Legal Aid

Introduction

Recent years have witnessed the development of a national Chinese legal aid system. This system has significantly increased the ability of Chinese citizens to rely on the legal system, and generally promoted the development of rule of law in China.  However, lack of funding for legal aid remains a system-wide weakness.  Furthermore, eligibility restrictions limit the ability of a particularly needy group, migrant workers, to receive legal aid.

Structure

Although various Chinese local organizations providing legal assistance emerged in the 1980’s and early 1990’s, no comprehensive nationwide system existed.  In 1996, the Ministry of Justice (MOJ) issued a notice urging every province, autonomous region and municipality to establish legal aid centers.  A second notice was issued in 1997, followed by national legal aid regulations adopted in 2003, outlining the roles of the legal aid centers, eligibility for legal aid, and the application procedure.

As of June 2003, 17 provincial-level governments had established legal aid centers, with a total of 2,642 centers nationwide.  One such center is the Guangzhou Legal Aid Center.  Nationally, the total staff of these centers is approximately 8,900, half of which have legal qualifications.  According to official statistics, legal aid centers have accepted 800,000 cases in the past 7 years, providing aid to over 6 million people.

The National Legal Aid Center, established under the auspices of the Ministry of Justice, is the national organ responsible for legal aid.  Local legal aid centers are under the control of local branches of the Ministry of Justice.  The 2003 regulations emphasize that municipal, city and county legal aid centers should establish systems of legal aid thatrespond to local needs, allowing for flexibility and variation from one center to the next. 

National regulations charge each local legal aid center with the responsibility for organizing, guiding and coordinating legal aid work in its district.  This work includes performing intake, determining eligibility, and organizing legal aid personnel. Many legal aid centers also operate hotlines, providing legal advice free-of-charge to anyone who calls in.  Private attorneys, to whom legal aid centers distribute cases, often provide the actual representation. This system depends on China’s Lawyer’s Law, which requires all lawyers to perform a certain amountof legal aid work.  Lawyers fulfilling their legal aid requirement receive a subsidy from the legal aid center upon completion of the case.  Legal aid centers cannot, however, receive fees for their work. 

Insufficient funding, resulting in an inability to satisfy the demand for legal aid, is one of the main challenges that legal aid centers face.  According to official statistics, legal aid centers receive 700,000 cases every year, yet are only able to handle one-quarter of them.  Local governments are responsible for funding their own legal aid centers.  This creates an unfunded mandate problem, as the central government has essentially commanded lower level agencies to provide legal aid services, without identifying clear funding sources to allow them to do so.  Perhaps in recognition of this problem, the 2003 regulations also encourage organizations outside the government to establish legal aid efforts with their own funds.  Furthermore, the National Legal Aid Center has established the China Legal Aid Foundation, whose main purpose is to provide financial support to promote legal aid.  However, the size of the Foundation’s resources and the scope of its funding are unclear. 

Legal aid centers can be punished for providing legal aid to ineligible applicants, not providing it to eligible ones, receiving compensation for their work, engaging in for-profit legal services, and misusing legal aid center funds.  Individual lawyers can be punished for refusing to take a case without reason, withdrawing representation without authorization, and receiving funds from their clients.  Responsibility for disciplinary measures rests with the Ministry of Justice.

Eligibility

According to the national regulations, eligibility for legal aid is determined by economic need.  Specific standards vary by locality.  For criminal cases, this eligibility extends to include anyone blind, deaf, mute, or on death row, regardless of their economic situation.

Civil cases for which individuals have the right to request legal aid include problems such as government compensation, social security and minimum wage, pensions for the disabled, alimony for parents and children, and child support payments.

Individuals seeking legal aid can either approach the legal aid center directly, or can be referred by a court. 

Applicants for legal aid must provide proof of their economic difficulties and valid identification.  Many provincial regulations require applicants to present a valid residence permit.  This prevents unregistered migrant workers, often among the most in need of legal aid, from receiving it.  Applicants may be rejected if they do notmeet the above conditions.     If rejected, the applicant can petition directly to the Ministry of Justice, which can overrule the decision of the legal aid center.The availability, extent, and quality of legal aid representation on politically sensitive cases, or on issues directly challenging vested local interests, remain open questions.

Other Sources of Legal Aid

Organizations other than government legal aid centers also provide legal aid services. The National Legal Aid Center recognizes the value of these programs, and encourages such organizations to work under the guidance of the official legal aid structure.  The scope of representation provided by some of these organizations is broader than that provided by government-funded centers.

Some are run by quasi-government organizations, such as the Qianxi Women’s Law Center in Hebei.  Under the umbrella of the All-China Women’s Federation, the Qianxi Center provides legal aid to poor rural women.  Besides handling cases, the Women’s Law Center also organizes workshops for court officials to promote awareness of laws protecting women’s rights. 

Other legal aid organizations are affiliated with universities, such as the Wuhan University Center for the Protection of Disadvantaged Citizens and the Center for Women’s Law Studies and Legal Services at Peking University.  The Wuhan Center specializes in women’s rights and administrative litigation.  The Peking University Center focuses on family law, labor disputes and personal injury claims for women, and often selects high-profile cases with a potential for high social impact.  For example, it might accept a case with slim chances of victory, in order to point out weaknesses in the legal system.  An increasing number of universities are also developing clinical legal aid programs, under the auspices of the Committee of Chinese Clinical Legal Educators.

Finally, organizations that are not directly affiliated with the government or universities also provide legal aid services, often with a focus on a particular issue, such as worker rights.  Many legal aid organizations outside the national legal aid center system receive funding from foreign organizations, such as the Ford Foundation.

Conclusion

The growth of China’s national legal aid system is a positive development, which has contributed to increasing Chinese citizens’ awareness and reliance upon the legal system.  However, both insufficient funding and eligibility restrictions continue to seriously limit accessibility to legal aid.