Decree of the People’s Government of Guangdong Province

　　No. 207

　　The Provisions of Guangdong Province on the Government Legal Counseling adopted at the Thirty-ninth Executive Meeting of the Twelfth Session of the People’s Government of Guangdong Province on December 31, 2014, are hereby promulgated and shall become effective as of April 1, 2015.

　　                             Governor

　　Zhu Xiaodan

　　                                          December 10, 2015

　　Provisions of Guangdong Province on the Government Legal Counseling

Article 1 

These Provisions are formulated for the purpose of regulating the government legal counseling, advancing the law-based administration and building a rule-of-law government in accordance with relevant laws and regulations and in light of the actual situation of this Province.

Article 2 

These provisions shall apply to the legal counseling work of people’s governments at all levels and the subordinate departments thereof within this Province.

Article 3 

The legislative affairs office of people’s governments at all levels shall be their respective legal counsel institution, which is responsible for offering legal counseling service for the people’s government, handling legal affairs of the people’s government, directing the legal counseling work for the departments of the corresponding people’s government and the subordinate people’s governments.

Article 4

People’s governments at all levels shall establish their respective government legal counseling system, improve their respective government legal counseling mechanisms, and the specific tasks in connection with such establishment and improvement shall be assigned to their respective legal counsel offices.

In the case of a people’s government of a town or township that does not have its own governmental legislative affairs office, the town or township people’s government shall designate some full-time staff members to undertake the legal counseling work, who, in addition to handling the legal affairs of the people’s government at the corresponding level, shall guide local villagers’ committees and residents’ committees in handling general elections, land expropriation and compensation, and construction of major projects, and other legal affairs involving the immediate interests of the public.  

People’s governments at all levels shall guarantee the funding needed for government legal counseling.

Article 5

The departments of people’s government at or above the county level shall establish and improve their respective government legal counseling mechanism. Specifically, the legal affairs office of each department shall act as the legal counseling office of the department, which shall be responsible for the legal counseling of the department.

Article 6 

The government legal counseling shall be strictly based on the fact and law, and follow the principles of prioritizing ex ante prevention and interim control of legal risks over ex post legal remedy.

Article 7 

The government legal counsels shall mainly consist of the staff of legal affairs offices of people’s governments and the work departments at various levels, including the legal experts and lawyers.   

The leading official of legal affairs office of a people’s government shall be the chief government legal counsel of the people’s government.

Article 8 

The government legal counsels provide legal services with respect to the following affairs:

(1) Providing legal counseling in connection with major decisions and administrative acts;

(2) Providing legal counseling in connection with the governmental legislation, formulation and review of government normative documents;

(3) Acting as the agent in the administrative reconsideration, litigation, arbitration and execution, as well as other non-litigation legal matters;  

(4) Participating in the negotiations over major projects and assisting in drafting, amending, and reviewing major legal instruments;

(5) Reviewing major contracts to which the government or its department is a party;

(6) Participating in handling major emergencies and mass incidents; and

(7) Participating in other matters according to the requirement.

Article 9 

Early involvement of the government legal counsel(s) is required under one of the following circumstances:

(1) The expert discussion stage of major administrative decisions or actions;

(2) The negotiation stage of major projects and contracts;

(3) The pre-litigation or pre-arbitration mediation stage of the litigation or arbitration cases as well as the case-filing stage involving the government and its work department; and

(4) Other matters requiring early involvement of government legal counsels.  

Article 10 

People’s governments at all levels shall retain three or more experts and lawyers to serve as their own legal counsels, with a term of three (3) to five (5) years.

The departments of people’s governments at all levels may retain the experts and lawyers as their legal counsels to assist handling their own legal affairs.

People’s governments at all levels and departments may, based on the work need, retain experts and lawyers to provide legal services for specific matters.

The units retaining such legal experts or lawyers as the government legal counsels shall pay reasonable remunerations according to the actual counseling work performed

Article 11 

Experts who serve as the government legal counsels shall meet the following requirements:

(1) Being faithful to the Constitution, complying with the laws, and having good professional ethics;

(2) Having significant achievements in the teaching of and research on law and having reasonable professional influence; and  

(3) Having not received any punishment or sanction by their employers.

Article 12

Lawyers who serve as the government legal counsels shall meet the following requirements:

(1) Beijing faithful to the Constitution, complying with the laws, and having good professional ethics;

(2) Having three (3) or more years experience in the practice of law and having good professional competence;

(3) Having not received any administrative punishment by the judicial administration department or industrial disciplinary sanction by lawyers’ associations in the past three years;  

The law firm to which the lawyer serving as a government legal counsel affiliates shall be free of any administrative sanction by judicial administrative department or industrial disciplinary sanction by lawyers’ associations in the past three years.  

Article 13 

Where a people’s government intends to retain legal experts and lawyers to serve as the government legal counsels, such legal experts and lawyers shall be selected by the competent government legal counseling office from the eligible candidates according to the principles of openness, impartiality and fairness, and the names of such legal experts and lawyers shall be reported to the people’s government for approval.

Where any department of the people’s government intends to retain legal experts or lawyers as the government legal counsels, such legal experts or lawyers shall be selected from eligible candidates according to the principles of openness, impartiality and fairness.

Article 14

Where a people’s government and its department intend to retain lawyers as the government legal counsels, they shall comply with relevant provisions concerning the government purchase of services from the suppliers; where such retention is subject to the government procurement procedure, the government or its work department concerned shall retain such lawyers in accordance with relevant provisions concerning government procurement.

Where a lawyer is to be retained as a government legal counsel, the government unit retaining such lawyer shall conclude a service contract with the law firm that employs such lawyer. The service contract shall cover such matters as the scope and method of service, term of office, termination of the contract, payment of remuneration, rights and obligations, liabilities for breach of contract and settlement of disputes.

Article 15

The government legal counsels may provide legal counseling either in oral form or in writing, who shall be responsible for the legal advice offered. 

Where the retaining government unit needs the legal counsel to provide a written legal opinion, the legal counsel shall issue the opinion in writing, which shall be affixed with the signature of such legal counsel, and if the legal counsel is a lawyer, such legal opinion shall also be affixed with the official seal of the law firm employing the legal counsel.

Article 16

With respect to a legal affair in which a government legal counsel is involved, the government legal counsel office retaining such legal counsel shall handle such legal affairs with proper consideration to the legal opinion provided by such legal counsel. When the government legal counsel office submits its legal opinion to the competent governmental authority, it shall affix the legal counsel’s opinion to its own legal opinion.

Article 17

With respect to legal affairs such as administrative reconsideration, litigation, and arbitration proceedings that are handled by a people’s government or any department, if the people’s government or the department thereof designates a government legal counsel that it retains to act on its behalf, it shall also send its staff member to appear in court along with the government legal counsel.

Article 18

Government units retaining government legal counsels shall keep files on the government legal counsels, which shall include the resumes, service contracts, job performance and other requisite information on such legal counsels.

Government units retaining government legal counsels shall set up performance assessment mechanism for the government legal counsels. Such mechanism shall be used to assess the professional competence and performance of the government legal counsels on an annual basis, and the assessment results shall be adopted as the basis to decide whether the retention of such legal counsels will be renewed.

Article 19 

Government legal counsels shall have the following rights in handling the governmental legal affairs:

(1) To put forward legal advice and suggestion independently without being subject to interference from any unit or individual;

(2) To access to relevant materials, if necessary, for fulfilling their duties or authorized by the government unit retaining the legal counsels;

(3) To apply for early termination of retention on a justifiable ground; and

(4) To access to other working conditions and conveniences as may be necessary for providing government legal counseling.

Article 20 

Government legal counsels shall comply with the following requirements:

(1) To keep confidential all state secrets, trade secrets, personal privacy and other information that they may acquire and that is deemed by the government or any department as confidential and not eligible for disclosure, when they engage in the government legal counseling;

(2) To refrain from engaging in any profit-oriented activity in the name of government legal counsels;

(3) To refrain from accepting the entrustment of any other party to handle the legal affairs to which the government unit retaining government legal counsels is a stakeholder; and

(4) To comply with the requirement of relevant laws and regulations.

Article 21 

The government unit retaining a government legal counsel shall terminate the retention under one of the following circumstances:

(1) Such legal counsel violates Article 20 of these Provisions;

(2) Such legal counsel becomes incompetent for government legal counseling due to health reasons;

(3) Such legal counsel fails to participate in government legal counsel meetings for twice or fails to provide legal counseling in a timely manner without a justifiable reason.

(4) Such legal counsel is subject to the disciplinary sanction by the employer, administrative sanction by the competent judicial administration department or industrial disciplinary sanction by the lawyers’ association to which he or she is a member;  

(5) Such legal counsel is investigated for the criminal liability in accordance with law; or

(6) The government unit retaining such legal counsel deems that he or she has committed any other serious dereliction of duty.

Article 22

People’s governments at all levels shall enhance their leadership over the government legal counseling, and shall include the establishment and improvement of the government legal counseling system and the progress of government legal counseling work into the performance assessment of administration.

Article 23

Where a government legal counsel needs the cooperation of relevant units or individuals in connection with the governmental legal affairs, the relevant units or individuals shall offer necessary assistance in accordance with law.

Article 24

Where the staff member of a governmental legal counsel office commits abuse of power, negligence of duties or illegalities for personal gains or by fraudulent means and thereby causes any major economic losses to or adverse social impact on the government or any department thereof, such staff member shall be subject to the disciplinary sanction by the competent personnel authority or supervisory authority; if such staff member is suspected of committing a criminal offense, he or she shall be referred to the competent judicial authority for investigating the liability in accordance with law.

Article 25 

Where a government legal counsel causes any major economic losses to or adverse social impact on the people’s government or its departments due to violation of these Provisions during the term of office, the government unit retaining such legal counsel shall have the right to investigate such government legal counsel for legal liability in accordance with law.

Where the department of a people’s government at or above the county level holds any of its government legal counsel in accordance with the preceding paragraph, such department shall timely send a copy of the report on sanction against such legal counsel to the legal counseling office of such people’s government; where the government legal counsel is a lawyer, a copy of the report shall also be delivered to the judicial administration department of such people’s government.

The judicial administration departments of people’s governments at or above the county level shall impose disciplinary sanctions on the lawyers who violate the provisions in accordance with law.

Article 26 

The sub-district offices, economic development zones and new district administrative commissions shall refer to these Provisions in government legal counseling.

Article 27 

The municipal people’s government at or above the prefecture level may formulate detailed implementation rules in accordance with these Provisions.

Article 28 

These Provisions shall become effective as of April 1, 2015.