P.R.C. Legal Aid Law (Draft)

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Table of Contents

Chapter I: General Provisions

Chapter II: Legal Aid Organizations and Personnel

Chapter III: Scope of Legal Aid

Chapter IV: Legal Aid Procedures

Chapter V: Safeguard Measures

Chapter VI: Legal Responsibility

Chapter VII: Supplementary Provisions

 

Chapter I: General Provisions

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

Article 2: "Legal aid" as used in this Law refers to legal consultation, representation, criminal defense, legal assistance from duty lawyers, and other legal services provided without compensation by the state to citizens with financial hardship and parties who meet the legally-prescribed requirements.

Legal aid is to be implemented by legal aid personnel as organized by legal aid institutions.

Article 3: Legal aid work shall uphold the leadership of the Chinese Communist Party, persist in being people-centered, respect and protect human rights, persist in being open, fair, and just; and persist in combining state safeguards with public participation.

Article 4: The State Council and 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.

Article 5: The State Council judicial administrative department is to oversee and manage the nation's legal aid efforts.

The judicial administrative departments of local people's Governments at the county level or above are to oversee and manage legal aid efforts in the corresponding administrative region.

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.

The relevant departments of all levels of people's government shall support and safeguard legal aid efforts in accordance with their duties and division of labor, and facilitate case-handling.

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

Article 7: The state is to encourage and support people's organizations, public institutions, and social organizations lawfully participating in legal aid work with the guidance of the judicial administrative departments.

All levels of people’s government and their relevant departments shall employ measures to encourage and support organizations and individuals providing legal aid volunteer services, or donating to legal aid.

Article 8: Organizations and individuals making outstanding contributions in legal aid work are to be given commendations and awards in accordance with relevant national regulations.

Chapter II: Legal Aid Organizations and Personnel

Article 9: 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 legal aid personnel such as practicing lawyers, legal aid institution lawyers, basic-level legal service workers, and legal aid volunteers to provide legal aid, and paying legal aid compensation.

Article 10: As needed, legal aid institutions may establish legal aid work stations or contact points for easy acceptance of legal aid applications.

Article 11: Legal aid institutions may station duty lawyers in people's courts, people's procuratorates, detention centers, and other such places, to provide legal assistance to parties in accordance with law.

Article 12: Practicing lawyers and law firms shall perform legal aid obligations in accordance with state provisions.

People's governments at the county level or above and their relevant departments may use measures such as procurement of services to support law firms and other legal service institutions providing citizens with legal aid.

Article 13: Legal aid institution lawyers shall meet the following conditions:

(1) Uphold the Constitution of the People's Republic of China;

(2) Possess national uniform legal professionals' credentials;

(3) Good moral character;

(4) Have the physical capacity and psychological caliber to normally perform their duties;

(5) Have engaged in related legal work for one year or more.

Article 14: Basic-level legal service workers and service centers shall perform legal aid obligations in accordance with state provisions.

Article 15: Where organizations and individuals provide volunteer legal aid services, they shall accept guidance from the legal aid institutions.

Institutions of higher learning may organize legal educators and students majoring in law to serve as legal aid volunteers, providing legal consultation and drafting legal documents on behalf of citizens in financial hardship and parties meeting the legally-prescribed requirements.

Article 16: Legal aid personnel shall lawfully perform their legally-prescribed duties to promptly provide the service recipients with legal aid services that are up to standards, to protect the lawful rights and interests of the service recipients.

Article 17: Legal aid personnel shall comply with professional ethics and practice discipline, and must not accept any property in handling legal aid matters.

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: Scope of Legal Aid

Article 18: Legal aid institutions may organize legal aid personnel to provide the following legal aid service:

(1) Legal consultation and drafting legal documents;

(2) Criminal defense and representation;

(3) Representation in state compensation, civil, or administrative matters;

(4) Duty Lawyer Legal Assistance;

(5) Other legal aid services provided for by laws and regulations.

Article 19: Legal aid institutions shall provide legal consultation through service kiosks, legal aid work stations, telephone, websites, and other methods; in simple cases, they may draft legal documents at the request of the parties.

Article 20: Where the criminal suspects or defendants in criminal cases in any of the following circumstances 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 provide them with a defense.

(1) Minors;

(2) People who are blind, deaf, or mute;

(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 criminal cases applying the ordinary procedures at trial;

(6) Defendants in criminal cases tried in absentia;

(7) Defendants in death penalty review cases;

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

Where people's courts hear compulsory treatment case, and the subject of the application or defendant has not retained an agent ad litem, the people's courts shall notify a legal aid institution to appoint a lawyer to provide him legal assistance.

Article 21: Criminal suspects and defendants in criminal cases that have not retained a defender due to financial hardship or other reason, and their families, may apply to the legal aid institutions for legal aid.

When in a criminal public prosecution, the victims and their legally-designated representatives or close family members; or, in a private prosecution, the private prosecutor and their legally-designated representative, do not retain an agent ad litem due to financial hardship, they may apply to the legal aid institutions for legal aid.

Article 22: Where citizens have not retained a representative in the following matters that require representation, 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) Claims for payment of alimony, support, or maintenance;

(5) Requests for labor compensation;

(6) Claims for civil rights and interests arising from acts of samaritanship;

(7) Requests for compensation of physical harms from job injuries, traffic accidents, food or drug safety accidents, or medical accidents;

(8) Requests for compensation for environmental pollution damages such as solid waste pollution and water pollution;

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

Article 23: Where citizens are dissatisfied with effective judgments of judicial organs, or decide to raise a collateral appeal or apply for retrial, but have not retained a representative due to financial hardship, they may apply to the legal aid institutions for legal aid.

Article 24: Where laws or regulations have special provisions on legal aid applications from minors, women, the elderly, persons with disabilities, soldiers and their families, relatives of heroes and martyrs, victims of domestic violence, or others, follow those provisions.

Article 25: Duty lawyers are to provide parties with legal assistance in accordance with law, including legal consultation, suggestions on procedural selection, applications for modification of compulsory measures, and submitting opinions on the case handling. In plea leniency cases, duty lawyers shall explain relevant legal provisions to criminal suspects or defendants who have not retained a defender; shall submit comments to the case-handling organs on such as on sentencing and the procedures to be applied, and witness the criminal suspects' signing of the plea affidavit.

Chapter IV: Legal Aid Procedures

Article 26: Where people's courts, people's procuratorates, or public security organs that are handling criminal cases discover that the parties have circumstances provided for in article 20 of this Law, they shall promptly notify the legal aid institution to appoint a lawyer. After receiving the notice, the legal aid institution shall promptly appoint lawyers and notify the people's court, people's procuratorate, or public security organs.

Article 27: The people's courts, people's procuratorates, and public security organs shall safeguard duty lawyers' provision of legal assistance to parties in accordance with law, inform parties 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.

Article 28: The people's courts, people's procuratorates, public security organs, and other relevant departments shall promptly notify citizens of their right to apply for legal aid in accordance with law when handling cases or other matters.

Article 29: For litigation matters, citizens' applications for legal aid are to be submitted to the legal aid institution for the area where the case-handling organs are located; for 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. If it is more appropriate to have the legal aid institution for the applicant's residence or place of work accept it, the application may be made to them.

Article 30: Where applications for legal aid are submitted by detained criminal suspects or defendants, persons serving criminal penalties, or persons in compulsory isolated drug rehabilitation, the case-handling organs or facility with custody shall promptly transfer it to the legal aid institution.

Where parties submit applications for legal aid through duty lawyers, the duty lawyers shall promptly transfer them to the legal aid institutions.

Article 31: Where the applicant is a person who lacks or has a limited capacity for civil action, their legal representative may apply on their behalf.

Where applications for legal aid are submitted by the guardians or relatives of detained criminal suspects or defendants, persons serving criminal penalties, or persons in compulsory isolated drug rehabilitation, they may also apply on their behalf.

Article 32: Where this law provides that citizens may apply for legal aid due to financial hardship, the applicants shall truthfully explain their financial hardships.

Legal aid institutions reviewing citizens' financial hardship situations may proceed through means such as making inquiries through department information sharing or carrying out personal creditworthiness pledges. Relevant departments, units, villagers' committees, residents' committees, and individuals shall cooperate.

Article 33: 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 be carried out.

Article 34: Review of financial hardship conditions may be waived where the legal aid applicants are persons with disabilities, seniors, or members of other special groups, have no fixed source of income, or are currently receiving social assistance, judicial aid, or special supports; are claiming civil rights and interests arising from samaritanship, are rural residents requesting payment of labor compensation or compensation for workplace injuries; or are persons seeking state compensation as persons who served a prison term but were then found not guilty through trial supervision procedures and retrial.

Where applicants have the review of financial hardship waived in accordance with law, they shall provide relevant materials.

Article 35: Legal aid institutions discovering any of the following circumstances after receiving an application for legal aid may decide to first provide legal aid:

(1) the statute of limitations 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 urgent situations provided for by laws and regulations.

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

Article 36: After receiving an application for legal aid and upon evaluation, legal aid institutions make a decision on legal aid for those meeting legal aid requirements, and appoint legal aid personnel to provide legal aid to the aid recipient; for those who do not meet the requirements for legal aid, they shall make a decision to not give legal aid and notify the applicant and explain the reasons in writing. Where the application materials submitted by an applicant are incomplete, the legal aid institutions may request that the applicant supplement them or provide an explanation. Where applicants do not supplement them or provide an explanation as requested, it is viewed as a revocation of the application.

Article 37: 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 38: Aid recipients have the right to understand the handling of the legal aid matters, and where they have evidence that the legal aid personnel are not performing their duties in accordance with law, they may make a complaint to the legal aid institutions or request a change of legal aid personnel.

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 39: Legal aid institutions discovering any of the following circumstances shall make a decision to stop legal aid:

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

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

(3) The economic status of the aid recipient changes and they no longer meet the conditions for legal aid;

(4) The case has stopped trial or been withdrawn;

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

(6) The aid recipient has legitimate cause to request the termination of legal aid;

(7) Other circumstances where laws and regulations provide it shall be stopped.

Article 40: Legal aid personnel accepting appointments to handle legal aid matters shall report to the legal aid institution after the handling is complete, submit copies or reproductions of relevant legal documents, reports on handling the matter, and other materials.

Article 41: The legal aid institutions are to pay compensation for legal aid to legal aid personnel handling legal aid matters.

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 be adjusted as necessary.

Article 42: 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.

Chapter V: Safeguard Measures

Article 43: The State Council and local people's governments at the county level or above shall complete systems to ensure legal aid work, reasonably alotting legal aid resources, improving convenient service mechanisms for the people, promoting balanced development of legal aid, and the regulated establishment of legal aid.

Article 44: Legal aid expenses shall be listed in government budgets to ensure the needs of legal aid work.

Article 45: 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 46: Judicial administrative departments and legal aid institutions shall strengthen oversight, management, and quality evaluation of legal aid services, urging legal aid personnel to promptly and effectively handle legal aid matters.

Article 47: The state is to strengthen the use of information technology in legal aid, promoting information sharing and work coordination between legal aid institutions, judicial organs, and relevant departments, to increase the level of legal aid management and services.

Article 48: All levels of people's governments and their relevant departments shall organize and carry out regular publicity and education on legal aid. News media shall carry out public interest publicity on legal aid to expand the degree of awareness of legal aid.

Article 49: People's courts shall suspend, reduce, or waive litigation fees for legal aid recipients in accordance with law.

Notary establishments and forensic evaluation establishments shall reduce or waive notary or evaluation fees for legal aid recipients in accordance with the law.

Article 50: Where citizens, legal persons, and other organizations donate assets for use in legal aid through public interest social organizations or people's governments at the county level or above, they are to enjoy tax benefits in accordance with law.

The state is to encourage the establishment of legal aid funds through donations and other means, designated for use in legal aid services.

Chapter VI: Legal Responsibility

Article 51: Where staff of judicial administrative departments abuse their authority, derelict their duties, or twist the law for personal gain in the oversight and management of legal aid, they are to be sanctioned in accordance with law. Where staff of people's courts, people's procuratorates, public security organs, and relevant departments abuse their authority, derelict their duties, or twist the law for personal gain in legal aid work, they are to be sanctioned in accordance with law.

Article 52: In any of the following circumstances, the judicial administrative organs at the same level are to order legal aid institutions and their staffs to make corrections in a set period of time, and sanction directly responsible managers and other directly responsible persons in accordance with law.

(1) providing legal aid to those who do not meet the requirements for legal aid, or refusing to provide legal aid to those qualified to receive it;

(2) appointing personnel to provide legal aid who do not meet the requirements of this Law;

(3) Accepting assets for handling legal aid matters;

(4) engaging in legal services for compensation;

(5) taking possession of, divvying up, or misappropriating legal aid funds;

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

The judicial administrative departments are to order the return of property accepted for handling legal aid matters; where legal services are undertaken for compensation, the judicial administrative departments are to confiscate the unlawful gains; and where legal aid fees are taken possession of, divvied up, or misappropriated, the judicial administrative departments are to order their recovery.

Article 53: The judicial administrative departments and lawyers associations are to give administrative punishments and implement disciplinary action in accordance with relevant provisions where law firms have any of the following circumstances:

(1) They refuse to accept appointments by legal aid institutions without legitimate cause;

(2) After accepting an appointment they do not promptly arrange for lawyers from that firm to handle the legal aid matter or they refuse to provide conditions to facilitate the lawyers' handling of the matter;

(3) They tolerate or turn a blind eye to the firm's lawyers sluggish performance of legal aid duties or stopping the provision of legal aid without authorization;

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

Where basic-level legal services centers have any of the circumstances provided for in the preceding paragraph, the judicial administrative departments are to given administrative punishments in accordance with relevant provisions.

Article 54: The judicial administrative departments and lawyers associations are to give administrative punishments and implement disciplinary action in accordance with relevant provisions where practicing lawyers have any of the following circumstances:

(1) they refuse to accept to arrangements to handle legal aid matters without legitimate cause;

(2) They sluggishly perform legal aid duties or stop providing legal aid without authorization;

(3) Accepting assets for handling legal aid matters;

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

Where staff of basic-level legal services centers have any of the circumstances provided for in the preceding paragraph, the judicial administrative departments are to given administrative punishments in accordance with relevant provisions.

Article 55: Where legal aid recipients obtain legal aid by fraud or other improper means, the legal aid institutions shall order them to pay fees for the legal aid already carried out, and the judicial administrative organs are to give a fine of up to 3,000 RMB.

Article 56: 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 57: Where violations of this Law constitute a crime, criminal liability is to be pursued in accordance with law.

Chapter VII: Supplementary Provisions

Article 58: Foreigners and stateless persons may apply for legal aid in accordance treaties China has concluded or participates in. Where there are no relevant provisions, apply the principle of reciprocity.

Article 59: The State Council and Central Military Commission are to draft measures on legal aid for soldiers and their families.

Article 60: Where state security organs perform duties related to legal aid in accordance with law, the provisions of this Law on public security organs are to be applied.

Article 61: This Law takes effect on xx-xx-xxxx.

 

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