Regulations of Jiangsu Province on Legal Aid
Regulations of Jiangsu Province on Legal Aid
- Document Number：Announcement No. 105 of the Standing Committee of the Tenth People’s Congress of Jiangsu Province
- Area of Law： Lawyers
- Level of Authority： Provincial Local Regulations
- Date issued：09-26-2005
- Effective Date：12-01-2005
- Status： Effective
- Issuing Authority： Jiangsu Province People's Congress (incl. Standing Committee)
Announcement of the
Standing Committee of the Tenth People's Congress of Jiangsu Province
The Regulations of Jiangsu Province on Legal Aid, amended and adopted at the Eighteenth Meeting of the Standing Committee of the Tenth People's Congress of Jiangsu Province on September 23, 2005, are hereby promulgated and shall come into effect as of December 1, 2005.
September 26, 2005
Regulations of Jiangsu Province on Legal Aid
(Adopted at the Twenty-Fifth Meeting of the Standing Committee of the Ninth People's Congress of Jiangsu Province on August 24, 2001, and Amended at the Eighteenth Meeting of the Standing Committee of the Tenth People's Congress of Jiangsu Province on September 23, 2005)
Chapter I General Provisions
Article 1 These Regulations are enacted in accordance with the provisions of the relevant laws and administrative regulations, in light of the specific situation of this Province, and for the purposes of ensuring the access of citizens in economic difficulty to legal services and legal protection on equal basis and promoting and standardizing the legal aid activities.
Article 2 “Legal aid” as used in these Regulations refers to the obtaining of such legal services free of charge as legal advice, agency and criminal defense by the citizens in economic difficulty and parties to special cases in accordance with the laws, administrative regulations, and these Regulations.
“Legal aid personnel” as used in these Regulations refer to such persons in the business of legal services as lawyers who are assigned or appointed by the legal aid institutions to handle legal aid matters and other legal aid volunteers.
Article 3 Legal aid is a governmental responsibility. Local people's governments at or above the county level shall adopt positive measures to promote the work of legal aid and ensure the harmonious development of legal aid undertakings with economic development and social progress.
Article 4 The judicial administrative department of the local people's government at or above the county level shall supervise and administer the legal aid work within its administrative region.
Article 5 The people's governments of this Province, cities divided into districts, and counties (cities or districts) shall determine the legal aid institutions.
Legal aid institutions shall be responsible for accepting and examining applications for legal aid, assign or appoint personnel to handle legal aid matters, and the be in charge of use and administration of legal aid fund.
Article 6 Organizations such as trade unions, communist youth leagues, women's federations, disabled person's federations and schools of higher learning shall be supported and encouraged to take part in legal aid activities, establish legal aid organizations by utilizing their own resources and provide legal aid to citizens in economic difficulty.
Other social organizations shall be supported and encouraged to take part in legal aid activities.
Lawyers and other practicers of law shall be supported and encouraged to provide free legal services to citizens in economic difficulty as volunteers.
Article 7 Such institutions practicing legal services as law firms and their personnel practicing legal services shall fulfill their legal aid obligations pursuant to the provisions in the relevant laws and regulations.
Persons with knowledge or expertise of law may register as legal aid volunteers to participate in legal aid activities.
Article 8 State organs, enterprises, institutions, social groups, other organizations and individuals shall support and assist legal aid institutions and legal aid personnel in carrying out legal aid work.
Article 9 The local people's government or the judicial administrative department at or above the county level shall commend and reward the 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;
(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 or economic compensation as a result of labor relationship;
(6) claim for compensation for severe body injury one suffers;
(7) claim for change or repeal of adoption or custody relationship by the person suffering from home violence, abuse, or abandonment;
(8) claim for divorce by the party to a marriage suffering from home violence, abuse, abandonment or bigamy of the other party, or the spouse's cohabitation with others;
(9) other matters as prescribed by the State or the Province.
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) 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 date on which compulsory measures are adopted against him;
(2) 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 date on which the case is transferred for examination before prosecution; or
(3) in a case of private prosecution, the private prosecutor, the defendant and their legal representative have not yet entrusted an agent ad litem because of economic difficulty.
Article 12 The legal aid institution shall provide legal aid to a person under any of the following circumstances without examining his economic status:
(1) the defendant is blind, deaf, mute or minor and has not yet entrusted a defender, and the people's court has designated a defense for him;
(2) the defendant may be sentenced to death penalty and has not yet entrusted a defender, and the people's court has designated a defense for him;
(3) he claims his civil rights and interests arising from acts of justice and courage, or of protection of social public interests.
Where a case is brought in court by a public prosecutor, the legal aid institution shall provide legal aid to the defendant, who has not entrusted defender due to economic difficulty or other reasons and for whom the people's court has designated a defense.
Article 13 Criteria for economic difficulty of citizens referred to in these Regulations shall be kept in line with the standard of minimum subsistence allowance set by the local people's government.
Cities divided into districts may adjust the criteria of economic difficulty for citizens to receive legal aid in light of the specific situation of their region so as to enlarge the base of legal aid receivers.
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.
Where an applicant runs into economic difficulty as a result of emergency affairs, the legal aid institution shall carry out examination and verification based on the economic status of the applicant's family.
Article 14 Where an applicant falls into one of the following circumstances, the legal aid institution shall deem him as in economic difficulty and unable to bear the expenses for legal services:
(1) the applicant is a person who enjoys the “five guarantees” in the rural areas;
(2) the applicant is a person who is in a social welfare institution provided for by the government;
(3) the applicant is a severely disabled person without regular living sources;
(4) the applicant is currently enjoying the benefits of minimum life guarantee;
(5) the applicant is a staff member or worker who receives the Certificate of Extreme Difficulty issued by the general trade union of a city divided into districts or a county (city);
(6) the applicant is living on survivor pension;
(7) other persons as provided by laws and regulations.
Chapter III Legal Aid Application and Examination
Article 15 An applicant for legal aid is a party to a litigation case or involved in other legal matters.
Where the freedom of the person of an applicant is restricted, the near relatives of the applicant may make application on his behalf.
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 a person of no capacity for civil conduct or limited capacity for civil conduct needs legal aid when he is involved in a litigation with his legal representative or when there is other conflict of interest between them, the application shall be made on his behalf by his other legal representative who has no interest in the matter at dispute.
Article 16 The legal aid for non-designated criminal defense and litigation agency shall be applied for by the applicant to the legal aid institution under the administration of the judicial administrative department at the same level as the people's court with jurisdiction.
Legal aid for non-litigation matters, unless otherwise provided by the State, shall be applied for by the applicant to the legal aid institution of the place of the domicile of the applicant, the place where the subject matter occurs, or the place where the dispute handling organ is located.
Article 17 For an application for legal aid, where there are two or more legal aid institutions which are entitled to accept the application, the applicant may make application to one of the legal aid institutions. Where the applicant makes applications to two or more legal aid institutions, the application shall be accepted by the legal aid institution which receives the application in the first place.
Where there are disputes over the accepting of an application among legal aid institutions, their joint judicial administrative department at the next higher level shall make the decision.
Article 18 A citizen shall be qualified as follows to obtain legal aid:
(1) he has reasonable claims and facts;
(2) the matter he claims for is within legal aid scope;
(3) he is unable to pay for the legal service expenses due to economic difficulty or he meets the conditions prescribed in the first paragraph of Article 12 of these Regulations.
Article 19 Any citizen applying legal aid of agency or criminal defense shall provide the following materials to the legal aid institution:
(1) identity card, household register or other valid proof of identity;
(2) materials relevant to the matter (s) over which legal aid is requested;
(3) certificate of economic status or certificate proving to be a person as provided in Article 14 of these Regulations.
Article 20 Certificate of economic status shall be issued by the neighborhood office of the town (township) people's government of the place of the domicile of the applicant or the regular residing place of the applicant.
The neighborhood office of the town (township) people's government shall, within three working days after receiving the application made by a citizen for issuing of a certificate of economic status, issue such certificate if related conditions are met; where it is not going to issue such a certificate, it shall notify the applicant in writing and state the reasons.
The certificate of economic status shall bear such information in detail and to the truth as the population in the applicant's family, laboring capacity, employment situation, household property, household monthly (yearly) disposable income per capita and sources of income, changes in life.
Article 21 The legal aid institution shall handle the application for legal aid made by an applicant according to the following principles:
(1) where the applicant submits the application materials according to the provisions in Article 19 and the matters he claims for are within the legal aid scope, the legal aid institution shall accept the application materials and issue a receipt inventory to the applicant;
(2) where there are mistakes in the application materials which can be corrected on the spot, the institution shall allow the applicant to make corrections on the spot; where the application materials are not complete or are not in conformity with the legal forms, the institution shall inform the applicant in the lump of all corrections and additions that need to be done or ask the applicant to make necessary explanations; where the applicant fails to make the corrections, additions, or explanations as required by the legal aid institution, the application shall be deemed to have been withdrawn;
(3) where the claim of the applicant is not to be accepted by this legal aid institution, it shall notify the applicant to make application to the qualified legal aid institution;
(4) where the legal aid institution finds the certificates and proof materials needing to be verified, it shall contact the relevant organs or units for verification.
Article 22 After accepting an application, the legal aid institution shall carry out examination according to the conditions for legal aid, and make its decision on whether or not to grand legal aid in writing within seven working days. Where the legal aid institution makes its decision in writing of not granting the legal aid, it shall give its reasons.
Article 23 Where a legal service practicing institution, in the course of its practicing, runs into a client in economic difficulty who needs legal service, if the case is under any of the following circumstances, it may provide legal service first and report within three working days to the legal aid institution for examination:
(1) the time limit for action is coming to its end;
(2) it is necessary to take preservatory measures immediately;
(3) bad social influence will be caused if legal aid is not granted in time;
(4) other emergency or special circumstances.
Article 24 Where the applicant takes objection to the decision of not granting legal aid made by the legal aid institution, he may, within thirty days from the date he receives the notice, file the objection with the judicial administrative department that is in charge of 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 make its review report in writing.
Where the applicant takes objection to the review report made in writing by the judicial administrative department, he may, within sixty days from the date he receives the review report, apply for administrative review to the people's government at the corresponding level or the judicial administrative department at the next higher level.
Article 25 The legal aid institution shall display in its office place such information as the legal aid scope, conditions, procedures, time limit, catalog of application materials and exemplary text of an application.
Article 26 Where a staff member of a legal aid institution who is in charge of examination of the application for legal aid is under any of the following circumstances, he shall withdraw from the case:
(1) he is a party to the subject matter on which the application is made or he is a near relative of the party to the subject matter;
(2) he has interest in or other relation with the subject matter on which the application is made and therefore may affect the impartial handling of the legal aid matter.
Chapter IV Implementation of Legal Aid
Article 27 The legal aid recipient shall enjoy the following rights in the course of legal aid:
(1) to learn about the progress of the legal aid granted to him;
(2) to request the legal aid institution to change legal aid personnel where there are facts to prove that the legal aid personnel are not performing their duties according to law.
The legal aid recipient shall bear the following obligations in the course of legal aid:
(1) to make truthful statement on the facts of the case, provide related certificates and proof materials and assist the legal aid personnel in carrying out the legal aid activities;
(2) to notify the legal aid institution in a timely manner when there is change in his economic status and the case status.
Article 28 The legal aid to a criminal case over which defense is designated by the people's court shall be handled in a unified way by the legal aid institution of the place where the people's court is located.
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 of the first instance to the legal aid institution ten working days before the court opening; the legal aid institution shall reply with a determined name list of the persons handling the legal aid case to the people's court three working days before the court opening.
Article 29 The legal aid institution shall, within three working days from the date it decides to grant legal aid, assign a legal service practicing institution such as a law firm or appoint its own lawyers or legal aid volunteers to handle legal aid matters.
The legal service practicing institution such as a law firm shall, within seven working days after it accepts the assignment, sign a legal service agreement with the legal aid recipient or his legal representative, and send such agreement to the legal aid institution for record.
Article 30 The legal aid personnel shall, in carrying out legal aid activities, base the aid on facts, take the law as criteria, abide by the professional ethics and practicing discipline, accomplish the aided matters according to law, and protect the interests of the legal aid recipient. The legal aid personnel shall not commit any of the following acts in legal aid activities:
(1) refusing, delaying or terminating to handle the legal aid matters without justification;
(2) receiving money or property from the legal aid recipient or seeking other inappropriate gains;
(3) not notifying the legal aid recipient of the progress made in the legal aid matters in a timely manner;
(4) disclosing the privacy of his client;
(5) not reporting to the legal aid institution for approval of terminating the legal aid when he finds the legal aid recipient does not meet the conditions for legal aid.
Article 31 The legal aid institution may, at the request of the legal aid personnel, entrust a legal aid institution of a different place to handle such legal matters as investigation and collection of evidence, service of legal documents and application for execution, and the entrusted legal aid institution shall provide such assistance.
Article 32 The legal aid institution shall pay allowances for providing legal aid to the persons assigned to handle the legal aid matters.
The standards of allowances shall be formulated by the judicial administrative department jointly with the finance department at the provincial level. Cities divided into districts may, in light of the actual situation of the locality, raise the standards of allowances to the legal aid personnel.
Article 33 The legal aid institution shall cancel legal aid where it finds out, during the course of providing legal aid, that the legal aid recipient is under any of the following circumstances:
(1) the certificate materials such as economic status certificate provided by the legal aid recipient are false or falsified;
(2) the proof materials provided by the legal aid recipient are false or falsified;
(3) the legal aid recipient avails himself of the legal services provided by the legal service personnel to engage in illegal activities.
The legal aid institution shall, within three working days from the date of the cancellation of the legal aid, notify the people's court and the assigned legal service practicing institution such as a law firm.
Chapter V Legal Aid Guarantee
Article 34 Local people's governments at or above the county level shall incorporated legal aid funds into the fiscal budget of the same level, and gradually increase the fiscal input. The legal aid fund shall be used for its designated purpose, and be subject to the supervision of the finance department and the audit department.
Article 35 The Province shall establish Legal Aid Fund, and provide material support for legal aid.
Cities divided into districts may, according to the actual needs of the localities, establish Legal Aid Fund according to law.
Social organizations and individuals are encouraged to make donations to the legal aid undertakings. The donations shall enjoy favorable tax rates according to the related provisions of the State.
Article 36 Where the legal aid recipient brings a lawsuit with the people's court, the people's court shall defer the collection of litigation fees when placing the case on file. When the case is concluded, and the opposing party wins the case, the people's court shall, according to the economic status of the legal aid recipient, decide to reduce the litigation fees or to exempt him from the litigation fees.
The litigation fees which are not reduced can be paid after the service of legal documents. The arbitrary institution, the notary institution and the appraisal institution shall reduce the arbitrary fees, the notary fees or the appraisal fees, or exempt him from such fees or defer in collecting such fees when the application for arbitration, notarization or appraisal is made by the legal aid recipient of a legal aid case.
Article 37 Where the legal aid personnel, as certified by the legal aid institution, need to use the archives materials, the State organs and other related organizations shall, except for those concerned with State secrecy which shall not be disclosed according to law, assist in providing such materials and exempt them from the following fees:
(1) fees for inquiring about archives materials;
(2) fees for consulting service;
(3) fees for protection of the archives (materials) picked out for inquiry;
(4) fees for certifying (education record, certificate of length of service, certificate of establishment of institution, certificate of house or land property, property certificate) Fees for duplication of relevant materials shall be reduced or exempted.
The reduction of fees shall be calculated based on the cost of raw materials needed for duplicating the archives materials.
Chapter VI Legal Liability
Article 38 Where the legal aid institution and its personnel are, in violation of the provisions in these Regulations, under any of the following circumstances, they shall be ordered to make rectifications by the judicial administrative department of their place; where the circumstances are serious, the person directly in charge and other person(s) directly responsible shall be given administrative sanctions according to law:
(1) refusing to accept the application for legal aid that meets the conditions as prescribed by the State and these Regulations;
(2) not notifying the applicant in the lump of all the corrections and additions that need to be made when the application materials submitted by the applicant are incomplete or are not in conformity with legal forms;
(3) not giving reasons according to law when deciding not to grant legal aid.
Article 39 The legal aid institution and its personnel, the law firm and its lawyers that receive money and property in handling legal aid cases shall be punished by the judicial administrative department in accordance with the Regulations of Legal Aid formulated by the State Council.
Organizations and individuals other than those mentioned in the preceding paragraph that engage in paid legal service in the name of legal aid shall be ordered by the judicial administrative department to make corrections; where there is illegal income, the illegal income shall be confiscated, and a fine not less than the amount of the illegal income and not more than three times the illegal income shall be concurrently imposed.
Article 40 A legal aid recipient who obtains legal aid through cheating shall be ordered by the judicial administrative department to pay all the fees occurring in the legal aid service that has been rendered and shall be concurrently given a warning.
Article 41 In case a citizen applies for issuing of a certificate of economic status, and the neighborhood office, or the town (township) people's government neither issues the certificate of economic status nor notifies the applicant in writing of the reasons, the person directly in charge and other person(s) directly responsible shall be given administrative sanctions according to law.
Where relevant organs or units refuse the verification on the certificate of economic status carried out by the legal aid institution without justification, the person directly in charge shall be given administrative sanctions according to law.
Where a false certificate for a legal aid applicant is issued, the person directly in charge and other person(s) directly responsible shall be given administrative sanctions.
Article 42 Where the staff members of the judicial administrative departments abuse their power, neglect their duties or engage in malpractice for personal gains, they shall be given administrative sanctions according to law; where a crime is constituted, they shall be investigated for criminal liabilities according to law.
Chapter VII Supplementary Provisions
Article 43 These Regulations shall come into effect as of December 1, 2005.