Regulations of the Shenzhen Municipality on Legal Aid

 2018-05-26  49


Regulations of the Shenzhen Municipality on Legal Aid

  • Document NumberAnnouncement No. 87 of the Standing Committee of of the Fourth Shenzhen Municipal People's Congress
  • Area of Law Legislative Affairs
  • Level of Authority Regulations of Districted Cities
  • Date issued12-29-2008
  • Effective Date05-01-2009
  • Status Effective
  • Issuing Authority Shenzhen City People's Congress (incl. Standing Committee)



Announcement of the Standing Committee of of the Fourth Shenzhen Municipal People's Congress
(No. 87)
The Regulations of the Shenzhen Municipality on Legal Aid, Adopted at the 22th Meeting of the Standing Committee of the Fourth Shenzhen Municipal People's Congress on September 23, 2008 and approved at the Seventh Meeting of the Standing Committee of the Eleventh Guangdong Provincial People's Congress on November 28, 2008, is hereby promulgated and shall come into effect on May 1, 2009.
Standing Committee of Shenzhen Municipal People's Congress
December 29, 2008
Regulations of the Shenzhen Municipality on Legal Aid
Adopted at the Twenty-Second Meeting of the Standing Committee of the Fourth Shenzhen Municipal People's Congress on September 23, 2008 and approved at the Seventh Meeting of the Standing Committee of the Eleventh Guangdong Provincial People's Congress on November 28, 2008.
Chapter I General Provisions
Article 1 In order to standardize and promote legal aid, and maintain citizens' legal rights and interests, these regulations are hereby formulated in accordance with Regulations on Legal Aid of the State Council and Regulations of Guangdong Province on Legal Aid, and in the light of the actual conditions of this city.
Article 2 These regulations shall apply to the activities of legal aid within the administrative region of this city.
Article 3 The legal aid referred to in these regulations shall mean the activities that the legal aid personnel organized by the legal aid organizations set up by the municipal, district people's governments
hereinafter referred to as the municipal, district governments are engaged in for the purpose of providing uncompensated legal service according to law for parties who meet the requirements of these regulations.
The supplementary legal aid referred to in these regulations shall mean the activities that the legal aid personnel organized by the legal aid organizations set up by the municipal, district people's governments are engaged in for the purpose of providing legal service according to law for parties who do not meet the requirements for uncompensated legal aid but the requirements of Article 45 of these regulations.
Article 4 The administrative departments of justice of the municipal, district governments
hereinafter referred to as the municipal, district departments of justice shall be responsible for organizing the implementation of legal aid in their respective administrative regions and also for supervising and managing legal aid organizations and their activities.
Article 5 The municipal, district coordination and guidance committees of legal aid shall be set up to be responsible for coordinating and guiding the legal aid in their respective administrative regions.
The coordination and guidance committees of legal aid shall be composed of the representatives of the administrative departments of justice, public security, labor, etc., people's procuratorates, people's courts and social organizations such as labor unions, Communist League, Women's Federation, bar associations, etc. The committees shall be convened by the municipal, district governments or by the departments of justice which are entrusted by the municipal, district governments with convening.
The offices of the coordination and guidance committees of legal aid shall be set up in the departments of justice and be responsible for the day-to-day work of the committees.
Article 6 Legal aid organizations shall be impartial, independent, efficient, sympathetic, and caring in dealing with persons receiving legal aid, and provide high- quality legal aid service.
Article 7 Legal aid organizations shall accept and examine applications for legal aid according to laws, rules, and these regulations, assign, arrange and supervise the legal aid personnel to provide legal service for persons receiving legal aid.
Article 8 The legal aid fund for providing uncompensated legal service shall be part of the budget of the government at the same level and earmarked for its special purposes only, accept the supervision by the departments of finance, audit.
Article 9 Administrative organizations, people's procuratorates, people's courts, and related enterprises, institutions, social groups, organizations, and individuals shall, in accordance with laws, regulations, and related rules of the state, render assistance to legal aid to make sure that it will be well done.
Article 10 Lawyers, legal firms shall perform the obligations of legal aid according to laws and regulations, provide legal service which is up to the standards for persons receiving legal aid, and safeguard their legal rights and interests.
Article 11 The municipal, district governments shall give commendations and awards to the organizations and individuals who have made outstanding contributions to legal aid.
Chapter II Scope
Article 12 Citizens who meet the following requirements may apply to legal aid organizations for uncompensated legal aid:
1 to meet the standards of economic difficulty of this city;
2 the matters for which an application is submitted should be tried or dealt with in this city according to law;
3 it is to safeguard the legal rights and interests of the applicants themselves that legal aid is needed.
Article 13 The standards of economic difficulty shall be set and published by the
municipal government according to the economic development and actual conditions of legal aid of this city.
The standards of economic difficulty shall not lower than the standards of minimum living security of this city.
Article 14 If people's courts designate lawyers for defendants, legal aid organizations shall provide legal aid and need not to examine their economic status.
After being interrogated for the first time by investigative organizations or from the date of being put under enforcement arrangements, juvenile offenders may apply for legal aid and need not provide certificates of their economic status.
If laborers whose average monthly wages of 6 months before a labor dispute between them and employer units takes place are lower than the double of the minimum wages rate of this administrative region apply for legal aid for claiming the payment of labor remuneration and industrial injury compensation, they shall not need to provide certificates of their economic status, but certificates of their income levels.
Article 15 If parties apply for legal aid for the cases which are emergent and may cause serious consequences without prompt handling or involve many people, legal organizations shall promptly accept the cases and first designate the legal aid personnel to provide legal service.
Article 16 If citizens who meet the standards stipulated by these regulations apply to legal aid organizations for legal advice on legal aid matters, the legal aid organizations shall directly decide to accept cases according to related rules.
Chapter III Application and Examination
Article 17 If the matters for which citizens apply for legal aid should be dealt with by filing offices at the district level or obligators of the matters petitioned for are affiliated with district offices, applicants shall submit applications to the filing offices or the district legal aid organizations of the places where obligators reside.
If the matters for which citizens apply for legal aid should be dealt with by filing offices at the municipal level or obligators of the matters petitioned for are affiliated with municipal offices, applicants shall submit applications to the municipal legal aid organization.
If citizens apply for legal aid when they have objections to first instance adjudications, first instance sentences, the applications shall be submitted to the municipal legal aid organization.
As for other matters for which applications are submitted for legal aid, applicants shall apply to the district legal aid organizations of the places of their domicile or their habitual residence.
If persons receiving legal aid request the continuation of legal aid after labor dispute arbitral agencies give awards or people's courts make adjudications on the matters for which legal aid has been provided, they shall submit applications to legal aid organizations which have the authority to accept such cases.
Article 18 If one of the following situations applies, a district legal aid organization may refer the matter for which legal aid is provided to the municipal legal organization:
1 the district legal aid organization is not able to handle the case promptly because there are too many cases to be handled within a short time period;
2 since the case is difficult and complicated, it is hard for a district legal aid organization to solve the case on its own;
If a party concerned submits an application to the municipal legal aid organization
and meets the requirements of the previous section, the municipal legal aid organization may accept the case.
Article 19 If 2 or more legal aid organizations can accept the matter for which legal aid is applied for, the applicant may submit an application to one of the legal aid organizations.
If the applicant submits an application to 2 or more legal aid organizations, the legal aid organization which receives the application first shall accept the case.
Article 20 If there is a dispute between legal aid organizations on the acceptance of a case to deal with the matter for which legal aid is applied for, their superior department of justice shall designate one of the legal aid organizations to accept the case.
Article 21 In criminal proceedings, related offices shall inform criminal suspects, defendants, or private prosecutors and their legal agents within the following stipulated time limit that they may apply to legal aid organizations for legal aid if they have economic difficulty:
1 at the same time when informing them that they have the right to retain a lawyer after they were interrogated for the first time by investigative organizations or since they were put under enforcement arrangements;
2 within 3 days from the date when the people's procuratorate receives the materials of a case referred for investigation and prosecution;
3 within 3 days from the date when the people's court finishes the investigation of a case of public prosecution;
4 within 3 days from the date when the people's court accepts a case of private prosecution.
Informing referred to in the previous section may be done orally or in writing.
When informing orally, a related office shall take notes; when informing in writing, a related office shall make a notification. The informing notes and notification shall be signed by the informed person and put in the file of the case that criminal suspect, defendant or private prosecutor is involved in.
Article 22 After public security offices, people's procuratorates, people's courts receive an application of a criminal suspect taken into custody or a defendant, they shall refer the application within 24 hours to a legal aid organization which have the authority to accept the case. The legal aid organization shall immediately inform the applicant, close relatives, or other people the applicant has entrusted, and request them to cooperate and assist in providing the evidence materials stipulated by Article 23 of these regulations.
If the addresses of the close relatives of the criminal suspect are not clear and there is no way to inform them, public security offices, people's procuratorates, people's courts shall notify the legal aid organization of this situation when referring the application to this organization.
Article 23 When a citizen applies for legal aid, Legal Aid Application Form shall be filled out and the following materials shall be submitted:
1 the identification card or other valid identification documents, the certificate of agent right if there is an agent involved;
2 the economic status certificate;
3 the case materials related to the matters for which the application is submitted and related to the claims.
An application for legal aid shall be submitted in writing. If it is indeed difficult to
submit an application in writing, an oral application may do; when applying orally, the staff of a legal aid organization or related office shall fill out Legal Aid Application Form instead, and the applicant shall sign the form to confirm the application.
Article 24 The economic status certificate referred to in these regulations shall include:
1 the valid certificate of minimum living security issued by the department of civil administration;
2 the income certificates issued by the work units of the applicant and his/her family members;
3 the economic status certificate issued by residents' committee, villagers' committee, community working station of the place of the applicant's domicile or habitual residence;
4 the other certificates stipulated by laws, regulations.
Article 25 The community working stations, employer units of this city shall
issue economic status certificates to the applicants, who meet requirements, within 3 business days from the date of receiving applications; in case of not issuing a certificate, the applicant shall be informed in writing and reason shall be given. If the community working station has not been established, the residents' committee shall issue certificates instead.
The economic status certificate issued by the community working station or residents' committee shall, strictly according to the facts, make a clear statement of the detailed information about the applicant's family members, labor capability, employment, etc.
Article 26 After accepting an application, a legal aid organization shall make an examination according to the requirements for legal aid, and make a decision in writing within 5 business days from the date of receiving the application if legal aid will be provided; in case of not providing legal aid, reason shall be given in writing.
Legal aid organizations may request related departments to verify the economic status of applicants, and related departments shall cooperate.
As for the applications referred by public security offices, people's procuratorates, and people's courts, if legal aid organizations find after the examination that the applications do not meet the requirements for legal aid, they shall inform referring offices within 3 days from the date of making a decision that legal aid will not be provided.
Article 27 If an applicant has an objection to the decision of a legal aid organization that legal aid will not be provided, the objection shall be submitted to the department of justice in charge within 5 business days from the date of receiving the decision; the department of justice shall make an examination within 5 business days from the date of receiving the objection; if it is found through the examination that the application meets the requirements for legal aid, the legal aid organization shall be ordered in writing to provide legal aid according to law.
Chapter IV Implementation
Article 28 If a legal aid organization makes a decision to provide legal aid, it shall designate the legal aid personnel to deal with the case within 3 business days from the date of making the decision.
Article 29 When dealing with a criminal case of designated defending, the people's court shall, 10 days before opening a court session, deliver a notice of designated defending and a bill of indictment or a copy of the written judgment of first instance, a copy of written protest, defendant's petition for appeal, etc. to the legal aid organization. If the people's court will not hold court trial at its locality, it may deliver the stipulated materials to the legal aid organization of the place of trial.
The lawyer who accepts the designation shall send an official letter of legal aid to the people's court within 3 business days from the date of designation, and go through the formalities for reviewing files, etc.
If the people's court does not designate defending according to the first section of this article, the legal aid organization shall have the right to refuse and ask the people's court to make another designation according to the first section of this article.
Article 30 Persons receiving legal aid shall have the right to know the progress of the legal aid provided for them. If there is a fact to prove that the legal aid personnel fail to execute duties according to law, persons receiving legal aid shall have the right to request the change of the legal aid personnel.
Persons receiving legal aid shall perform the following obligations:
1 to tell the legal aid personnel the truth about their case and related information according to the facts;
2 to provide related certificates and evidence materials which are authentic;
3 to cooperate with the legal aid personnel in their work;
4 to promptly inform the legal aid organization of any change of their economic status and their case.
Article 31 The legal aid personnel shall, according to the related rules, report to
the legal aid organization the progress in dealing with the matters for which legal aid is provided and the related information.
Article 32 If the legal aid personnel find one of the following situations, they shall promptly report to the legal aid organization:
1 the person receiving aid has obtained legal aid by cheating;
2 the person receiving legal aid hides the important facts related to the case
3 the person receiving legal aid refuses the legal aid personnel's providing legal aid for him/her without justification;
4 the person receiving legal aid may no longer meet the requirements for legal aid because of the change of the economic status;
5 the person receiving legal aid has entrusted another agent or defender;
6 being out of contact with the person receiving legal aid so that there is no way to continue to provide legal aid for him/her;
7 it is proved by examination that the person receiving legal aid does not meet the requirements for legal aid in the case which was given priority to be accepted for legal aid according to Article 15 of these regulations;
8 the other situations which will affect providing legal aid.
If the situations referred to in the previous section take place or the person
receiving legal aid insist on changing the legal aid personnel when the request has
not been approved and there is no justification and proof by facts, the legal aid organization may make a decision to terminate legal aid, and inform in writing the person receiving legal aid, the legal aid personnel, and the office handling the case, except as otherwise stipulated by laws, regulations.
Article 33 After receiving the materials of closing a case, the legal aid organization shall pay legal aid allowances to the legal aid personnel who have handled the case except civil servants and the personnel who are under administration in the light of the administration of civil servants.
The rates of legal aid allowances shall be set by the municipal department of justice jointly with the municipal department of finance.
Chapter V Supervision and Security
Article 34 The municipal department of justice shall, according to the actual needs of legal aid, make a register of the legal aid personnel of this city, set up related information files. The personnel listed in the register shall include all practicing lawyers registered in this city and other personnel whose application for providing legal aid are approved by the municipal, district departments of justice.
The personnel who apply for providing legal aid shall meet one of the following requirements:
1 to have been engaged in the work of arbitration, notarization for 3 years or more;
2 to have been engaged in the work of adjudication, public prosecution for 3 years or more;
3 to have been engaged in the work of teaching law, legal research for 3 years or more or to have a professional title of the middle level or higher;
4 to have record of formal schooling at a college of professional legal training or higher-level legal education institution and to have been engaged in other legal work for 3 years or more.
The register of the legal aid personnel shall be made public to the society.
Article 35 Legal aid organizations shall designate the legal aid personnel listed in the register to deal specifically with the matters of legal aid.
An applicant may select one legal aid personnel from the register, and the legal aid organization shall, after consultation with the legal aid personnel, designate the legal aid personnel to deal with the case.
Article 36 Legal aid organizations shall make appraisals of the quality of the legal aid personnel's handling of cases according to the results of supervision and the state of handling of the matters of legal aid, make annual assessments of the legal aid personnel's handling of the matters of legal aid, and make the results of assessments public. The measures on making assessments shall be formulated by the municipal department of justice separately.
Article 37 If one of the following situations applies, the corresponding changes or adjustments shall be made in the register:
1 if a lawyer is disqualified for practicing, his/her name shall be expunged from the register;
2 if a lawyer is temporarily suspended from practicing, it shall be made clear in the register;
3 if a lawyer fails to pass an assessment, it shall be made clear in the register, but no name shall be expunged from the register;
4 if the non-lawyer legal aid personnel fails to pass an assessment, his/her name shall be expunged from the register.
Article 38 Legal aid organizations shall solicit opinions on a regular basis from
persons receiving legal aid and related departments involved in legal aid cases. If it is necessary, staff members may be sent to audit in trial or arbitration of the cases dealt with by the legal aid personnel.
Article 39 In the case for which the legal aid organization has decided to provide legal aid, the people's court or arbitral agency shall make a decision to allow the party concerned to delay, reduce, and remit the payment for costs of the action, costs of arbitration according to the related rules after the person receiving legal aid submits an application.
Article 40 The related departments of justice, labor, industry and commerce, archives, health, etc. and institutions whose funds are allocated from the state treasury shall remit the charge for the legal aid personnel's costs of consulting, obtaining, printing archival materials and issuing certificates and their costs of reproducing, copying related materials in their dealing with legal aid matters.
Article 41 When a person receiving legal aid applies for expert testimony, investigation on the spot, test, and assessment, the institutions of judicial expertise, on-the-spot investigation, test, and assessment whose funds are allocated from public finance shall delay, reduce, or remit the payment for the costs of expert testimony, investigation on the spot, test, and assessment.
After wining a case, a person receiving legal aid shall pay the related institutions the costs in arrears which are actually need to be paid; if a person receiving legal aid has lost a case and indeed had difficulty to pay the related costs, the related costs shall be reduced or remitted or paid by the legal aid organization.
Specific implementation measures shall be drawn up separately by the municipal government.
Article 42 In dealing with a criminal case for which legal aid is provided by a legal aid organization, the public security office, people's procuratorate shall, within 7 business days from the date of completing investigations or deciding to instigating a prosecution, notify the legal aid personnel taking the case to pick up related legal papers.
In dealing with a case for which legal aid is provided by a legal aid organization, the arbitral agency shall, within 7 business days from the date of conciliation or giving an arbitral award, notify the legal aid personnel taking the case to pick up the conciliation document or a copy of arbitral award.
Article 43 If a legal aid organization provides legal aid for a case of applying for state compensation or industrial injury compensation, the unit which is held liable according to law for compensation and payment shall, within 7 business days from the date of making a decision, notify the legal aid personnel, who take the case, of the result of the decision in writing.
Chapter VI Supplementary Legal Aid
Article 44 The municipal, district governments may develop supplementary legal aid activities.
Article 45 The person applying for supplementary legal aid shall meet the following requirements:
1 the family's economic status is higher than the standards of economic difficulty stipulated by Article 13 of these regulations, but lower than the average monthly wages of the employed workers and staff of this city in the last year;
2 the matters for which the application is filed fit in with the scope of supplementary legal aid cases stipulated by Article 46 of these regulations;
3 the subject matter of the dispute shall not lower than 30,000 RMB.
Article 46 Applicants may apply to the legal aid organizations set up by the
municipal, district governments for supplementary legal aid for the following matters:
1 the matters for which an application is filed are to demand the compensation for industrial injury, personal injury caused by a medical accident;
2 to demand state compensation according to law;
3 to demand the social insurance treatment;
4 to demand the pension for the disabled or for the family of the deceased;
5 to demand the alimony, expenses for bringing up children, cost of support;
6 to demand the payment for labor remuneration;
7 to claim the rights and interests derived from the brave act for a just cause.
Article 47 After receiving an application, the legal aid organization shall make
public the case meeting the requirements for supplementary legal aid in an appropriate way for 5 business days.
During the period of public notice, the lawyer shall propose to act as agent in dealing with the case and, with the consent of the applicant, sign an agreement with the applicant on supplementary legal aid, the method to collect fees and the rates to charge shall be put into practice in accordance with the related stipulations of these regulations; after the period of public notice expires, if there is no lawyer proposing to act as agent, the legal aid organization shall provide supplementary legal aid.
Article 48 Legal aid organizations shall examine the applications of applicants, accept the cases if the requirements for being accepted are met and there is both a possibility to win the cases and a possibility to be implemented; shall not accept the cases if the requirements for being accepted are not met and there is neither possibility to win the cases nor possibility to be implemented, and shall notify the applicants and give reason at the same time.
After an application for supplementary legal aid is accepted, the person receiving legal aid shall sign with the legal aid organization an agreement on supplementary legal aid and pay 600 RMB for acceptance.
Article 49 The person receiving legal aid who has made gains through supplementary legal aid shall pay the legal aid organization 8% of the total of the gains; if a case is closed by mediation or settlement, 5% of the total of the gains shall be paid to the legal aid organization.
The payment referred to in the previous section shall be made clear in an agreement on supplementary legal aid, and put in the special account of the supplementary legal aid fund.
Article 50 Initial funding for supplementary legal aid shall be allocated from public finance.
The legal aid organizations being engaged in supplementary legal aid shall open a special account specifically for the payment of the allowances of dealing with supplementary legal aid cases and other necessary expenses.
The supplementary legal aid fund shall be put in a special account of public finance and managed by two lines as income and expenses.
Article 51 In addition to this chapter, the other related stipulations of these regulations except Articles 39, 40, 41 shall apply to supplementary legal aid.
Chapter VII Legal Liabilities
Article 52 If persons receiving legal aid have inveigled legal aid by false statements or providing false application materials, they shall be held liable for the resultant legal aid costs and punished by related departments according to laws and regulations; if a crime has been constituted, the case shall be referred to the judicial office to be dealt with.
Article 53 If the related stipulations of Articles 21, 22 of these regulations are violated, the department of justice may suggest that the related office impose administrative sanctions on the directly responsible person in charge and other directly responsible persons.
If the community working stations and residents' committees of this city, in violation of Article 25 of these regulations, issue certificate without following the rules or practice fraud, the department of justice may suggest that the related office impose administrative sanctions on the directly responsible person in charge and other directly responsible persons.
Article 54 If one of the following situations applies to a lawyer providing legal aid, the department of justice shall give a warning, order correction; if the circumstances are serious, a penalty of suspending practice for more than 1 month but less than 3 months shall be imposed:
1 to refuse to accept the designation for legal aid without justification;
2 after accepting the designation for legal aid, to fail to execute duties, to fail to deal with legal aid matters without justification or to terminate dealing with legal aid matters without authorization;
3 to accept money and goods from interested persons or to seek other illicit interests.
In case of taking illegal acts referred to in Item
3 of the previous section, the
department of justice shall order returning the illegal earnings and may impose a fine of the double of the illegal earnings at the same time.
If a lawyer accepting legal aid matters does not execute duties diligently, the legal aid organization may suggest that the bar association take a disciplinary action.
The other legal aid personnel who have taken acts referred to in Items
2), 3 of the first section of this article shall be dealt with according to the second section of this article, and it may be suggested that the units they are affiliated with take disciplinary actions.
Article 55 If the staff members of departments of justice, legal aid organizations abuse power, neglect duties, play favoritism and commit irregularities, the departments of justice or supervision offices shall impose administrative sanctions; if a crime has been constituted, the criminal responsibility shall be investigated into according to law.
Chapter VIII Supplementary Provisions
Article 56 The legal aid personnel referred to in these regulations shall mean practicing lawyers designated by legal aid organizations or the persons approved by the departments of justice and arranged by legal aid organization for providing legal aid service.
The person receiving legal aid referred to in these regulations shall mean the citizen who has obtained legal aid.
Article 57 If it is stipulated in these regulations that the municipal government and related departments should work out specific measures and standards separately, the municipal government and related departments shall work them out within 6 months from the date when these regulations take effect.
Article 58 If there are other provisions on legal aid in laws and regulations, they shall be honored.
Article 59 These regulations shall take effect as of May 1, 2009.