Legal assistance is a system of legal remedy adopted by many
countries in the world. Under this system, the state, throughout
the legal process and at all levels, provides legal assistance,
through reduction or exemption of fees, to the underprivileged of
society who have difficulty safeguarding their own rights through
the normal legal means, because of economic problems or otherwise.
As a major safeguard to realize social justice and judicial parity
and to protect civil rights, legal assistance occupies 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, passed on March 17, 1996, states, "For
public-prosecuted cases, the court can designate a lawyer who
provides legal assistance to defend the accused if the accused
fails to appoint a defense attorney for economic or other reasons.
If the accused fail to appoint a defender because they are blind,
deaf, mute or a minor, the court should designate a lawyer who
provides legal aid to defend the accused. If the accused receives a
death penalty, but fails to appoint a defense attorney, the court
should designate a lawyer who provides legal aid to defend the
accused." This is the first time in the history of Chinese
legislation that legal assistance was written into law.
The Lawyers Law, passed on May 15, 1996, provides more specifics
with regard to legal assistance. Chapter 6 of the law says,
"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,
workplace 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.
At
present, China has formed a four-tier legal assistance
structure:
1.
At the national level, a Center for Legal Assistance has been
created under the Ministry of Justice to supervise and coordinate
legal assistance across the country. This center, created on May
26, 1997, is responsible for supervising legal assistance, drafting
regulations and rules, mapping out medium- to long-term plans and
annual plans, coordinate legal assistance work nationwide, and
conducting exchanges with foreign legal-aid groups and
individuals.
On
the same day, the China Legal Aid Foundation was created to raise,
manage and use the funds, publicize the legal aid system, and
promote judicial justice. Funding comes from donations and
sponsorships given by domestic organizations, enterprises and
individuals; interest; proceeds from bond and stock trading.
2.
Legal-aid centers have also been established in provinces
(autonomous regions) to supervise and coordinate legal-aid work in
their respective jurisdiction.
3.
The next tier is prefectures and cities where the legal-aid centers
perform a dual duty: administer and implement legal-aid programs in
their jurisdiction.
4.
Finally, where conditions permit, legal-aid centers are also set up
in counties and districts; where conditions do not permit, the
Judicial Bureau of the counties and districts should be responsible
for legal aid.
Applicants for legal aid should meet two conditions: that have
sufficient reason to prove they need legal assistance to safeguard
their lawful rights and interests; and that they indeed cannot
afford to pay, in part or full, the legal fees.
Legal assistance is rendered by three groups of people: lawyers,
public notaries and grassroots legal professionals. Lawyers provide
procedural aid (including defense for criminal cases,
representation for criminal cases, and representation for civil
procedures) and non-procedural aid; public notaries provide
notarization assistance; grassroots legal professionals provide
legal counseling, document drafting and general non-procedural
aid.
In
China, legal aid is funded by three sources: government, social
donations and volunteering. Though still in an embryonic stage,
China's legal-aid system as a major legal institution will surely
play an important role in realizing the rule of law in China,
safeguarding fundamental human rights and promoting social
stability.
