Statistical analysis of the legal aid cases

Nantong Chongchuan District Legal Aid Center

Zhu Guoqing

June 17, 2010

The statistics of the legal aid cases, refers to the standard number of legal aid of the case to the legal aid institutions statistics are handled.

To determine the number of unified standards of legal aid cases significance lies in: one is to reflect the real legal aid work, easy on the legal aid institution assessment. Only the uniform filing standards, the number of cases the legal aid institutions have lateral comparability, appraisal have incentive significance. The two is easy and the number of legal aid cases a year or a few years ago for longitudinal comparison, providing basis for the decision-making of the timely adjustment of economic difficulties standards, scope of the case and other major legal aid policy. The three is to check the central finance and provincial legal aid fund transfer payment legal aid fund. "The central subsidies to local legal aid case fund management Interim Measures", "Jiangsu provincial legal aid fund management approach" and the "base", "Yijiangdaibu, in case Award" approach, will be an important basis for the previous year legal aid of the case base as appropriated transfer payment legal aid fund. Four is to guide the legal aid institutions file archiving.

China's legal aid system in China to carry out a comprehensive implementation began in 1998, the implementation is far behind China's criminal procedural law and procedure law. The author thinks, the standards for the statistics standard number of legal aid of the case, the people's court shall, according to law firm, a people's Procuratorate, the public security organ, the labor dispute arbitration institution, the administrative reconsideration department and other relevant cases, and combined with the characteristics of legal aid in adjusting the appropriate. "Jiangsu provincial legal aid cases archives management measures" provisions of article seventh "legal aid case file materials should be a case of a roll or a case of multi volume." Article eighth stipulates that "undertake legal aid volume should be a commissioned matters a roll. Legal aid in criminal cases and civil, administrative legal aid cases, should be filed according to different principal stage." Therefore, to determine the legal aid cases statistical principle should be: a case of a roll of principle; different stages of establishing principles; keep on file standards relative stability in a long period.

According to the "Regulations of Jiangsu Province legal aid cases records management approach", a criminal case can be divided into the investigation stage, the prosecution stage, the trial, second instance trial stage, the death penalty review stage. That is to say, when a criminal suspect, the defendant if all this five stages, then, the legal aid institutions will successively established five legal aid cases, divided into five contractors archive; civil, administrative litigation cases according to the first, second and two stages were filing; non litigation matters is a the matters entrusted a roll. Accordingly, the legal aid cases on file filing standards should be clear, uniform. But there is no uniform standard for filing the phenomena in the practice.

(a) injury cases how to examine and approve the registration?

In practice, the inductrial injury cases, some legal aid institutions stand volume, different stages of some legal aid institutions according to the case where the separate volumes. For example, Lee industrial injury case, Lee did not sign a labour contract with the employer, after injured on the job, he applied for legal aid, is a can get inductrial injury compensation and general application based on principal, for legal aid institutions, may be to handle multiple different phases, such as after confirmation of labor relations arbitration confirmation of labor relations, first, second, confirm the labor relations for work-related injuries that institutions, or work-related injury identified administrative reconsideration, administrative litigation, administrative litigation, trial of second instance for the appraisal of labor capacity, ability to work again, identification of work-related injury claims the labor dispute arbitration, inductrial injury claims a trial, inductrial injury claims second, execution stage. If Lee Industrial case is exhausted the stage, then, some legal aid agencies a case, some legal aid institutions established 4 civil cases, 2 administrative cases, 7 non litigation cases, a total of 13 legal aid cases.

The author tries to analyze the legal aid agencies a case of such cases may be due to three: one is from the principal-agent relationship in terms of legal aid cases, except the designated by the people's Court of criminal cases, the rest are all based on the principal recipient. China's "contract law"The provisions of article 397th "the principal may specifically appoint the agent to handle one or several affairs, or generally appoint the agent to handle all matters." From the recipient's point of view, its all affairs commissioned as a general application and principal, the most convenient to the recipient. Do comply with the relevant provisions of China's "contract law". Two is the "Jiangsu Province," the provisions of the relevant regulations of legal aid cases as "because the body suffered serious damage compensation request", so, some people think that, by Lee Industrial case before the injury claims the labor dispute arbitration institute work is the preparatory work, single file specified is not consistent with the scope of legal aid cases the. The three is for the legal aid cases subsidies, legal aid agencies may increase. With the increase in workload is not a contradiction.

 The author agrees to this kind of case filing according to different stages of practice, but don't agree with only a legal aid cases approach. The specific reasons are: 1, only a legal aid of the case in practice, does not comply with the "Jiangsu Province in different stages of legal aid cases archives management measures" identified by case are establishing principles, practices and other judicial organ is not consistent. 2, only a legal aid of the case in practice, special and workload can not reflect the injury and other legal aid of the case. If you consider that this kind of case, bring the undertaker in understanding the case, collect evidence, writing legal documents in areas such as convenience, through the comparison of similar cases will be handling subsidies a discount to solve. 3, only a legal aid of the case to bring the case, classification statistics on the chaos, a case includes civil litigation, including litigation, labor dispute arbitration cases and non litigation matters, the case when the statistics of what is what kind of case? 4, only a legal aid of the case in practice, because of the time span is long, can not truly reflect the legal aid cases, lead to the form of pending cases rose. 5, only a legal aid of the case in practice, may lead to lower the legal aid institutions are determined according to the regulations on legal aid in the jurisdiction on the division of labor is no longer clear, the legal aid institutions will be able to do this should be a legal aid institutions do the second instance civil and administrative litigation cases. 6, only a legal aid of the case in practice, may also cause confusion in the file, the subsidy payment etc.. Because the final solution in such cases the longest possible after two or three years of time, long time not archive file material, may be due to transfer of personnel and other reasons, resulting in material loss. For a case handling subsidies issued several times, will be difficult to finance department of the local government inspectors non legal professional explanation.

(two) groups of migrant workers legal aid cases recourse labor compensation, according to the number of migrant workers is the case, or a case?

The center for the Nantong Hongli yarn dyed factory wages case involving migrant workers 96 people, the company is a private enterprise, because of debt disputes plant assets are all the court attachment, has reached the serious degree of negative equity, not because of its limited liability company, the responsible person of the enterprise bear unlimited liability, not to file for bankruptcy, the unit is responsible for issued by the wage IOU for every migrant workers, let them to the people's court for compensation from the property has been sealed. When the people's court to prosecute, requires each migrant workers appeal as an independent court, so the center as the 96 legal aid cases received approval, and then to the people's court as a civil dispute cases to solve. In such cases, the legal aid institutions how to approve filing? In practice, the legal aid institutions approach on this issue is not the same, even the same legal aid institutions for different cases of practices are not the same.

China's "Civil Procedure Law" the fifty-third stipulation: "when one party or both parties consist of two or more persons, the subject of the proceedings is the common, or the object of action is of the same category, the people's court may adjudicate with the consent of the parties, for joint action." in civil theory of the common, litigation procedure is called "necessary common lawsuit", object of action is of the same kind of action is called "common". The way the court on the difference: the necessary joint action without the client application that should be used as a case to be accepted, common joint action shall be agreed by the parties, and by the courts to decide whether the merger trial. Groups of migrant workers recourse labor compensation case litigation belong to the same species, whether as a joint action, to be agreed by the parties, and in such cases the employer is responsible for most people avoid the faceless, hard to seek their views. The January 1, 2006 implementation of the "Supreme People's Court on the first clause notice" joint action cases accepted by the people's Court: the problem of "one party or both parties the number of joint action of numerous, accepted by the basic people's court in accordance with the law. Court think it as a joint action to accept, can be accepted." The judicial interpretation of the relevant breakthrough in China "Civil Procedure Law" provisions, in the judicial interpretation issued for such cases, whether as a common litigation, or by the people's court. In practice, the people's court as restrained by the assessment factors adjusted rate, often to whether mediation as a symbol, can mediate that were accepted, with mediation rate increased to, not the mediation, Li is a common case. In the implementation stage are all accepted. A labor dispute arbitration institution accepts labor dispute arbitration cases, also similar to the people's court practice.

Yarn dyed factory migrant workers is luxurious recourse labor compensation case, on the relationship of every employee and employer of each other and are independent of the civil legal act, the same, the same, the plaintiff in litigation of payment of wages which belongs to the requirements of the same type, but the nature of each employee is different, the labor relationship the fact is not the same, required to pay the amount of salary is not the same, in the perspective of civil procedure, which belongs to the common joint action, the people's court may as a case to accept, but also can be used as the 96 case to accept. In judicial practice, due to the mediation, the District People's court took the latter approach, then the merger trial, according to the number of migrant workers are making the mediation agreement.

The center, in such cases, some of the number of migrant workers to accepting the case, some of the same employer made a legal aid cases accepted. Conservation of resources from the convenience of migrant workers rights, legal aid, improve work efficiency point of view, all relate to the same employer groups of migrant workers Taoxin cases can be used as a legal aid of the case to case acceptance is the best. However, taking into account the similar case with the people's court, the labor dispute arbitration institutions comparable, considering that most of the legal aid institutions in legal aid cases index under pressure according to the status of migrant workers, the number of the approval file I suggested, should by the higher authorities to make uniform provisions, whether the people's court, the labor dispute arbitration mechanism how to register, legal aid institutions according to the number of migrant workers to the approval file.

(three) the implementation stage are the established legal aid cases?

There are three kinds of opinions about in the implementation stage to establish legal aid cases of execution of this problem: one is not to establish legal aid cases of execution; two had set a perform legal aid cases; three is a reference to the practice of the court according to the number of discrete migrant workers legal aid cases. Hold the first opinion that, in the implementation of the court, legal aid center to provide legal aid to the recipient is less, the lawyer did not have much effect, let the people's court to solve alone, aid center generally do not need to participate in the. After the two opinion basically similar, are considered in the implementation stage, the legal aid should be actively involved in.

The author thinks, the legal aid should actively participate in the implementation of the whole process of stage. The reason is, (1) recipients, especially migrant workers to apply for legal aid, not to change a judgment, but in order to truly get belonged to their wages, economic compensation, the compensation payments, the people's court enforcement difficulty is an indisputable fact that if not, the recipient of legal aid to help, rely on the people's court executive judge, it is difficult to make their own legitimate rights and interests of the smooth realization. (2) the legal aid such as not to participate in the implementation stage, it may damage the image of legal aid. From the legal aid legal purpose, we have to help them in the right way forward, and to perform a small this important not to go, will make the migrant workers who have cast them, engage in formalism, take them around a circle of legal procedure of the game, but what also don't get the idea. (3) groups of migrant workers Taoxin cases often by imitation, labor, trade unions and other departments to turn to, Party committee and government, the news media pay close attention to local, such as improper disposal may lead to steady incident. If aid center to participate actively in the implementation phase, timely grasp the progress of the case, can real timely to the local Party committee and government. (4) from a business perspective, actively participate in the implementation stage is also in need of legal aid. Apply to a people's court, in addition to legal documents according to the requirements provided in the implementation of the application and implementation of basis, but also to the people's court to provide the employer's business registration information, legal code, confirmation of the address for service, prove the arbitration documents delivered into the data, it is difficult to complete the peasant workers. In addition to providing help in the implementation of document materials, legal aid can also provide help for the execution of the applicant in the other. Such as helping with the business registration information query, to help find arbitration institutions arbitration into instruments issued proof, help and assessment agencies communication defer assets appraisal fees. (5) on behalf of migrant workers is exist between the interests of the parties, and other migrant workers may, solely by their representative for migrant workers perform all matters stage, it may damage other migrant workers interests, and center is very difficult to solve. Such as the Nantong Qin Yang Textile Co., Ltd. on the case in the implementation stage through the assessment, sale program, deduct the assessment fees and implementation costs, the two phase of the migrant workers representative to receive 200000 yuan in the implementation of the money from the court, but they are not in full consultation with other migrant workers under the premise of consent, to go beyond the scope of the arbitral award in distribution, before deduction of some should not paid fees, leading to other migrant workers to the center to find solutions to help them, the center had to settle. If the two migrant workers will receive $200000 from the court execution shall not assign other migrant workers Frence leave, the consequences be unbearable to contemplate, make originally do very successful, become the new group disputes.

The author thinks, legal aid should be actively involved in the implementation stage, for a single legal aid cases, generally can not form a legal aid cases, by the undertaking lawyer continue to provide consulting, scrivener, query and other help, related material formed as archiving files side roll archive, a certain percentage of the subsidy may refer to the litigation or arbitration standard issue. For a group of migrant workers cases can be an employing unit made a legal aid cases, forming a separate file archive. In order to avoid the standard is not unified, some stand, some can not stand, and finally in the filing number under the pressure of all legislative situation, the author suggests that, due to the implementation of cases differ in thousands of ways, whether made by the implementation of legal aid institutions need to decide according to the circumstances of the case, legal aid case statistics but do not declare the examination.

(four) in addition to other non litigation matters of labor dispute arbitration, executive case is filed?

In addition to other non litigation matters, such as: outside of the labor dispute cases of administrative reconsideration of work-related injuries; the victim participation Traffic and patrol police organization to mediate the traffic accident loss compensation case matters, the matters involved in the medical malpractice Medical Association, acting inductrial injury Shen that events please people participate in work-related injury mechanism, for the examination and approval of legal aid cases the main parties and evaluation, to solve the problems such as the likelihood of success, and must complete the specific investigation matters, such as industrial and commercial registration agency enterprise registration information, the public security organs of the 110 police records, public security case data, traffic accident data, as well as to query to scrivener cases of various types of files. In accordance with the "Regulations of Jiangsu Province legal aid cases archives management measures", such matters shall be should also set up for non litigation matters. But doing so may cause, after a piece of non litigation matters, and to make civil litigation or arbitration of labor disputes cases, some legal aid agencies to please the undertaking lawyer investigation in advance in the absence of legal aid case assignment procedures circumstances. However, in practice, some agencies such as the public security organs, the Housing Authority, the lawyer inquiry, not only requires a license and a letter of introduction, also requires people to produce the assignment entrusted query procedures and formalities, such as non approval registration is difficult to query. In fact, no assignment procedures and formalities, lawyers and lawyers to carry out inquiry, specification does not match.

　 The author believes that, in view of the large increase in the labor dispute arbitration legal aid cases, in statistics, the labor dispute arbitration legal aid cases from the non litigation cases of separation, separate projects for statistical. For other non litigation matters of principle, the legal aid institutions shall file the case, the standard management, but whether to put on record, the legal aid institutions according to the work need to decide for yourself. In addition to the labor dispute arbitration legal aid cases, other non litigation matters because of uncertainty and virtual, and are no longer included in the legal aid case statistics.

Legal aid cases statistical caliber, don't be a complex problem, the author thinks that, regardless of the standard, as long as in a fairly long period of time, to ensure that the standard one, stable, the transverse and longitudinal comparability.