Jolene Chen
The Legal Aid Law was adopted during the 30th meeting of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China on August 20, 2021, and will come into effect on January 1, 2022. This article will briefly introduce the newly promulgated Legal Aid Law by comparing it with the Legal Aid Regulations promulgated in 2003.
First, compared to the 2003 Legal Aid Regulations, the Legal Aid Law has expanded the scope of legal aid application.
In addition to citizens with financial difficulties, legal persons, unincorporated organizations and others who meet the legal requirements are also included in the scope of eligibility for legal aid.
Second, the Legal Aid Law enumerates in detail the types of legal aid services that can be provided by legal aid agencies.
The types of legal aid include: (a) legal consultation; (b) drafting of legal documents; (c) criminal defense and representation; (d) litigation and non-litigation representation in civil, administrative, and state compensation cases; (e) legal assistance by on-duty lawyers; (f) mediation and arbitration representation in labor disputes; and (g) other forms as provided by laws, regulations, and rules.
Third, the Legal Aid Law clarifies the qualifications of legal aid lawyers in cases involving serious crimes.
For a person who may be sentenced to life imprisonment or the death penalty, as well as a defendant in death penalty review cases, upon notification from a people’s court, people’s procuratorate or public security organ, a legal aid agency shall assign a lawyer with at least three years of relevant practice experience to act as the defender.
Fourth, the Legal Aid Law expands the circumstances in criminal cases in which the public prosecutor will have to notify a legal aid agency to assign a lawyer to act as the defender, expands the scope of cases in which a party may request legal aid, and also lists five types of legal aid cases that are not subject to economic hardship.
For a suspect in a criminal case or a defendant who has not retained a defender and meets the following conditions, the people’s courts, people’s procuratorate, or public security organ shall notify a legal aid agency to assign a lawyer to act as the defender: (1) a minor; (2) a person with visual, hearing, speech disabilities; (3) an adult who cannot fully recognize his/her own behavior; (4) a person who may be sentenced to life imprisonment or death; (5) the defendant of a death penalty review case who has applied for legal aid; (6) the defendant of a trial in absentia; or (7) any other person stipulated by laws or regulations. For defendants who has not retained a defender in other criminal cases subject to ordinary trial procedures the people’s court may notify a legal aid agency to appoint a lawyer as the defender. In compulsory medical cases, if the respondent or the defendant has not retained an agent ad litem, the people’s court shall notify a legal aid agency to assign a lawyer to provide legal assistance. The parties to the following matters who have not retained an agent ad litem due to financial difficulties can apply to a legal aid agency for legal aid: (1) request for state compensation; (2) request for social insurance benefits or social assistance; (3) request for solatium; (4) request for alimony or caretaking support; (5) request for confirmation of labor relations or payment of labor compensation; (6) request for the determination of a citizen’s lack of or limited capacity; (7) request for personal injury compensation as a result of traffic incidents, food, drug safety, or medical incidents; (8) request for damages for environmental pollution or ecological damage; or (9) other circumstances specified in laws, regulations, and rules. Under any one of the following circumstances, the party applying for legal aid is not subject to the restriction of economic hardship: (1) Close relatives of a martyr seeking to protect the personality right of the martyr; (2) relevant civil rights and interests arising from an act of courage; (3) state compensation due to acquittal in a retrial; (4) relevant rights and interests of a victim of abuse, abandonment or domestic violence; or (5) other circumstances stipulated by laws, regulations, and rules.
Fifth, the Legal Aid Law adds safeguards and supervision procedures.
A recipient has the right to ask the legal aid agency and legal aid personnel about the status of legal aid matters. If the legal aid agency and legal aid personnel fail to perform their duties in accordance with law, the recipient may lodge a complaint to the judicial administrative department as well as request the legal aid agency to replace the legal aid personnel. Legal aid agencies shall make comprehensive use of court hearing attendances, case file review, consultation with judicial organs, feedback reviews with recipients and other measures to cause legal aid personnel to improve the quality of service.
Sixth, the Legal Aid Law provides for the legal liability of legal aid agencies and their personnel when they violate the provisions of the Legal Aid Law, as well as the legal liability of relevant law firms and basic level legal service offices that fail to fulfill their legal aid-related obligations, as well as that of recipients who obtained legal aid by deception or other improper means.