Legal Aid Law of the PRC (2nd Deliberation Draft)

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Table of Contents

Chapter I: General Provisions

Chapter II: Institutions and Personnel

Chapter III: Form and Scope

Chapter IV: Procedures and Implementation

Chapter V: Safeguards and Oversight

Chapter VI: Legal Responsibility

Chapter VII: Supplemental Provisions

Chapter I: General Provisions

Article 1: This law is drafted so as to promote and regulate legal aid efforts, to ensure the lawful rights and interests of citizens and parties, to promote the correct implementation of law, and to preserve social fairness and justice.

Article 2: "Legal aid" as used in this law refers to the system established by the state to provide citizens financial hardship or parties that meet the legally-prescribed requirements with free legal consultation, representation, criminal defense, and other legal services, and is a component of the public legal services system.

Article 3: Legal aid work is to uphold the Party's leadership, persist in being people-centered, respect and protect human rights, and comply with the principles of openness, fairness, and justice to carry out the integration of state safeguards and public participation.

Article 4: People's governments at the county level or above shall include legal aid work in the people's economic and social development plans and in basic public service systems, to ensure the coordinated development of legal aid matters, the economy, and society.

People's governments at the county level or above shall complete systems to ensure legal aid work, including the related funds in the budget of that level of government, establishing mechanisms for dynamic adjustment, ensuring the needs of legal aid work, and promoting the balanced development of legal aid.

Article 5: The State Council judicial administrative department is to guide and oversee the nation's legal aid efforts. The judicial administrative departments of local people's Governments at the county level or above are to guide and oversee legal aid efforts in the corresponding administrative region.

Other relevant departments of people's governments at the county level or above are to provide support and assurances for legal aid work in accordance with their respective duties.

 

Article 6: Within the scope of their respective duties, the people's courts, people's procuratorates, and public security organs shall ensure that parties receive legal aid in accordance with law and facilitate the work carried out by legal aid personnel.

Article 7: Lawyers associations shall guide and support law firms' and lawyers' participation in legal aid work.

Article 8: The state is to encourage and support people's organizations, public institutions, and social organizations lawfully providing legal aid with the guidance of the judicial administrative departments.

Article 9: The State is to encourage and support social forces such as enterprises and public institutions, social organizations, and individuals providing support to public institutions for legal aid through means such as making donations in accordance with law, and where requirements are me, they are to enjoy tax benefits in accordance with law.

Article 10: The judicial administrative departments shall carry out regular publicity and education on legal aid to spread knowledge of legal aid.

News media shall carry out public interest publicity on legal aid to and increate public opinion oversight.

Article 11: The state is to give commendations and rewards to organizations and individuals making outstanding contributions in legal aid work.

Chapter II: Institutions and Personnel

Article 12: The judicial administrative departments of people's governments at the county level or above shall establish legal aid institutions. Legal aid institutions are responsible for organizing the implementation of legal aid work, accepting and reviewing applications for legal aid, and appointing lawyers, basic-level legal service workers, legal aid volunteers, and other legal aid personnel, and to provide legal aid, and paying legal aid compensation.

 

Article 13: As needed, legal aid institutions may establish legal aid workstations or contact points for easy acceptance of legal aid applications.

Article 14: Legal aid institutions may station duty lawyers in people's courts, people's procuratorates, detention centers, and other such places, to provide legal aid to criminal suspects or defendants who do not have defenders.

Article 15: Judicial administrative departments may use measures such as government procurement of services to select law firms and other such legal service institutions to provide legal aid to recipients.

Article 16: Lawfirms, basic-level legal service centers, lawyers, and basic-level legal service workers have the obligation to provide legal aid in accordance with law.

Law firms and basic-level legal service centers shall support and safeguard their lawyers and basic-level legal service workers' performance of legal aid obligations.

Article 17: The state is to encourage and regulate legal aid volunteer services, and support eligible volunteers in providing legal aid in accordance with law. Institutions of higher learning and scientific research bodies, may organize persons engaged in legal education and research and students majoring in law to serve as legal aid volunteers, providing legal assistance for parties under the guidance of the judicial administrative organs such as legal consultation and drafting legal documents.

The specific management measures for legal aid volunteers are to be provided by the relevant departments of the State Council.

Article 18: Legal aid personnel shall lawfully perform their duties to promptly provide aid recipients with legal aid services that are up to standards, to protect the lawful rights and interests of the aid recipients.

Article 19: Legal aid personnel shall comply with professional ethics and practice discipline, and must not accept any property from aid recipients.

Article 20: Legal aid personnel who become aware of state secrets, commercial secrets, or private personal information during the course of employing technical investigative measures shall preserve their confidentiality.

Chapter III: Form and Scope

Article 21: Legal aid institutions may organize legal aid personnel to provide the legal aid services in the following forms:

(1) Legal consultation;

(2) preparation of legal documents;

(3) Criminal defense and representation;

(4) Representation in state compensation, civil, and administrative litigation and non-litigation representation;

(5) Duty lawyer legal assistance;

(6) Representation in mediation and arbitration on labor disputes;

(7) Other forms as provided by laws and regulations.

Article 22: Legal aid institutions may use diverse methods such as service kiosks, phone lines, and the internet to provide legal information to aid recipients; and in simple cases they may draft legal documents at the request of aid recipients.

Where providing legal aid services to persons with disabilities or the elderly, they shall employ convenient forms such as accessibility, based on the actual circumstances.

Article 23: Criminal suspects and defendants in criminal cases that have not retained a defender due to financial hardship or other reasons, and their families, may apply to the legal aid institutions for legal aid.

Article 24: Where the criminal suspects or defendants in criminal cases belong to any of the following and have not retained a defender, the people's courts, people's procuratorates, and public security organs shall notify the legal aid institutions to appoint a lawyer to serve as a defender.

(1) Minors;

(2) Persons with a visual, audial, or speech disability;

(3) Mentally ill persons that have not entirely lost their ability to recognize or control their conduct;

(4) Persons who might be sentenced to life imprisonment or death;

(5) Defendants in death penalty review cases;

(6) Defendants in criminal cases tried in absentia;

(7) Other persons provided for by laws and regulations.

Legal aid institutions shall appoint a lawyer with 3 or more years of experience in practice to serve as the defender for persons in items (4) and (4) of the preceding paragraph.

Article 25: Where the subject of an application for compulsory treatment or defendant has not retained an agent ad litem, the people's courts shall notify a legal aid organization to appoint a lawyer to provide them with legal aid.

Article 26: When the victims and their legal representatives or close family members in a public criminal prosecution; the private prosecutor and their legal representatives in a private prosecution, or the plaintiff and their legal representatives in attached civil litigation have not retained an agent ad litem due to financial hardship, they may apply to the legal aid institutions for legal aid.

Article 27: Duty lawyers shall provide criminal suspects or defendants who do not have a defender with legal assistance such as legal consultation, suggestions on procedural selection, applications for modification of compulsory measures, and submitting opinions on the case handling in accordance with law.

Article 28: Where parties in the following matters have not retained a representative, they may apply to the legal aid institutions for legal aid:

(1) Requests for state compensation in accordance with law;

(2) Requests for social insurance benefits or social assistance;

(3) Requests for bereavement benefits;

(4) Requests for parent, child, or spousal support payments;

(5) requests for determination of labor relationships or payment of labor compensation;

(6) Requests for compensation of physical injuries from workplace accidents, traffic accidents, food and drug safety accidents, and medical accidents;

(7) Requests for compensation of damages from environmental pollution and ecological destruction;

(8) Other circumstances provided for by laws and regulations.

Article 29: in any of the following circumstances where parties apply for legal aid, they are not subject to the restrictions for financial hardship:

(1) families of heroes and martyrs preserving the personality rights of the heroes and martyrs;

(2) Advocating civil rights and interests for samaritan conduct;

(3) Applying for state compensation where found not guilty on retrial;

(4) Advocating civil rights by those who have suffered abuse, abandonment, or domestic violence;

(5) Other circumstances provided for by laws, regulations, and rules.

Article 30: Where parties are not satisfied with the ruling of a judicial organ, decide to raise a collateral appeal or apply for a retrial, and the people's court rules for a retrial or the people's procuratorate decides to make a procuratorial counter-appeal, and due to financial hardship the party does not retain a defender or agent ad litem, they or their family may apply for legal aid to the legal aid institution.

Article 31: Where providing legal aid to minors, women, the elderly, persons with disabilities, or other special groups, the legal aid institutions shall consider the special circumstances of the persons described above and appoint appropriate legal aid personnel.

Where the laws or administrative regulations have special provisions for providing legal aid, follow those provisions.

Chapter IV: Procedures and Implementation

Article 32: The people's courts, people's procuratorates, public security organs, and other authorized departments shall promptly notify citizens of their right to apply for legal aid in accordance with law when handling cases or other matters.

Article 33: Where people's courts, people's procuratorates, or public security organs that are handling criminal cases discover circumstances provided for in the first paragraph of article 24 of this Law, they shall notify legal aid establishments to appoint a lawyer within 3 days. After receiving the notice, the legal aid institution shall appoint lawyers within 3 days and notify the people's court, people's procuratorate, or public security organs.

Article 34: The people's courts, people's procuratorates, and public security organs shall safeguard duty lawyers' provision of legal assistance in accordance with law, inform criminal suspects or defendants who do not have a defender of their right to meet a duty lawyer, and provide necessary facilitation for parties to meet with duty lawyers and for duty lawyers to learn about the case, access the case file, and have meetings.

Article 35: For legal aid in litigation matters, applications for legal aid are to be submitted to the legal aid institution for the area where the case-handling organs are located; for legal aid in non-litigation matters, applications are to be submitted to the legal aid institutions for either the place where the organs handling the dispute are located or where the cause of action arose.

Article 36: Where applications for legal aid are submitted by detained criminal suspects or defendants, persons serving criminal penalties, persons in compulsory isolated drug rehabilitation, and so forth, the case-handling organs or facility with custody shall transfer it to the legal aid institution within 24 hours.

Where criminal suspects or defendants apply for legal aid such as representation or criminal defense through the duty lawyers, the duty lawyers shall transfer it to the legal aid institutions within 24 hours.

Article 37: Where a person who lacks or has a limited capacity for civil action requires legal aid, their legal representative may apply on their behalf. Where the legal representatives violate the lawful rights and interests of persons lacking or with limited civil capacity, other legal representatives or family members may submit an application for legal aid on their behalf.

Where applications for legal aid for detained criminal suspects, defendants, persons serving criminal penalties, or persons in compulsory isolated drug rehabilitation, their legal representatives or relatives may also apply on their behalf.

Article 38: Where legal aid is applied for due to financial hardship, the applicants shall truthfully explain their financial hardships.

Legal aid institutions may verify applicants' financial hardship status through inquiries to the departmental information sharing system, or having the applicant make personal creditworthiness pledges. Relevant departments, units, villagers' committees, residents' committees, and individuals shall cooperate with legal aid institutions' carrying out verification work.

Article 39: The standards for financial hardship are to be determined by provincial, autonomous region, or directly governed municipality people's governments based on the administrative region's state of economic development and legal aid needs, and dynamic adjustment is to be carried out.

Article 40: Where applicants for legal aid have materials showing that they belong to the following categories of person, the verification of financial hardship may be waived:

(1) Special groups such as minors, the elderly, and persons with disabilities who lack a fixed source of livelihood;

(2) The targets of social assistance, judicial assistance, or support benefits;

(3) Migrant workers applying for payment of wages or requesting compensation of injuries from workplace injuries;

(4) Other personnel provided for by laws, regulations, and rules.

Article 41: Legal aid institution shall conduct a review and make a decision on whether to give legal aid within 7 days of receiving an application for legal aid. Where a decision is made to give legal aid, legal aid personnel shall be appointed with three days of the decision to provide legal aid to the recipient; and where their decision is to not give legal aid, the applicant shall be notified in writing and the applicant and the reasons are to be explained.

Where the application materials provided by applicants are incomplete, the legal aid institution shall inform the applicant a single time that they need to supplement the materials, or request that the applicant make an explanation. Where applicants do not supplement the materials or provide an explanation as requested, it is viewed as a revocation of the application.

Article 42: Legal aid institutions discovering any of the following circumstances after receiving an application for legal aid may decide to provide legal aid in advance:

(1) the statute of limitations or deadline is less than 7 days away, and it is necessary to promptly initiate litigation or apply for arbitration or administrative reconsideration;

(2) It is necessary to immediately apply for preservation of assets, preservation of evidence, or advance enforcement;

(3) Other circumstances provided for by laws, regulations, and rules.

Where the legal aid institution provides legal aid in advance, the aid recipient shall promptly make up the relevant formalities and supplement the relevant materials.

Article 43: After legal aid personnel accept an appointment, they must not refuse, delay, or terminate the provision of legal aid services without legitimate cause.

Legal aid personnel shall report on the handling of legal aid matters to the aid recipient in accordance with provisions, and must not harm the lawful rights and interests of the aid recipient.

Article 44: Aid recipients shall truthfully recount circumstances related to the legal aid matter to legal aid personnel, promptly provide evidence materials, and coordinate and cooperate in handling the legal aid matter.

Article 45: In any of the following circumstances, legal aid institutions shall make a decision to terminate legal aid:

(1) The aid recipient obtained legal aid by fraud or other improper means;

(2) The aid recipient intentionally concealed important facts related to the case or provided false evidence;

(3) The aid recipient uses legal aid to engage in illegal activities;

(4) There is a change in the aid recipients' economic situation, and they no longer meet the requirements for legal aid;

(5)The trial of the case is completed or has been withdrawn;

(6) The aid recipient retains a practicing lawyer or another representative by themself;

(7) The aid recipient has a legitimate reason to request that legal aid be terminated;

(8) Other situations provided for by laws and regulations.

Where legal aid personnel discover the situations provided for in the preceding paragraph; they shall promptly report them to the legal aid institutions.

Article 46: Where applicants or aid recipients have objections to legal aid institutions' decisions to not provide legal aid or to end legal aid, they may submit them to the judicial administrative department that set up the legal aid institution.

The judicial administrative departments shall conduct a review within five days of receiving an objection and make a decision to either sustain the legal aid institution's decision or order the legal aid institution to change the decision. Applicants and aid recipients who are dissatisfied with a judicial administrative department's decision to sustain a legal aid institution's decision may request an administrative reconsideration or raise an administrative lawsuit in accordance with law.

Article 47: After the handling of legal aid matters is completed, legal aid personnel shall promptly report to the legal aid institutions, submit copies or reproductions of relevant legal documents, reports on handling the matter, and other materials.

Chapter V: Safeguards and Oversight

Article 48: The state is to strengthen the use of information technology in legal aid, promoting information sharing and work coordination between judicial administrative departments, judicial organs, and relevant departments.

Article 49: The legal aid institutions shall promptly pay compensation for legal aid to legal aid personnel handling legal aid matters in accordance with provisions.

The standards for legal aid compensation are to be determined by the judicial administrative departments of provincial, autonomous region, or directly governed municipality people's governments in conjunction with the finance departments at the same level on the basis of factors such as the level of local economic development, the type of legal aid services, the costs of taking it on, and basic labor rates, are to carry out dynamic adjustments.

Legal aid compensation is exempt from value-added taxes and personal income taxes.

Article 50: People's courts shall suspend, reduce, or waive litigation fees for legal aid recipients and waive or reduce costs for legal aid personnel making reproductions.

Notary establishments and forensic evaluation establishments shall reduce or waive notary or evaluation fees for legal aid recipients.

Article 51: The judicial administrative departments of people's governments at the county level or above shall conduct planned training of legal aid personnel to increase their professional caliber and capacity for service.

Article 52: Aid recipients have the right to learn about legal aid matters from legal aid institutions and legal aid personnel; and where legal aid institutions and legal aid personnel do not perform their duties in accordance with law, aid recipients may make complaints to the judicial administrative organ, and may request that the legal aid institutions change the legal aid personnel.

Article 53: The judicial administrative organs shall establish systems for checking complaints about legal aid work; and after receiving complaints shall accept, investigate, and handle them in accordance with relevant provisions and promptly inform the complainant of the disposition.

Article 54: Judicial administrative organs and legal aid institutions shall establish a system of opening legal aid information, periodically publishing information to the public on the use of funds and case handling, and accept public oversight.

Article 55: Judicial administrative departments shall strengthen oversight and management, draft quality standards legal aid services, periodically evaluating quality through means such as third-party assessments.

Article 56: Legal aid institutions shall employ measures such as observing trials, checking case files, consulting judicial organs' opinions, and meeting with aid recipients, to urge legal aid personnel to increase the quality of services.

Article 57: Lawyers associations shall include law firms and lawyers' performance of legal aid obligations in annual evaluations, and carry out punishments as provided for law firms and lawyers that do not perform legal aid obligations or do so in a lackluster fashion.

Chapter VI: Legal Responsibility

Article 58: In any of the following circumstances, the judicial administrative organ that established that legal aid institution is responsible for ordering corrections; and where there are unlawful gains, ordering their return or confiscating the unlawful gains; and giving sanctions to the directly responsible managers and other directly responsible personnel in accordance with law:

(1) Refusal to provide legal aid to persons meeting the requirements for legal aid, or intentionally providing legal aid to persons who are not eligible for legal aid;

(2) Appointing persons to provide legal aid who are not eligible under this law;

(3) Accepting assets from aid recipients;

(4) engaging in paid legal services;

(5) Taking possession, privately divvying, or misappropriating legal aid funds;

(6) legal state secrets, commercial secrets, or personal private information learned of in the course of legal aid;

(7) Other situations provided for by laws and regulations.

Article 59: Where law firms or basic-level legal service centers have any of the following situations, the judicial administrative departments are to give punishments in accordance with law:

(1) Refusing to accept an appointment by the legal aid institution without legitimate grounds;

(2) Not promptly arranging for lawyers from that firm to handle a legal aid matter after accepting an appointment or they refuse to provide support and assurances for basic-level legal service workers handling legal aid matters;

(3) Tolerating or turning a blind eye to the firm's lawyers' or basic-level legal service workers' sluggish performance of legal aid obligations or stopping the provision of legal aid without authorization;

(4) other situations provided for by laws and regulations.

Article 60: Where lawyers or basic-level legal service workers have any of the following situations, the judicial administrative departments are to give punishments in accordance with law:

(1) Refusing to perform legal aid obligations or delaying performance without a legitimate reason;

(2) Concluding the provision of legal aid without authorization;

(3) Accepting assets from aid recipients;

(4) Leaking state secrets, commercial secrets, or private personal information during the course of providing legal aid;

(5) Other circumstances provided for by laws and regulations.

Article 61: Where aid recipients obtain legal aid by fraud or other improper means, the judicial administrative departments are to order them to pay fees for the legal aid already carried out, and give a fine of up to 3,000 RMB.

Article 62: Where this Law is violated by providing legal services posing as legal aid and soliciting benefits, the judicial administrative organs are to order corrections, confiscate unlawful gains, and give a fine of between 1 and 3 times the unlawful gains.

Article 63: Where state organs and their staffs abuse their authority, derelict their duties, or twist the law for personal gain in legal aid work, the directly responsible managers and other directly responsible personnel are to be sanctioned in accordance with law.

Article 64: Where violations of this Law constitute a crime, criminal liability is to be pursued in accordance with law.

Chapter VII: Supplemental Provisions

Article 65: This law applies by reference to legal aid work carried out by labor unions, Communist Youth Groups, Women's Federations, and other groups and organizations.

Article 66: Where the nation's laws have provisions on the provision of legal aid to foreigners and stateless persons apply those provisions; where our nation's laws have no provisions the relevant provisions of this law may be applied by reference on the basis of international treaties concluded or participated in by our nation, or in accordance with the principle of reciprocity.

Article 67: The relevant departments of the State Council and Central Military Commission are to draft measures on legal aid for soldiers and their families.

Article 68: This Law takes effect on xx-xx-xxxx.

 

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