Decree of the State Council of the People's Republic of China

No. 385

The Regulations on Legal Aid, adopted at the 15th Executive Meeting of the State Council on July 16, 2003, is hereby promulgated and shall be effective as of September 1, 2003.

Premier: Wen Jiabao

July 21, 2003

Regulations on Legal Aid

(Adopted at the 15th Executive Meeting of the State Council on July 16, 2003, promulgated by Decree No. 385 of the State Council of the People's Republic of China on July 21, 2003, and effective as of September 1, 2003)

Chapter I General Provisions

Article 1 These Regulations are formulated for the purposes of ensuring the access of citizens in economic difficulty to necessary legal services and promoting and standardizing the legal aid work.

Article 2 Any citizen meeting the conditions in these Regulations may, in accordance with these Regulations, obtain, free of charge, such legal services as legal advice, agency and criminal defense.

Article 3 Legal aid is a governmental responsibility and the people's government at or above the county level shall adopt positive measures to promote the work of legal aid, provide fiscal support for legal aid and ensure that the undertakings of legal aid develop in harmony with economic development and social progress.

Fund for legal aid shall be used for the designated purposes only and supervised by finance and auditing departments.

Article 4 The judicial administrative department of the State Council shall supervise and administer the nationwide legal aid work. Judicial administrative departments of local people's governments at or above the county level shall supervise and administer the legal aid work within their respective administrative areas.

The All-China Lawyers Association and local lawyers associations shall assist the legal aid work conducted on the basis of these Regulations in accordance with their articles of association.

Article 5 Judicial administrative departments of people's governments of municipalities directly under the Central Government, of people's governments of cities divided into districts or of people's governments at the county level determine if necessary legal aid institutions within their respective administrative areas.

Legal aid institutions shall be responsible for accepting and examining applications for legal aid, assigning or arranging personnel to provide legal aid to citizens meeting the conditions in these Regulations.

Article 6 Lawyers shall fulfill their legal aid obligations pursuant to the Law on Lawyers and these Regulations, provide the aided persons with legal services that meet the standards, protect according to law the legitimate rights and interests of the aided persons and accept supervision of lawyers associations and judicial administrative departments.

Article 7 The State encourages the public to make donations to activities of legal aid.

Article 8 The State supports and encourages social organizations such as associations and institutions to provide legal aid to citizens in economic difficulty by utilizing their own resources.

Article 9 Relevant people's governments and judicial administrative departments shall commend and award organizations and individuals that have made outstanding contributions in the legal aid work.

Chapter II Scope of Legal Aid

Article 10 Any citizen may apply to the legal aid institution for legal aid for the following matters requiring agency if he fails to entrust an agent for reasons of economic difficulty:

(1) claim for State compensation according to law;

(2) claim for social insurance benefits or minimum subsistence allowances;

(3) claim for allowances for bereft families and social relief;

(4) claim for payment of maintenance for a parent, child, spouse, or any other dependent;

(5) claim for pay for work; and

(6) claim for civil rights and interests arising from acts of justice and courage.

People's governments of provinces, autonomous regions and municipalities directly under the Central Government may make supplementary provisions on the matters for legal aid other than those provided in the preceding paragraph.

Any citizen may apply to the legal aid institution for legal advice with regard to the matters provided for in paragraphs 1 and 2 of this Article.

Article 11 Any citizen may apply to the legal aid institution for legal aid if, in criminal proceedings, there is one of the following circumstances:

(1) where a lawyer is not appointed because of economic difficulty after a criminal suspect is interrogated by the investigation organ for the first time or from the day on which compulsory measures are adopted against him;

(2) where, in a case of public prosecution, the victim and his legal representative or near relatives have not yet entrusted an agent ad litem because of economic difficulty from the day on which the case is transferred for examination before prosecution; or

(3) where, in a case of private prosecution, the private prosecutor and his legal representative have not yet entrusted an agent ad litem because of economic difficulty from the day on which the case is accepted by the people's court.

Article 12 If a case is brought in court by the public prosecutor and the defendant has not yet entrusted anyone to be his defender due to economic difficulty or other reasons, the legal aid institution shall provide legal aid when the people's court designates a defense for the defendant.

If the defendant is blind, deaf, mute or a minor and has not yet entrusted a defender, or the defendant may be sentenced to death penalty and has not yet entrusted anyone to be his defender, the legal aid institution shall provide legal aid without examining the economic status of the defendant when the people's court designates a defense for the defendant.

Article 13 Criteria for economic difficulty of citizens referred to in these Regulations shall be set by people's governments of provinces, autonomous regions and municipalities directly under the Central Government in light of the situations of economic development and the need of the undertakings of legal aid in their respective administrative areas.

In case of discrepancy in the criteria of economic difficulty between the place of domicile of the applicant and the place of the legal aid institution that has accepted the application, the criteria of the latter place shall prevail.

Chapter III Legal Aid Application and Examination

Article 14 A citizen applying for legal aid for the matters listed in Article 10 of these Regulations shall submit an application according to the following provisions:

(1) to claim State compensation, the applicant shall apply to the legal aid institution in the place where the organ liable for compensation is located;

(2) to claim social insurance benefits, minimum subsistence allowances, or allowances for bereft families and social relief, the applicant shall apply to the legal aid institution in the place where the organ responsible for granting social insurance benefits, minimum subsistence allowances or for distributing allowances for bereft families or social relief is located;

(3) to claim payment of maintenance for a parent, child, spouse, or any other dependent, the applicant shall apply to the legal aid institution in the place of the domicile of the person under obligation for making such payment;

(4) to claim pay for work, the applicant shall apply to the legal aid institution in the place of the domicile of the party under obligation for making such payment; and

(5) to claim civil rights and interests arising from acts of justice and courage, the applicant shall apply to the legal aid institution in the place of the domicile of the requested party.

Article 15 Any person listed in Article 11 of these Regulations applying for legal aid shall apply to the legal aid institution in the place of the people's court trying the case. The application by a criminal suspect held in custody shall be forwarded by the detention house to the legal aid institution within 24 hours, and the detention house shall notify the legal representative or near relatives of the applicant to assist in providing the relevant certificates and proof materials required for the legal aid application.

Article 16 Where the applicant has no capacity for civil conduct or limited capacity for civil conduct, the application shall be made on his behalf by his legal representative.

Where the applicant without or with limited capacity for civil conduct needs legal aid as a result of lawsuit or any other dispute between him and his legal representative, the application shall be made on his behalf by any other legal representative who has no interest in the disputed matter.

Article 17 Any citizen applying for legal aid of agency or criminal defense shall provide the following certificates and proof materials:

(1) identity card or other valid proof of identity, and proof of authorization if the applicant's agent applies on his behalf;

(2) proof of economic difficulty; and

(3) case materials relevant to the matter(s) over which legal aid is requested.

The application shall be made in writing with the application form filled out; if the applicant indeed has difficulty in making a written application, he may apply orally and have the personnel from the legal aid institution or from the organ that forwards the application on his behalf make a written record.

Article 18 Upon receiving the application for legal aid, the legal aid institution shall examine the application. If it finds the certificates and proof materials submitted by the applicant to be incomplete, it may request the applicant to make necessary additions or give explanations; if the applicant fails to make additions or give explanations as requested, the application shall be deemed as having been withdrawn. If the legal aid institution finds the certificates and proof materials in need of verification, it shall contact the relevant departments or work units for verification.

Where an applicant meets conditions for legal aid, the legal aid institution shall decide in a timely fashion to grant legal aid; where an applicant fails to meet conditions for legal aid, the reasons shall be notified to him in writing.

Article 19 Where the applicant takes objection to the notice on not meeting the conditions for legal aid by the legal aid institution, he may file the objection with the judicial administrative department that determined the legal aid institution. The judicial administrative department shall review the objection within five working days from the date of receiving the objection and shall order in writing the legal aid institution to provide in a timely fashion legal aid to the applicant if finding, after review, the applicant meeting the conditions for legal aid.

Chapter IV Implementation of Legal Aid

Article 20 For a case over which defense is designated by the people's court, the people's court shall send the written notice of defense designating and a copy of bill of prosecution or a copy of the judgment to the legal aid institution in the place where the court is located ten days before opening of the court session. If the case is tried by the people's court in a place other than its locality, the people's court may send the written notice of defense designating and a copy of bill of prosecution or a copy of the judgment to the legal aid institution in the place of trial.

Article 21 The legal aid institution may assign a law firm to arrange a lawyer or designate its own personnel to handle the legal aid case, or may also, upon request by any other social organization, arrange personnel from the requesting social organization to handle the legal aid case. For a case over which defense is designated by the people's court, the legal aid institution shall reply with a determined name list of the persons handling the legal aid case to the designating people's court at least three days before opening of the court session.

Article 22 Personnel handling a legal aid case shall abide by the professional ethics and practicing discipline and refrain from receiving any money or property for providing legal aid.

Article 23 Personnel handling a legal aid case shall report to the legal aid institution in one of the following circumstances and the legal aid institution, after verification and confirmation, shall terminate the legal aid:

(1) where means of the aided person have changed so that he no longer meets the conditions for legal aid;

(2) where trial of the case is terminated or cancelled;

(3) where the aided person has entrusted on his own lawyers or other agents; or

(4) where the aided person has requested termination of legal aid.

Article 24 Upon close of the case, the lawyer assigned to handle the legal aid case or personnel from a social organization arranged to handle the legal aid case shall submit to the legal aid institution such materials as copies or photocopies of the relevant legal documents and the final report of the case.

Upon receiving the materials of the case provided in the preceding paragraph, the legal aid institution shall pay allowances for providing legal aid to the lawyer assigned to handle the legal aid case or personnel from a social organization arranged to handle the legal aid case.

Standards of the allowances for providing legal aid shall be determined by judicial administrative departments of people's governments of provinces, autonomous regions or municipalities directly under the Central Government jointly with finance departments at the same level by taking into account the local level of economic development and with reference to such factors as the average cost of legal aid institutions in handling different types of legal aid cases, and may be adjusted if necessary.

Article 25 For legal advice service requested by citizens, the legal aid institution shall provide the service without delay. If the matter is complicated or difficult, the legal aid institution may make an appointment for the service.

Chapter V Legal Liability

Article 26 Where a legal aid institution and its personnel come under one of the following circumstances, the person directly in charge and others directly responsible shall be given disciplinary sanctions according to law:

(1) providing legal aid to a person not meeting the conditions for legal aid, or denying legal aid to a person meeting the conditions for legal aid;

(2) receiving money or property for providing legal aid;

(3) providing paid legal services; or

(4) encroaching upon, dividing in secret or misappropriating legal aid fund.

The judicial administrative department shall order the return of the money or property received for providing legal aid, confiscate illegal income from providing paid legal services. For encroachment, dividing in secret or misappropriation of legal aid fund, the judicial administrative department shall order the return of the fund; if the circumstances are serious and thus a crime has been constituted, criminal liability shall be investigated according to law.

Article 27 Where a law firm refuses an assignment from the legal aid institution and fails to arrange its lawyer to handle a legal aid case, the judicial administrative department shall issue a warning and order it to make corrections. If the circumstances are serious, it shall be punished by suspension of its business for rectification for a period of not less than one month and not more than three months.

Article 28 Where a lawyer comes under one of the following circumstances, the judicial administrative department shall give him a warning and order him to make corrections. If the circumstances are serious, he shall be punished by suspension of practicing for a period of not less than one month and not more than three months:

(1) refusing to accept without justification or terminating without authorization a legal aid case; or

(2) receiving money or property for providing legal aid.

For an illegal act in subparagraph (2) of the preceding paragraph, the judicial administrative department shall order the return of the illegally received money or property and may concurrently impose a fine equivalent to more than one time and less than three times the worth of the received money or property.

Article 29 A lawyer who violates professional ethics and practicing discipline in handling a legal aid case shall be punished in accordance with the provisions of the Law on Lawyers.

Article 30 Personnel of judicial administrative departments who commit acts of abuse of power or neglect of duty in the supervision and administration of legal aid shall be given administrative sanctions according to law. If the circumstances are serious and thus a crime has been constituted, criminal liability shall be investigated according to law.

Chapter VI Supplementary Provision

Article 31 These Regulations shall be effective as of September 1, 2003.