By Allen C. Choate Director of Program Development, …unpan1.un.org/intradoc/groups/public/documents/APCITY/...THE ASIA FOUNDATION WORKING PAPER SERIES LEGAL AID IN CHINA By Allen

THE ASIA FOUNDATION

WORKING PAPER SERIES

LEGAL AID IN CHINA

By Allen C. ChoateDirector of Program Development, China

The Asia Foundation

Working Paper #12 • April 2000

The Asia Foundation is a private, nonprofit, nongovernmental organization dedicated to advancing the mutual interests of the United States and the Asia Pacific region.Drawing on more than four decades of experience in Asia, The Asia Foundation

collaborates with partners from the public and private sectors to support leadership and institutional development, exchanges and dialogue, technical assistance, research, and

policy engagement related to: governance and law; economic reform and development; women’s political participation; and international relations.

Through its Working Paper Series, The Asia Foundation presents a range of views on the major political, economic, and security challenges facing the Asia Pacific. The views expressed in this working paper are those of the author and do

not necessarily represent those of The Asia Foundation.

THE ASIA FOUNDATION WORKING PAPER

Contents

Legal Aid Cases:

Land Expropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Work-Related Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Handicapped and Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

Setting the Stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Origins: The Legal and Policy Basis for Legal Aid in China . . . . . . . .7

Structure and Operations of Legal Aid in China . . . . . . . . . . . . . . . .13

Scope and Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Financial and Technical Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . .27

Suggested Reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

Appendix I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31

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“Now grass sandals can sue leather shoes . . .”— comment made by a dispossessed Guizhou farmer who obtained restitution and compensation with the help of the Guiyang Legal Aid Center

In December 1999, Asia Foundation staff, including the author, visited legalaid centers in Guizhou and Yunnan. During those visits there were opportunitiesto meet directly with legal aid clients who narrated their cases in the first person.The following dry and very brief third-person summaries cannot begin to conveythe intensity and range of emotion — frustration, anger, resignation, tears of grati-tude — that accompanied these stories. It was a moving set of interviews.

Land expropriation

Case 1 — In Guizhou, 50 poor farm families were evicted from their land withoutcompensation or relocation by a county magistrate who expropriated their land tobuild a golf course. He sent the local police to force them to leave, and in thecourse of the eviction a number of farmers were roughed up. The farmersprotested to the local land office and were told to take their case to the countygovernment which they did. Their formal complaint was ignored. The farmerswere too poor to travel to Guiyang city to take their complaint to the provincialgovernment. They learned of the city legal aid center through some local lawyerswho made contact for them. The case was resolved through negotiation by thecenter which obtained substantial compensation from both the local governmentand the golf course company. The magistrate who expropriated the farmers’ landis now in jail, convicted of corruption.

Case 2 — A Guizhou farmer who had leased land from his Village Committee tocultivate an orchard was forced off the land by the Committee, which leased theland a second time to a wood-cutter who paid a higher price. The farmer wasfinancially destitute. He appealed to the local government which told him to takethe case to court. He learned of the Guiyang legal aid center through his localPeople’s Congress Deputy and approached it. The center sued the VillageCommittee for double leasing the property and forceful eviction. The center lostthe case the first time, but won on appeal. The farmer’s title to the orchard wasrestored. This case also attracted public attention and the court proceedings weretelevised.

Work-related injury

Case 1 — A casual laborer in Guizhou lost his hand in a work accident. Hisemployer did not compensate him beyond minimal expenses claiming he was not a

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formal employee, just a day-hire. He learned of the legal aid center through the mediaand was a walk-in. The case has gone to trial and is still pending.

Case 2 — A temporary resident migrant worker in Kunming sustained severeinjury on the job site. His employer refused to pay the hospital bill or provide com-pensation. He learned of the legal aid center through the newspaper and walked in.He was found to be eligible for legal aid, and two staff handled his case for twomonths. They threatened a court suit to the employer who settled out of courtwith a lump-sum payment to the client.

Case 3 — A coal miner was handicapped by a cave-in in Puding county, Guizhou.He sought medical expenses and compensation from the coal mine owner, whorefused. The miner and his family are impoverished. The local Labor Bureau isofficially responsible for arbitrating such workers compensation claims, but itrefused to do so because the miner could not produce a medical certificate attest-ing to the degree of injury. The miner cannot afford to pay for the examinationand the Labor Bureau will not cover it. The local legal aid center does not have thefunds to pay for the medical examination either. The local center is assisting theminer in pressing his claim through informal negotiation with the owner, but withno result yet.

Handicapped and minors

Case 1 — A handicappped printer in Guiyang pooled his funds with friends toopen a shop and signed a contract. One of the party broke the contract and mis-used the funds. Because the printer was poor and handicapped, he was eligible forlegal aid. The Guiyang City Legal Aid Center took the case to court seven timesbefore obtaining restitution for the handicapped client. This particular case wastelevised locally.

Case 2 — A juvenile in Guiyang City was accused of participating in a gang-rape.There were six defendants in all, and the others had lawyers. The accused juveniledid not, so the court instructed the legal aid center to provide counsel. Case inves-tigation and court presentation by center staff proved the juvenile had not partici-pated in the crime and he was acquitted.

Case 3 — An 18 year old girl in Yunnan province was turned out of her home byher father who was a wealthy “hooligan.” Her mother is deceased. She had noresources, so she came to the provincial legal aid center seeking help. She wasafraid to go to the county level center because she feared her father’s connectionsmight subvert her case. The provincial center took the case on and succeeded in obtaining an ongoing support fund for her.

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Setting the Stage

Do these cases, which have been handled through China’s recently establishednational legal aid system, represent an advance in the protection of individ-

ual rights, or is it another means by which the State can exert its social control andauthority? A balanced response to that question first requires an examination ofboth the larger domestic setting in China and the relevant international comparative context.

China’s policies of opening and reform adopted in the late 1970s have perforce necessitated the development of a completely new legal and judicial sys-tem. The Chinese government leadership created that system both to fill the vacu-um created by the Cultural Revolution and to supplant the earlier fully state-cen-tered Socialist legal and judicial mechanisms. Such legal development has beenmotivated by China’s recognition of the need for laws and legal institutions thatcan buttress and enhance market-oriented economic growth and internationaltrade. They have also been motivated by a concern among the country’s leadershipof a loss of legitimacy, coupled with rising social unrest stemming from public per-ceptions of official corruption and overbearing arbitrariness. A third reason not to be lightly dismissed is Beijing’s desire to be seenas a world-class modern nation in the eyes of the global community.

China’s legal development during the past two decades has been nothing shortof remarkable relative to the preceding several decades, and indeed centuries. Anew triple-tiered court system has been put in place throughout the country, anentire new generation of licensed lawyers has been created (probably about150,000 in all by the end of 1999), and an impressive body of commercial, civil,criminal, and administrative law has been enacted by a comparatively moreassertive National People’s Congress. China’s legal development was enshrined andgiven further impetus when the country’s Constitution was last amended in 1999 toincorporate the concept of “ruling the country according to law” (yi fa zhi guo) asa guiding principle. But does “ruling the country according to law” mean rule oflaw or rule by law?

Rule of law or rule by law?

That question is now being debated among foreign legal scholars and observers ofChinese law. There is little doubt and not much disagreement that legal institutionsin China have begun to play an increasingly important role in resolving disputesand setting boundaries between government and the market and between state andsociety. Those who are more optimistic about a rule of law emerging in China

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point to the facts: numbers of laws, judges, lawyers, new rules of conduct, increas-es in litigation and formal arbitrated settlements, and adoption of new legal con-cepts such as administrative law.

These optimists, while acknowledging the gaps and short-comings of the cur-rent legal system, stress the evidence of a rapid rise in popular demand for legalservices and formal substantive justice as enhancing the future prospects for arules-based and more accountable system of governance. Without wishing to apol-ogize for obvious flaws and needs in China’s legal system, the optimists also notehow far and how fast China has come, developing an overall system of law at apace unrivaled in its history. Because rule by law at least defines the rules and pro-cedures by which decisions are made and the nation governed, it is a decidedimprovement over arbitrary rule by man (with which China is all too familiar).More importantly, it carries the potential for transforming itself into a rule of lawincrementally.

The pessimists look more to process and principle rather than to institutionaldevelopment as the source of their skepticism. They note the all-too-evidentdefects and abuses in the administration of due process within the existing legalsystem. More fundamentally, they argue that law in China is not rights-based; it ispolicy-based. That is, legal institutions and processes, while perhaps improving inquality and growing in size, are still in service to the state as instruments for theexecution of government policy.

This is the crux of the debate over the meaning and intent of legal reform inChina: is its motive and aim the furtherance of state policy and directives, or is itsgoal the increased legal protection of China’s population? Optimists and skepticsare using different yardsticks to measure China’s legal development. And, as is thecase with so many difficult debates, there is a great deal of validity on both sidesand evidence to support both positions.

To assess the relative merits of the arguments regarding law reform in China,it is useful to find aspects of current legal development in China where protectionof rights appears prominently. The creation of an administrative law system is onesuch area where laws and institutions have been established specifically to protectindividuals from state misbehavior and to limit the authority of the state. On theface of it, the primary motive would seem to be a rights-based one. While researchhas shown there may be other internal political factors at work, the results aredesirable: increased protection of citizen rights and new avenues to redress griev-ances against the state.

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Defining legal aid

Some tentative conclusions about the nature of China’s law reforms may also bedrawn from government-sponsored legal aid programs. It appears there would belittle reason for a government to establish a legal aid system other than to protectindividual legal rights and promote equal access to justice. What does the very earlyevidence reveal about the significance of legal aid in China? Why was it created,how does it operate, and what are its problems and prospects?

Internationally, there is a qualitative difference between legal aid and legal ser-vices. Legal aid (the current Chinese usage is: fa lu yuan zhu) has a simpler andmore restricted definition, meaning the provision of professional legal services to a deserving party free or at a reduced or subsidized rate, usually in liti-gated proceedings. Legal services (fa lu fu wu), on the other hand, as defined bycommon law country advocates, includes advice, information, and assistanceinvolving a knowledge of rights and obligations conferred by law and of legal pro-cedures, whether provided by a lawyer or otherwise. In China, legal services in theform of popular legal literacy, community mediation, informal legal advice andcounseling, etc., has been in existence off-and-on and with different emphases forat least 15 years. Legal aid is virtually brand new in China with no antecedents. Forall intents and purposes, it began about 1997. This is more than a conceptual dis-tinction. It results in real operational questions for both the Chinese legal aid pro-gram and the legal services activities. The already-existing legal services network inChina raises both problems and opportunities for the country’s new legal aid pro-gram.

The provision of government-sponsored legal aid and legal services is regard-ed by international civil rights advocates as a requirement of governments and aright of citizens, based on the principle of equal access to justice. In any countrywhere political legitimacy is purported to be grounded in the notion of equalrights, the exercise of those rights is facilitated through legal services. That ideal isnow reflected in the Basic Principles on the Role of Lawyers, adopted by theUnited Nations Eighth Congress on the Prevention of Crime and the Treatmentof Offenders: “Governments shall ensure the provision of sufficient funding andother resources for legal services to the poor and, as necessary, to other disadvan-taged persons.” Adopted in 1990 as a UN principle, public legal aid as a govern-ment responsibility and an individual right is still a relatively new concept, althoughits practice in a number of countries stretches back some decades.

Legal aid programs are the best established, for example, in the more developed countries of Europe and in the United States. Legal aid programs also

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are more prevalent and developed in common law than in civil law countriesbecause common law puts a greater emphasis on oral argument and adversarialdebate than does civil law, entailing a more pressing need for professional legalcounsel.

Recent reviews of legal aid systems in developed countries have pointed outproblems of costs and effectiveness. Critics claim that costs are too high, mainlybecause the criteria for eligibility are too broad and not targeted enough. In theUnited States, provision of government funds for legal aid programs is a partisan and controversial issue revolving around not just questions of cost effec-tiveness but of government functions and responsibilities as well. Ironically, somewho are opposed to government funding of legal services in the United States arealso the most critical of China for denying equal access to justice, and wouldchampion legal aid programs there. All of these comparative points should be keptin mind when attempting to assess the current status of China’s infant legal aidsystem.

Worldwide, there are three basic models for legal aid service delivery, althoughthere are many variations within them: first, the “judicare” model, where privateattorneys are paid by government on a case by case basis; second, the model ofgovernment-funded legal aid offices staffed by salaried lawyers; and third, systemsthat mix the judicare and salaried lawyer models. The specialist literature reveals awidespread international consensus that the mixed systems of judicare and salariedlawyers are the best for cost and quality. China is following the path of a mixedsystem with a variety of local adaptations. The Chinese approach is similar to theU.S. mixed system, with local variations (including contracting out to privatelawyers in the U.S.).

In the sections that follow, this paper will discuss the origins, purposes andmotives of legal aid in China, the structure and operation of the new public legalaid program, issues of eligibility and scope of coverage, and financial and technicalsupport. It will conclude with some very preliminary observations about the mean-ing of public legal aid for law reform in China, and offer some suggestions andraise some questions on assessing legal aid in China and providing support for itsfuture development. In all of this, the comparative context and international set-ting discussed above should be borne in mind.

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Origins: The Legal and Policy Basis for Legal Aid in China

As China’s legal institutions and processes have evolved and grown in the pasttwo decades, so have the number and range of disputes being managed by

the formal legal system. This increasing volume in litigated or formally arbitratedcases has raised the need for professional legal services in a rapid and dramaticmanner. In 1995, only about 12 percent of the litigated 2.7 million civil law casesinvolved licensed lawyers. By the end of 1996, of the 3.1 million civil cases litigat-ed, about 25 percent involved licensed lawyers, a doubling of professional legal ser-vices in just one year. But the most telling fact is that around 75 percent of all liti-gated and arbitrated cases in China did not have professional or licensed legalcounsel and participation. In part, this was due to the shortage of legal professionals. It was also due in large measure to theinability of the majority of parties in a dispute to pay for those legal services and the court fees. Those core problems remain as constraints to the judicial sys-tem in China.

Helping the poor

In the mid-1990s, the increasing number of people seeking legal remedy butunable to afford it became an issue on China’s surging legal development agenda. From 1994 to 1996, there was an intense period of preparation for anational legal aid scheme. From 1996 through 1997, the statutory and policy guide-lines for that program were adopted, and from 1997 to the present time, there hasbeen a continuing acceleration in the implementation of that government-spon-sored legal aid program. As an actual operating program, China’s public legal aidhas been in existence for less than three years.

While the provision of government-subsidized professional legal services tothe needy represents a completely new development in China’s legal history, therewas in place an earlier network and structure for more informal public legal ser-vices. These services include popular legal literacy efforts which began in the mid-1980s, and community-based mediation managed by Villagers Committees andurban Residents Committees. These committees, especially in the cities, are alsoexpected to offer such informal legal advice and information as they can afford,and to enlist legal professionals residing within the Committee jurisdiction as vol-unteers .

Legal literacy and popular legal education programs (pu fa) have been conduct-ed by the Legal Education Department of the Ministry of Justice through a seriesof five-year plans, starting in 1986. These activities have not been top-down mobi-lizing campaigns (yundong) such as China experienced in its Maoist past. Instead

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they are more along the lines of “movements” (huodong) whereby the public isprovided information about the constitution and the laws, and government andparty cadres receive Ministry-sponsored training on the content and intent of thelaws. In general, the emphasis has been more on understanding what is legal andwhat is illegal. But in recent years these educational programs have increasinglyincluded information on how to use laws and more rights-awareness content, inpart because more of the newer laws of China contain specific rights provisionsthat did not exist in the past.

The grassroots community mediation activities which operate under the gener-al guidance of the Basic-Level Government Department of the Justice Ministryhave had a checkered history, with extensive variation in application and practice.Mediators are local resident volunteers who receive only the most minimal training.Often their goal is to maintain harmony and keep the neighborhood at peacerather than to see justice served. But those earlier objectives are changing dramati-cally as China’s socioeconomic conditions change. The Ministry’s Basic-LevelGovernment department is attempting to initiate new training programs that placemore emphasis on noncoercive mediation and a better substantive knowledge ofthe issues, especially economic concerns, for mediators.

Above this “mass organization” level, there are Justice Offices (Si Fa Suo) inthe township governments which were established in the early 1980s. These officesmainly replicate the functions and mirror the structure of the county and provin-cial Justice Bureaus and of the Ministry of Justice itself. Most of the functions arenot related to legal services and legal aid, but some are, such as the management oflegal advice and complaint telephone hotlines. These township Justice Office hot-lines, which go by the title: Yau Si Ba (the number “148", which approximates theChinese phrase “[I] want justice”) have been in operation as long as, and in manycases longer than. legal aid centers. Separate from the Justice Offices many town-ships operate Legal Service Offices (Fa Lu Fu Wu Suo) which provide professionallegal counsel and services, including notary services, advice, information, media-tion, arbitration, and even litigation. However, these township service officescharge fees, though often at very subsidized rates, depending on the type of ser-vice and the level of income of the client. Very often the township Legal ServiceOffice shares the same physical space as the township Justice Office. In effect,these service offices are township justice office-sponsored law firms, and areintended to provide some income to maintain the township justice system as wellas to provide reduced fee or subsidized services to residents.

So the Ministry of Justice’s first announcement in 1994 that it intended to

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establish a national legal aid system was set against a background of some experi-ence and familiarity with broader types of government-sponsored legal services.Also, the Civil Procedure Law of 1991 called for courts to waive or reduce feesand recommended assigning counsel to parties who were unable to carry out litiga-tion on their own. But how that counsel was to be paid for was unclear, and thearticle was more an exhortation than a requirement.

What was new, then, was the concept of the government providing the freeservices of licensed lawyers for legally defined deserving persons. The term “legalaid” (fa lu yuan zhu) was used by the Ministry for the first time in 1993. That yearthe Notice on Lawyers Professional Morality and Professional Discipline Standardsincluded a statement that “lawyers are not permitted to refuse legal aid casesassigned by firms or criminal cases assigned by the government.” Following theMinistry’s public expression of intent to establish a legal aid system, an intensetwo-year period of study and preparation culminated in the November 1996national conference of justice bureaus on legal aid. That work conference reviewedthe results of the preparatory work done to date while initiating the groundworkfor national legal aid operations. In December 1996, the National Legal Aid Centerwas established by the Ministry of Justice to lead the legal aid effort that was tofollow.

State-mandated free legal aid

As these planning and operational steps were being taken, new draft legislation wasmaking its way through the State Council and National People’s Congress thatestablished the rights of certain disadvantaged individuals to receive government-provided legal aid, thus creating the statutory basis for free legal aid. In the water-shed year of 1996, a Lawyers Law was enacted, the Criminal Procedure Law wasamended and revised, and a Law to Guarantee the Rights and Interests of theElderly was passed. All of these statutes established legal aid rights for certaintypes of individuals and mandated that private attorneys are required to providesuch services.

The Lawyers Law of 1996 was the most significant in terms of laying the legalbasis for legal aid in China. Specifically “Part Six, Legal Aid” of that law states:

“Article 41: If citizens require the assistance of a lawyer in respectto matters such as provision for their family, work-related injury, criminal procedure, claims for state compensationor claims for lawful payment of disability or bereavement pensions, etc. but cannot afford a lawyer, they may obtain legal aidin accordance with state regulations.”

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“Article 42: Lawyers must undertake the duty of legal aid in accor-dance with state regulations and provide the recipient with legalservices in fulfillment of their duty and responsibility.”

“Article 43: Specific measures for legal aid shall be formulated bythe State Council’s administration department for judicial affairsand submitted to the State Council for approval.”

In addition to establishing the statutory platform for legal aid, the Chinesegovernment also mandated private lawyers to provide that aid when instructed bythe state. In the same year, the law on the rights of the elderly contained a provi -sion (Article 39) that persons over 60 who cannot afford to bring suit are entitledto legal aid. The revised Criminal procedure Law of 1996 also stipulated that thecourt may appoint defense counsel if the accused cannot afford one.

The Joint Notice of the Supreme People’s Court and the Ministry of Justiceregarding Legal Aid Work in Criminal Cases was issued some months later, onApril 28, 1997, and further defined circumstances under which legal aid may beprovided: 1) if a defendant is indigent and the economic situation of his/her fami-ly is not known; 2) if the defendant’s family repeatedly refuses to pay legal costs; 3)if other defendants in a conspiracy case have legal counsel; 4) if the defendant is aforeigner without counsel; and 5) if the case is “of great social significance.” Whilethe court has the discretion to determine whether or not to assign free legal aid inthese five instances, it is required to provide legal aid and appoint a lawyer if thecase could result in capital punishment, if the defendant is a minor, or if thedefendant is handicapped.

Less than two weeks after that Joint Notice, the Ministry of Justice, on May10, 1997, issued a Notice Regarding Development of Legal Aid Work to all justicedepartments, bureaus, and offices throughout the country (see Appendix I). Thatnotice instructed all provincial and municipal justice units to establish legal aid cen-ters, further defined eligibility and scope, laid out a procedural course of action andprovided the policy and philosophical justification for legal aid. The notice beginsby stating that, “Legal aid is an important system to ensure the implementation ofthe constitutional principle of equality of all citizens before the law and allows allcitizens equal access to legal protection.” That 1982 Constitutional principle ofequality before the law replaced the earlier key concept of class struggle. Whilelegal equality has been enshrined in other specific laws as rights applying to all uni-versally, this notice specifically and directly cites that principle as the rationale forthe legal aid project. The notice defines legal aid in China as the legal system inwhich “guided and coordinated by the legal aid institutions, lawyers, notaries, and

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paralegal workers are required to provide free or rate-reduced legal services forclients who encounter financial difficulties or special cases”.

Legal aid development was further buttressed by the issuance in 1997 of theProvisional Measures on Administration of Lawyers Service fees, which identifiedthe cases in which lawyers are to waive or reduce fees. Those cases basically repeatthe cases outlined in Part Six of the Lawyers Law. Since 1997, the arena of regula-tory action for legal aid has shifted to the provinces and municipalities. These unitsare responsible for enacting the local laws and regulations that will implement the establishment and operation of legal aid cen-ters and activities.

The principal national notice issued since 1997 appeared on April 12, 1999.On that date, the Supreme Peoples Court and the Ministry of Justice released a“Joint Notice on Legal Aid Issues.” That notice reiterated criteria for eligibility andlaid out the terms under which court fees may be reduced or waived by the court.Court fees are to be borne in most cases by the losing party if not a legal aidrecipient. If the losing party is a legal aid recipient, the court “should” (not must)reduce or exempt fees. In most cases outlined in that notice, the court has the dis-cretion to decide how litigation or mediation fees are to be paid or waived,although the court is urged to exempt fees for legal aid recipients whenever possi-ble. This Joint Notice obviously is a compromise between the court and the min-istry, with the latter seeking to minimize the burden on legal aid clients and the former needing to raise revenue to cover courtoperating expenses.

Besides meeting a pressing need, what other motives and factors were at workthat prompted this sustained surge of legal aid development from 1994 through1997? Many observers inside and outside of China credit former Justice Ministerand now Supreme People’s Court President Xiao Yang as being instrumental.During this period the then-Minister spoke out publicly often and with vigor onthe need for a legal aid system. The speedy, concentrated, and fairly comprehensiveaction on legal aid also suggests senior policy leadership backing. While one can only speculate on the reasons for that backing, it probably was a combination of the desire to build a mature legal system overwhich the ruling authorities would have control, to prevent instability by providing new avenues of redress for the general public, and to look good to therest of the world at a time when China’s foreign policy was being assertive andoutreaching. In that regard, it is worth noting that at the high tide of legal aiddevelopment work in mid-1997 China in July 1997, signed the United Nations

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Covenant on Civil and Political Rights.

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Structure and Operations of Legal Aid in China

All government-run legal aid centers are managed by the Justice Ministry at thecenter, and justice bureaus and offices at the provincial, prefectural and coun-

ty levels respectively. In 1995, there were perhaps five or six public legal aid centersin China, supported and operated by local governments, mainly municipal. Thesewere local initiatives that preceded the national policy and plan. Not surprisingly,the first such centers were in the most prosperous cities with the largest number oflawyers — Guangzhou and Pudong in 1995, Qingdao, Wuhan, Zhengzhou, andother cities in 1996. At the end of 1997, there were perhaps 200 legal aid centers,by then pursuant to national policy and new law. By March 1999, China’s govern-ment-sponsored legal aid system consisted of approximately 500 centers, encom-passing 28 out of 31 provinces, 165 municipalities and prefectures (50 percent ofthe total), and 300 counties (about 10 percent of the total number).

And the pace of expansion continues to accelerate markedly. In the course ofone year, from early 1999 to early 2000, the number of centers more than doubledto 1,248, with the most significant growth being in the less economically developedand more rural provinces and prefectures. These 1,248 centers at the start of 2000employed more than 4,000 full-time personnel, with 29 of the centers at theprovincial level, 251 at the prefectural level, and 968 at the county level (more than30 percent of the total number of counties). The national center’s ultimate goal isnothing less than operating legal aid centers in every province, prefecture, munici-pality, and county in China — approximately 3,500 government-operated centers inall.

Innovative restructuring

At the top of the legal aid system pyramid is the National Legal Aid Center, estab-lished in December 1996. The Center’s director is one of the Ministry of JusticeVice Ministers, with a Deputy Director reporting to the Vice Minister and respon-sible for the overall operation of the national center. This organizational structureis notable because it suggests the importance the leadership attaches to legal aiddevelopment. Rather than locate legal aid activities in one of the existing bureaus,such as Lawyer Management or Basic Level Government, or creating a new LegalAid Bureau, the decision to create a Vice Ministerial-directed Center indicates an assertiveness and seriousness of purpose not usually observed in bureaucratic restructuring.

Another administrative innovation in the national legal aid system was the cre -ation of a Legal Aid Foundation, set up as a legally registered and Bank of China-

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approved independent philanthropy with a separate board. The sole purpose ofthe Foundation is to raise and distribute funds to benefit legal aid recipients, bothfor litigated and mediated cases. These funds come from donations and are inaddition to the Ministry’s budgetary allocation for the National Legal Aid Center.The Foundation was established in May 1997, some six months after the nationalcenter opened. Its initial endowment was quite modest (about US$250,000), andcame from business and individuals.

The national center’s functions are largely emulated by provincial centers.Those functions include: a) developing policies, procedures, guidelines and regula-tions for the development of legal aid at their respective levels; b) coordinating thework and operations of subordinate units (provinces for the national center; pre-fectures, counties and cities for the provincial centers); c) organizing and conduct-ing training for legal aid personnel; d) providing information and public relationsoutreach programs — media contact is a very important part of the legal aiddevelopment agenda; and e) for the national center, doing research and engaging ininternational information and exchange activities.

Both the national center and the provincial centers are more concerned withpolicy and operations than with actual case handling. Legal aid cases mainly arehandled directly by the municipal and county legal aid centers. However, this doesnot mean the provincial and national centers do not take on any cases. They do,and at a rapidly rising rate. In order to provide direct legal aid, the National LegalAid Center in 1999 founded the Hua Yuan Law Firm specifically for the purposeof handling legal aid cases. Establishing such firms is necessary because under cur-rent law, lawyers cannot practice as individuals in China.

Hua Yuan Law Firm

The Hua Yuan Law Firm’s mandate is to manage legal aid cases that have signifi-cant impact either nationally or internationally; that involve transprovincial jurisdic-tions, and thus are difficult to resolve; or that are assigned to the national center bythe Supreme People’s Court. Generally, a parity principal operates, with countylegal aid centers matching up with courts of first instance, prefectural centers withintermediate courts, and provincial centers directly managing cases assigned to it bythe provincial high courts, either by center staff lawyers handling or designating anoutside private attorney. Courts refer possible legal aid cases to centers horizontally.

Hua Yuan has a full-time staff of 11 — 6 attorneys and 5 others who are inthe process of obtaining their attorney licenses. In addition, the firm uses part-timeoutside attorneys. The firm has an office manager to oversee intake and case-flow,

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and the staff uses a “lawyer’s meeting” system to discuss cases, assess significance,and make assignments. This organization and operational style is replicated quiteextensively at lower provincial and county level centers. The national center andprovincial and municipal centers also utilize volunteer law students to help clients.Part-time volunteer law students do not receive credit for this “clinical” experience,though, nor are they able to do more than inform and advise.

Unlike its counterpart at lower levels, the Hua Yuan firm does not yet activelypublicize or conduct outreach programs, because it fears being inundated withappeals and cases. There are a number of walk-ins to the firm’s Beijing office,located in the same compound as the national center, but most cases it considersare referred to it by lower level justice offices and centers around the country, andby legal aid centers operated by nongovernmental organizations (NGOs), such asthe Peking University Women’s Legal Aid Center. In 1999, the Supreme People’sCourt for the first time referred a case pending before it to the national center andthe firm. The center’s Deputy Director, also a member of the legal aid firm, ishimself handling the case, which involves an initial lower court capital punishmentconviction, followed by a successful appeal to the Supreme People’s Court whichoverturned the verdict and gave the accused probation. The Procuracy filed a for-mal objection to the reversal, and the new hearing on the protest is now pending,with the center Deputy Director representing the client.

The national center is highly selective about the cases it considers and accepts,and it handles all accepted cases with its own salaried lawyers. At the provincial,prefectural, county, and municipal levels there is much more variation in the use ofstaff attorneys and the external assignment of cases to private lawyers. Largelydepending on financial resources and availability of professional legal personnel,lower-level centers both directly handle some cases and assign others to private lawfirms. Under the Lawyers Law, attorneys in China are required to provide probono service when asked by the government. In some more prosperous cities witha high concentration of lawyers, like Beijing and Shanghai, a much higher percent-age of cases is assigned by the centers to private law firms. The Guangzhou centerchooses to handle more cases with its own staffed lawyers, and has the resourcesto do so. Other counties and cities designate a fixed number of cases for privateattorneys to handle each year, often no more than one or two. In the truly poorregions of the country, the centers have no luxury of choice and must use whatev-er legal talent they can find, either salaried or in private firms.

Guizhou province’s model system

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Guizhou province is a good example of the rapidly evolving legal aid system inChina. One of the poorest, if not the poorest province in China, with very limitedpublic funds, Guizhou nonetheless has pursued the development of a legal aid pro-gram quite seriously. With a relatively high illiteracy rate, close to 3 million peopleliving below the official poverty line (about 8 percent of Guizhou’s total populationof 36 million), one and a half million disabled and handicapped, over 3 millionelderly and 15 million minors, all of whom are technically eligible for official legalaid, the potential client caseload on the province’s infant legal aid system is enor-mous. Because of that very large disadvantaged population, legal aid developmentis a priority for the provincial government.

The Guizhou provincial legal aid system has a total of 159 full-time salariedstaff in 29 centers at the municipal, prefecture and county levels. There are only1,100 licensed lawyers in the entire province, so all lawyers are required to accept atleast two cases a year, and in some localities double that amount. To make up forthe lack of qualified personnel Guizhou was the first province in the country to setstandards for and certify paralegal workers. These paralegals now are becoming agrowing segment of legal aid center staffs nationally. In Guizhou, paralegals musthave a 2-year or above college education with law specialization, undergo specialtraining, and be full-time employees of a government legal aid center. Once certi-fied, paralegals can access court records, interview clients and act as legal representative in all proceedings except criminal trials. In Guizhou, there now are over 100 paralegals. In a number of poorrural Guizhou counties with a dearth of lawyers and qualified paralegals, the localcenters need to reach outside the county to assign legal aid cases.

Despite limited resources, the organization and operations of the Guizhouprovincial and subprovincial legal aid centers are much the same as elsewhere inthe country. Staff screeners review requests for aid and interview the potentialclients to determine eligibility. If initially determined eligible, the client is referredto a staff lawyer or paralegal. If the case is accepted and the client produces thenecessary documentation to support eligibility, the center will determine at itsweekly staff meeting who will handle the case and whether or not the case will beassigned to a private law firm, which in turn will assign one of its own lawyers tohandle the case.

Cases referred to the centers by the courts are also processed by center staffwithin a required time period. Normally the center must inform the courts withinthree days that they have assigned the cases and to whom. The paper-trail fromscreening to referral to case status monitoring appears to be nationally standard-

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ized, with the same forms and information appearing in centers around the coun-try and at different levels.

In addition to direct professional legal aid for litigation or arbitration, centerstaffs provide a great deal of counseling and guidance to walk-in cases as well as totelephone call-ins. Most provincial and many county legal aid centers also maintaintelephone hotlines for legal advice and complaint, but statistics on the telephoneservice are not included in the legal aid and services data since it is considered tofall outside legal aid proper.

Popularizing the legal aid program

Provincial and subprovincial legal aid centers throughout the country have adoptedvery aggressive media and public relations programs to get the word out on theirexistence. For instance, since Guizhou began its public legal aid program in mid-1997, provincial and municipal newspapers and television stations have given gen-erous space and air time to publicize it regularly. The media is a natural ally of thelegal aid centers because legal aid cases make good copy. Court trials of legal aidcases are often televised. Many individual cases in Guizhou and elsewhere havebeen tracked by various media and have garnered widespread interest and atten-tion. Center staffs know this, and are very active in contacting media to publicizecases. Sometimes staff themselves write articles for papers and magazines. Awareof the impact of media coverage, center lawyers also quite deliberately publicizepending cases to bring pressure for settlement on the offending party. It works quite effectively. When interviewed,most legal aid clients say they learned about the existence of the center throughthe television or newspaper.

The national government does not provide any direct financial subsidy for theoverhead and operations of provincial and subprovincial centers. Such funds areappropriated by those lower level governments. In Guizhou, the provincial govern-ment allocated a total of about US$60,000 in 1999 for provincial legal aid centercosts. This covers salaries, communications, office space and equipment. There isalso a very small subsidy for case handling expenses, such as costs of documenta-tion, travel for the client and lawyer, taking of depositions, site visits, telephonecalls, and the like. This case subsidy in Guizhou province is only US$25 per case,which is given to the responsible center-salaried lawyer or to the assigned privatelawyer. Law firms in Guiyang City actually match that $25 with a similar amount oftheir own. In most cases, the responsible lawyer, whether center staff or assignedattorney, ends up spending his or her own funds for case costs. Even these modestcase subsidies are lacking at the prefectural and county level. At those levels, gov-

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ernments provide for staff salaries, office space, and related costs only, plus anadditional operating fund of about US$1,000 to US$4,000. Government supportand subsidies are much higher in the wealthier southern and eastern coastalregions. Lawyers who successfully handle legal aid cases cannot claim fees and areprohibited from accepting any part of the settlement or cash favors from theclaimants (although in one case observed by the author after a successful outcome,a rural family gave the legal aid lawyer a bag of sweet potatoes!).

In most of China, the role of the Lawyers Association in the management oflegal aid is not readily apparent. In some cities with a longer legal aid history, suchas Wuhan, the local Lawyers Association took an active part in the provision oflegal aid prior to the start of the national system. But elsewhere, where legal aidprograms have been launched since about 1997, the contacts and relationshipsseem to be directly between centers and law firms. In some provinces where legalaid is still in the formative stages, such as Yunnan, courts still assign cases (by andlarge criminal cases) directly to lawyers, by-passing both the centers and theLawyers Association.

In places where independent legal aid services have existed prior to the initia-tion of the national program three years ago, the working relationship between theofficial legal aid center and the independent center seems to be reasonably stable and synergistic, although not fully exploited or developed. Suchlegal aid services as those provided by the local labor federations and bureaus,women’s federations, and university law school-based legal aid often have been inexistence for eight or nine years. They continue to function, with the majority oftheir services being counsel and advice. From time to time, they also provide freeprofessional legal aid. The 1997 Legal Aid Work Notice issued by the Ministry ofJustice stipulates that: “legal aid activities undertaken by societies, organizations,schools, etc., should accept the guidance and supervision of local legal aid centers.”Thus far such oversight seems to be minimal and benign, which is not surprisinggiven the fact that most local centers still are establishing themselves. There havebeen a number of referrals from those unofficial centers to the local governmentcenter and approaches from both sides to cooperate on selected cases. But nothinglike a joint referral and organized joint service program has yet been developed.

Nor has a system of linkages been developed between the new centers at thecounty and prefectural level and the township level Justice Offices and LegalService Offices. As noted earlier the township Justice Offices and Legal ServiceOffices offer a range of basic legal services, including basic legal literacy, mediationand professional legal help, although the last is supposedly compensated. However

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the Legal Service Offices are part of the township government, and are not part ofthe vertical justice system (xi tong), as is the township Justice Office. Consequentlyno network of legal aid referrals and support (such as obtaining needed docu-ments), either vertical or horizontal, has been created between the township serviceoffices and the legal aid centers. In some prefectures there are the beginnings ofsuch networks out of necessity, often. because resources are so limited. Those net-works where they do exist seem to be upward referrals to centers. In at least one province (Shandong) a government inter-agency legal aidcoordinating committee has been established, mainly to remove bureaucratic obsta-cles to the processing of legal aid cases.

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Scope and Eligibility

For the year 1998, the approximately 500 legal aid centers handled 61,662 casesand provided legal consultation and advice to another 811,000

persons. Of the 61,662 cases formally managed by the centers, 34,357 were crimi-nal cases, representing about six percent of all criminal cases tried that year. Theremaining 26,815 civil cases constituted less than one percent of litigated civil cases. A majority of the civil cases (between 60 to 70 percent) arejudged to be work-related injury cases. Legal aid is also provided for under theAdministrative Litigation Law and the State Compensation Law, but the numbersfor these cases in 1998 appear very small.

The larger proportion of criminal legal aid cases is due to the fact that mostsuch cases are referred to the legal aid centers by the courts, while the majority ofcivil cases are walk-in clients. Under the 1996 revised Criminal Procedure Lawdefendants in criminal cases must be given legal counsel if they do not have alawyer and the verdict could result in capital punishment, or if the criminal defen-dant is a minor or handicapped. While comprehensive statistics are not yet avail-able, a surprising number of the capital punishment cases handled have resulted incommutation to life sentences or even probation and in some instances acquittal.

During 1999, official legal aid centers processed over 118,000 cases and pro-vided consultation services to over 717,000 persons. In all some 904,000 personsreceived either formal legal aid or legal advice in 1999, compared to about 872,000in 1998. Of the formal legal aid cases 39,751 were criminal cases and 46,191 werecivil cases. Most interestingly, close to 1,800 administrative law cases were handledin 1999 along with over 30,000 notary legal aid cases. Between 1998 and 1999,then, criminal cases as a percentage of total legal aid cases handled declined fromsome 55 percent of the total to about one-third of the total. Civil law caseschanged from 43 percent in 1998 to 39 percent in 1999. This decline is due tomore detailed statistics being kept by the Justice Ministry which now disaggregatescivil and administrative cases for the first time. While constituting only a bit overone percent of the total, the separate appearance of administrative law legal aidcases suggests a broadening of the legal aid scope of coverage.

Legal aid eligibility is first and foremost determined by a means test. If theclient seeking legal aid is unable to pay for legal services according to standards setby provincial and municipal centers, or falls below the very austere official povertyline set by local governments, he/she is eligible for legal aid. Normally some formsof proof are required to substantiate the claim, but not in all cases. The client usu-

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ally must be a resident of the area in which the center is located, although in someplaces like Guangzhou migrant workers with temporary resident permits areincluded as well. The various notices and laws and regulations on legal aid do givelegal aid centers some discretion in deciding when to accept cases when theydetermine those cases to be of “special social significance” or involve matters that“truly require legal aid.”

In addition to eligible criminal cases, the following types of cases are included in the scope of legal aid in China:

• work-related injury• child-support or support for orphans• claims by the disabled, minors and elderly for

compensation of “infringed rights”• claims for pensions and welfare by the disabled or

families of the deceased• claims for state compensation

While national notices and laws are silent on the point, the assumption is thatthe scope and eligibility of legal aid is intended for individuals rather than juridicalpersons. However, as observed in the field, legal aid centers are handling cases on behalf of local (mostly county-level) state-owned enterprises,when requested by those enterprises and when the objective directly benefits theenterprise workers. Specifically, legal aid centers are assisting local state enterprisesin collecting outstanding debts owed to them. The rationale provided by the centers and local governments is that if the enterprise cannot col-lect outstanding debts, it will be unable to pay its workers, thus pushing them intopoverty. This is a rather pre-emptive kind of logic justifying legal aid. Howeverthere is little doubt that during this period of economic transition in China, whenstate-owned enterprises are being squeezed from both ends, keeping people employed and meeting the payroll is a very high priority. Providinglegal aid to local state enterprises is an excellent example of what is meant by “lawreform with Chinese characteristics”. The benefits are both collective and individual.

Broadening participation

While the scope and eligibility of legal aid seem fairly narrow, they appear to bebroadening as provincial governments enact implementing regulations. Severalprovinces now allow for legal aid to be provided when persons are deemed to havebeen deprived of their “democratic rights,” such as voting or running for office in

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villager committee elections. The number of cases that would fall under theAdministrative Litigation Law or State Compensation Law is also rising, from afew hundred in 1998 to some 1,800 in 1999. Many of these cases were settled out-of-court, the settlement often encouraged by the impending threat of administra-tive litigation.

Reports from centers at different levels indicate that the largest number ofrequests for legal aid, which the centers are not mandated to take on, concerncomplaints about government policy (rather than specific law) or are related tolegacies of the chaotic Cultural Revolution (e.g., lost property, evictions, etc). Manyof the eligible cases are proving difficult to resolve because they extend back anumber of years and approach statutes of limitations. The early evidence showsthat a fair number of people with long-held legal complaints are bringing them tothe newly established centers .

In its first nine months of existence in 1999, the national Hua Yuan Law Firmhad almost 300 walk-ins, even though it is deliberately not publicizing itself yet.The firm’s deputy director is handling nine cases himself, including criminal casesinvolving minors. A number of cases involve administrative law, though. Thosecases include the following:

Hua Yuan was asked by the Peking University Women’s Legal AidCenter to assist it with a case in Heilongjiang where 200 childrenbecame ill as the result of taking tainted medicine administered bya local maternal/child health care facility. Hua Yuan, the PekingUniversity Center, and the Heilongjiang Provincial Legal AidCenter are cooperating to obtain compensation and free medicaltreatment for the children from the provincial health authority.The case now is being arbitrated.

The Tianjin legal aid center referred a case of illegal detention and“deprivation of democratic rights” to the national firm. The indi-vidual was found to have been wrongfully detained by PublicSecurity officials. He is seeking a statement of exoneration andcompensation. A decision is pending but may be difficult to conclude because it stretches back to 1991.

The Hua Yuan firm successfully handled a case for an impover-ished Hebei farmer who had purchased eggs and equipment fromthe provincial agricultural extension service to set up an ostrichfarm. The farmer discovered after more than a year that all of theostrich eggs he bought were male! With the center’s help, hereceived a full refund from the extension service.

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These sample cases provide some texture and reality to the dry statistics aboutlegal aid cases now being handled throughout China. They also suggest some ofthe difficulties that face the new legal aid centers. These include problems ofobtaining evidence, especially in long-pending cases, shortages of funds to processcases, and bureaucratic obstacles when dealing with the Labor and Health Bureaus.For example, in some worker injury cases the legal aid center and the local laborbureau are unable to sort out funding and processing responsibilities. In other suchcases, the labor bureau is unable to take action benefitting the legal aid clientbecause the employer is not registered, or has a dummy registration, and the realowner is elsewhere. At most, the labor bureau can only fine the company, whichdoes not benefit the legal aid client. Injury cases, whether work-related or due tolocal government negligence, require official medical examinations and certifica-tions attesting to specific degrees of injury. The legal aid centers do not have thefunds to pay for those exams, and the legal aid client who lives below the povertyline does not either. Consequently, the legal aid lawyer tries to settle out of court.Despite these obstacles, the cases demonstrate a reasonable degree of effectivenessby the new centers, and widespread public support for the new program as thepublic becomes aware of it.

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Financial and Technical Support

To provide the material and financial support for the new legal aid program’soperation, the government is using methods that probably are most appropri-

ate and most realistic given China’s current stage of development. The mixeddelivery system of services by government lawyers, paralegal and assigned private attorneys is funded by a mixture of public and private subsidies.Governments at various levels down to the county level, appropriate the fundsnecessary to pay for staff, office space, equipment, supplies, and modest officeoperations. Pay scales and allocations are on a par with other government units ateach level. In addition, most local governments offer a modest case handling sub-sidy to the responsible lawyer, whether center staff or assigned private. In effect,the public sector is paying for the primary legal aid infrastructure.

Law firms themselves provide the most critical form of support through theprovision of their professional services free-of-charge. This is, of course, arequirement and not an option, but it represents a huge indirect subsidy to theoperation of the legal aid program. The government does not pay fees to privatelawyers handling pro bono cases, only modest case handling subsidies. Thisextremely valuable and crucial factor makes the whole program work. The legal aidrequirement for private attorneys is also consistent with the prevailing public philosophy about the social obligations of private lawyers — another illus-tration of “law reform with Chinese characteristics.”

If they wish and can afford it, law firms or local Lawyers Associations maychoose to provide additional case handling subsidies or some other form of com-pensation to private lawyers handling legal aid cases. In the poorer and more ruralparts of China, individual law firms often provide case handling amounts equal tothe local government’s case handling subsidy, but no actual compensation. In largermore prosperous cities such as Beijing, the local Lawyers Associations have estab-lished funds that cover both fees and case handling costs. In addition, the national Legal Aid Foundation acts as a vehicle foraccepting contributions from society at large and distributing those funds for casemanagement expenses. Companies and individuals have donated to this founda-tion, but the sums are small.

Foreign assistance

Acceptance of foreign financial and technical assistance for China’s legal aid program has been and continues to be a sensitive matter for the government.Because the contents and purposes of the legal aid program orbit around

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questions of state-society relations, expressions of grievance and intrinsic domesticreform issues, and because the program is so novel and untested, the authoritieshave been very careful and deliberate in how they respond to offers of foreign aid.The May 1997 Justice Ministry Notice on Legal Aid Work actually prohibited theacceptance of foreign aid. Since then, there has been some relaxation of that pro-hibition, but offers of external aid still undergo careful scrutiny. Aid suggestionsfrom U.S. sources are considered especially delicate matters because of suspicionsabout the intent of the assistance and also the up-and-down nature of the China-U.S. relationship. The American Bar Association, for example, has attempted twicein the past two years to convene a China-U.S. conference on legal aid without suc-cess. The main reason seems to be Beijing’s unhappiness with what it considersanti-China actions taken by the U.S. Administration and Congress.

At the present time, there are four principal foreign supporters of legal aiddevelopment in China: the Ford Foundation, the Canadian InternationalDevelopment Agency (CIDA), the United Nations Development Program(UNDP), and The Asia Foundation. Ford was a pioneer donor in legal aid in Chinawith grants to a number of university-based and women’s group-operated legal ser-vice programs. Its current support to the official legal aid program is for databasedevelopment, comparative studies of legal aid systems, and the training of profes-sional legal aid lawyers. In addition, it is supporting planning and preparations at anumber of universities in China for a formal clinical legal education program.

CIDA’s assistance efforts include a baseline survey of legal aid in China andhelp with the research and drafting of legal aid regulations and laws. In March1999, CIDA and the Ford Foundation underwrote the costs of an internationalconference in Beijing on comparative legal aid systems.

Several years ago, the UNDP provided an operational grant to a legal aid cen-ter in Qingdao. Its current focus is training legal aid center staffs. The UNDP isproviding financial help as well as help in developing training materials for thenational legal aid center, which is running a series of training workshops, mainly inthe eastern and southeastern coastal areas.

In 1999, The Asia Foundation launched a three-year legal aid support programin China, which aims to increase the capacity of centers to handle cases and topromote public awareness of the legal aid program. Thus far it has provided case handling cost grants to the national center’s Hua Yuan Law Firmand to the Guizhou province legal aid program. It intends to extend up to four

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more case handling subsidy grants to provinces in the poorer and more rural partsof China. The Asia Foundation’s other grant to the national legal aid center is for anational competition for best legal aid services provided by local centers and indi-vidual lawyers. An associated media-based public awareness program will be con-ducted as well. The Asia Foundation is also helping with the preparation of credit-based clinical legal education programs at universities in China and linking upthose programs with the official legal aid system.

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Conclusions and Recommendations

It is not particularly relevant whether the purpose of the program is policy-instrumental or genuine rights-based legal reform. The results and impact are of

direct and immediate value to the disadvantaged Chinese public. China’s new gov-ernment-operated legal aid program is a positive development, and it should beregarded as encouraging news by both the general public and the foreign observer.The Chinese media have been very helpful in their extensive reporting on this pro-gram, and, where known, the public response has been overwhelmingly positive. Infact, the official legal aid program is one of the best illustrations of what Chinameans when it talks about “reform with Chinese characteristics.”

The program’s promotion of more equal access to justice is good collectiveegalitarian policy, but that equal access is also at the core of individual rights pro-tection. The inclusion of local state-owned enterprises as legal aid recipients whenthe cases involve debt collection to pay workers, and the mix of public/privatematerial and financial support reflects current political philosophy, but also is verypragmatic in making the program feasible and meeting critical needs. The same applies to the mixed delivery system of a salaried centerlawyer and assigned private attorney. This delivery method is widely regarded byinternational specialists as the best value for the money. The statutory requirementfor private lawyers to provide pro bono service fits socialist policy, but without it anational legal aid effort would be almost impossible. Overall, the program appearsto be well-conceived, practical, beneficial, and politically appropriate.

More problematic is the question of the program’s efficacy. The root of thatproblem is found in the flaws in the judicial system and its current procedures. Thecomparatively high degree of unpredictability in court decisions, the influence ofparty and local politics on judicial actions, and the inability of courts to have theirjudgements enforced all combine to weaken the impact and effectiveness of thenew legal aid effort. Because of these extra-legal influences, a fairly large numberof legal aid cases are resolved out of court through negotiation. Also, because ofthe formal judicial system’s sometimes arbitrary character, legal aid lawyers fre-quently resort to enlisting the media to build public pressure on behalf of theirclients. The results of these efforts are beneficial to the client, but they take on aflavor more of social relief than of legal rights. Legal aid in China will be able tocontribute more directly to genuine legal reform when more of the cases are for-mally processed through the court, and when the courts can act more consistentlyand fairly.

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In such a young program there are many needs. Perhaps the most immediateone is the creation of a system of linkages and coordinating mechanisms withexisting township legal aid offices and other university or social organization-based legal service programs. The very existence of those township legal serviceoffices presents a wonderfully low-cost opportunity for a web of mutually reinforc-ing referral and public legal awareness programs. A second priority for develop-ment is to establish inter-agency legal aid coordinating committees, such as existsin Shandong, for the purpose of clearing conflicting agency and bureaucraticobstacles in the path of legal aid delivery. Such mechanisms are urgently needed tomake broader systemic legal and administrative reforms that would dramaticallyenhance the impact of legal aid. Third, the scope for legal aid in China remainsfairly narrow and could be expanded. On the other hand, eligibility based mainlyon means appears to be reasonably defined at present, and centers do have somediscretion in determining case need. A more coherent and refined expansion ofscope of coverage will be needed in the future. But this needs to be calibrated tothe legal aid system’s growth so that the demand side’s expansion does not swampdelivery capacity.

These priorities clearly are matters for the Chinese government to resolve.Foreign donors can provide technical help in legal aid office and system design, butthey need to be mindful of the sensitivities of local officials. Legal aid is a fieldwhere Chinese authorities and foreign assistance organizations share an easily iden-tifiable shared objective — the direct delivery of legal services to China’s poor anddisadvantaged, providing both material relief and substantive justice. They shouldjoin forces to make that happen. In doing so, they need to recognize that this mustbe a long-term effort, and one that will require being mindful of the deficiencies inthe overall legal climate. That said, China’s new legal aid program is one area wheresmall amounts of support can have direct benefits for marginalized portions of theChinese population. Modest subsidies of just hundreds of dollars per county tolegal aid offices for meeting case management expenses; or the provision of low-cost fax machines to remote county legal aid offices in poor western and northernprovinces can substantially and strategically improve the ability of those centers todeliver their services.

The remaining items on the agenda for assistance include: a) continued train-ing of legal aid center staffs as well as private attorneys in the substantive issues oflegal aid; b) legal aid case management and monitoring systems development; c)clinical legal education program initiatives (none now is offered in China) and link-ages to the national legal aid program; d) broad popular legal

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literacy and public awareness programs that inform the public of laws, their rightsunder them, and how to use the legal aid system if eligible.

China’s approach to its public legal aid program seems appropriate for thecountry’s circumstances and situation. The program’s single greatest limitationresides in the shortcomings of the judicial system itself. Expanding access to thecourts is not the same as expanding access to justice. Until the judicial system isperceived to be dispensing justice in a more transparent and predictable manner,legal aid will look more like relief than reform — helpful and needed but not nec-essarily transformative. As legal aid becomes more anchored in a rights-basedenvironment, it will have a positive synergistic effect on the prospects for rule oflaw in China. That can happen as more of the general public learn about legal aidand begin to see it as a right.

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Suggested Reading

Exner, Mechthild, “The Convergence of Ideology and the Law: The Functions ofthe Legal Education Campaign in Building a Chinese Legal System,” Issues andStudies, pp. 68-102, August, 1995.

Goriley, Tamara, Legal Aid Delivery Systems: Which Offer the Best Value forMoney in Mass Casework?, U.K. Lord Chancellor’s Department Research Series,No. 10/97, December, 1997.

Peterson, A.A. and T. Goriley, Editors, Resourcing Civil Justice: A Reader, OxfordUniversity Press, 1996.

Lawyers Committee for Human Rights, Lawyers in China, March, 1998.

Lawyers Committee for Human Rights, Opening to Reform? An Analysis ofChina’s Revised Criminal Procedure, October, 1996.

Liebman, Benjamin L., “Legal Aid and Public Interest Law in China,” TexasInternational Law Journal, 34, Spring, 1999.

Lubman, Stanley B., Bird in a Cage: Legal Reform in China After Mao, StanfordUniversity Press, 1999.

Appendix I

MINISTRY OF JUSTICE

NOTICE REGARDING DEVELOPMENT OF LEGAL AID WORK

May 10 1997, SFT [1997] 056

Justice Department (Bureaus) of Provinces, Autonomous Regions andMunicipalities, Justice Bureau of Xingjiang Production and Construction Corps:

[A] legal aid system is an important system to ensure the implementation of theconstitutional principle of quality of all citizens in front of the law and allow allcitizens equal access to legal protection. It also improves social security structureand human rights security structure. Both the Criminal Procedure Law of thePeople’s Republic of China and Civil Procedure Law of the People’s Republic ofChina have explicit stipulations regarding the legal aid system and they form thelegal basis for its setup. In line with the Lawyer’s Law, the judicial administrationsare the bodies to carry out legal aid. The Ministry of Justice and the SupremePeople’s Court have jointly distributed a notice on the main legal aid issues definedin the Criminal Procedure Law. Judicial administrations at all levels should stress this work and take it as a major approach to improve the social-ist democratic and legal system in order to demonstrate the superiority of thesocialist system. This notice is made to clarify [the] following points so as to quick-en the buildup of [the] legal aid system in China and facilitate health and standardlegal aid work:

I. The Definition of Legal Aid and Legal Aid Institutions(I) Legal aid refers to the legal system in which, guided and coordinated by

the legal aid institutions, lawyers, notary clerks and paralegal workers are required to provide free or rate-reduced legal services for clients who encounter financial difficulties or special cases.

(II) The Ministry of Justice will set up Legal Aid Center[s] to guide and coordinate legal aid work throughout China.

(III) Judicial administrations of all levels should report to the local CCP committees and government, and strive to win the support from relevant departments. Legal aid centers should be set up as soon as possible so as to guide, coordinate, and organize local legal aid work.(IV) In areas without legal aid centers, justice bureaus should designate

people to take over the responsibilities of legal aid centers.(V) Law firms, notary agencies and paralegal service setups should all work

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under the unified coordination of local legal aid centers in providing legal aid.(VI) Legal aid activities undertaken by societies, organizations, schools, etc.,

should accept the guidance and supervision of local legal aid centers.

II. Legal Aid Recipient(I) Citizens of the People’s Republic of China with the following

requirements can apply for legal aid:1. Sufficient reasons to demonstrate that assistance is necessary to

safeguard one’s legal rights and interests;2. Being financially difficult and incapable or partially incapable to pay for legal service fees (referring to the standards of financial

difficulty set by the local government).(II) The blind, deaf, mute, and minor criminal defendants or suspects without

defending lawyers are eligible for legal aid.Other disabled and aged criminal defendants or suspects failing to get defending lawyers due to financial difficulties are eligible for legal aid.Criminal defendants without defending lawyers and likely to be sentenced

to death penalties are eligible for legal aid.(III) Non-Chinese defendants in criminal cases whose defense is done by lawyers appointed by the people’s court should received legal aid.(IV) The approved legal aid applicants and criminal defendants or suspects

who meet the requirements and accept assistance designated by the people’s court are eligible legal aid recipients. In the course of receiving legal aid, the recipients may ask for the information of the legal aid provided to them and may request the legal aid workers be substituted provided they have factual evidence that legal aid workers have not fully fulfilled their responsibilities.

(V) When legal aid recipients acquire large benefits upon the solutions to the legal aid cases or matters, they should pay legal aid institutions service fees.

III. The Range and Means of Legal Aid(I) The range of legal aid:

1. Criminal cases;2. Legal matters relating to the claims or monies of aged-support, child-

support and orphan-support;3. Legal matters relating to the compensations of work accident except

liability accidents;4. Legal matters relating to the claims by blind, deaf, mute, and other

disabled, minor, aged, etc., for compensations of infringed rights;

5. Litigation cases over claims for the state compensations;6. Legal matters relating to the claims for disabled pensions and

relief money;7. Other legal matters that truly require legal aid.

(II) Main means to be adopted for legal aid:1. Law consulting, legal documents writing;2. Criminal defending and representing;3. Civil and administrative litigation representing;4. Representation of non-litigation matters;5. Notary certification;6. Other means of legal services.

IV. Legal Aid Procedures(I) Legal aid criminal cases with defense designated by the people’s court

should be invariably handled and organized by the local legal aid institutions within the same area. In criminal litigation cases without court-designated defense or other litigation cases, the applicant should apply to the legal aid institutions of the same area where the case-handling people’s court exercises jurisdiction. Legal aid of other non-litigation matters should be applied to the legal aid institutions in the applicant’s residential area or employer’s location. These stipulations do not apply to exceptions.

(II) The same legal aid matters should be handled by the same legal aid institutions.

(III) The staff of the legal aid institutions involved in the verification of the applications should take the challenge in the circumstances that:1. he/she is the applicant or a relative of the applicant;2. he/she has direct conflict of interests over the applied matters.

(IV) Application for legal aid must be submitted in writing and together with the following materials:1. ID card, birth registration certificate, or temporary residence permit;2. Statement of the financial status of the applicant and the family

members endorsed by relevant departments;3. Basic information of the matters for legal aid;4. Other information the legal aid institutions believe to be necessary.Where the applicant is a minor or disabled person, the guardian should do the application. The guardian should also produce the certification of his/her qualifications.

(V) Legal aid institutions should verify the applications for legal aid following regulations. Items to be verified are:1. whether or not the applications should be handled by the legal aid

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center according to this notice;2. whether or not the application meets with the requirements set in this

notice for receiving legal aid.When the legal aid institutions find the applicant’s materials incomplete or questionable, it should notify the applicant to make supplement or obtain certifications from organizations or individuals concerned. They can also conduct investigations depending on the circumstances.

(VI) The legal aid requirements for the application of notary services should be set jointly by legal aid institutions and notary agents.(VII) Legal aid institutions should make decisions within 20 days as of the

day that the application is received:1. Applicants complying with the requirements should be granted legal

aid and notified in writing. Legal aid institutions should designate legal service setups to take up legal aid and to assign the task to their staff.The written approval for legal aid and the names of legal service setups

and staff members should be made known to the recipients. The legal aid staff member, legal aid institution and the recipient should sign an agreement, which should have explicit stipulations of the obligations and interests of each party.

2. Ineligible applicants should not be granted legal aid and should be informed of the decision.Legal aid institutions should examine the application for the second time if the applicant challenges the decision not to grant legal aid.

(VIII) In urgent cases or emergencies, legal aid institutions may instantaneously decide to provide legal aid; legal service setups may also provide legal aid first and submit the application to legal aid institutions for verification afterwards.

(IX) When the legal aid is over, the legal service staff should produce a case-closing report and submit it to the legal aid institutions.

(X) When legal aid institutions need to pay fees upon the closure of legal aid cases, they should examine and confirm the amount according to the government standards and make the payment to the legal service setups.

(XI) Legal aid cases with people’s court designated defense should follow the stipulations of The Joint Notice of Legal Aid in Criminal Cases Issued by The Supreme People’s Court and The Ministry of Justice (STF[1997]046).

V. The Interests, Obligations, and Legal Responsibilities in Legal Aid(I) The number of free legal aid cases that every lawyer, notary clerk, and

paralegal worker should take up each year should be determined by justice departments (bureaus) of provinces, autonomous regions, and

municipalities.Every Lawyer, notary clerk or paralegal worker is obliged to provide legal aid according to regulations and should be devoted to their assignment so

as to perform legal services for the legal aid recipient as required by law.The above personnel should also accept legal aid cases with compensation

assigned by legal aid institutions.(II) After legal aid staffs get the assignments, they should not be irresponsible

for the task or decline, delay, or terminate legal aid cases without appropriate reasons.

(III) In case legal aid staffs insist on refusal of legal aid assignment or cause recipients major losses due to the staffs oversight, legal aid institutions may suggest judicial administrations to suspend their annual license

renewal or other corresponding punishment.(IV) In cases [in which] the recipient violates laws or regulations or refuses to

provide necessary cooperation as defined in the legal aid agreement, legal aid staffs may refuse to provide or terminate legal aid, upon the approval of legal aid institutions.If the recipient is found to have obtained legal aid by means of cheating, legal aid institutions should revoke their eligibility and demand full payment for all the services they have received.

VI. Legal Aid Funds(I) Legal aid funds mainly consist of government budget, monies drawn on

certain percentage from the fees of lawyers, notary agencies and paralegal service setups, and social donations.Before the central government makes decisions on [a] legal aid budget, local legal aid institutions should advise and explain to the local government in order to win local financial support.Social donations should be domestic. No donations outside mainland China should be accepted.

(II) China Legal Aid Fund is founded according to Law. When conditions permit, local legal aid funds can be set up together with relevant local departments. The legal aid fund follows its charter and receives donations from the public and supervises the operation and management of the funds.

(III) Value-added funds of China Legal Aid Fund should be used for the whole country and primarily for the support of the legal aid of underdeveloped areas. Value-add funds of various local aid funds should be used for legal aid in local areas.(IV) The management and operations of legal aid funds should comply with

government regulations and should be subject to the monitor and

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inspection of departments concerned.All the legal aid institutions are required to follow this notice and strive to

win the support of the Party and government leaders and relevant departments in order to realize effective growth of the local legal aid. Please report when problems or new experience[s] occur in the course of legal aid.

Documents

By Allen C. Choate Director of Program Development, …unpan1.un.org/intradoc/groups/public/documents/APCITY/...THE ASIA FOUNDATION WORKING PAPER SERIES LEGAL AID IN CHINA By Allen