Key Takeaways:
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- There are three types of legal aid personnel, namely, lawyers, grass-roots legal service workers, and legal aid volunteers. Lawyers include both private practicing lawyers from law firms and in-house lawyers from legal aid agencies.
- The Legal Aid Law lays out two situations, in criminal cases, under which the legal aid may be provided upon application and must be provided.
- In China, ‘duty lawyers’ refers to lawyers dispatched by legal aid agencies to station at courts, procuratorates, detention houses and other places, to provide legal aid to a suspect and/or defendant without legal representation.
On 20 Aug. 2021, the Standing Committee of the National People’s Congress, China’s legislature, promulgated the Legal Aid Law (法律援助法).
Before that, China had already established a legal aid system. In 1996, China mentioned legal aid for the first time when revising the Criminal Procedure Law (刑事诉讼法). In 2003, the State Council formulated the ‘Regulations on Legal Aid’ (法律援助条例), an administrative regulation to clarify how the government provides legal aid to the relevant parties.
This time, the legislature formulated a law on legal aid, so as to channel more resources into this field.
With 71 articles in total, the Legal Aid Law will come into force on 1 Jan. 2022. The main points of this Law are as follows:
1. What is legal aid?
The term “legal aid” mentioned in this Law refers to the provision of legal services such as legal consultation, representation, criminal defense, legal assistance from duty lawyers, free of charge by the State to citizens who are indigent and meet the legal conditions. (Article 2)
2. Who will organize the legal aid?
The judicial administrative department of the local government will set up a legal aid agency, which will be responsible for the provision of legal aid. (Article 12)
The work of the agency covers three aspects:
(i) accepting and examining applications for legal aid;
(ii) appointing personnel to provide legal aid;
(iii) paying legal aid subsidies to legal aid personnel.
3. Who will serve as legal aid personnel?
There are three types of legal aid personnel: lawyers, grass-roots legal service workers, and legal aid volunteers. (Article 12)
Lawyers include both private practicing lawyers from law firms and in-house lawyers from legal aid agencies.
Grass-roots legal service workers are a special type of legal practitioners. They are not lawyers, but they can work as lawyers in some aspects, such as representing clients in litigation. This profession has been allowed to exist since the 1980s, mainly to meet the needs of legal services in areas without sufficient lawyers.
Legal aid volunteers are mainly personnel and law students engaged in legal education and research in colleges, universities, and scientific research institutions. (Article 17)
At present, there is still a shortage of private practicing lawyers in many economically underdeveloped areas in China, so there are not enough private practicing lawyers for legal aid.
Therefore, the Legal Aid Law, on the one hand, expands the source of legal aid personnel, and on the other hand, it stipulates that law firms, grass-roots legal service agencies, lawyers, and grass-roots legal service workers are obligated to provide legal aid according to law.
However, the Legal Aid Law also emphasizes that: first, the judicial administrative department should give priority to private law firms in government procurement (Article 15); second, in criminal cases involving life imprisonment and death penalty, legal aid agencies shall appoint private practicing lawyers with more than three years of relevant practicing experience for defendants. (Article 26)
4. What kind of legal services can legal aid personnel provide?
Legal aid services include:
(1) Legal advice;
(2) Drafting legal documents;
(3) Criminal defense and representation;
(4) Litigation and non-litigation representation in civil, administrative and state-compensation cases;
(5) Legal assistance from duty lawyers;
(6) Labor dispute mediation and arbitration representation;
(7) Other circumstances stipulated by laws, regulations and rules. (Article 22)
5. When can a suspect/defendant get legal aid in criminal cases?
The Legal Aid Law lays out two situations, in criminal cases, under which the legal aid may be provided upon application and must be provided.
(1) Provision upon application
In this situation, the suspect/defendant can apply for legal aid, but the State does not necessarily have to provide the same.
First, if a criminal suspect or defendant in a criminal case has not entrusted an attorney for defense due to financial difficulties or other reasons, he or his close relatives may apply for legal aid with legal aid agencies. (Article 24)
Second, in addition to criminal cases, if the parties to other cases (such as requesting the payment of state compensation, social insurance, alimony, labor remuneration) meet specific conditions and have financial difficulties, they can also apply for legal aid with legal aid agencies. (Article 31)
(2) Provision on a mandatory basis
In this situation, the State must provide legal aid to the suspect/defendant.
First, if a suspect or defendant in a criminal case belongs to one of the following persons and has not entrusted an attorney for defense, the court, the procuratorate, and/or the public security organ shall notify the legal aid agency to appoint an attorney for him/her.
i. Minors;
ii. Persons with visual, hearing, and speech disabilities;
iii. Adults who cannot fully recognize their behavior;
iv. Persons who may be sentenced to life imprisonment or death penalty;
v. Defendants in death penalty review cases applying for legal aid;
vi. Defendants of a case tried in absentia;
vii. Other persons specified by laws and regulations. (Article 25)
Second, if the respondent or defendant in a compulsory medical case does not entrust an agent ad litem, the court shall notify the legal aid agency to appoint a lawyer to provide legal aid for him/her. (Article 28)
6. What is the duty lawyer?
The term “duty lawyer” refers to lawyers dispatched by legal aid agencies to station at courts, procuratorates, detention houses, and other places, to provide legal aid to a suspect and/or defendant without legal representation. (Article 14)
The court, the procuratorate, and the public security organ should inform the suspect and/or defendant without legal representation of his/her right to meet with the duty lawyer. (Article 37)
Photo by Neil Thomas on Unsplash
Contributors: CJO Staff Contributors Team
