same year in which the Beijing Bureau of Justice was established." Id.
2. Less-Protected Human Right Lawyers--Incident of Gao Zhisheng
To show what might happen to human rights lawyers in China, we can examine the incident of Gao Zhisheng, one of 2001's top ten best lawyers recognized by the Ministry of Justice in China. (65) He worked against the Chinese government's persecution policy on Falun Gong, and as a result he was kidnapped by the government.
Chinese government policy does not allow practice of Falun Gong, and the government became infuriated with Gao Zhisheng for representing the group. The Chinese government policy relating to Falun Gong comes from the following understanding and belief: "The preaching and deeds of the Falun Gong cult, which is harmful to the people, the society and the nation, have proved it is an evil force with an anti-society, anti-mankind and anti-civilization nature." (66) As I mentioned above, as in other cases, (67) the lawyer's advocacy against the Communist Party's policy is often persecuted.
3. Less-Protected Human Rights Activist--Incident of Chen Guangcheng
"Law is in a constant state of change. Thus, to "know" the law is to know only what was, not what is." (68)
The status and scope of the protection of fundamental rights is constantly changing. Therefore, measuring the standard of protection of fundamental rights from recent cases is useful. The Chen Guangcheng case is recent example showing the status of a human rights activist in China. (69) Chen Guangcheng is a legal activist who has become famous for his opposition to forced abortions in a rural area of China where the one-child policy still prevails. (70) Here, I found the due process problem. Chen Guangcheng was imprisoned in a jail for a period of 51 months because of improper charges after his exposure in massive campaign against forced abortion. (71) Even after serving the original sentence, he was subject to house arrest. (72) Chen finally ran out from his house arrest to the United States Embassy in Beijing, China. (73)
Another due process issue could be raised for Chen Guangcheng's family after Chen's escape from his house arrest. Chen asserted that illegal detention was given to Chen Kegui, Mr. Chen's nephew. (74) According to Mr. Chen's statement, on April 26, 2012, over thirty men affiliated with the local officials entered into the home of Chen Guangfu, Chen Guangcheng's brother, without proper legal process such as warrant possession with specified probable cause. (75) They attacked Guangfu, Guangfu's wife, Ren Zongju, and Guangfu's son, Kegui. (76) After a severe attack by these men, Kegui defended himself with a knife and stabbed three of them. (77) Kegui was charged with attempted murder despite his assertion of self-defense. (78) Kegui requested to retain his own lawyer. (79) His request for the right to counsel, retaining his own lawyer of choice, was denied. (80) Instead, a government-employed lawyer was assigned for Kegui's defense. (81) Right to the assistance of counsel is crucial for the purpose of balancing power between the police and prosecutor and a defendant who is usually a non-expert in the judicial proceeding. (82) The purpose of a government-provided lawyer would be for indigents who cannot afford their own lawyer, not for people who can retain their own lawyer.
Like the case of Gao Zhisheng, this case shows that legal activity that goes against government policy is more likely to be subject to government sanction. Furthermore, the anti-government policy activity could negatively impact an uninvolved family member. According to Chen Guancheng's observation, the current status of the law could be explained as follows: China does have laws, however, the problem is not lack of law, but the rule of law. (83) The current judicial system was ostensibly founded on the assumption that prosecutors would operate independently from police investigations, as well as on the assumption that courts would reach judicial decisions independent from the influence of prosecutors or police. (84) Mr. Chen argues the political-legal committee of the Communist Party's influence on any significant cases will result in the instability in the judicial process. (85) Mr. Chen states "China's political stability may depend on its ability to develop the rule of law in a system where it barely exists." (86)
C. Korean Lawyers' Role in the Development of Constitutional Rights
1. Past and Present of Human Rights Lawyers in South Korea
This subchapter explains the history of Korean human rights lawyers and what kinds of constitutional rights they have focused on and achieved in each time period. (87) Some scholars take a skeptical view regarding Korean lawyers' pivotal role in the history of the development of human rights. (88) One commentator notes:
The economic development in Korea has been praised as a model for many other developing countries. The political democratization in the nation also displaced the military and authoritarian regimes and improved human rights conditions. It is difficult to say, however, whether the Korean legal profession in general has played the pivotal or appropriate role that society expected from it during Korea's transition to democracy and market economy. (89)
In fact, citizens, especially groups of college students and laborers, have been the main activists in Korea's democratic movement. As a foundation for the further development of Constitutional rights, the bottom line for Koreans was maintaining a proper level of protection for freedom of speech, right to assembly, and workers' rights. These basic rights were the main topics for discussion regarding fundamental rights in Korea. (90) Lawyers, especially, human rights lawyers, joined to support these democratic and labor movements: "Lawyers' constitutional principles and professional privileges were their weapons in the fight for pro-democratic and/or labour causes." (91) Minbyun (Lawyers for a Democratic Society), the first legal support group in Korea with the goal of fostering democracy, was established on May 28, 1988. (92) Minbyun started with 51 members. (93) As of March 2012 more than 740 lawyers work for Minbyun. (94)
Some of the early generation of human rights lawyers in Korea struggled to protect and foster human rights under a dictatorship. Over the course of Korea's political change and the establishment of democratic order, more of these human rights lawyers have become political leaders, including congressmen / women, and even the President. Ex-President Noh Mu-hyun, for example, had a lot of experience as a human rights lawyer prior to becoming President in Korea.
As I discussed above, people in Korea recognize the important role of human rights lawyers in the process of developing democracy in Korea. However, a lot of Koreans have a negative image regarding the legal profession. (95) One commentator notes people's acknowledgment about lawyers as following: "In the eyes of the Korean people, lawyers are champions of human rights and the incarnation of self-sacrifice, but, at the same time, are seen as class of lawfully licensed thieves." (96)
III. IMPROVING CONSTITUTIONAL RIGHTS IN THE GLOBAL SETTING
As I discussed in Part I, one of the hindrances to the implementation of the rule of law in China is the lack of a sufficiently independent legal profession. (97) An independent legal profession (98) requires that legal professionals be free to carry out their legal work without fear of interference or reprisal. (99) This article does not focus on a political resolution or a methodology for the judicial independence which might be crucial for the proper function of constitutional interpretation. Instead, this article uses the tools of the globalization of the legal profession and global constitutionalism for further development of constitutional rights. For this purpose, this chapter examines global legal professionals' influence on the development of Constitutional rights in the context of a legal market opening. This chapter also examines the relationship between the scope of the legal market opening and its influence on the development of Constitutional rights. Each country experiences the opening of its legal market on a different scale. Some countries almost completely open their legal markets. On the other hand, other countries partially open their legal markets. Korea (100) and China (101) are useful research model countries because Korea will open its legal market almost completely in the near future. China has partially opened its legal market. However, it is interesting to explore the effects that might occur if China were to open its legal market more widely.
This chapter discusses the notion of globalization of constitutional law or global constitutionalism. It examines how the globalization of the legal profession, including the opening of legal markets and the globalization of domestic legal professionals, could influence the development of constitutional rights in some countries, and especially in South Korea and China.
B. Global Constitutional Law
1. Conception of Global Constitutional Law
Although there is no clear definition of the term "global constitutional law," I categorize global constitutional law as the constitutional principles, which should apply to the human being irrespective of cultural and legal differences between countries. In other words, it is the minimum standard of protection that each person should enjoy. The right to free speech, equal protection, and religious freedom might be good example principles of global constitutional law.
The U.S. is probably one of the countries that has the best environment to research constitutional law in global perspective. Many American law journals that specialize in international, comparative, and constitutional law have published regarding these global Constitutional issues. (102) Foreign lawyers and foreign scholars, as well as foreign students, have studied in U.S. law schools. Some of them are working closely and sharing constitutional ideas with American constitutional law scholars. Some American constitutional law scholars provide legal advice and participate directly or indirectly in drafting foreign constitutional law. (103) Irrespective of whether a country officially allows legal professionals to practice some areas of laws, some legal professionals have worked towards a global constitutional development. Indiana University's Center for Constitutional Democracy is a good example of how globalization of the American legal profession positively influences the development of foreign Constitutions; the center recently worked on constitutions in Liberia, Burma, and Vietnam. (104)
Efforts toward learning from foreign laws or authorities also can be found in the U.S. Supreme Court. (105) Over the dissent of Justice Antonin Scalia, the majority opinions of the U.S. Supreme Court in Lawrence v. Texas (106) and Roper v. Simmons (107) discussed foreign courts' decisions and international law to support their decisions. Justice Stephen Breyer stated that, as we are human being, when we meet with similar problems in the world, "people have come to similar conclusions ... because I thought our people in this country are not that much different than people other places." (108) This effort of applying global perspective to laws could be more easily achieved through the process of globalization of the legal profession, including allowing legal practice of foreign legal professionals and foreign law firms and globalizing domestic legal professionals.
In Lawrence v. Texas, (109) the U.S. Supreme Court held that Texas's anti-sodomy act was unconstitutional based on the analysis of the violation of the Due Process Clause of the Fourteenth Amendment. While preparing this decision, the Court discussed foreign authorities' legal analysis, including Dudgeon v. United Kingdom (110) of the European Court of Human Rights. This is one example of how constitutional ideas could be shared in terms of the global perspective. Unlike other areas of laws, constitutional law has a creative character.
In Roper v. Simmons, (111) a recent Eighth Amendment case, the U.S. Supreme Court revisited the meaning of "cruel and unusual punishment" as it applies to the execution of juvenile offenders. (112) In writing for the majority, Justice Anthony Kennedy reviewed and cited several international legal resources, including the International Covenant on Civil and Political Rights and the U.N. Convention on the Rights of the Child to support the Court's opinion. (113) Despite reservations about Article 6(5)--"prohibiting capital punishment for anyone under 18 at the time of offence"--of the ICCPR during ratification of the treaty, the U.S. Supreme Court acknowledged the major global consensus against the death penalty for juvenile criminals. (114)
Justice Antonin Scalia, who has strongly objected to the use of foreign laws when interpreting constitutional questions, agrees to the use of foreign laws in the interpretation of treaties. (115) Unlike other areas of domestic law, there might be few, if any, cases regarding the interpretation of treaties in the domestic level courts of one country. When internal, treaty-related questions arise, the foreign precedents regarding the same international treaties could be useful for courts.
Many provisions in constitutions are ambiguous, and need more explanation to be interpreted. Usually these explanations regarding constitutional provisions are provided by courts' decisions. For example, one principle in the Constitution is equal protection and its scope remains unclear. The scope of equal protection is continually changing and growing. Today, courts are more favorable to arguments for same-sex couples' rights based on equal protection than they were a decade ago. (116)
The trend of judicial citation of foreign law in constitutional cases, meanwhile, can also be seen outside of the U.S. The Constitutional Court of Korea has employed foreign legal experts who have research experience in foreign countries. Many of these Constitutional law scholars have research experience in the U.S., Germany, France, or other countries which have advanced legal systems. These Constitutional law scholars are definitely in a good position to introduce advanced perspectives on foreign constitutional dialogue into the Korean courts. Decisions of the Korean Constitutional Court have cited foreign cases and foreign court authorities directly or indirectly in support of their analysis and rational. The globalization movement that began in the early 1990s in Korea might influence legal professionals to look to foreign cases for inspiration. One example of citations of foreign judicial authorities can be found in 95 Hun-Ma 224 of the Korean Constitutional Court. (117) The idea of the "one man, one vote rule" from the U.S. Supreme Court's decision in Reynolds v. Sims" (118) was cited in this Korean constitutional case.
Pursuant to the most recent effort of globalizing the Korean Constitutional Court, the Constitutional Court established the Constitutional Research Institute in January 2011. (119) The Constitutional Research Institute has three main research teams: the Institution Research Team, the Basic Rights Research Team, and the Comparative Constitutional Law Research Team. (120) The Comparative Constitutional Law Research Team conducts research and analysis in the following:
* Trends in constitutional interpretation and constitutional case management in foreign countries;
* Foreign legislations, international statutes, and laws regarding constitutional adjudication; and
* International trends in emerging constitutional law issues. (121)
The practice of judicial citation of foreign laws supports the argument that constitutions are becoming more similar in global perspective. (122) David S. Law argues that global constitutional ideas will continuously evolve and expand based on four reasonings;
One is constitutional learning: in the course of attempting to learn from one another, countries are likely to imitate one another. A second reason is constitutional competition: the need to attract and retain capital and skilled labor gives countries an incentive to offer similarly generous constitutional guarantees of personal and economic freedom. Third is constitutional conformity: countries face pressures to conform to global constitutional norms in order to win acceptance and support from domestic and international audience alike. Last is the hypothesis that constitutionalism is characterized by network effects that reward countries for adopting the same type of constitutional regime that others have already adopted. (123)
The following table, "the most popular Constitutional Rights, by Decade," (124) could be a useful checklist for whether a country provides proper protections of constitutional rights. It shows that more countries acknowledge the same kinds of constitutional rights now than was the case several decades ago. (125) For example, in 1946, only 50% of countries recognized the freedom of movement. (126) However, in 2006, 88% of countries recognized the freedom of movement. (127) Regarding women's rights, in 1946, only 35% countries recognized the rights listed below. (128) However, in 2006, 91% of countries recognized such rights. (129)
2. Domestic Legal Practice by Domestic Lawyers in Global Law firms and Development of Constitutional Rights
It is important to discuss who might be ideal actors that share a global perspective of constitutional ideas. I stress the role of global law firms. Although global law firms generally focus more on business interests (like service industries do) rather than on constitutional legal matters, almost every case has constitutional implications and needs to be interpreted according to the relevant country's constitution. When a case requires diversified constitutional arguments and interpretations, global law firms provide a good environment to mix a variety of Constitutional theories through their network and human resources, in order to persuade the court. A local office of a global law firm is composed of lawyers who have diverse backgrounds and experiences, including education, nationality, and race.
Meanwhile, concerns regarding the judicial independence of sovereign states would be raised. Global law firms, however, may introduce diversified theories through proper legal procedures rather than by imposing foreign legal theories on the courts of a country which they are located. In each country, local courts have discretion as to whether to recognize and cite such theories as may be admitted in each case.
Another interesting issue is the relationship between globalization and fairness. We can see a number of countries where dictators and a few powerful people reign, and where the status of democracy is low. Even in countries that are less concerned with fairness to their people in legal procedures, these countries may need to be more careful of the meaning of fairness understood by foreign actors such as foreign law firms and legal service providers, because of international relations. As such, legal documents submitted by global law firms make local courts at least more likely to think about the meaning of fairness during their decision.
C. Expectation: Foreign Law Firms' Practice of Domestic Legal Affairs and Development of Constitutional Rights in Korea
After the implementation of the Korea-US and Korea-EU Free Trade Agreements (FTA), Korea opened its legal market to FTA member countries with Korea. (130) Several U.K. and U.S. based global law firms submitted applications for the approval and establishment of representative offices in Korea. As of July 2012, the Ministry of Justice of Korea approved the applications of Korean representative offices from global law firms, including Clifford Chance, Ropes & Gray, Shepperd Mullin, Cleary Gottlieb, Simpson Thacher & Bartlett, Paul Hastings, McDermott Will & Emery, and Squire Sanders. (131) Although, as of July 2012, Korea has partially opened its legal market, Korea is scheduled to open its legal market completely in 2017, which means that foreign law firms may hire Korean lawyers and provide legal services regarding Korean domestic law. (132) Teamwork among Korean and Foreign lawyers will bring opportunities to introduce advanced theories from the U.S. and E.U. countries more effectively in Korea. I anticipate that constitutional rights will be influenced. A constitution is opened law. This opened room in a constitution can be fulfilled with creative interpretation. More diversified perspectives from the different backgrounds of lawyers could aid the creative interpretation of constitutional provisions in Korea. (133)
D. SUGGESTION: OPENING THE LEGAL MARKET MORE BROADLY AND CONSTITUTIONAL RIGHTS IN CHINA
To fix the problem of a country where the system of checks and balances is dysfunctional on the domestic level, one plausible solution is to borrow ideas from a global perspective, although it may not absolutely solve the problem. In this subchapter, my research concentrates on examining whether an opening in the area of domestic legal practice to Chinese lawyers in global law firms could promote a flow of more diverse perspectives regarding fundamental rights to the courts. This does not mean to request the allowance of domestic law practice by non-PRC licensed lawyers of foreign law firms in China. Under the current restriction, Regulations on Administration of Foreign Law Firms' Representative Offices in China, the representative office of a foreign law firm shall not employ Chinese lawyers. (134) Therefore, the Chinese lawyers employed by foreign law firms need to return their Chinese lawyer license to the Bureau of Justice and deactivate their registration. (135) "Because of the government restriction on foreign law firms' employment of licensed Chinese lawyers, if a lawyer with the PRC license but no foreign license joins a foreign law firm, his or her title will be 'PRC legal consultant' or 'China advisor' instead of 'associate.'" (136)
According to the law of the foreign law firms' regulation, "[a] representative office and its representatives may only conduct the following activities that does [sic] not encompass Chinese legal affairs ... provide clients with the consultancy on the legislation of the country where the lawyers of the law firm are permitted to engage in lawyer's professional work, and on international conventions and international practices." (137) Therefore, as of September 2013, Chinese lawyers (138) employed at foreign-based global law firms in China may not involve themselves in Chinese legal affairs. (139)
My suggestion is to amend the Articles 15 and 17 (140) and allow these PRC licensed lawyers of global law firms to practice Chinese domestic law. The current Chinese Constitution itself has many important fundamental rights-related clauses. The problem here is inappropriate interpretation of these clauses and ignorance of the implementation of the clauses. China could benefit from the promotion of creative interpretation of the Chinese Constitution by diversified legal professionals in global law firms in China.
E. SUGGESTION: GLOBALIZATION OF LEGAL EDUCATION--SHARING ROLE MODELS IN THE GLOBAL SETTING
1. Problem: Lack of Successful Role Models of Human Rights Lawyers
I previously stated that human rights lawyers in China have struggled and continue to struggle to protect and foster human rights. I also discussed the resistance of Chinese human rights lawyers against the Chinese government, as well as their frustration. Through interviews with recent Chinese law graduates and the reading of human right lawyers' stories in China, I discovered their fear of being persecuted if they participate in the human rights movement. Law students' image of human rights lawyers might be associated with persecution because they have seen many examples of persecution of human rights lawyers. Despite the important role of human rights lawyers in China, law students / graduates may hesitate to become human rights lawyers. Therefore, it is important to provide role models and success stories of human rights lawyers who have resisted against inappropriate power, have developed people's constitutional rights, and have acquired peoples' respect with their devotion. Here, I stress and suggest possible educational methods to provide role models for Chinese law students and legal professionals in terms of global legal education.
2. Solution: Introducing More Professional Roles for Lawyers
First of all, the solution should harmonize with the unique, current Chinese political circumstance, including one party governance. Radical approaches without consideration of the political situation will not be useful. (141) I stress that introducing diversified lawyers' roles with proper role models and helping law students to find their own role models are useful educational methods. Definitely, Chinese law schools can introduce a human rights lawyer with a success story as a role model, either in China or worldwide.
Professor Jaewon Kim stresses the value of providing role models in legal education, especially in the course of teaching legal ethics. (142) These role models can provide students with certain images of lawyers: I would like to become this kind of lawyer or I do not want to become that type of lawyer. (143) In order to explain the diversified lawyers' roles, Chinese legal educators need to make an effort to find diversified role models from Chinese legal professionals. In addition, Chinese legal educators need to make an effort to find educational role models worldwide. Educating with global role models might be useful because Chinese legal education traditionally has focused on nurturing government lawyers, despite recent discourse about reform in Chinese legal education. (144) This educational system can only nurture limited types of legal professionals, such as judges, prosecutors, and government lawyers.
More specifically, Chinese Legal education needs to provide both good and bad images of lawyers. For example, Chinese legal education may use the stories of late presidents Roh Mu-Hyun of South Korea and Abraham Lincoln of the U.S. as examples of good lawyers whose contribution enhanced human rights development. On the other hand, Chinese legal education could use so-called Ambulance Chasers as bad examples of lawyers. Law students could also get lessons from these bad examples. Providing global role models for Chinese law students in legal education is not a radical approach and could harmonize with the unique Chinese political circumstance, including one party governance. This educational method, which provides future Chinese legal professionals with a clear understanding of the proper roles of lawyers, would be the most efficient way for the long-term Chinese goal of rule of law.
This Article detailed the current hurdles in the development of constitutional rights in China and South Korea, comparing their levels of protection with global standards. While I prepared this Article, I found the dysfunctional side of the role of Chinese human rights lawyers. There should be no conflict between the Chinese Constitution and common sense. A global conception of common sense supports the idea that the function of human rights lawyers should be protected under the Constitution. However, human rights lawyers in China are often persecuted for advocating against the Communist Party's policies. I discovered that current lawyers and law students in China are afraid of being persecuted if they participate in human rights movements. The solution should harmonize with the unique, current Chinese political circumstance, including one party governance. Radical approaches without consideration of the political situation will not be useful. Therefore, it is important to provide role models and success stories of human rights lawyers who have resisted inappropriate power, developed constitutional rights, and acquired peoples' respect. It might not be easy to find these successful role models of human rights lawyers among Chinese lawyers. Chinese legal educators need to make an effort to find educational role models worldwide (global role models).
In addition, this Article examined whether an opening in the area of domestic legal practice to Chinese lawyers in global law firms could promote a flow of more diverse perspectives regarding fundamental rights to the courts. As of September 2013, Korea has partially opened its legal market, and it is scheduled to open its legal market completely in 2017, which means foreign law firms may hire Korean lawyers and provide legal services regarding Korean domestic law. I anticipate that Constitutional rights in Korea will be influenced. Because constitutions have room for new interpretation, lawyers with foreign backgrounds can bring diverse perspectives and creative arguments for interpreting provisions of the Korean Constitution.
Unlike Korea, according to the law regulating foreign law firms, Chinese lawyers employed at global law firms in China may not become involved in Chinese legal affairs. My suggestion is to amend Articles 15 and 17 of the regulation and allow these PRC licensed lawyers of foreign- based global law firms to practice Chinese domestic law. The current Chinese Constitution itself has many important, fundamental rights-related clauses. The problem is the Chinese Communist Party's inappropriate interpretation and implementation of these clauses. China could benefit from the promotion of creative interpretation of the Chinese Constitution by diversified legal professionals in global law firms in China.
Kyungho Choi, Research Affiliate, Indiana University Center for Constitutional Democracy. LL.B. (JD equivalent), 2005, Dong-A University College of Law (South Korea); LL.M. 2006, M.C.L. 2009, S.J.D. Jan. 2014, Indiana University Maurer School of Law--Bloomington. This article forms parts of my unpublished dissertation for the SJD (Doctor of Juridical Science) degree with the Indiana University Maurer School of Law. The author would like to thank Professor William Henderson and Professor Carole Silver for their thoughtful comments on drafts of this Article. The author would also like to thank Professor Jeom-In Lee, Professor Jaewon Kim, Professor Se-Kyu Kim, Professor Kwi Hyeon Han, Professor Susan & David Williams, Professor Daniel Conkle, Professor Kenneth Dau-Schmidt, Professor Lisa Farnsworth, Ms. Lesley Davis, Mr. Peter Giordano, colleagues, and my family for their encouragement. Special thanks to the editors at the Suffolk Transnational Law Review for their exceptional work.
(1.) Mapp v. Ohio, 367 U.S. 643, 657 (1961).
(2.) "Globalization ... may be defined as the process of denationalization of markets, laws, and politics in the sense of interlacing peoples and individuals for the sake of the common good." Jost Delbruck, Globalization of Law, Politics, and Markets--Implications for Domestic Law--A European Perspective, 1 Ind. J. Global Legal Stud. 9, 11 (1993-1994) (emphasis added).
(3.) Regarding a conception of the globalization of the legal profession, see generally Kyungho Choi, Korean Foreign Legal Consultants Act: Legal Profession of American Lawyers in South Korea, 11 Asian-Pac. L. & Pol'y J. 100 (2010); William D. Henderson, The Globalization of the Legal Profession, 14 Ind. J. Global Legal Stud. 1 (2007); Carole Silver, Getting Real About Globalization and Legal Education: Potential and Perspectives for the U.S., 24 Stan. L. & Pol'y Rev. 457 (2013); Carole Silver, The Case of the Foreign Lawyer: Internationalizing the U.S. Legal Profession, 25 Fordham Int'l L.J. 1039 (2002); Carole Silver, Winners and Losers in the Globalization of Legal Services: Situating the Market for Foreign Lawyers, 45 Va. J. Int'l L. 897 (2005); Laurel S. Terry, The Legal World Is Flat: Globalization and Its Effect on Lawyers Practicing in Non-Global Law Firms, 28 Nw. J. Int'l L. & Bus. 527 (2008).
(4.) Lawyers at the global level have worked hard helping to stimulate economic growth, including promoting foreign investment. However, they have not been overly concerned with fundamental rights.
(5.) Regarding a conception of global constitutional law, see generally Cindy G. Buys, Burying Our Constitution in the Sand? Evaluating the Ostrich Response to the Use of International and Foreign Law in U.S. Constitutional Interpretation, 21 BYU J. Pub. L. 1 (2007); Rosalind Dixon & Eric A. Posne, The Limits of Constitutional Convergence, 11 Chi. J. Int'l L. 399 (2011); Rex D. Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Va. J. Int'l L. 357 (2004); David S. Law, Globalization and the Future of Constitutional Rights, 102 Nw. U. L. Rev. 1277 (2008); David S. Law & Mila Versteeg, The Evolution and Ideology of Global Constitutionalism, 99 Calif. L. Rev. 1163 (2011); Mark Tushnet, The Inevitable Globalization of Constitutional Law, 49 Va. J. Int'l L. 985 (2009).
(6.) Hongming Xiao, The Internationalization of China's Legal Services Market, 1 Perspectives No. 6 (2000), available at http://www.oycf.org/Perspectives2/6_063000/ internationalization_of_china.htm.
(7.) Id.; see also The Complicated End of an Ex-Law Firm, N.Y. Times, Feb. 9, 2007, available at http://www.nytimes.com/2007/02/09/business/091egal.html?_r=0.
(8.) Foreign Law Firms in China--2012 Listing, China Briefing, Feb. 7, 2012, available at http://www.china-briefing.com/news/2012/02/07/foreign-law-firms-inchina-2012-listings.html; From 1993 to 2004, U.S. based global law firms (the Am Law 200) opened offices in London (29 offices), Shanghai (15 offices), Beijing (14 offices), Frankfurt (11 offices), Hong Kong (10 offices), Paris and Singapore (9 offices each), Brussels (8 offices), and Tokyo (4 offices). Henderson, supra note 3, at 2.
(9.) See Si-soo Park, Foreign Law Firms Can Open Consultant Offices Here, The Korea Times, Mar. 3, 2009, available at http://www.koreatimes.co.kr/www/news/nation/2009/03/117_40616.html. Even prior to the passage of the Korean Foreign Legal Consultants Act, a number of foreign lawyers, mostly American lawyers, have worked in South Korea. Most foreign lawyers in South Korea work for major Korean law firms whose primary goal is to fulfill business interests by providing their legal services to clients. However, a small number of foreign lawyers work for public interest organizations. See American attorney at JungBoo Bup Moo GongDan [Korea Government Legal Service], available at http://www.kgls.or.kr/staff/lawyer_usa. html (last visited Oct. 30, 2013).
(10.) Foreign Legal Consultants Act, Act No. 9524, Mar. 25, 2009, art. 1 (S. Kor.), translated in Korean Bar Assoc., Foreign Legal Consultant Regulations 142, available at http://www.koreanbar.or.kr/eng/sub/download_flc.pdf; Choi, supra note 3, at 101.
(11.) See Off. of U.S. Trade Representative, U.S.-Korea Free Trade Agreement, New Opportunities for U.S. Exporters Under the U.S.-Korea Trade Agreement, http://www.ustr.gov/trade-agreements/free-trade-agreements/ korus-fta (last visited Sept. 12, 2013) [hereinafter New Opportunities for U.S. Exporters]; European Comm'n, Trade, EU-South Korea Free Trade Agreement (FTA), http://ec.europa.eu/trade/policy/countries-and-regions/countries/southkorea (last visited Sept. 12, 2013) [hereinafter EU-South Korea FTA].
(12.) Hyejin Jang, Woikukbub Jamoonsa Jakuk Seungin 8 Goteuiro Nuleui [Increasing Up to 8 Foreign Legal Consulting Approvals], Bubryul Sinmun [Law Times], July 9, 2012, http://www.lawtimes.co.kr/LawNews/News/NewsContents.aspx? serial=65505&kind=.
(13.) Many outside observers comment that China's recent legal development--especially in the area of the fundamental rights--is far behind its economic development. See Judicial Independence in China: Lessons for Global Rule of Law Promotion 4 (Randall Peerenboom ed. 2009). According to Peerenboom, "[China] has adopted a two-track approach to legal development that emphasizes commercial law while imposing limits on the exercise of civil and political rights." See id.
(14.) In the past 30 years, a government-controlled economic development plan made China the world's second-biggest economy. China GDP Growth Rate, TradingEconomics.com, http://www.tradingeconomics.com/china/gdp-growth (last visited Nov. 24, 2013).
(15.) Based on China's influence on the global economy, one supporting argument for the Chinese obligation to the rule of law is that "[B]ecause of China's growing economic and financial influence around the world and the need for more international cooperation with China on a range of fronts, becoming a rule of law state is all the more important to the global community." See Keith Henderson, Halfway Home and a Long Way to Go, in Judicial Independence in China 23, supra note 13.
(16.) Chen Guangcheng, a barefoot lawyer as well as a civil rights activist in China who escaped his house arrest and sought help from the U.S. Embassy, states the dysfunction of rule of law in China: "The fundamental question the Chinese government must face is lawlessness. China does not lack laws, but the rule of law." See Chen Guancheng, How China Flouts Its Laws, N.Y. Times, May 30, 2012, at A21.
(17.) While there is some scholarly research on the relationship between globalization and constitutions, there are not many studies that have narrowly focused on the relationship between globalization of the legal profession and constitutional rights. For example, globalization creates a mobile society of human capital. A country that would like to host global human specialists in a variety of areas needs to attract them by showing a level of guaranteed protection for fundamental rights. See generally Law, supra note 5.
(18.) In the U.S., "constitutional right" could be defined as "[a] right guaranteed by a constitution; esp., one guaranteed by the U.S. Constitution or by a state constitution." Black's Law Dictionary 354 (9th ed. 2009).
(19.) See generally Guobin Zhu, Weak Courts, Weak Rights: Assessing the Realisation of Constitutional Rights in PRC Courts, 43 Hong Kong L.J. 713 (2013).
(20.) One introduction to the Chinese understanding of and response to a Western idea of a rule of law is as follows:
In its dealings with the West, China struggles with whether to accept a Western idea of a rule of law that goes against centuries of Chinese tradition. Western lawyers, too, may disagree as to whether Western ideas represent greedy imperialism or, in contrast, vital modernization. Despite these tensions, and in this time of globalization, respect for a rule of law is vital to the operations of international organizations such as the World Trade Organization or the World Health Organization. These organizations depend on sovereign states and their citizens to follow rules designed to create a more profitable market and safer world.
Cynthia Losure Baraban, Inspiring Global Professionalism: Challenges and Opportunities for American Lawyers in China, 73 Ind. L. J. 1247, 1262-3 (1997).
(21.) See, e.g., Joseph Kahn, Deep Flaws, and Little Justice, in China's Court System, N.Y. Times, Sep. 21, 2005, http://www.nytimes.com/2005/09/21/international/asia/ 21confess.html.
(22.) Xianfa art. 5 (1982) (China).
(23.) See Zou Keyuan, Administrative Reform and Rule of Law in China, 24 Copenhagen J. Asian Stud. 5 (2006), available at http://cjas.dk/index.php/cjas/article/ download/814/829.
(24.) Yumin Yang, Is China Moving Forward to Rule of Law? (May 2010) (unpublished L.L.M. thesis, Notre Dame Law School) (on file with author).
(25.) See id.
(26.) Xianfa preamble (1982) (China). The preamble of China's Constitution states that: "... [both] the victory of China's new-democratic revolution and the successes of its socialist cause have been achieved by the Chinese people of all nationalities under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong Thought, and by upholding truth, correcting errors and overcoming numerous difficulties and hardships ..." Id..
(27.) Yang, supra note 24, at 62.
(31.) See Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws (Thomas Nugent trans., Batoche Books, Kitchener ed. 2001), (1748).
(32.) Id. at 172.
(33.) Yang, supra note 24, at 56.
(35.) Id. at 57.
(36.) Id. at 58.
(39.) Yang, supra note 24, at 58.
(40.) Zhonghua Renmin Gongheguo Xingfa [Criminal Law] (promulgated by the Standing Comm. Nat'l People's Cong., July 1, 1979, effective July 1, 1979), at art. 306 (1979) (China).
(41.) See Donald Clarke, Li Zhuang's Conviction and the Problem of Witnesses, Chinese Law Prof. Blog (Jan. 8, 2010), available at http://lawprofessors.typepad. com/china_law_prof_blog/2010/01/attorney-li-zhuang-convicted-of-fabricating-evidence-in-chongqing-gang-case.html (last visited Sept. 12, 2013).
(42.) See August 2006: Setback for the Rule of Law--Lawyers under Attack in China, Human Rights in China (on file with author).
(43.) See Ian Johnson, Trial in China Tests Limit of Legal System Reform, N.Y. Times, at A4, Apr. 19, 2011, available at http://www.nytimes.com/2011/04/20/world/ asia/20china.html (last visited Sept. 12, 2013).
(44.) See Xunjun Eberlein, Lawyer's Trial Rivets Public and Tests Chinese Courts, New American Media, Jan. 5, 2010, available at http://news.newamericamedia.org/ news/view_article.html?article_id=b90788c09d3de5fe46ef98d6f32baf78.
(45.) See Wang Huazhong, Lawyer for Gang Boss Suspect Gets Prison Sentence, China Daily, Jan. 9, 2010, available at http://www.chinadaily.com.cn/china/2010-01/ 09/content_9291841.htm.
(46.) See Yang, supra note 24, at 59.
(47.) See id. at 61.
(48.) See id.
(49.) See id. at 68.
(50.) See id.
(51.) Kahn, supra note 21. Mr. Kahn's attractive but idealistic suggestion is: "[t]he viability of China's Communist Party depends more than ever on its ability to create a credible legal system. Yet the reality of the current system of political governmental organization is far from the ideal." Id.
(53.) Id. See also Times Names Joe Kahn Its New Foreign Editor, N.Y. Times Media Decoder Blog (Sept. 7, 2011, 6:52 PM), http://mediadecoder.blogs.nytimes. com/2011/09/07/times-names-joe-kahn-its-new-foreign-editor/. Mr. Kahn, along with his colleague Mr. Jim Yardley, won the 2006 Pulitzer Prize for International Writing for their series on injustices in China's legal system. Id.
(54.) See generally Coffin v. United States, 156 U.S. 432 (1895).
(56.) Black's Law Dictionary 740 (9th ed. 2009). See also Wong Sun v. U.S., 371 U.S. 471 (1963) (articulating the "fruit of the poisonous tree" doctrine in U.S. law).
(57.) "The law is relied upon when its observance is advantageous. Otherwise, those players readily resort to personal ties and traditional sentiments and / or ideological bonds in support of their claims, which in many cases, easily amount to an evasion or violation of laws and principles." Dai-kwon Choi, A Legal Profession in Transformation: The Korean Experience, in Reorganization and Resistance: Legal Professions Confront a Changing World 171, 193 (William Felstiner ed., 2005).
(58.) However, an independent legal profession is hard to pin down and view clearly as a whole. According to Tom Ginsburg,
Judicial independence has become like freedom: everyone wants it but no one knows quite what it looks like, and it is easiest to observe in its absence. We know when judges are dependent on politicians or outside pressures, but have more difficulty saying definitively when judges are independent.
See Tom Ginsburg, Judicial Independence in East Asia--Implications for China, in Judicial Independence in China 247, supra note 13.
(59.) See The Hon. Justice Michael Kirby, Independence of the Legal Profession: Global and Regional Challenges, Speech for Law Council of Australia Presidents of Law Associations in Asia Conference (Mar. 20, 2005), available at http://www.hcourt. gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_20mar05.html. The American legal profession has recognized the important tradition of an independent legal profession in the American Bar Association Model Rules of Professional Conduct, which states that "[a]n independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice." Model Rules of Prof'l Conduct Preamble (2013).
(60.) See Baraban, supra note 20, at 1249. Peerenboom's research shows the character of legal development in China:
China did not adopt the big bang approach to economic reforms or follow the neoliberal aspects of the Washington Consensus, including rapid privatization, deregulation, and opening of the domestic economy to international competition. Like other successful East Asian states, it has postponed democratization until it attains a higher level of economic and institutional development.
Randall Peerenboom, Introduction, in Judicial Independence in China 4, supra note 13. Despite Western countries' concern regarding Chinese legal development, China has worked with its own (gradualist) approach for legal development. Id. China has implemented a two-track approach which divides commercial law and civil/ political rights. Id. China stresses legal development in commercial law. On the other hand, China tries to control the speed of development in the area of Constitutional rights and may impose burdens on the exercise of fundamental rights. Id.
(61.) Human rights can be defined as "[t]he freedoms, immunities, and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim a matter of right in the society in which they live." Black's Law Dictionary 809 (9th ed. 2009).
(62.) Current debate on same-sex marriage is a good example. See, e.g., Hollingsworth v. Perry, 130 S.Ct. 705 (2013).
(63.) Interview with a Chinese law student in Bloomington, IN. (Sept. 21, 2011). I also interviewed a Chinese national who is licensed to practice law in New York and who also has legal experience in China. My interviewee took a different position on the legal profession's role in developing fundamental rights in China, saying, "the life of global lawyers in China is so busy. As a foreign lawyer in a global law firm, I am satisfied with my contribution to economic development in China." Id. In my opinion, however, global lawyers, and especially Chinese global lawyers who studied law outside of China, are in a better position to work as legal advisors for public interests based on their experience of foreign countries' laws and societies. As the number of global law firms increases in China, the future impact of global legal professionals will almost certainly increase in the country. The interviews were conducted pursuant to an agreement that the identity of all interviewees would be kept confidential.
(64.) Despite the currently unpopular and disfavored status of human rights lawyers in China, there was a period when lawyers' proper function existed in Chinese society. Modern Chinese history after 1911 shows the interesting relationship between the political system and the role of the lawyer in China. The relationship between these two has been different during each period. China's last dynasty was the Qing dynasty. See, e.g., The Chinese Revolution of 1911, U.S. Department of State, Office of the Historian (last visited Jan. 20, 2014) http://history.state.gov/ milestones/1899-1913/chinese-rev (discussing history of Chinese Revolution). The Xinhai revolution of 1911 deposed the Qing dynasty and established the Republic of China. See id. The founder of the Republic of China wanted to design China to be a democratic country. "[T]he system of lawyers that prevailed during the Republican period (1911-49) was formally abolished in September 1949," by the revolution of the Communist Party. Ethan Michelson, Lawyers, Political Embeddedness, and Institutional Continuity in China's Transition from Socialism, 113 American J. of Soc. 352, 364 (2007).
The Community Party, the winner of the political ideology war, replaced the Republic of China, making China a community country. Id. "In 1954 a new system of lawyers modeled after the Soviet system was developed on an experimental basis in several cities including Beijing, Tianjin, Chongqing, and Shenyang ... The new system was formally established in 1955, the same year in which the Beijing Bureau of Justice was established." Id.
(65.) The Association of the Bar of the City of New York, Report of the Mission to China 13-14 (May 2010), available at http://www.leitnercenter.org/files/20071953- ReportoftheMissiontoChinaDecember2009.pdf.
(66.) Song Xiuju, Falun Gong Evil and Harmful, China Daily, Dec. 16, 2002, available at http://big5.fmprc.gov.cn/gate/big5/ug.china-embassy.org/eng/zt/jpxjflg/ t219471.htm (Sept. 12, 2013).
(67.) See, e.g., supra notes 39-47 (detailing the Li Zhuang case); infra notes 68-81 (detailing the Chen Guangcheng case).
(68.) Ronald Jay Allen et al., Criminal Procedure: Investigation and Right to Counsel 291 (2d ed. 2011).
(69.) William Wan, Chen Guangcheng Adjusts to Life in America, Wash. Post, June 18, 2012.
(70.) See id; Philip Pan, Chen's Final Escape?, N.Y. Times, May 5, 2012, at SR11.
(71.) Philip Pan, Chen's Final Escape?, N.Y. Times, May 5, 2012, at SR11.
(74.) Chen Guangcheng, Will Chinese Justice Rescue My Detained Nephew?, Wash. Post, June 19, 2012.
(80.) Guangcheng, supra note 74.
(81.) Guangcheng, supra note 16.
(82.) See U.S. Const, amend. VI (declaring "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of counsel for his defense."); Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963).
(83.) Guangcheng, supra note 16.
(84.) See id.
(87.) These kinds of historical analyses will help legal professionals to find areas of fundamental rights not yet established in their societies and new directions to pursue.
(88.) See generally Jae Won Kim, The Ideal and the Reality of the Korean Legal Profession, 2 Asian-Pac. L. & Pol'y J. 45 (2001).
(89.) Id. at 45.
(90.) See Choi, supra note 57, at 181.
(91.) Id. See also Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 12(4) (S. Kor.). "Any person who is arrested or detained shall have the right to prompt assistance of counsel. When a criminal defendant is unable to secure by his own effort, the State shall assign counsel for the defendant as prescribed by Act." Id. at art. 12(5). "No person shall be arrested or detained without being informed of the reason therefore and of his right to assistance of counsel." Id.
(92.) See Inheriting the Sprit of Korea's First Human Rights Lawyers, Minbyun--Lawyers for a Democratic Soc., http://minbyuneng.prizma.co.kr/?page_id=186 (last visited Oct. 22, 2013).
(94.) See Who We Are, Minbyun--Lawyers for a Democratic Soc., http:// minbyuneng.prizma.co.kr/?page_id=5 (last visited Oct. 22, 2013).
(95.) See Kim, supra note 88, at 59.
(96.) Id., at 58.
(97.) "The law is relied upon when its observance is advantageous. Otherwise, those players readily resort to personal ties and traditional sentiments and /or ideological bonds in support of their claims, which in many cases, easily amount to an evasion or violation of laws and principles." Choi, supra note 57, at 193.
(98.) However, an independent legal profession is hard to pin down and view clearly. See Ginsburg, supra note 58, at 248.
(99.) See supra note 59 (detailing the U.S. approach to independence in the legal profession).
(100.) See United-States-Korea Free Trade Agreement, U.S.-S. Kor., Annex II, June 30, 2007, available at http://www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text [hereinafter U.S.-Korea FTA Foreign Legal Consultants].
(101.) See Jane J. Heller, China's New Foreign Law Firm Regulations: A Step in The Wrong Direction, 12 Pac. Rim L. & Pol'y J. 751, 759-60 (2003). Through this article, the author argues that some provisions, such as the three-year waiting period for the opening of an additional office of a foreign law firm, may not be consistent with China's commitment under the GATS. Id. China needs to think about the values of liberalization and competition, which facilitate the development of Chinese legal service providers as well as foreign trade and business in China. Id. Therefore, the author concludes that the regulation needs to be revised. Id. "China unequivocally committed to remove all limitations on the number of representative offices and their location within one year of its WTO accession (by December 11, 2002)." See Legal Services, Am. Chamber of Com. in Shanghai, available at http://www. amcham-shanghai.org/AmChamPortal/MCMS/Presentation/Publication/WhitePaper/ WhitePaperDetail.aspx?Guid=%7BF8FDB95F-0699-439A-9228-BlBC66876589%7D (last visited Sep. 12, 2013).
(102.) Regarding a conception of global constitutional law, see generally supra note 5.
(103.) See Center for Constitutional Democracy, Ind. U. Maurer Sch. of L., available at http://ccd.indiana.edu/projects/ (last visited Sep. 12, 2013).
(104.) See id.
(105.) See Rex D. Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Va. J. Int'l L. 357, 366 (2004).
(106.) 539 U.S. 558 (2003).
(107.) 543 U.S. 551 (2005).
(108.) Antonin Scalia & Stephen Breyer, Transcript of Discussion Between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer at American University Washington College of Law, U.S. Assoc, of Const. L. Discussion (Jan. 13, 2005), available at http://domino.american.edu/AU/media/mediarel.nsf/lD265343BDC21897 85256B810071F238/lF2F7DC4757FD01E85256F890068E6E0?OpenDocument.
(109.) 539 U.S. at 578.
(110.) 45 Eur. Ct. H.R. at H 52 (1981), available at http://hudoc.echr.coe.int/sites/ eng/pages/search.aspx?i=001-57473.
(111.) 543 U.S. 551.
(112.) See id.
(113.) See id. at 567, 622-23.
(114.) Id. at 576.
(115.) Justice Antonin Scalia addressed that "... I do not use foreign law in the interpretation of the United States Constitution. Now, I will use it in the interpretation of a treaty." Scalia & Breyer, supra note 108, at 5.
(116.) For example, debate regarding same sex marriage is ongoing in many countries. There are controversial areas such as equal protection under the constitution, where courts are more willing to hear cases and find rights for claimants. In Gill v. Office of Personnel Management (May 31, 2012), the U.S. Court of Appeals for the First Circuit ruled unanimously that the federal law "DOMA," which states that marriage is a union between men and women, is unfair and discriminates against same sex couples by denying benefits to them. A little bit earlier than the decision of the federal appeals court, U.S. President Barrack Obama made a favorable statement recognizing same-sex marriage. Therefore, as of September 2013, debates for or against same-sex marriage draw attention to the people inside as well as outside the U.S. The U.S. Supreme court recently followed up the change of attitudes regarding same-sex marriage. Hollingsworth v. Perry, 570 U.S._(2013); United States v. Windsor, 570 U.S._(2013). "Global citizens" who are facing a similar circumstance may benefit by borrowing persuasive arguments from one another. In this process, the role of global lawyers would be crucial.
(117.) Constitutional Court [Const. Ct.], 1995Hun-Ma224, Dec. 27, 1995 (S.Kor.).
(118.) 377 U.S. 533 (1964).
(119.) See About CRI: Background & History, Const. Court of Korea Const. Research Inst., available at http://ri.ccourt.go.kr/eng/ (last visited Dec. 5, 2013).
(120.) See id.
(121.) See Research: Functions, Const. Court of Korea, Const. Research Inst., available at http://ri.ccourt.go.kr/eng/ (last visited Dec. 5, 2013).
(122.) See Law & Versteeg, supra note 5, at 1167 (regarding general approach of global constitutionalism).
(123.) Id. Law's arguments might be subject to the criticism that constitutional rights are more likely to focus on the protection for foreign investors and skilled workers. Id. at 1176-78. For example, China efforts to make a progress in friendly legal environment such as protection of property rights for foreign investors, meanwhile, indications in other areas that the constitutional conformity with global perspective is low often arise.
(124.) Id., at 1200.
(125.) See id.
(129.) Id. There is a table containing the most popular constitutional rights by decade in this source. Id.
(130.) See supra note 11 and accompanying text (detailing the opening of Korea's legal market to FTA member countries).
(131.) Jang, supra note 12.
(132.) See U.S.-Korea FTA Foreign Legal Consultants, supra note 100.
(133.) Business entities are a major group of clients in foreign law firms in Korea. Regarding the relationship between these potential clients and constitutional provision, foreign law firms will be more likely to focus on the interpretation of business interest provisions in the Constitution. Section 1 of the Korean Constitution Article 119 prescribes "the economic order of the Republic of Korea shall be based on a respect for the freedom and creative initiative of enterprises and individuals in economic affairs." Daehanminkuk Hunbeob [Hunbeob] [Constitution] art. 119 (S. Kor.).
(134.) Regulations on Administration of Foreign Law Firms' Representative Offices in China (promulgated by the St. Council, Dec. 22, 2001, effective Jan. 1, 2002), art. 16 (2001), available at http://english.gov.cn/laws/2005-08/24/content_25816.htm [hereinafter Chinese Regulations on Foreign Law Firms],
(135.) See Sida Liu, Globalization as Boundary-Blurring: International and Local Law Firms in China's Corporate Law Market, 42 Law & Soc'y Rev. 771, 790 (2008).
(136.) Id. at n.7.
(137.) Chinese Regulations on Foreign Law Firms, supra note 134, at art. 15.
(138.) The primary reason Chinese lawyers employed by local law firms wish to switch to foreign law firms is income. As of 2006, average annual salaries of associates (in RMB) were as follows:
Foreign Firms Position Associate Legal Consultant Degree J.D. or LL.M. LL.M. PRC LL.B. degree Senior (6-10) 2,025,000 1,609,000 614,000 469,000 Middle (3-5) 1,215,000 799,000 350,000 350,000 Junior (1-2) 1,030,000 604,000 139,000 121,000 Local Firms Position Associate Degree LL.M. PRC degree Senior (6-10) 346,000 305,000 Middle (3-5) 278,000 248,000 Junior (1-2) 163,000 119,000
Liu, supra note 135, at 793.
(139.) Foreign law firms in China are looking to hire highly qualified junior Chinese lawyers with good English skills and international experience. See id. at 791-92. Still, it is quite difficult for a Chinese lawyer to become a partner in a foreign law firm. Id. As such, it is likely that many of the Chinese lawyers at foreign law firms will return to a Chinese local law firm later in their career. Id. The experience and knowledge these Chinese lawyers gained while employed by a foreign law firm will be transplanted into the Chinese local bar. Id. The fact that Chinese legal professionals flow from local law firms to global law firms, then from global law firms back to local law firms, may contribute to the legal development in China. Id.
(140.) "A representative office and its representatives shall not commit any of the following acts in their practice ... accept money or other things of value from parties by using the advantage of providing legal services." Chinese Regulations on Foreign Law Firms, supra note 134, at art. 17.
(141.) A legal transplant should be "truly voluntary." Carol Harlow, Global Administrative Law: The Quest for Principles and Values, 17 Eur. J. Int'l L. 187, 211 (2006). Otherwise, "this will inevitably result in serious implementation difficulties." Id.
(142.) Jaewon Kim, Bubjoyunrieui Kyoyookgwa Sihum [Teaching and Testing on Legal Ethics], 22 Sungkyunkwan Bubhak [Law Review] 1123, 1133 (2010).
(144.) See Qilin Ma, Legal Education of Today's China: Problems and Suggestions (2012) (unpublished manuscript), available at http://works.bepress.eom/qilin_ma/1.
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|Publication:||Suffolk Transnational Law Review|
|Date:||Jan 1, 2014|
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