The research on the establishment of the national legal aid system

Zhang Jianbi

Zhang Jianbi: the last century80The times,90In early times, ChinaGross domestic productNo ranking second in the world, but the development of rule of law is a good period, in accordance with the "general principles of construction of rule of law, the law, the law enforcement must be strict, law", legal construction made gratifying achievements. But the legal aid work, follow is scattered in the court organization law, criminal procedure law, the Provisional Regulations on Lawyers scattered specification. The implementation of norms, to good effect to be called "legal aid is an important content of human rights" to carry out the general policy, but from the construction of the legal system is far from the requirement of the national legal aid, in order to perfect the legal system, must be carefully studied the problem.1996Year coincides with the Central College for Nationalities law building is ten years, College of law, system call for papers, I after thinking carefully, self selected topic "the establishment of national legal aid system research", this paper, selected into "legal proceedings", soon after, the State Council promulgated the implementation of "the people's Republic of China, the regulations of legal aid".

The legal aid system refers to a system of because of financial difficulties and unable to pay the legal fees of people to help. Legal aid system has no, is a symbol of national legal system and the degree of social civilization. Many countries in the world, (such as Japan, Australia, Britain, France) have their own legal aid system. Our legal system has been created, a lawyer to handle all kinds of cases, has a low charge system, the majority of lawyers in handling the large number of designated by the people's Court of criminal defense cases at the same time, handled a large number of civil, economic, legal, scrivener, consulting and other anti free legal affairs, therefore, can say, from the overall sense the nature of our lawyers, service has always been the legal aid, legal aid law but as a legal aid system mark "" has not been promulgated, is not commensurate with the nature, the legal services in China and essence of socialism country. Therefore, our country urgently needs to establish legal aid system. (this year1995Years)2In March, the Minister of Justice Xiao Yang in the judicial department (bureau) long meeting clearly pointed out: "we should actively explore effective ways and means" the establishment of a legal aid system, and pointed out that "this year to put this work officially put on the schedule, make our country legal aid system as soon as possible to build up." Therefore, the relevant departments of the state for the establishment of the national legal aid system to be attached importance to and has been included in the schedule. Therefore, this paper intends to establish the necessity and feasibility of establishing the national legal aid system and the national legal aid system in the ways and methods of slightly Chen Jian, in order to promote the establishment of national legal aid system.

The necessity and feasibility of establishing a national problem, the legal aid system

(a) the necessity to establish the national legal aid system

The author thinks, in our country such a large population, economic development level is not high, most of the professional knowledge of law lack of power, the establishment of a national legal aid system is very necessary. Its necessity lies in the following aspects:

1  The establishment of a national legal aid system is the need for international communication of legal culture.

Legal aid system has no, is the construction of legal system of a country achievement exhibition, is a symbol of social civilization and progress, is the national legal culture exchange window. In modern society, countries all over the world have realized that, to develop the productive forces, to speed up the pace of economic development, on the closed door policy is no good, must carry out the reform and opening up. Since the Third Plenary Session of the eleven national, the focus shifted to economic construction, reform and opening up not to move or retreat to walk the road of the powerful nation, is now in a critical period of deepening reform, expanding opening up, reform and more open, more expanded, more frequent international exchanges. Frequent international exchanges, including all aspects of international exchange, and these exchanges, including both economic and technical, management experience, including culture. If we set up the national legal aid system, which is rich in our legal culture content, add the important content of the legal and cultural aspects of the establishment of China's legal aid system is the same as the state of the world and want to set up legal aid system in the country to carry out cultural exchanges.

2The establishment of a national legal aid system is to ensure that the needs of socialist market economy develop in a healthy direction.

The 14th Party Congress explicitly pointed out, the economic system reform goal is to establish the system of socialist market economy. A sense of market economy is legal economy. Market economy is the interests of diversification, clear property right characteristic, the allocation of resources market, the market according to the law of value. Under the condition of market economy, must insist to catch (a hand grasping the material civilization construction, spiritual civilization on the one hand), two hands are hard policy. The central leader comrade Jiang Zemin pointed out repeatedly, make market economy, need30Million lawyers, judicial department leading Party group is also proposed in this century15Million lawyers,3Million notaries and20Million grassroots legal service personnel. The establishment of legal aid system, is to strengthen the team construction of spiritual civilization under the condition of market economy. The establishment of socialist market economy, the social life aspects of law, rule-based process, in this process, there is a need for legal help and because of financial difficulties and cannot get legal help and the delay in affairs of the large phenomenon, will enable the establishment of market economy system waste all the previous efforts, influence the establishment of socialist market economy system. The requirements of the market economy, fair competition and orderly development, if not the establishment of national legal aid system, legal help to people because of financial difficulties and has not obtained the effective legal help, will also affect the fair competition, resulting in social and economic development in a state of disorder, affecting the healthy development of the market economy. Therefore, the establishment of a national legal aid system is to build system of socialist market economy, safeguard the socialist market economy healthy development.

3The establishment of a national legal aid system, is the need to deepen the reform of the legal system.

China's lawyer system, experienced a tortuous course -- -- -- create setbacks cancel recovery development, at present the law system is in the opportunity development. The recovery and development of the lawyer system of more than ten years, our lawyers took an account for the state organization, allocated by the state funding for the low-cost welfare law development road. In recent years, a lawyer with the deepening of reform and opening-up, the establishment of the socialist market economy, is pushed to the market as the third industry. The lawyer is in the direction of the steady development of the existing state at the same time, vigorously promote the lawyer practicing institutions including the various forms of cooperation, partnership, private, these institutions, lawyers, which will go in a do not account for the state organization, not the state funds, self-supporting, self financing, self development, self - restraint of the model law development road. Even if is firm, also exist to self-supporting, self financing law reform issues. Reform of the legal system, is to improve the development of lawyer system background of China does not change the nature of the law of socialism. In this process, because the lawyer as employees third industry is pushed to the market, some of the lawyers driven by the interests of the impact, there have been "only do not do the civil economic cases, criminal cases", "not to do the court appointed defense cases.". Therefore, no national legal aid system in our country, deepening reform to ensure the socialist nature of lawyer lawyer background will be difficult.

4The establishment of a national legal aid system is to develop socialist democracy, improve the socialist legal system, need.

Socialist democracy is a state system based on public ownership of the means of production, is under the leadership of the proletariat masses of people be in power, power, management of the state, a new system dictatorship to the class enemy. Socialist democracy has a very wide range of content, in the socialist democracy, people not only have the right to participate in national political life management, and management of economy, culture and other social affairs, the people are the masters of the state and society, people can not only enjoy extensive democratic rights of freedom, more important is the country can through a variety of ways and means (including the establishment of the national legal aid system), to realize the true safeguard the democratic rights of the people. The present stage of our country, large population, productivity level is not high, economy is not developed, many parties lack of legal knowledge. It is necessary to seek legal help, but because of the difficulties of life without the economic income can not afford a lawyer, can not afford a lawyer to delay action, so that the legitimate rights and interests can not be timely and full protection of the situation still exists. This to a certain extent, these people's democratic rights (right of action is a kind of democratic rights) implementation obstacles, is very disadvantageous to promote socialist democracy. Therefore, the establishment of a national legal aid system, is the need to promote socialist democracy. In order to develop socialist democracy, we must improve the socialist legal system, socialist legal system is a socialist country formulated or approved in organs of state power, embody the working class and the vast majority of the will of the people and set up the legal system and legal system of the socialist legal system, is the law of socialist democracy, the rule of law and the way the system is. It includes two aspects: one is the legal system, which is called static sense of the legal system; the legal order, which is called the dynamic sense of the legal system. The static meaning of legal system, we issued the "legal aid law" in the form of the establishment of a national system of legal aid, the legal aid law category, make our socialist legal family added a new member, and thus improve the socialist legal system. From the dynamic system of law, "the implementation of legal aid law", the establishment of the national legal aid system, the urgent need for legal aid because of economic difficulties can not get effective help people get the necessary help to understand the law, a large number of professionals involved in civil, economic, administrative, criminal and other legal affairs in the legal system, policy and implement "the law, enforce the law strictly, weifabijiu" will undoubtedly be of great advantage, also improve the socialist legal system.

5The establishment of a national legal aid system, is the need to establish "stretch Zhang Zhengyi, solidarity, advocating the spirit of devotion" socialist lawyer image.

Our country is led by the working class, the alliance of workers and peasants, the people's democratic dictatorship as the foundation of the socialist country. This decision of Chinese law is only the socialist nature of the law. The socialist nature of lawyers, lawyers decided who is not for the money who speak, vassals who rich who work. The lawyers should be the new law justice, solidarity, dedication. Construction of the lawyer system in China, the fundamental point is to strengthen the socialist democracy and legal system, safeguard the dignity of the law, safeguard the legitimate rights and interests of citizens, promoting the social justice. Therefore, as long as the parties have wronged, economically it is difficult, the lawyer should the "lawsuit", to "seek explanation". Therefore, the establishment of a national system of legal aid lawyers, through legal norms for the weak to provide free legal services, and Zhang Zhengyi, awaken the conscience of the people, promote solidarity spirit of dedication, is very important for establishing socialist image of lawyers in china.

(two) the feasibility study on the establishment of national legal aid system

The author thinks, established socialist market economy at present stage of our country, the establishment of a national legal aid system is not only necessary, but also feasible. This possibility can be demonstrated from the following aspects;

1Socialist public ownership as a solid material foundation for the establishment of a national legal aid system. According to the principle of Marx Lenin's theory about the dialectical relationship between economic foundation and superstructure, the economic base determines the superstructure, the superstructure as the economic base service. The national legal aid system is a part of the national political and law system, which is a part of the superstructure, the superstructure with other parts, should be based on public ownership of the means of production and economic foundation. As mentioned before, the recovery and development of our country's lawyer, the road, the journey is a lawyer in the state system, allocated by the state fee, welfare lawyer on the low charge road. The establishment of a national legal aid system, does not mean that the provision of legal aid lawyers do not charge any fees, only means do not charge fees to the parties. To provide legal aid lawyer costs come from? With the restructuring of the state, establish various forms of law firm, largely reducing the past the national finance for payment for the burden of attorney fee, this part of the costs for legal aid funds are an important source, shows the superiority of the socialist public ownership.

2The practice of China's lawyers for the parties to provide free legal services, reduction and provide a practical basis for the establishment of the national legal aid system. Since the resumption of development of China's legal system, in accordance with the relevant provisions, lawyers in provides the following services, a free service: ① on damage compensation request (liability accident except); ② request support, tending, maintenance; the request of labor insurance, pensions, benefits and indeed the life difficult; unable to pay legal fees and can provide proof; and does not involve simple consultation property relations; the other special circumstances need to be cut free care. According to these Provisions, the majority of lawyers for the parties to provide free service a large number of reduction, which provide a practical basis for the establishment of the national legal aid system.

3The legislation of our country has offered experience for the establishment of legal aid system. So far, China did not have a complete "legal aid law", but we can find the relevant contents of legal aid in some legal documents in the past. Such as "Criminal Procedure Law" of the people's Republic of China No.27Article: "the prosecutor's case, if the accused does not entrust a defender, the people's court may designate a defender for him. If the defendant is deaf mute or a minor and did not entrust a defender, the people's court shall designate a defender for him." "The lawyer moral and disciplinary norms" Twelfth paragraph second clearly defined, a lawyer shall not refuse lawyers assigned to the inability to pay the cost of the parties to provide legal aid, the article (three) paragraph, a lawyer shall not refuse to undertake the people's court appointed defense criminal defendants in the case. Eighth the provisions of the standard: "diligence, honesty and credit lawyer must enthusiasm, due diligence for the parties to provide legal assistance, provide legal aid positive performance of the obligations of the parties have economic difficulties, make great efforts to meet the legitimate demands of the parties, safeguard the legitimate rights and interests." The justice department proposed "eight, eight" to ban in fifth states: "the lawyers in the practice to maintain the industry professional, comprehensive performance of statutory duties, no only do not do economic cases, criminal cases, only do the big case, do not do the small case." All these rules, for the establishment of the national legal aid system provides the legislation experience for.

4Around the establishment of legal aid system is a beneficial attempt for the establishment of a national legal aid system. Since this year2Month Xiao minister since, some legal services in Beijing, Shanghai, Tianjin, Guangzhou, Wuhan, Henan, Zhejiang and other places, have introduced their own legal aid system. According to China's current "local pilot success, working method generally adopted" the beneficial exploration, all made in the establishment of the legal aid system, provides the valuable experience for the establishment of a national legal aid system.

5The world set up the experience of the legal aid system countries. All countries in the world, have their own legal aid system, establish some national legal aid system is still relatively early and complete. Legal aid system is an important part of legal culture, although of different national conditions, social systems are different, but we can take "make foreign things serve China" critical inheritance law culture attitude, take as reference.

Two, the establishment of a national legal aid system, method, way

The author thinks, approaches and methods for the establishment of national legal aid system of our country, should take the promulgation and implementation of "the people's Republic of China Legal Aid Law" in the form of. In this method, to set up legal aid system for the purpose of participating in legal aid system, personnel, legal aid, legal aid funding sources, the scope of legal aid and other main contents stipulated. The above content, the author propose the following provisions:

(a) the purpose: ensure the economic difficulties need to provide legal help people access to effective legal assistance in unable to pay, the relief of the weak, to justice, promote solidarity dedication spirit, establish the socialist legal service personnel image.

(two) to participate in the legal aid system of personnel:1Lawyer.2Grassroots legal service workers;3To be engaged in legal service personnel.

(three) legal aid object: corporate, where litigation matters within the people's Republic of China and non litigation legal services to citizens, within the scope of legal aid conditions, can obtain legal aid. But foreign citizens, legal person according to the Convention, China participated in or treaties or the principle of reciprocity.

(four) source of legal aid fund:1Government funding;2Engaged in legal services lawyers, grass-roots workers, to extract a certain proportion of other paid legal service personnel service fee;3Relevant organs, social groups, individual donations for legal aid.

(five) the scope of legal aid:1Support, nurturing, supporting the case;2The request of labor insurance, pensions, welfare cases;3The elderly, women, children, lost the ability to work due to violation of the legitimate rights and interests of citizens to legal aid cases;4It is difficult to pay legal fees and can provide proof of the case;5Other because of special circumstances need to provide legal aid in litigation or non litigation cases.

In addition, also deal with the legal aid application regulations.

The Department of law of Minzu University of China (the original building is ten anniversary of the "law", China personnel press,1996Years10Month first edition, the author of Qujing law school lecturer) in Yunnan Province