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[null,"Prepared By:","Contributors:"]
[null,"JunHe LLP"]
[]
[]
[]
["Lex Mundi Global Attorney-Client Privilege Guide"]
[]
["Report Generated: 5/1/2025"]
[]
["View your report results on next tab"]

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["Question","China"]
["Attorney-Client/Solicitor-Client Privilege (ACP)"]
["Is the ACP recognized in your jurisdiction?","The ACP is not recognized under PRC Laws. Since the large-scale discovery mechanism is not established under PRC laws, parties shall bear the burden of proving their own claims. Unless 1) the judge considers it necessary or 2) the judge accepts the opposing party’s request and requires the other party to provide evidence, the parties have no obligation to disclose all facts and evidence to the court and the other party. Moreover, in practice, judges barely require lawyers to disclose information about the communications with their clients. Therefore, we believe this may be the reason why ACP is not recognized under PRC Laws.\n"]
["If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure in a civil proceeding?\n\nNote: This question is directed primarily to civil law jurisdictions that do not recognize common law jurisdictions’ privilege doctrines.","Article 38 of \nLawyers Law of the People's Republic of China (“\nthe Lawyers Law”) and Article 9 of \nCode of Conducts for Lawyers (“\nthe Code of Conducts”) provide for lawyers’ professional confidentiality. In particular, “lawyers shall keep confidential state secrets, trade secrets, personal privacies, and information known in practicing law that clients and other persons are reluctant to disclose”. However, the rules of lawyers’ professional confidentiality provide for more about lawyers’ obligations than rights or privileges.\nIn addition, as aforementioned, judges barely require lawyers to disclose communications with their clients and would only ask the parties about facts for confirmation in the civil proceedings.\n"]
["Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product?","Lawyers’ confidentiality obligation under Article 38 of \nthe Lawyers Law and Article 9 of \nthe Code of Conduct is applicable in both civil and criminal proceedings.\nAs aforementioned, in civil proceedings, judges barely require lawyers to disclose the communications with their clients, and would only ask the parties about facts for confirmation.\nIn criminal proceedings, it is very rare for the police to investigate client information directly from lawyers. Lawyers may refuse to disclose client information based on the confidentiality obligation under the Lawyers Law when requested by the police.\nHowever, Article 38(2) of \nthe Lawyers Law and Article 9(2) of \nthe Code of Conduct provide, “a lawyer shall keep confidential the relevant condition and information that is known by the lawyer in practicing law and the client and other persons are reluctant to disclose, however, except facts and information on a crime compromising the national security or public security or seriously endangering the safety of the body of a person, which a client or other person prepares to commit or is committing.”\nArticle 48 of \nCriminal Procedure Law of the People's Republic of China (“\nthe Criminal Procedure Law”) provides, “if knowing in the practice of law that a client or any other person is preparing for or is committing a crime compromising national security or public security or seriously damaging the personal safety of others, a defense lawyer shall inform a judicial authority in a timely manner.” And Article 60 of Interpretation of the \nSupreme People's Court on the Application of the Criminal Procedure Law (\n“Judicial Interpretation of the Criminal Procedure Law”) provides “when the accused’s lawyer informs a judicial authority that the client or any other person is preparing for or is committing a crime related to compromising national security, public security or serious damaging the personal safety of others, the court shall record the information, report it to the competent authority immediately in accordance with the law, and shall not disclose the information of the accused’s lawyers.” Based on this, lawyers bear the obligation to promptly inform judicial authorities of client’s abovementioned crimes.\n"]
["In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP?  (e.g., in the U.S.: the Upjohn approach, control group test, etc.)","In PRC’s legal practice, when a lawyer representing a corporation communicates with the employees of the corporate, all parties recognize the custom that the lawyer can only represent corporation instead of its employees. Moreover, when both the corporation and its employees are parties to the litigation, those employees normally would hire other lawyers. Therefore, the determination of who is the client in practice is not a dispute. In addition, as aforementioned, ACP is not recognized in PRC jurisdiction, and thus no test or doctrine in this regard is provided under PRC Laws.\n"]
["Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications?","First, as aforementioned, ACP is not recognized under PRC Laws.\nSecond, the word “lawyer” under PRC Laws usually refers to certified lawyers registered under local Department of Justice. In-house counsels are not registered under local Department of Justice and thereby are not considered as lawyers, and thus not bound by confidentiality obligations under \nthe Lawyers Law.\nThird, Article 23(1) of \nLabor Contract Law of the People's Republic of China (“\nthe Labor Contract Law”) provides, “an employer may enter into an agreement with its employees in the labor contract to require its employees to keep the business secrets and intellectual property of the employer confidential.” In-house counsels, as employees, shall be bound by confidentiality obligations under the Labor Contract Law, specific labor contract and codes of respective industries.\nFurthermore, Article 147 of \nCompany Law of the People's Republic of China (“\nthe Company Law”) provides, “the directors, supervisors and senior managers shall comply with the laws, administrative regulations, and bylaw. They shall bear the obligations of fidelity and diligence to the company.” And Article 148 of the Company Law provides, “No director or senior manager may commit any of the following acts: (7) illegally disclosing the company's confidential information.” It should be noted that confidentiality obligations under the Company Law only regulate conducts of directors and senior managers. Since the in-house counsels are not directors and senior management, the in-house counsels are not bound by Article 148 of the \nCompany Law.\nIn summary, in-house counsels are bound by confidentiality obligations under the \nLabor Contract Law, specific labor contracts and codes of respective industries, but their obligation is different from lawyer’s confidentiality obligation under the \nLawyers Law. The former is contractual obligation and is not entitled to refuse the disclosure request of clients’ information by police officers or procurators.\n"]
["Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality?","As aforementioned, currently, the \nLawyers Law is not applicable to in-house counsels, and ACP is not recognized under PRC Laws. However, in-house counsels are bound by confidentiality obligations under other laws and regulations.\n"]
["Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar?","The Bar Association under PRC Laws is different from those in common law countries. PRC Bar Association is merely an autonomous organization of lawyers and has no administrative power. Becoming a member of the PRC Bar Association does not necessarily mean that he/she is a lawyer for the purpose of the \nLawyers Law. Only those who acquire certificate issued by and registered under Department of Justice can be recognized as lawyers. The power to manage and punish lawyers also belongs to Department of Justice.\nThe new trend in recent years is that in-house counsels who meet certain qualifications may apply for corporate lawyer certificates and then become corporate lawyers. However, as aforementioned, membership of bar association is not equivalent to a lawyer under PRC Laws. In other words, even if in-house counsels become corporate lawyers, they are not bound by confidentiality obligations under the \nLawyers Law.\n"]
["Is the common interest doctrine recognized in your jurisdiction?","Strictly speaking, ACP is not recognized under PRC Laws, and there is no common interest doctrine. Nevertheless, Article 38 of the \nLawyers Law provides that, “a lawyer shall keep confidential the relevant condition and information that is known by the lawyer in practicing law and the client and \nother persons are reluctant to disclose, however, except facts and information on a crime compromising the national security or public security or seriously endangering the safety of the body of a person, which a client or other person prepares to commit or is committing.” According to this article, lawyers shall keep confidential information of relevant third parties, and the scope of “other persons” under this article is way broader than the scope of third parties under the common interest doctrine.\n"]
["How is the doctrine articulated in your jurisdiction?","Please see answers to the preceding question.\n"]
["Must a common interest agreement be in writing?","Please see answers to the preceding question.\n"]
["Is litigation funding permitted in your jurisdiction?  Are there any professional rules in this respect?","Litigation funding is a newly emerged business in China and has developed for fewer than 10 years. Currently, litigation funding is permitted in China, but since related businesses and cases are relatively rare, PRC does not enact or pass any relevant laws or regulations in this regard.\n"]
["Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection","The ACP is not recognized under PRC Laws, so there is no provision related to ACP or the work product doctrine to protect communications with litigation funders from being disclosed under PRC Laws. Parties may agree to keep such communications confidential by entering into a non-disclosure agreement under the contract.\n"]
["Is the crime-fraud exception recognized in your jurisdiction?","As aforementioned, PRC Laws do not provide for ACP, and only provide for lawyers’ professional confidentiality obligations. However, Article 38 of the \nLawyers Law provides that, “a lawyer shall keep confidential the relevant condition and information that is known by the lawyer in practicing law and the client and other persons are reluctant to disclose, however, except facts and information on a crime compromising the national security or public security or seriously endangering the safety of the body of a person, which a client or other person prepares to commit or is committing.” Article 48 of the \nCriminal Procedure Law provides that a defense lawyer shall “inform a judicial authority in a timely manner.” Meanwhile, Article 9(2) of \nthe Code of Conduct and Article 60 of the \nJudicial Interpretation of the Criminal Procedure Law, provide similar exceptions to lawyers’ confidentiality obligations concerning crimes regarding compromising the national security or public safety or seriously endangering the safety of the body of a person.\n"]
["What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction?","According to Article 38(2) of the \nLawyers Law, Article 9(2) of the \nCode of Conduct, Article 48 of the \nCriminal Procedure Law and Article 60 of the Judicial Interpretation of the \nCriminal Procedure Law, lawyers shall promptly inform judicial authorities of facts and information known in practicing law on a crime concerning to compromising the national security or public safety or serious endangering the safety of the body of a person, which a client or other person prepares to commit or is committing. Articles provide as follows:\nArticle 38 of the \nLawyers Law provides, “a lawyer shall keep confidential the relevant condition and information that is known by the lawyer in practicing law and the client and other persons are reluctant to disclose, however, except facts and information on a crime compromising the national security or public security or seriously endangering the safety of the body of a person, which a client or other person prepares to commit or is committing.”\nArticle 9(2) of the \nCode of Conduct provides, “a lawyer shall keep confidential any condition or information made known to him or her in the practice of law which the client or any other person is unwilling to disclose; except facts or information regarding a crime which the client or any other person is preparing to commit or is committing and which compromises national security or public safety or seriously endangers the personal safety or the safety of the property of others.”\nArticle 48 of the \nCriminal Procedure Law provides, “a defense lawyer shall have the right to keep confidential the conditions and information regarding a client known in the practice of law. However, if knowing in the practice of law that a client or any other person is preparing for or is committing a crime compromising national security or public security or seriously damaging the personal safety of others, a defense lawyer shall inform a judicial authority in a timely manner.”\nArticle 60 of the \nJudicial Interpretation of the Criminal Procedure Law provides, “when the accused’s lawyer informs a judicial authority that the client or any other person is preparing for or is committing a crime related to compromising national security, public security or seriously damaging the personal safety of others, the court shall record the information, report it to the competent authority immediately in accordance with the law, and shall not disclose the information of the accused’s lawyers.”\n"]
["Work Product Doctrine/Litigation Privilege (doctrine that protects materials prepared in anticipation of litigation or for trial)"]
["Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings?  (In the U.S.:  What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?)","PRC Laws only provide for lawyers’ confidentiality obligations under Article 38 of the \nLawyers Law and Article 9 of the \nCode of Conduct, and the lawyers’ work production in anticipation of litigation or for trial was protected thereunder. However, PRC Laws do not specifically provide for obligations or rights regarding keeping materials prepared for litigation proceedings confidential. In practice, judges barely require lawyers to disclose the communications with their clients or the legal analysis or memorandum to their clients.\n"]
["What are the elements of the protection in your jurisdiction?","As aforementioned, there is no such provision in this regard under PRC Laws.\n"]
["Other Privileges"]
["Does your jurisdiction recognize an accountant-client privilege?","Under PRC Laws, accountants are not entitled to refuse the disclosure request of clients’ information by police officers or procurators. However, Article 19 of \nLaw of the People's Republic of China on Certified Public Accountants (“\nthe Law on Certified Public Accountants”) and Article 22 of \nthe Guiding Opinions on the Professional Ethics of Chinese Certified Public Accountants (“\nthe Professional Ethics of Certified Public Accountants”) provide that accountants are obliged to keep the business secrets and client information known in practice confidential. In addition, regarding the working drafts of accounting firms, Article 61 of \nNo. 5101Code of Quality Control: Public Accounting Firm’s Quality Control of Implementations on Reviews of Financial Statements, Other Assurance and Related Services (the “\nNo. 5101 Code”) and Article 6 of Provisions on Strengthening the Confidentiality and File Management on Overseas Securities Issuance and Listing provide that the accounting firms shall keep the working papers confidential and shall not disclose those documents to foreign supervisory authorities. The details are as follows:\nArticle 19 of \nLaw on Certified Public Accountants provides, “certified public accountants shall bear the obligation to keep their clients' business secrets they come to know in carrying out their business.”\n\n\n\nArticle 22 of \nthe Professional Ethics of Certified Public Accountants provides, “certified public accountants shall keep secret of the clients' information acquired in the practice, which shall not be terminated due to the termination of their business agreements.”\nIn accordance with Article 25 of \nthe Professional Ethics of Certified Public Accountants, “certified public accountants may disclose related information of a client under the following circumstances: (I) being authorized by the client; (II) preparing documents or providing evidences for lawsuits, or reporting the violations of laws and regulations found to the regulatory institutions according to laws and regulations; and (III) accepting peer review and the quality inspections conducted by the CICPA and regulatory authorities according to the law.”.\nIn addition, regarding the working drafts of accounting firms, Article 61 of \nNo. 5101 Code provides that “the accounting firm shall keep the working papers of its business in a safe and confidential manner”.\n\n\n\nArticle 6 of \nProvisions on Strengthening the Confidentiality and File Management on Overseas Securities Issuance and Listing provides that, when domestic accounting firms are requested by foreign regulatory bodies to provide relevant working drafts for cross-border audit reviews, those firms shall store their working drafts in China, and shall not submit working drafts to foreign institutions or individuals without approval. Therefore, according to their confidentiality obligations, public accounting firms shall not directly disclose working drafts to foreign supervisory bodies without approval.\n"]
["Does your jurisdiction recognize a mediation privilege?","The mediation privilege is not recognized under PRC Laws.\n"]
["Does your jurisdiction recognize a settlement negotiation privilege?","The settlement negotiation privilege is not recognized under PRC Laws.\n"]