The Development of China's Legal Aid System

Ministry of Justice

June 14, 2000

The Establishment and Development of China's Legal Aid System.

With reform and openness and the development of China's socialist market economy, law has become the major means of regulating various kinds of social relations and legal services also have become one of the fundamental demands for citizens to achieve and ensure their legitimate rights and interests. With transition of the economic system and adjustment of the interest patterns, a certain extent of disparity between the rich and the poor among citizens has been emerging due to the differences of subjective and objective conditions, resulting in such problems where a number of people are "not able to afford a lawyer or litigation" because of financial difficulties and these people do not possess the financial capacity in maintaining their legitimate rights and interests.

For the purposes of ensuring the poor and the weak in the community to get rid of the restraints from financial difficulties and enjoy the same right to legal assistance as enjoyed by people at large so as to safeguard judicial justice and human rights and realize the constitutional principle of "everyone's equality before the law", the Ministry of Justice officially put forward the establishment and implementation of China' s legal aid system and took the initiative in the experiment of legal aid in some large and medium-sized cities in early 1994. In March and May 1996, the Criminal Procedure Law of the People's Republic of China and the Law on Lawyers were respectively promulgated, which formally established the status of the legal aid system in the Chinese legal framework. Thereafter, the establishment and implementation of China's legal aid system was triggered on the whole. In April 1997, the Joint Circular on Legal Aid for Criminal Matters was jointly issued by the Supreme People's Court and the Ministry of Justice. In May and November of the same year, the Circular on Developing Legal Aid and the Circular on Legal Aid in Notary Services were respectively published by the Ministry of Justice. In May 1999, the Joint Circular on Several Issues Concerning Legal Aid in Civil Matters was released by the Supreme people's Court and the Ministry of Justice. In April 2000, the Joint Circular on Developing legal Aid in Criminal Procedure Activities was issued by the Supreme People's Procuratorate and the Ministry of Justice. In the meanwhile, local rules or regulations on legal aid were produced in succession at the local levels. The practice of legal aid has been placed on a preliminary legal and regular track.

In order to carry out the national legal aid system in an effective manner, government legal aid agencies have been set up in China at both the national and local levels according to current administrative divisions corresponding to the court setups, which consist of a Chinese legal aid organizational structure of four tiers at the national, provincial (including autonomous regions and municipalities directly under the Central Government), prefectural (including other municipalities) and county (including districts) levels. The Legal Aid Center of the Ministry of Justice was established on December 16, 1996 with 23 staff members at present. By May 31, 2000, legal aid centers were respectively set up in 29 provinces, 16 municipalities at the deputy provincial level, 285 prefectures (including cities) and 1152 counties (districts). Legal aid centers are under construction in other areas as well. The Legal Aid Center of the Ministry of Justice is responsible for the management of legal aid within China while the provincial (including autonomous regions and municipalities directly under the Central Government) legal aid centers are in charge of the administration of legal aid within their respective jurisdictions. The legal aid centers in prefectures, counties and districts not only are responsible for the legal aid administration within their respective jurisdictions but also serve the recipients of such aid directly. Currently, there are over 4,000 professional staff working on legal aid. In addition to certain amount of legal services provided by the professional staff, lawyers, public notaries, legal assistants at the grass roots communities and some legal aid service volunteers of social organizations and law schools have also participated in legal aid services organized and instructed by the legal aid agencies at all levels.

Qualifications for Chinese Citizens to Receive Legal Aid

The general qualifications for the legal aid are as follows: to prove with full reasonableness that they need legal assistance to safeguard their own legal rights and interests and to be in conformity with the standards on financial difficulties prescribed by the local government. The Chinese legal aid system gives full expression to key guarantee on citizen's basic human rights and special guarantee on the week group of people. The specific expressions may be found in the laws and regulations concerning legal aid: (1) Main protection on citizen's rights to life and freedom. In legal aid for criminal matters, the people's court shall, regardless of the financial conditions of the defendant, appoint a lawyer bearing the legal aid obligations to defend a criminal defendant who might been sentenced to death penalty but has not retained a defender. This rule illustrates the key protection on citizen's right to life. In provisions with regard to the scope of legal aid, parties meeting the requirement for legal aid qualifications may apply for legal aid at any phases during the process of a criminal case. This rule demonstrates the full protection on citizen's right to freedom. Besides, foreigners and stateless persons who are to stand trial in China are guaranteed to enjoy legal aid. (2) Main protection on citizen's right to subsistence. The scope of legal aid for civil matters is stipulated as follows: legal matters in connection with claims for alimony, nurturing fee, fostering fee, pension and relief fund and civil matters in connection with claims for compensation for injury while on duty except for accidents due to negligence. (3) Special protection on the handicapped, minors and the elderly. For legal aid for criminal matters, the people's court shall, regardless of the financial conditions of the defendant, appoint a lawyer bearing legal aid obligations to defend those criminal defendants who are blind, deaf, dumb or minors and have not retained a defender. For legal aid for civil matters, the legal matter of claiming compensation by the blind, deaf, dumb, minors and senior people for an act of tort is listed in the legal aid scope. The specific forms of legal aid include advice, criminal defense, ad litem in litigation and notarization, etc.

Progress in Legal Aid Services

According to incomplete statistics, since 1996, legal aid agencies at all levels around the country have organized lawyers, notaries and grass roots legal assistants to handle 328,000 cases for legal aid and accepted 2,980,000 requests for advice. Between January and May, 2000, 62,310 cases for legal aid (excluding legal aid in notarization) have been handled, among which there were 32,789 criminal cases, 26,238 civil cases, 593 administrative cases, 2,690 non-litigious matters for representation and 680,000 persons-time for advice. It is especially worth noting that legal aid agencies at all levels have organized the handling of a great number of legal aids in criminal cases and played a positive role in ensuring the practicability of the court appointments for criminal defense and maintaining the legal litigious right of the criminal defendants. At the same time, a large group of women, children, the handicapped, the elderly and laid-off workers safeguarded their own legitimate rights and interests resulting from legal aid. In the past several years, 400,000 people have been provided with legal aid.

The establishment and implementation of China's legal aid system has drawn the attention of experts and colleagues abroad. In order to learn about and use the favorable experience of the legal aid practice abroad, the Legal Aid Center of the Ministry of Justice has successively carried out extensive exchanges with scholars and colleagues form the Great Britain, the United States, Canada, Japan, Australia, European Union and China's Hong Kong Special Administrative Region.

The Chinese Government attaches great importance and support the establishment and implementation of the legal aid system. The central financial mechanism provides the Legal Aid Center of the Ministry of Justice with financial backups necessary for the progress of the practice. The financial authorities of local governments at the provincial, district and county levels are responsible for the expenses necessary for the legal aid within their respective jurisdictions. Though there remain difficulties in the setup of legal aid agencies and in the collection of legal aid funds in some economically backward areas, with the development of economy and the community, such difficulties will be overcome step by step. In October 1998, the Chinese Government signed the International Covenant on Civil and Political Rights. Once the Covenant is approved by the Chinese legislature, the legal aid, a basic legal right of the citizen, will further grow into an international obligation prescribed to be borne by the Government in accordance with the Constitution, laws and international laws. The legal aid agencies at all levels in China will put more emphasis on publicity for the legal aid system, improve the social awareness of legal aid and gradually extend the scope for the citizens to receive legal aid so as to enrich and improve the content of human rights protection in China and make every endeavor to allow legal aid to play a more crucial role.