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Legal Assistance: Government Duty

When getting back his 800-yuan (US$96.6) salary, defaulted by his former employer, from the Taiyuan Legal Aid Center, Wang Xiangjun, a migrant worker from Shanxi Province, was moved to tears and rendered speechless. Needing money to pay his wife's medical treatment, Wang's family had had hard financial times. To receive the money, Wang demanded several times from his former employer in another city, but failed each time. He had spent nearly 100 yuan (US$12.1) on travel, without any result except mental and physical exhaustion.

Wang, unable to afford to go to court, had no alternative but to turn to the Taiyuan Legal Aid Center. To his surprise, Wang got his payment not long after. He considers himself very lucky for he had assumed that legal aid centers could do little.

Indeed, Wang was lucky. In 2003, there were at least 94 million farmers working in urban areas. A total of 100 billion yuan (US$12.1 billion) of their payment was delayed. Wang was one of them, but many of them were not as lucky as him. The situation, however, is quietly changing.

As of September 1, 2003, when Wang got his money back, the Regulations on Legal Aid, the first statute of its kind in China, was put into effect. This means that a legal aid mechanism in China is on the path of implementation.

Article 3 of the regulations stipulates, "Legal aid is the responsibility of government. Governments at the county level and above shall adopt positive measures to advance legal aid work, provide financial support for legal aid and ensure that legal aid services are coordinated in tandem with social and economic development." This is the first time in China that a law says legal aid is a responsibility of the state, not merely a moral assertion.

"The purpose of the regulations is to ensure poor citizens and persons in special circumstances have access to necessary legal services, so that fair, open and just enforcement of law can be realized," said Jiang Xiaoyang, a constitution doctorate at the Law School of Peking University.

Legal aid service in China is developing faster than ever. Since the Regulations on Legal Aid were adopted, many local governments have formulated their own statutes to ensure the sound and rapid development of legal assistance. At the end of last year, the Ministry of Justice organized a nationwide public activity called "Legal Aid in China" which has helped create a healthy public opinion environment for the development of legal aid service.

With the development of legal aid service, people of disadvantaged groups like Wang Xiangjun will not have to count on "good luck" to get access to legal aid. "According to the Regulations on Legal Aid, it is a right, not a charity, for all qualified citizens to receive legal aid," said Xiao Xianfu, a scholar with the Chinese Academy of Social Sciences.

Toward comprehensive legislation

In China, 17 provinces, municipalities and autonomous regions have issued regulations regarding legal aid.

In order to ensure equal access to legal services for the poor, in early 1994, the Ministry of Justice launched a legal aid mechanism on a trial basis in some large and medium-sized cities. In 1996, legal aid stipulations were added to the Criminal Procedure Law and the Law on Lawyers. In January 2002, the Regulations on Legal Aid were listed in the legislation agenda of the Legislative Affairs Office of the State Council. On July 16, 2003, the 15th Executive Meeting of the State Council formally adopted the regulations.

Statistics from the Legal Aid Center of the Ministry of Justice show that from 1997 to 2003, legal aid institutions all over the country provide consulting services to over 6.4 million people and offered assistance in 800,000 cases. Altogether 970,000 people had their rights protected through legal aid services.

According to a Xinhua report, in 2003, legal aid institutions in Chongqing Municipality in southwest China helped nearly 15,000 people, who could not afford lawsuits, recover 115 million yuan (US$13.9 million) in arrears of wages.

In the past several years, legal aid services have developed rapidly in China, but are still far from meeting high demands. According to Yang Yong, a lawyer with the Legal Aid Center of the Ministry of Justice, every year, there are 700,000 cases in China that need legal aid, but only 170,000 of these actually obtained assistance.

In Yang's opinion, this is mainly due to the shortage of legal aid funding. In many cities, legal aid funding mainly comes from government appropriations. At present, legal aid appropriations per person are only 6 fen (0.72 cent) and subsidies to each legal aid case averages only 60 yuan (US$7.2).

Aid itself needs 'assistance'

Financial constraint remains the largest obstacle to the development of China's legal aid service. How can the system overcome this "bottleneck"? According to the Regulations on Legal Aid, governments at all levels should provide financial support for the service. This year, governments in Shanxi, Chongqing and other localities have begun to include legal aid expenditure in their fiscal budgets. In Chongqing, the use of legal aid funds will be made public on a regular basis, subjecting it to the supervision of financial and audit departments.

Notwithstanding this progress, Minister of Justice Zhang Fusen maintains that it is difficult for legal aid to wholly rely on local budgetary appropriations because of disparate economic development in different regions of China. As a public welfare undertaking, equitable legal aid requires contribution from a diverse number of sources as possible to supplement poorer areas. To this end, the Chinese Government has established the China Legal Aid Foundation to raise and manage donations from home and abroad.

In December 2003, GM China donated 175,000 yuan (US$21,135) to establish a special fund in the Student Legal Aid Center of East China University of Politics and Law in Shanghai. This is the first time that a transnational company has provided "aid" to a non-governmental legal aid organization in China.

Another obstacle to China's legal aid service is the lack of law professionals. According to China Comment, a bimonthly magazine of the Xinhua News Agency, as of September 2003, there were about 9,000 full-time staff engaged in legal aid service in China. Only half of them were qualified lawyers.

Full-time lawyers are vital assets to legal aid. But a mere 4,500 lawyers are far from enough considering the demand for legal assistance in 170,000-plus cases handled each year and for consulting service to 6.4 million visitors and inquiries for legal advice. Moreover, because of low salaries, many lawyers are not willing to work in legal aid institutions.

At present, there are about 120,000 lawyers in China. According to the Law on Lawyers, a lawyer is required to provide assistance in one to three legal aid cases each year. However, since financial appropriations for legal aid service are limited, government subsidies cannot adequately compensate lawyers' expenses. Therefore, under present conditions, it is unrealistic that a large number of private lawyers will devote themselves to legal aid service.

Some experts call for drawing up supporting regulations in order to provide talented lawyers incentives to work for legal aid, improve legal service quality and raise compensation for legal aid professionals.

Legal Aid Structure in China
Legal aid is a mechanism of legal remedy adopted by many countries throughout the world. Under this mechanism, the government provides legal assistance, by reducing or exempting lawsuit fees, to those who have financial problems or other difficulties, to safeguard their rights and interests through normal legal means. As a major safeguard to realize social justice and to protect citizens' rights, legal aid holds a very important position in a country's judicial system.

Article 34 of the revised Criminal Procedure Law of the People's Republic of China, adopted on March 17, 1996, stipulates, "If a case is to be brought in court by a public prosecutor and the defendant involved has not entrusted anyone to be his/her defender due to financial difficulties or other reasons, the people's court may designate a lawyer that is obligated to provide legal aid to serve as a defender. If the defendant is blind, deaf or mute, or if the defendant is a minor, and thus has not entrusted anyone to be his/her defender, the people's court shall designate a lawyer that is obligated to provide legal aid to serve as a defender. If there is the possibility that the defendant may be sentenced to death and yet he/she has not entrusted anyone to be his/her defender, the people's court shall designate a lawyer that is obligated to provide legal aid to serve as a defender." This is the first time in China that legal aid has been written into law.

The Law on Lawyers, adopted on May 15, 1996, provides more details. Chapter 6 of the law provides, "Citizens who need legal assistance but cannot afford to pay for lawyers' fees, may, in accordance with state regulations, seek legal assistance in matters such as supporting the elderly, industrial injuries, criminal lawsuits, state compensation, and the granting of pensions for the disabled or survivors of an accident. Lawyers should assume the responsibility of legal assistance and dutifully help those in need in accordance with state regulations. Specific rules for legal assistance will be worked out by the State Council judicial administration and submitted to the State Council for approval." These provisions define the scope of legal assistance and require lawyers to provide legal assistance. In addition, they lay the foundation for future legislation on legal aid.

In China, there are two kinds of legal aid institutions: government-funded and non-governmental institutions. Non-governmental legal aid institutions include women's federations, trade unions, disabled persons' federations, colleges, universities, etc.

By January this year, 381 out of the 387 municipal governments and 2,361 out of the 2,375 county governments in the 31 provinces, autonomous regions and municipalities on China's mainland have legal aid institutions. In other words, almost all local governments in China have established a legal aid office.

Budgets of government-funded legal aid institutions come primarily from financial allocations and donations, while non-governmental legal aid institutions depend wholly on funds raised privately. For example, the Legal Aid Center of Peking University covers part of its expenses with donations from the U.S.-based Ford Foundation.

Chapter Two of the Regulations on Legal Aid stipulates the scope of legal aid from government-funded institutions. The scope of service of non-governmental legal aid institutions is not limited though some choose to engage themselves in certain types of cases. For example, the Center for Women's Law and Legal Services of Peking University mainly focuses on cases in which women are involved.

(Beijing Review, February 11, 2004)

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