Regulation of Beijing Municipality on Legal Aid

 2018-05-26  56


Regulation of Beijing Municipality on Legal Aid

  • Area of Law Lawyers
  • Level of Authority Provincial Local Regulations
  • Date issued12-19-2008
  • Effective Date03-01-2009
  • Status Effective
  • Issuing Authority Beijing Municipal People's Congress (incl. Standing Committee)



Regulation of Beijing Municipality on Legal Aid
(Adopted at the 8th session of the 13th People's Congress of Beijing Municipality on December 19, 2008)


Contents
Chapter I General Provisions
Chapter II Scope of Legal Aid
Chapter III Legal Aid Application and Examination
Chapter IV Provision of Legal Aid
Chapter V Legal Liability
Chapter VI Supplementary Provisions
Chapter I General Provisions
Article 1 For the purposes of ensuring that citizens in financial hardship or meeting statutory requirements obtain necessary legal services, regulating the legal aid services and promoting the development of the legal aid cause, this Regulation is formulated in accordance with the Regulation on Legal Aid issued by the State Council and other relevant laws and administrative regulations and in light of the actualities of this Municipality.
Article 2 This Regulation shall apply to the provision of free legal services by legal aid service agencies and legal aid workers, which are organized by legal aid institutions formed by the government, for citizens meeting the provisions of laws and regulations.
The term “legal aid service agencies” as mentioned in this Regulation includes law firms and other legal service agencies recognized by the justice administrative department. A legal aid service agency shall accept the assignments from a legal aid institution, and arrange its staff members to provide legal aid.
The term “legal aid workers” as mentioned in this Regulation includes lawyers, grassroots legal service workers, staff members of legal aid institutions, legal aid volunteers and other legal professionals who accept assignments or arrangements from the legal aid institutions to provide legal aid.
Article 3 Legal aid shall be a responsibility of the government. The people's government of a city or a district or county shall take measures to actively boost the legal aid work, include the operating fund for legal aid in the fiscal budget at the same level, and ensure the coordinated development of the legal aid cause and the economy and society.
The operating fund for legal aid shall be used exclusively for legal aid. The use of the operating fund shall be subject to the supervision of the public finance, audit and other departments.
Article 4 The justice administrative department of a city or a district or county shall be responsible for the supervision, administration and publicity of legal aid within its administrative area.
The legal aid institution determined or established by the justice administrative department of a city or a district or county shall be responsible for the specific acceptance and examination of legal aid applications, assign or arrange legal aid workers to provide legal aid and relevant services for citizens meeting the provisions of this Regulation, and supervise and guide the legal aid workers' legal aid activities.
Article 5 The lawyers' associations shall support and cooperate in the legal aid work, and supervise the lawful provision of legal aid by the lawyers.
A lawyer shall, under the Lawyers Law and this Regulation, perform the legal aid obligation, provide standard legal services for the aided persons, and maintain the legitimate rights and interests of the aided persons according to law.
Article 6 A social group, a public institution or any other social organization may, by taking advantage of its own resources, provide legal aid for citizens in financial hardship.
The trade union, the women's federation, the disabled persons' federation, the communist youth league or any other social group may carry out legal aid activities relevant to its work by taking into consideration its own characteristics.
Article 7 Organizations and individuals shall be encouraged to fund the legal aid cause in the form of donations. The donated property may be eligible for preferential tax treatments under the relevant provisions of the state.
A legal aid foundation established according to law may accept donations from organizations and individuals to the legal aid cause. The legal aid foundation shall use the donated fund according to the provisions of its articles of association, make public the information on the use of the fund, and accept the supervision of the public finance, audit and other departments.
Article 8 The organizations and individuals who have made outstanding contributions to the legal aid work shall be commended or rewarded by the people's government of a city or a district or county or by the justice administrative department.
Chapter II Scope of Legal Aid
Article 9 In any of the following matters, a citizen who needs representation but fails to retain an attorney for financial hardship may apply to the legal aid institution for legal aid:
1. requesting state compensation;
2. requesting the grant of social insurance treatment or minimum living safeguard treatment;
3. requesting the payment of consolation money or dole;
4. requesting the payment of parent support, child support or alimony;
5. requesting the payment of labor remuneration;
6. requesting judicial protection, in the event that his lawful rights and interests are injured for domestic violence, maltreatment or abandonment;
7. requesting compensation for any personal injury caused by a traffic accident, work-related accident, medical malpractice, product quality accident or any other personal injury accident; or
8. any other legal aid matter as prescribed in a law or regulation or by the people's government of this Municipality.
Article 10 The financial hardship requirement for a citizen who applies for legal aid shall be governed by the criteria of the state and this Municipality for the determination of low income families.
Article 11 A rural migrant worker who applies for legal aid for requesting the payment of labor remuneration or compensation for any work-related injury shall not be subject to the financial hardship requirement of this Regulation.
Article 12 Where a citizen's own legitimate rights and interests are injured as a result of his brave act for a just cause, he may apply for legal aid and shall not be subject to the financial hardship requirement of this Regulation.
The determination of a brave act for a just cause shall be governed by the relevant provisions of the state and this Municipality.
Article 13 A citizen under any of the following circumstances during the criminal proceedings may apply to the legal aid institution for legal aid:
1. The criminal suspect fails to retain a lawyer for financial hardship as of the date on which he is interrogated for the first time or a compulsory measure is taken against him;
2. The criminal suspect in a public prosecution case fails to retain a defender for financial hardship as of the date on which the case is transferred for examination for prosecution;
3. The defendant in a public prosecution case fails to retain a defender for financial hardship as of the date on which the public prosecution is initiated;
4. The victim or the legal representative or close relative thereof in a public prosecution case fails to retain an agent ad litem for financial hardship as of the date on which the case is transferred for examination for prosecution; or
5. The private prosecutor or the legal representative thereof in a private prosecution case fails to retain an agent ad litem for financial hardship as of the date on which the case is accepted by the people's court.
Article 14 For a public prosecution case where the public prosecutors appear in court, if the defendant fails to retain a defender for financial hardship or any other reason and the people's court designates a defender for the defendant, the legal aid institution shall provide legal aid to the defendant.
Where the defendant who is blind, deaf or dumb or is a minor does not retain a defender or the defendant who may be sentenced to capital punishment does not retain a defender, if the people's court designates a defender for the defendant, the legal aid institution shall provide legal aid to the defendant without regard to the financial conditions of the defendant.
Chapter III Legal Aid Application and Examination
Article 15 Where a citizen applies for legal aid for a litigation matter, he shall apply to the legal aid institution at the place where the people's court having jurisdiction is located; for a criminal case at the stage of criminal investigation or examination for prosecution, he shall apply to the legal aid institution at the place where the case-handling public security organ or people's procuratorate is located.
Where a citizen applies for legal aid for a non-litigation legal matter, he shall apply to the legal aid institution at the place where the competent handling organ or the domicile of the applicant is located or where the matter takes place.
If two or more legal aid institutions may accept a same application under paragraph 1 or 2 hereof, an applicant shall file the application with only one of them. If an applicant applies to two or more legal aid institutions for the same matter, the application shall be accepted by the legal aid institution which first receives the application.
Article 16 If an applicant has no civil conduct capacity or has limited civil conduct capacity, his legal representative, the residents' committee or villagers' committee at the place where he resides, or any other organization or person as prescribed in a law or regulation shall apply for legal aid on his behalf.
Article 17 Where an incarcerated criminal suspect, defendant or convict serving sentence applies for legal aid, he may apply to the legal aid institution via the public security organ, people's procuratorate, people's court or jail administrative organ.
The public security organ, people's procuratorate, people's court or jail administrative organ shall, within 24 hours after receiving the legal aid application from an incarcerated criminal suspect, defendant or convict serving sentence, forward the application to the local legal aid institution.
Article 18 An application for legal aid shall be made in writing, and an application form shall be filled out. If the applicant has a real difficulty in filing a written application, he may apply verbally, and the staff member of the legal aid institution or the staff member of the relevant institution forwarding the application for him shall make written transcripts.
The applicant for legal aid shall submit the following materials:
1. identity card or any other valid identity certificate, and a certification of authorization if he is an agent;
2. certificate of financial hardship; and
3. other case materials relevant to the matter in which the legal aid is applied.
The certificate of financial hardship shall be issued by the sub-district office or the people's government of the township (town) at the place where the applicant resides, and shall contain information on the number, employment, average income, etc. of his family members.
Article 19 Where an applicant is able to prove any of the following circumstances, the legal aid institution may directly confirm his financial hardship without the provision of the certificate of financial hardship as prescribed in paragraph 2 of Article 18:
1. enjoying the “five guarantees” in the rural area;
2. collecting the minimum living safeguard allowance or the subsidy for living in hardship;
3. being supported by the government in a social welfare institution;
4. being seriously disabled or suffering from a severe disease and having no fixed livelihood sources; and
5. being granted judicial aid by the people's court.
Article 20 The legal aid institution shall examine a legal aid application after receiving it. If the application materials submitted by the applicant are incomplete, the legal aid institution shall, at one time, inform the applicant of all the supplements or explanations as required. If the applicant fails to do so, he shall be deemed to have withdrawn the application. If the legal aid institution doubts the authenticity of any application material, it may inquire of the relevant organizations or individuals which shall offer assistance and shall not charge any fee.
If the application materials are complete and in the statutory form or if the applicant has submitted all the supplements and corrections to the application materials as required in the preceding paragraph, the legal aid institution shall accept the legal aid application.
Article 21 A legal aid institution shall, within 5 working days from the date on which it accepts a legal aid application, finish the examination thereof and make a decision on whether to provide legal aid.
If the applicant meets the legal aid requirements, the legal aid institution shall make a written decision on provision of legal aid, designate a legal aid service agency to assign legal aid workers to provide legal aid, or may assign its own staff members to provide legal aid. The legal aid institution shall sign a legal aid agreement with the aided person to clarify the rights and obligations of both parties.
If the applicant does not meet the legal aid requirements, the legal aid institution shall make a written decision on disapproval of provision of legal aid and make an explanation.
Article 22 A legal aid institution shall make an explanation to the applicant if it does not provide legal aid under any of the following circumstances:
1. The matter in the application does not fall within the acceptance scope of the people's court or an institution handling non-litigation affairs;
2. The opposite party in the application is unclear;
3. The trial or handling of the matter under legal aid has been finished, but the applicant files a legal aid application again based on the same facts and grounds; and
4. Any other circumstance under which no legal aid shall be provided as prescribed by a law or regulation.
Article 23 An applicant may withdraw his legal aid application. If, after withdrawing a legal aid application, the applicant files an legal aid application again in the same matter, the legal aid institution shall reject the application, unless he can prove that the withdrawal was made against his genuine expression of intent.
Article 24 Where an applicant objects to the legal aid institution's decision on disapproval of provision of legal aid, he may, within 15 days after receiving the decision, apply for review to the justice administrative department which has determined or formed the said legal aid institution.
The justice administrative department shall, within 5 working days after receiving the review application, finish the review. If upon review, it considers that the applicant meets the legal aid requirements, it shall order in writing the legal aid institution to timely provide legal aid to the applicant who shall be notified of the provision; if upon review, it considers that the applicant does not meet the legal aid requirements, it shall affirm the decision of the legal aid institution and notify the applicant of the reasons.
Chapter IV Provision of Legal Aid
Article 25 The legal aid may be provided in the following manners:
1. legal consulting and preparation of legal documents for the aided person;
2. criminal defense or representation of the aided person;
3. representation of the aided person in a civil or administrative lawsuit;
4. representation of the aided person in administrative reconsideration, in labor or personnel dispute arbitration or in any other non-litigation legal affair; and
5. other legal aid manners as prescribed by laws and regulations.
Article 26 For a case where the people's court designates a defender, the people's court shall, at least 10 days prior to the court hearing, send the notice of designated defense and a copy of the complaint or judgment to the legal aid institution at the place where the court is located.
The legal aid institution shall timely forward the case materials to the legal aid service agency, and at least 3 days before the court hearing of the people's court, notify the designating people's court of the list of persons assigned to provide legal aid.
Article 27 For a litigation case where a legal aid institution provides legal aid, if the aided person lodges a lawsuit in the people's court, the people's court shall postpone the payment of litigation costs.
If the people's court makes a judgment in favor of the aided person, the litigation costs shall be paid by the opposite party; otherwise, the people's court shall decide to reduce or waive the litigation costs according to the financial conditions of the aided person.
Article 28 Where a legal aid worker handling a legal aid case needs to use archival materials, conduct investigation or collect evidence upon the strength of an official legal aid letter, the state organs, public institutions and other organizations shall offer assistance.
The litigation costs, notarization fees and authentication fees involved in the course of legal aid to the aided person, as well as the relevant fees involved in the consultation of archival materials, investigations and collection of evidence by the legal aid workers handling the case shall be waived, reduced or paid later according to the relevant provisions of the state.
Article 29 The legal aid institution may provide legal aid beforehand under any of the following circumstances:
1. Failure to timely provide legal aid may cause the party concerned to face any severe personal or property danger;
2. Failure to timely provide legal aid may have adverse social effects; or
3. Any other urgent or special circumstance.
Where a legal aid institution finds that the aided person for whom it has provided legal aid beforehand does not meet the legal aid requirements of this Regulation, it shall terminate the legal aid. The costs incurred for providing legal aid beforehand shall be paid by the aided person.
Article 30 Under any of the following circumstances, the legal aid workers shall report to the legal aid institution which made the decision on provision of legal aid, and the legal aid institution shall, upon verification, terminate the legal aid:
1. The aided person has obtained the legal aid by fraud, concealing facts or any other improper means;
2. The aided person does not meet the legal aid requirements any more for the changes in his financial conditions;
3. The trial of the case is terminated or the case has been withdrawn;
4. The aided person has retained another lawyer or agent;
5. The aided person requests the termination of the legal aid; or
6. The aided person violates the legal aid agreement, and it is difficult to continue executing the agreement.
Article 31 A legal aid worker shall abide by the professional ethics and practicing disciplines, provide legal aid according to law, and protect the legitimate rights and interests of the aided person, and shall not:
1. refuse to provide legal aid or delay or terminate the provision of legal aid without any justifiable reason;
2. accept property from the aided person or seek any other improper benefit;
3. fail to timely notify the aided person of information on the progress of legal aid; and
4. divulge the privacy of the party concerned.
Article 32 After closing a legal aid case, the legal aid workers shall prepare a closing report, archive the legal instruments and materials formed during the provision of legal aid according to the archival requirements, and submit them to the legal aid institution.
After receiving the case closing materials as mentioned in the preceding paragraph, the legal aid institution shall examine them, and, if the examination is passed, shall pay case-handling subsidies to the legal aid workers.
The standards for the legal aid case-handling subsidies shall be decided by the municipal justice administrative department jointly with the municipal public finance department based on the economic development level of this Municipality and by referring to the average cost of legal aid institutions' handling various legal aid cases and other factors, and may be adjusted if necessary.
Article 33 The aided person shall have the right to inquire of the legal aid institution or legal aid workers about the progress of the legal aid provided for him. If there is any fact showing that a legal aid worker fails to perform his duties, the aided person may request the replacement of him.
The aided person shall faithfully tell the information relevant to the legal aid case, timely provide relevant evidential materials, and assist and cooperate with the legal aid institution and legal aid workers in carrying out the legal aid work.
Article 34 A legal aid institution shall, in many ways, make the requirements, procedures, time limits, list of application materials, model application text, etc. available to the public.
Article 35 A justice administrative department shall establish and improve a sound legal aid quality supervision system, formulate the standards for the quality of handling legal aid cases, carry out the inspection and evaluation on the quality of legal aid services, and publicize the inspection and evaluation results.
Chapter V Legal Liability
Article 36 Where a law firm refuses the assignment from the legal aid institution and does not assign lawyers to provide legal aid, it shall be warned and ordered to make correction by the justice administrative department. If the circumstances are serious, the justice administrative department shall impose a punishment of suspending business operation for rectification for 1 month up to 3 months on it.
Article 37 Where a lawyer or grassroots legal service worker violates Article 31 of this Regulation, he shall be warned and ordered to make correction by the justice administrative department. If the circumstances are serious, the justice administrative department shall impose a punishment of suspending practice for 1 month up to 3 months.
Where a lawyer or grassroots legal service worker commits a violation in subparagraph 2 of Article 31 of this Regulation, he shall be ordered by the justice administrative department to return the illegally obtained property, and be fined 1 time up to 3 times the value of the said property.
Article 38 If, for a violation of this Regulation, the Regulation on Legal Aid of the State Council or any other relevant law or regulation has provided for the corresponding legal liability, the provisions of the Regulation on Legal Aid of the State Council or other relevant law or regulation shall apply.
Chapter VI Supplementary Provisions
Article 39 This Regulation shall come into force as of March 1, 2009.