Opinion on establishing a system for Lawyers' Participation in Settlement and Representation in Cases of Litigation Involving Petitioning (provisional)

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Title: Opinion on establishing a system for Lawyers' Participation in Settlement and Representation in Cases of Litigation Involving Petitioning (provisional)

Promulgating Entities:Central Political and Law Commission

Reference number:

Promulgation Date: 2015-11-9

Expiration date:

Source of text: http://news.xinhuanet.com/legal/2015-11/09/c_128408024.htm

Opinion on establishing a system for Lawyers' Participation in Settlement and Representation in Cases of Litigation Involving Petitioning (provisional)

These opinions on establishing a system for lawyers' participation in settlement and representation of petitioning cases involving law and litigation are hereby submitted so as to implement the spirit of the fourth plenary session of the 18th party congress; so as to fully bring into play the active function of the legal service corps in protecting the public's lawful rights and interests, in resolving conflicts and disputes, in promoting social harmony and stability; and so as to deeply advance reform of petitioning involving law and litigation.

I. The significance of establishing a system for lawyers' participation in settlement and representation of petitioning cases involving law and litigation

Lawyers are socialist legal workers, with an important role in comprehensively promoting governance based on law. The fourth plenary session of the 18th party congress made deployments for strengthening the construction of the lawyers corps, and for the development of legal service affairs. It required that the majority of lawyers actively participate in providing timely, effective legal assistance to urban and rural people. It established an institution whereby lawyers interpret the law based on the cases, and increase public legal education and publicity. It also implemented a judicial appeal system for legal counsel to protect parties in exercising their right of appeal. These initiatives present new requirements for lawyers doing legal service work or fulfilling social responsibility in the new situation; and have a major significance for strengthening the populace's legal notions and advancing the establishment of a society with rule of law. Lawyers are carrying out the specific requirements and practices of the spirit of the Party's Fourth Plenary Session of the 18th Party Congress and the overall promotion of the rule of law when they provide good legal services to the petitioning masses in petitioning cases involving the law or litigation.

随着涉法涉诉信访改革推进实施,依法处理涉法涉诉信访工作取得了积极效果,但涉法涉诉信访案件多发、重复访高发、久访不息的问题仍然突出,既加重了信访群众的诉累,又耗费了大量司法资源,影响正常信访秩序。 律师以法律服务者身份参与涉法涉诉信访工作,容易取得信访群众信任,引导信访群众理性表达诉求、依法维护权益;律师是法律“明白人”,既向信访群众讲法明理,又督促政法机关严格依法办案,有利于涉法涉诉信访案件得到依法解决;律师参与化解和代理涉法涉诉信访案件,既是为信访群众提供法律服务,也是提高自身能力素质、彰显社会责任的实践和锻炼。 充分发挥律师的独特优势,动员律师积极参与化解和代理涉法涉诉信访案件工作,是推进涉法涉诉信访走向法治的重要途径,是形成良好信访秩序的制度保障。 各级政法机关和律师协会要高度重视,积极为律师参与涉法涉诉信访工作创造条件,实现与政法机关的优势互补、良性互动,提高依法解决涉法涉诉信访问题的能力和效果。

II, Tasks and principles for lawyers' participation in settlement and representation in cases of litigation involving petitioning

Lawyers' participation in settlement and representation in cases of litigation involving petitioning is a public interest legal services effort. For those who dispute the opinion of the law enforcement [political-legal] authorities in dealing with a legal matter, who express their demands in the form of petitioning, a lawyer can be designated by the Lawyers' Association, to listen to the demands of the petitioners, evaluate the matter petitioned about, explain the law and reasoning related to the matter, make suggestions regarding the handling of the matter, guide petitioning for review and other work, promote the resolution of cases fairly and according to law, to achieve a stoppage in petitioning. Specific tasks are: if the original cases handled correctly, help petitioners accurately understand the legal opinion issued according to law by the law enforcement [political-legal] authorities, to persuade them to accept the judgment and cease protesting; if there are errors or defects in the original handling of the case, make recommendations to the law enforcement authorities, prompting a legal process to resolve the problems; for petitioners who have difficulties in living, in line with relevant poverty assistance provisions, assist applicants in their applications for assistance.

Lawyers' participation in settlement and representation in Cases of litigation involving petitioning shall obey the following principles:

Voluntariness and equality. Respect the wishes of petitioners, do not compel settlement, do not show prejudice in favor of political or legal units handling the case, do not mislead the petitioning masses.

Law based reasoning. Strictly follow law and policies, clearly explain legal reasoning to petitioners, clarify the case handling, speak reasonably, and submit a legal opinion to the relevant political or legal organ.

Seeking truth from facts. With facts as the basis and law as their measure, preserve the petitioning masses' lawful rights and interest in accordance with law, and respect just handling opinions issued by political and legal organs in accordance with law.

Free and for the public good. With no profit motive, provide free legal services to petitioners.

III. Operational models for lawyers' participation in settlement and representation of petition cases involving law and litigation

Consultation services for to the petitioning masses are provided by lawyers appointed by lawyers associations to go to the petitioner reception areas of political and government organs.

Services specific to the case and individuals is carried out by lawyers recommended by lawyers associations to petitioners, or by lawyers voluntarily selected by petitioners from the lawyers database for petitioning cases involving litigation,

Political and legal organs go through the lawyers associations to retain law firms to carry out analysis of cases of petitioning involving litigation and submit legal opinions and recommendations for handling.

Relying on lawyers associations or legal aid centers, or through public interest legal service organizations for petitioning involving laws or litigation, carry out settlement and representation efforts in petition cases involving law and litigation directly aimed at the public.

All areas may actively explore other models of lawyers' participation in settlement and representation in cases of litigation involving petitioning on the basis of actual local conditions and following the principles of convenient implementation, practicality and effectiveness.

IV. Work methods for lawyers' participation in settlement and representation in Cases of litigation involving petitioning

On the basis of the petitioner and the actual circumstances of the petitioning case, lawyers use professional legal knowledge and practical experience in resolving conflicts, to flexibly use a variety of methods to promote the petitioning cases involving litigation and law receipt of lawful and just dispositions.

Interview the petitioner. Earnestly listen to petitioners' statements, carefully read the petition materials, accurately understand petitioners' demands, divert the emotions, give explanations to dispel confusion, and providing legal consultation to answer questions.

Comment on petitioners ' cases. On the basis of the case facts and relevant legal provisions, and on the foundation of investigation to clarify the facts, a plan for review analysis and looking into resolution of problems of petitioner's petition claims is made by the law firms or legal service organizations for petitioning involving law or litigation. Where it is necessary to learn about case circumstances from the case-handling organ, promptly communicate with that case-handling organ.

Do a good job of guidance through explanation of the law. Where upon analysis and appraisal, it is felt that the original case handling was correct and the petitioners' demands aren't proper, patiently guide the petitioner to accept dropping the suit by presenting facts, explaining reasoning and legal basis. Where they still will not drop the case, persons such as experts in the relevant fields, opposing parties, public representatives or persons with experience petitioning may be invited to publicly appraise whether the petitioners' claims have a lawful basis, or may recommend that the case handling organ hold a hearing.

Submit recommendations for handling. Where after analysis and appraisal it is found that the original handling had mistakes or flawed enforcement, promptly submit a legal opinion and work recommendation to the political or legal organ with jurisdiction.

Guide complainants in appealing in accordance with law. Where petition demands comply with legal provisions and it is necessary to appeal to the political legal organs, lawyers may help petitioners in writing complaint appeals materials, collecting evidence, being questioned, and guiding petitioners through appeal procedures in accordance with law. Where petitioners need to retain lawyers for appeal, they may decide on their own whether the original lawyer giving reception service or another lawyer. When capacities are mature, include those unable to hire lawyers within the scope of legal aid.

Assist in applying for aid. Petitioners with livelihood problems that meet the requirements for national judicial assistance, may be assisted in applying to political and legal organs for national judicial assistance; those that still have difficulties after being given national judicial assistance or who do not meet the requirements for national judicial assistance may be assisted in applying to the relevant government departments for other means of social assistance.

V. Strengthening management and safeguards for lawyers' participation in settlement and representation in Cases of litigation involving petitioning

律师协会负责推荐参与化解和代理涉法涉诉信访案件的律师人选,并建立律师人才库和名录,报同级司法行政机关备案。 参与化解和代理涉法涉诉信访案件的律师应当政治坚定、公道正派,具有较强的业务能力和社会责任感,热心公益事业,善于做群众工作。 重视发挥党员律师、优秀律师的示范带动作用。

各政法接访单位要为律师参与化解和代理涉法涉诉信访案件提供必要的场地和设施,加强安全防范,保障律师人身安全;对律师阅卷、咨询了解案情等合理要求提供支持,对律师提出的处理建议认真研究,及时反馈意见;对确有错误或瑕疵的案件,应当及时导入法律程序予以解决。

律师参与化解和代理涉法涉诉信访案件,应当遵守相关法律规定、职业道德、工作原则。 不得泄露化解和代理中知悉的案件信息以及依法不能公开的信息,不炒作有关敏感、复杂信访案件,严禁支持、唆使、组织信访人采取违法方式反映问题。 与案件有利害关系的律师,应当回避相关信访案件的化解和代理工作。 对违反执业纪律的律师,取消其参与化解和代理涉法涉诉信访案件的资格,并视情由主管部门依法依规做出相应处理。

VI. Strengthening organizational leadership of lawyers' participation in settlement and representation in Cases of litigation involving petitioning

各级党委政法委要加强对这项工作的领导,及时协调解决好工作中遇到的困难和问题。 司法行政机关负责律师参与化解和代理涉法涉诉信访案件工作的牵头组织和指导,律师协会负责日常工作管理,对参与化解和代理工作的律师、律师事务所、涉法涉诉信访法律服务机构,应当给予适当补助,但当事人自行聘请代理律师的除外。 法院、检察、公安等机关立足本职,做好涉法涉诉信访案件依法处理工作,需要律师参与化解和代理涉法涉诉信访案件的,及时向司法行政机关提出需求,积极支持律师工作,破解息诉息访难问题。

各省、自治区、直辖市和新疆生产建设兵团要结合实际,制定律师参与化解和代理涉法涉诉信访案件的具体办法,力争2015年底前,以地市为重点全面推开实施。 要建立健全律师参与化解和代理涉法涉诉信访案件的人员选任、培训考核、日常管理、奖惩激励等办法,确保工作健康有序开展。 要切实保障律师参与化解和代理涉法涉诉信访案件的必要经费。 同时,积极鼓励倡导信访人自行聘请律师,为其代理申诉,依法维护自身权益。 要积极动员具有业务专长、有群众威信的第三方人员参加涉法涉诉信访案件化解工作,逐步形成以律师等法律服务人员为主、社会力量共同参与的多元化解工作格局。 注意总结工作、交流经验、宣传推广,不断健全、完善相关工作机制,努力让信访群众感受到法律服务的便捷和诉求解决的顺畅,着力提高依法解决涉法涉诉信访案件的法律效果和社会效果。

 

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