Licensed lawyers have legal basis for investigation and evidence collection, administrative agencies that fail to cooperate will be held accountable
Compiled from: Jufa
Case review
Zhang Xiaoming is a lawyer in Jiyuan City. On September 17, 2019, Zhang Xiaoming was assigned to the Jiyuan Human Resources and Social Security Bureau to apply for an investigation into the fraudulent collection by another person of the funeral expenses, survivor benefits, and remaining pension insurance refunds paid by the Jiyuan Human Resources and Social Security Bureau after Hou's death. After the staff of the Jiyuan Human Resources and Social Security Bureau examined his lawyer's practice certificate and the special investigation certificate issued by his law firm and other formalities, they required him to first obtain a lawyer's investigation order issued by a people's court before they would issue the relevant formalities to him, on the grounds that he did not have the direct right to investigate and collect evidence. Zhang Xiaoming believed that under Article 35 of the Lawyers Law of the People's Republic of China, lawyers enjoy the right to conduct investigations and collect evidence on their own, and therefore requested the court to confirm that the above-mentioned administrative inaction of the Jiyuan Human Resources and Social Security Bureau was illegal.
The Jiyuan Human Resources and Social Security Bureau argued that: First, cooperating with Zhang Xiaoming's investigation request was not a statutory duty of the bureau. Second, Zhang Xiaoming's investigation of others' information could lead to information leakage. Third, Article 35 of the Lawyers Law only stipulates lawyers' rights, not mandatory provisions for administrative agencies or relevant units. Fourth, the bureau had already informed Zhang Xiaoming that he could obtain relevant evidence through the court, thereby protecting his rights. In summary, the bureau's actions were legal and reasonable, and there was no illegal inaction.
Relevant Laws
Article 35, Paragraph 2 of the Lawyers Law of the People's Republic of China
When a lawyer independently investigates and collects evidence, he may, based on his lawyer's practice certificate and the law firm's certificate, investigate and collect information related to the legal matters he handles from relevant units or individuals.
Article 61 of the Civil Procedure Law of the People's Republic of China
[1] Lawyers and other legal representatives in agency proceedings have the right to investigate and collect evidence, and may consult relevant materials of the case. The scope and methods for consulting relevant materials of the case shall be stipulated by the Supreme People's Court.
[1] Court Opinion
[2] In this case, Zhang Xiaoming, a full-time lawyer at a law firm in Henan Province, after being entrusted by the parties, held his lawyer's practice certificate and the special investigation certificate issued by his law firm to conduct investigation and evidence collection at the Jiyuan Human Resources and Social Security Bureau, which was lawful and legitimate. As an administrative organ, the Jiyuan Human Resources and Social Security Bureau should cooperate without justifiable reasons. The reason the Jiyuan Human Resources and Social Security Bureau refused Zhang Xiaoming's investigation and evidence collection was that Zhang Xiaoming did not have a lawyer's investigation order issued by the People's Court. However, the lawyer's investigation order issued by the People's Court is one of the means for lawyers to conduct investigation and evidence collection, not the only one, and does not conflict with the lawyer's right to independently investigate and collect evidence. Therefore, the reason for the Jiyuan Human Resources and Social Security Bureau's refusal was not justified.
[3] Regarding the Jiyuan Human Resources and Social Security Bureau's argument that the investigation matters applied for by Zhang Xiaoming might cause disclosure of others' information, this court holds that, according to the Lawyers Law and other relevant provisions, lawyers have a duty of confidentiality. If a leak occurs, they shall bear corresponding legal liability according to law. Therefore, this argument by the Jiyuan Human Resources and Social Security Bureau is not valid, and this court does not accept it.
[4] In summary, as an administrative organ, the Jiyuan Human Resources and Social Security Bureau refused the lawyer's lawful investigation and evidence collection activities without justifiable reasons, and its conduct constitutes administrative inaction, which is illegal.
[1] The author's perspective
Administrative inaction refers to the state in which an administrative body and its staff, who have the duty and obligation to actively perform administrative acts, fail to perform or delay the performance of their statutory duties. The so-called "inaction" in administrative matters is an administrative illegal act in which, based on a qualifying application by a citizen, legal person, or other organization, an administrative organ should legally perform a certain act or fulfill a certain statutory duty, but refuses to act without justified reason. It is also known as "illegal inaction" or "passive illegal" act.
[6] Based on the above legal provisions, it can be determined that lawyers have the right to independently investigate and collect evidence. Therefore, when a lawyer conducts investigation and evidence collection with an administrative organ according to law, the administrative organ has the obligation to cooperate. If it refuses without justifiable reasons, it constitutes administrative inaction.
Additionally, the investigation matters requested by the lawyer as proposed by the Human Resources and Social Security Bureau may lead to the disclosure of others' information. According to Article 38 of the Lawyers Law, lawyers must not disclose the privacy of their clients. If a lawyer leaks others' privacy, they shall bear corresponding legal liability in accordance with the law.
