PEOPLE’S REPUBLIC OF CHINA

Region Asia Pacific

Hongyao Wu

National Report

Summary of Contents

Summary of Contents

1. GENERAL INFORMATION

1.1. Form of government

China is a unitary country. In terms of the legal system, China has unified national constitution. In terms of state institutions, there is only one central legislature nationwide—the National People’s Congressand its Standing Committee. One central government—the State Council. In terms of citizenship, dual nationality is not permitted. With regard to the division of rights between the central and local governments, all provinces, autonomous regions, municipalities, Special Administrative regions (Hong Kong and Macao) and Taiwan are inalienable parts.

1.2. Basic data

  • Total population of Chinese Mainland (by 31 December, 2018)：1,395,380,000. Among them, 713,510,000 are male, 681,870,000 are female.[1]
  • China has 56 ethnic groups, the predominant ethnic group is the Han. The official language is mandarin Chinese; the predominant religion is Buddhism.
  • China’s GDP over the past decade is shown in the following figure:

Chart 01. China GDP (2009-2018)

  • The per capita GNI of China is 15270 US dollars[1].
  • The inequality index of China is 14.2. Total population of the indigent people in rural areas (in December 31, 2018)：16,600,000 (based on the standard of Per-capita Annual Disposable Income below 2300 RMB).[2] The percentage of indigence in the population is 1.19%.
  • In 2018, the average life expectancy of Chinese people is 77.0 years.[3]
  • The Expected years of schooling for Chinese citizens is 13.8 years, and the mean years of schooling is 7.8 years.[4]
  • China’s HDI in 2017 was 0.752.[5]

3. PROCESS AND PROCEEDINGS: OVERVIEW

3.1 Criminal procedure

3.1.1. The institution of criminal investigation. 

In China, the authorities that enjoy the power of criminal investigation in accordance with law include public security authorities (police authority), self-investigation departments of procuratorial authorities, customs, state security authorities, military security departments and prisons. Among them, public security authorities are the main subjects of investigation of ordinary criminal cases;[1] other authorities have the right to investigate specific types of criminal cases in accordance with legal authorization.[2] In addition, the supervisory authority shall be responsible for investigating the criminal acts of suspected corruption of state public officials.[3]

3.1.2. The conditions of custody (Ju Liu and Dai Bu)

A. Arrest (Ju Liu in Chinese)

In China, arrest is a compulsory measure of deprivation of personal freedom in case of emergency. In accordance with law, Public security authorities shall make the decision on arrest. In accordance with Article 82 of Criminal Procedure Law, under any of the following circumstances, a public security authority may first detain a person who is committing a crime or is a major criminal suspect: (i) the person is preparing to commit a crime, is committing a crime, or is discovered immediately after committing a crime; (ii) a victim or an eyewitness identifies the person as the one committing the crime; (iii) criminal evidence is discovered from the person’s body or residence; (iv) the person attempts to commit suicide or escape after committing a crime or is fugitive; (v) the person may destroy or forge evidence or make a false confession in collusion; (vi) the identify of the person is unknown because the person refuses to disclose his or her true name and residence address; or (vii) the person is a strongly suspected of committing crimes from place to place, repeatedly, or in a gang.[4] Deeming that a detainee needs to be custodied for a long time, a public security authority shall, within three days after arrest, file a custody request with the people’s procuratorate for examination and approval. Under special circumstances, the time limit for filing such a request may be extended for one to four days. For a person committing crimes from place to place, repeatedly, or in a gang, the time limit for filing the request for examination and approval may be extended to 30 days.[5]

B. Custody (Dai Bu in Chinese)

In China, custody is a compulsory measure of deprivation of personal freedom of a criminal suspect or defendant for a long time. In accordance with law, a people’s court and a people’s procuratorate shall make the decision on custody. The case in which people deemed to be custodied by a public security authority, in accordance with law, shall be submitted to a people’s procuratorate for examination and decision.[6] A people’s court and a people’s procuratorate have rights to decide on custody of handling criminal cases themselves. custody shall be executed by a public security authority.

In Article 81 of Criminal Procedure Law , “where there is evidence to prove the facts of a crime and a criminal suspect or defendant may be sentenced to imprisonment or a heavier punishment, if residential confinement is insufficient to prevent any of the following dangers to society, the criminal suspect or defendant shall be custodied: (1) the criminal suspect or defendant may commit a new crime; (2) there is an actual danger to national security, public security, or social order; (3) the criminal suspect or defendant may destroy or forge evidence, interfere with the testimony of a witness, or make a false confession in collusion; (4) the criminal suspect or defendant may retaliate against a victim, informant, or accuser; or (5) the criminal suspect or defendant attempts to commit suicide or escape”. “In the process of approving or deciding a custody, the nature and circumstances of the suspected crime, the admission of guilt, and the acceptance of punishment, among others, of a criminal suspect or defendant shall be considered as factors of a possible danger to the society”. “Where there is evidence to prove the facts of a crime and a criminal suspect or defendant may be sentenced to fixed-term imprisonment of 10 years or a heavier punishment or there is evidence to prove the facts of a crime and a criminal suspect or defendant who once committed an intentional crime or has not been identified may be sentenced to imprisonment or a heavier punishment, the criminal suspect or defendant shall be custodied”. “Where a criminal suspect or defendant waiting for trial on bail or under residential confinement seriously violates the provisions on bail or residential confinement, the criminal suspect or defendant may be custodied”. According to Article 81, the custody divides into three types: First, statutory custody. Who meets statutory evidence conditions (‘where there is evidence to prove the facts of a crime’) and a criminal suspect or defendant may be sentenced to fixed-term imprisonment of 10 years or a heavier punishment or there is evidence to prove the facts of a crime and a criminal suspect or defendant who once committed an intentional crime or has not been identified may be sentenced to imprisonment or a heavier punishment, the criminal suspect or defendant shall be custodied. Second, discretionary custody. Except statutory conditions mentioned above, there are three more conditions need meeting: conditions based on evidence (‘there is evidence to prove the facts of a crime’); conditions based on criminal sentence (“a criminal suspect or defendant may be sentenced to imprisonment or a heavier punishment”) conditions based on necessities (‘if residential confinement is insufficient to prevent any of the following dangers to society’). Third, special custody. After on bail or under residential confinement, a criminal suspect or defendant seriously violates Article 71 and Article 77 related to provisions on bail or residential confinement of Criminal Procedure Law , the criminal suspect or defendant may be custodied.

The period of custody during criminal investigation after a criminal suspect is custodied shall not exceed two months. If the investigation of a complicated case cannot be closed within the period, the period may be extended for one month with the approval of the people’s procuratorate at the next higher level.[7] In addition, in accordance with Article 157 to 160, the period of custody during criminal investigation of special cases may be extended for longer time with the approval.[8]

C. The examination of the necessity of custody

People’s procuratorates are responsible for the examination of the necessity of custody. In Article 95 of Criminal Procedure Law, “After custodying a criminal suspect or defendant, a people’s procuratorate shall continue to examine the necessity of custody. If custody is no longer necessary, it shall suggest a release of the arrestee or modification of the compulsory measure for the detainee. The relevant authority shall notify the people’s procuratorate of the handling result within 10 days”.

D. The term of criminal investigation

In China, there is no time limit for criminal investigation. If the criminal suspect arrested into custody need to be investigated longer than the period of criminal investigation, a compulsory measure may be modified and a bail or residential confinement is necessary.

Chart 04. Criminal investigation

3.1.3. Procedure for prosecution

A. The subject of prosecution

In China, only procuratorial authorities have rights to prosecute criminal cases for public prosecution. In accordance with Article 169 of Criminal Procedure Law , “Any case requiring initiation of a public prosecution shall be subject to the examination and decision of a people’s procuratorate” . In addition, when investigating a duty crime case, procuratorial authorities deem that criminal liability is necessary to be investigated and the case shall be transferred to a people’s procuratorate at the same level for examination. However, in accordance with Article 210 of Criminal Procedure Law , the victim has rights to directly prosecute to people’s courts in cases of private prosecution.[9]

The examination of procedure for prosecution. People’s procuratorates have rights to comprehensively examine the cases transferred by public security authorities and procuratorial authorities to decide on public prosecution. In accordance with Article 173 of Criminal Procedure Law , “a people’s procuratorate shall, when examining a case, interrogate a criminal suspect, hear the opinions of the defender or duty lawyer, the victim, and the victim’s litigation representative, and record their opinions. The written opinions, if any, of the defender or duty lawyer, the victim, and the victim’s litigation representative shall be attached to the case file”. Where a people’s procuratorate deems that the facts of a criminal suspect’s crime are clear, that evidence is hard and sufficient, and that the criminal suspect shall be subject to criminal liability, it shall make a decision to initiate a public prosecution; and, according to the provisions on trial jurisdiction, initiate a public prosecution in a people’s court and transfer the case file and evidence to the people’s court.[10] Where a criminal suspect admits guilt and accepts punishment, the people’s procuratorate shall inform the criminal suspect of his or her procedural rights and the provisions of law on admission of guilt and acceptance of punishment, hear the opinions of the criminal suspect, the defender or duty lawyer, the victim, and the victim’s litigation representative on the statutory matter.’ Where a criminal suspect voluntarily admits guilt and agrees with the sentencing recommendation and the applicable procedures, the criminal suspect shall sign a recognizance to admit guilt and accept punishment in the presence of the defender or duty lawyer.[11] When public prosecution is initiated, the people’s procuratorate shall offer a sentencing recommendation according to the recognizance to admit guilt and accept punishment on the principal penalty, accessory penalty, and whether probation applies, among others, and transfer the recognizance to admit guilt and accept punishment and other materials along with the case.[12]

If, upon examination, the people’s procuratorate deems that the case does not meet the conditions for a prosecution, it shall make a decision not to initiate a prosecution based on doubt[13] and law[14]; if there is no necessity to prosecute, it shall make a decision not to initiate a prosecution based on minor crime[15] and additional conditions[16], etc.

Time limit of the examination of prosecution. A people’s procuratorate shall, within one month, make a decision on a case transferred by a supervisory authority or public security authority for prosecution, and in a significant or complicated case, the period may be extended by 15 days; or if the criminal suspect admits guilt and accepts punishment, and the conditions for the application of the fast-track sentencing procedure are met, the decision shall be made within 10 days, and the period may be extended to 15 days if the criminal suspect may be sentenced to fixed-term imprisonment of more than one year.

Where the jurisdiction of a people’s procuratorate over a case being examined for prosecution is changed, the period of examination and prosecution shall be counted from the day when the people’s procuratorate having jurisdiction receives the case after the change.

B. The conditions of custody (detention, arrest)

In China, procuratorial authorities have rights to make a decision on arrest. During the period of examination of prosecution, people’s procuratorates shall examine whether there are other people being subject to criminal liability. (See conditions of arrest in 3.1.2-B)

3.1.4 Procedures for trial

In China, there three types of procedure for trial: common procedure; summary procedure; fast-track sentencing procedure. The case shall be tried if the conditions for the application of the procedure for trial in absentia are met.

A. Common procedure

Common procedure includes three stages: pretrial review; pretrial preparation; court trial. Procedural review mainly refers to procedural review as whether the authority has jurisdiction over the case; whether relevant evidence and materials shall be transferred. In accordance with Article 186 of Criminal Procedure Law , “after examining a public prosecution initiated, a people’s court shall decide to hold a court session to hear the case if the charges in the indictment are based on clear facts.” After making a decision on holding a court session, a people’s court shall determine the members of the collegial panel, serve a copy of the indictment of the people’s procuratorate upon the defendant and the defender thereof and notify a witness etc. In addition, in accordance with Article 187 of Criminal Procedure Law, in order to ensure a smooth court session, the collegial panel “may call together the public prosecutor, parties, defenders, and litigation representatives to gather information and hear opinions on trial-related issues, such as disqualification, a list of witnesses to testify in court, and exclusion of illegally obtained evidence”. In judicial practice, when the accused party applies the exclusion of illegal evidence, the court shall generally held a pretrial meeting to decide whether the evidence should be excluded.

People’s courts shall hear cases in open court in principle. According to the provisions of Criminal Procedure Law , the procedure for a court session divides into five stages: open a court session, conduct an investigation in court, debate in court, the defendant delivers his or her closing statement, deliberate and announce. The court investigation draws lessons from Anglo-American Adversarial System, led by the prosecutor and the defendant, allowing the both sides to investigate and verify evidence one by one according to charges. The investigation in court includes following stages: the public prosecutor reads the indictment; the defendant and the victim deliver their statements in terms of charges in indictment; question the defendant; question a witness or an identification or evaluation expert; adduce physical evidence and read documentary evidence; both parties apply for the submission of new evidence; the court investigates and verifies evidence. In accordance with Article 51 of Criminal Procedure Law, the burden of proof of guilty of the defendant in a public prosecution case shall fall on the people’s procuratorate. In accordance with the provisions of Criminal Procedure Law (2018 Amendment), where a defendant admits guilt and accepts punishment, “the presiding judge shall inform the defendant of his or her procedural rights and the provisions of law on the admission of guilt and acceptance of punishment, and examine the voluntariness of the admission of guilt and acceptance of punishment and the authenticity and legality of the recognizance to admit guilt and accept punishment.”[17]

On the basis of court investigation, court debate is conducted by both two parties on whether any crime of the defendant is committed, what kind of crime, heavy or light criminal liability, application of law such as how to sentence and conviction and sentencing. In judicial practice, most defendants raise no objection to charges, thus the key is sentencing.

After the investigation and debating in court, the court will, “based on the established facts and evidence and according to relevant legal provisions, render a sentence as follows”[18]: a guilty sentence; an acquittal sentence; an acquittal sentence stating that the charges are denied for insufficient evidence. What needs special attention is that for a case where the defendant admits guilt and accepts punishment, the people’s court shall generally adopt the charges filed by and sentencing recommendation from the people’s procuratorate, except under any special statutory   circumstances.[19]

A people’s court shall announce a sentence for a case of common procedure within two months.[20]

Chart 05. Common procedure

B. Summary procedure

Where a case is under the jurisdiction of a Basic People’s Court (except cases regarding a crime punishable by life imprisonment or death penalty) shall be subject to summary procedure if it meets Article 214 and Article 215 of Criminal Procedure Law . In accordance with Article 219 of Criminal Procedure Law , “the trial of a case under summary procedures shall not be subject to the provisions of Section 1 of this Chapter regarding the time limit for service of process and the procedures for questioning the defendant, witnesses, and identification or evaluation experts, adducing evidence, and debating in court. However, before a sentence is announced, the closing statement of the defendant shall be heard.”

For a case under summary procedures, a people’s court shall close the case within 20 days after accepting the case.[21]

C. Fast-track sentencing procedure

In accordance with Article 222 and Article 223 of Criminal Procedure Law, the fast-track sentencing procedure may apply to a case under the jurisdiction of a Basic People’s Court where the defendant may be sentenced to fixed-term imprisonment of not more than three years, provided that the facts of the case are clear, the evidence is definitive and sufficient, and the defendant admits guilt, accepts punishment, and agrees with the application of the fast-track sentencing procedure, and the case shall be tried by a sole judge.[22] In accordance with Article 224 of Criminal Procedure Law , the trial of a case under the fast-track sentencing procedure shall not be subject to the provisions of Section 1 of this Chapter regarding the time limit for service of process, and investigation and debating in court are generally not conducted; however, before a sentence is announced, the opinion of the defender and the closing statement of the defendant shall be heard. For a case tried under the fast-track sentencing procedure, the sentence shall be announced in court.

For a case under the fast-track sentencing procedure, a people’s court shall close the case within 10 days after accepting the case; or if the defendant may be sentenced to fixed-term imprisonment of more than one year, the above period may be extended to 15 days.[23]

D. Trial in absentia

“Confiscation Procedures for Illegal Income in Cases Where a Defendant Escapes or Dies” was added into Criminal Procedure Law (2012 Amendment), Procedure for trial in absentia was established in Criminal Procedure Law  (2018 Amendment).

In accordance with Article 291 of Criminal Procedure Law, “where the criminal suspect or defendant is outside China in a case regarding a crime of embezzlement or bribery, or in a case regarding a crime of seriously compromising national security or terrorist activities that requires a timely trial as confirmed by the Supreme People’s Procuratorate, if the supervisory authority or public security authority transfers the case for prosecution, and the people’s procuratorate deems that the facts of the crime have been substantiated, the evidence is definitive and sufficient and the criminal suspect or defendant shall be held criminally liable in accordance with the law, it may file a public prosecution with the people’s court’. A case of trial in absentia shall be tried by a collegial panel of the intermediate people’s court at the place of commission of the crime, at the place of the defendant before his or her departure from China, or designated by the Supreme People’s Court. Where a people’s court tries a case in absentia, the defendant shall have the right to retain a defender, and a close relative of the defendant may retain a defender on behalf of the defendant. If the defendant and his or her close relatives do not retain such a defender, the people’s court shall serve a notice on a legal aid agency requiring the designation of a lawyer to defend him or her.[24]

In addition, in accordance with Article 298 of Criminal Procedure Law, “where, in a case regarding a serious crime such as embezzlement, bribery, or terrorist activities, a criminal suspect or defendant escapes and cannot be present in court after being wanted for a year, or a criminal suspect or defendant dies, if his or her illegal income and other property involved in the case shall be recovered in accordance with the Criminal Law, a people’s procuratorate may file an application with a people’s court for confiscation of illegal income”. An application for confiscation of illegal income shall be heard by a collegial panel formed by the intermediate people’s court at the place of crime or place of residence of a criminal suspect or defendant.[25]

3.1.5. Appeal system of second instance

In China, where the defendant is unsatisfied with the sentence of first instance, he or she has right to appeal the sentence to the people’s court at the next higher level; where the people’s procuratorate is of the opinion that there is any definite error in a sentence (including acquittal sentences), it shall file an appeal with the people’s procuratorate at the next higher level.

In accordance with Article 233 of Criminal Procedure Law, second instance needs conducting a comprehensive review. “The people’s court of second instance shall conduct a comprehensive review of the facts found and application of law in the sentence of the people’s court of first instance, without limitations to the extent of appeal.” At the same time, in order to guarantee rights of a defender to prosecute, punishment in a sentence of second instance shall not be aggravated. That is a people’s court of second instance which hears a case appealed by a defendant or his or her legal representative, defender, or close relative shall not aggravate the criminal punishment on the defendant. In a case remanded by the people’s court of second instance to the original trial court for retrial, the original trial court shall not aggravate the criminal punishment on the defendant, unless there is any new crime and the people’s procuratorate has initiated a supplementary prosecution. The limitations as mentioned in the preceding paragraph shall not apply to a case appealed by a people’s procuratorate or a private prosecutor.[26]

3.1.6. The system of review of death sentences

In China, death sentences mainly divide into death sentences with immediate execution and death sentences with a suspension. Where the defendant is sentenced to death penalty, the sentence shall be reviewed no matter the defendant initiates a prosecution or not. In accordance with Article 246 and Article 248 of Criminal Procedure Law, death sentences with immediate execution shall be subject to the approval of the Supreme People’s Court; where a defendant is sentenced to death penalty with a two-year suspension, the sentence shall be subject to the approval of a higher people’s court.

The Supreme People’s Court reviewing a death sentence shall arraign the defendant and, if the defense lawyer files a request for presenting an opinion, hear the opinion of the defense lawyer.[27]

3.1.7. Comments

Compared with relevant provisions of International Covenant on Civil and Political Rights, especially Article 9 and Article 14, current criminal procedure system of China meets the requirements of due process.

(i) Criminal Procedure Law stipulates a series of criminal procedure laws with international practice such as presumption of innocence (see Article 12), privilege against self-incrimination (see Article 52), principle of open trial (see Article 11), independence of trial (see Article 5), the separation of prosecution and trial (Article 3) and burden of proof undertaken by the public prosecutor (Article 52). What needs more attention is that Constitution clearly stipulates criminal procedure laws such as principle of open trial, a defendant having the right to defense and independence of trial as well.

(ii) Criminal Procedure Law was amended to draw lessons from Anglo-American Adversarial System in 1996 and then the trial mode dominated by prosecutor and defendant was introduced. As the establishment of adversarial trial mode, modern judicial concepts such as the protection of human rights, equality between prosecutors and defendants and the fairness of a trial are increasingly accepted by the public and provide motivation and direction for subsequent amendment of Criminal Procedure Law. For example, in Criminal Procedure Law (2012 Amendment) “respect and protect human rights” was added; rights of criminal suspect and defendant to obtain help from lawyers was strengthened; evidence system was improved, privilege against self-incrimination was clarified and the rule of exclusion of illegal evidence was established; compulsory measures were improved and non-custodial measures such as granting bail were advocated; investigation measures were improved and technical investigation measures were normalized; etc. In Criminal Procedure Law (2018 Amendment): the provisions of law on leniency if a criminal suspect confesses to his or her crime were established; procedure for trial in absentia was stipulated; Legal Aid Lawyers on Duty System was established; etc.

3.2. Civil Procedure

In China, the procedures for all non-criminal cases mainly divided into two types: (i) Civil Procedure is applicable to civil lawsuits concerning the disputes over the status of property and persons among citizens, legal persons or other organizations respectively and mutually between citizens, legal persons and other organizations, such as disputes over personality rights, disputes over inheritance of marriage and family, property disputes, disputes over contradiction, no-causing management and unjust enrichment, intellectual property and competition disputes, labor disputes and personal disputes, maritime disputes, civil disputes related to companies, securities, insurances and negotiable instruments, tort liability disputes and civil cases subject to special procedures etc. (ii) Administrative procedure is applicable to lawsuits when a citizen, a legal person or any other organization considers that his or its lawful rights and interests have been infringed upon by a specific administrative act of an administrative organ or its personnel.

3.2.1. Procedures for civil cases

In China, procedure for trial of civil cases includes procedure at first instance, procedure at second instance, special procedures and trial supervision procedure. The people’s court shall try voter eligibility cases, missing person declaration and death declaration cases, cases of determining civil incompetency or limited civil competency of citizens, cases of determining unclaimed property, cases of confirming mediation agreements and cases of security interest realization in accordance with special procedures.[28] For cases tried under special procedures, the trial results are not appealable. A collegial bench consisting of judges only shall be formed to try a voter eligibility case or a significant or difficult case; and any other case shall be tried by a sole judge.[29]

Common civil cases shall be subject to “finalization after two trials”. In accordance with Article 164 of Civil Procedure Law, against a first instance ruling of a local people’s court, a party shall have the right to file an appeal for a second instance with the people’s court at the next higher level within 10 days from the date of service of the written ruling.[30] Where an effective judgment, ruling or consent judgment of a civil case meets the review requirements of Article 200 of Civil Procedure Law , trial supervision procedure shall be started for correcting the error in accordance with provisions in Chapter 16 of Civil Procedure Law.

A. Procedures for “first instance” hearing

Procedures for first instance of Common civil cases include formal procedure at first instance and summary procedure. Where a Basic People’s Court and its detached tribunals try civil cases with “clear facts, unambiguous rights and obligations and minor disputes” or “the parties may agree on the application of summary procedure”, summary procedure shall apply.[31] A summary procedure shall be tried by a sole judge.[32]

Formal procedure at first instance is the basic trial procedure of civil cases. Following are specific stages:

  • Registration. The registration ot civil cases shall be subject to Article 119, Article 120 and Article 121 of Civil Procedure Law. In China, mediation shall be conducted first in civil cases. In accordance with Article 122 of Civil Procedure Law, “Where mediation is appropriate for the civil dispute involved in an action instituted by a party in a people’s court, mediation shall be conducted first, unless the parties refuse mediation.”
  • Docketing and reviewing a case and accepting an action. Only procedural review shall work during the period of docketing and reviewing a case, which means all actions instituted under Article 119 of Civil Procedure Law must be accepted. Where the action which fails to meet the conditions for instituting an action is not accepted, the plaintiff may appeal against the ruling.[33]
  • The respondence of defendant by a written statement: After docketing a case, the people’s court shall serve a copy of the written complaint on the defendant; and the defendant shall submit a written statement of defense within 15 days after receiving the complaint. The people’s court shall, within five days after receiving the written statement of defense, serve a copy of it on the plaintiff. The defendant’s failure to submit a written statement of defense shall not affect the trial of the case by the people’s court.[34] The defendant has rights to submit an objection on jurisdiction of the court which accepted the action. Where a party raises no objection to jurisdiction and responds to the action by submitting a written statement of defense, the people’s court accepting the action shall be deemed to have jurisdiction, unless the provisions regarding hierarchical jurisdiction and exclusive jurisdiction are violated.
  • Determining the applicable procedure: In accordance with Article 133 of Civil Procedure Law, a people’s court shall handle accepted cases according to different circumstances: (i) Initiating the procedure for urging debt repayment at the court’s discretion, if the parties are not in dispute and the prescribed conditions are met for initiating the procedure for urging debt repayment. (ii) Resolving disputes in a timely manner through mediation, if pre-trial mediation is allowed. (iii) Determining the application of summary procedure or formal procedure according to the circumstances of a case. (iv) Clarifying the focus of disputes by requiring the parties to exchange evidence and other means, if it is necessary to hold a court session.
  • Apply formal procedure to hold a court session: The court trial of formal procedure includes: sending a notification or an announcement of a court session; making pretrial preparation; conducting an investigation in court; conducting a debate in court; pronouncing a judgment. Court investigation shall be conducted in the following order: (i) The parties each present a statement. (ii) Witnesses are notified of their rights and obligations, witnesses testify, and the statements of absent witnesses are read. (iii) Documentary evidence, physical evidence, audio-visual recordings, and electronic data are adduced. (iv) Expert opinions are read. (v) Transcripts of survey are read. Court debate shall be conducted in the following order: (1º) The plaintiff and the litigation representative thereof present their case. (2º) The defendant and the litigation representative thereof present their arguments. (3º) A third party and the litigation representative thereof present their case or their arguments. (4º) Debate among the parties. At the end of court debate, the presiding judge shall ask each side’s final statement in the order of plaintiff, defendant and third party. After the end of court debate, a judgment shall be entered in accordance with law. Where mediation is possible before a judgment is entered, mediation may be conducted; and if mediation fails, a judgment shall be entered in a timely manner.

Chart 06. Procedure for civil cases

B. Specific procedures for urgent matters

  • Property preservation before litigation. The applicable conditions: Where the lawful rights and interests of an interested party will be irreparable damaged if an application for preservation is not filed immediately under urgent circumstances, the interested party may, before instituting an action or applying for arbitration, apply to the people’s court at the place where the property to be preserved is located or at the place of domicile of the respondent or a people’s court having jurisdiction over the case for taking preservative measures. The applicant shall provide security and, if the applicant fails to provide security, the people’s court shall issue a ruling to dismiss the application. After accepting an application, a people’s court must issue a ruling within 48 hours; and if it rules to take a preservative measure, the measure shall be executed immediately. Where the applicant fails to institute an action or apply for arbitration in accordance with law within 30 days after the people’s court takes a preservative measure, the people’s court shall remove preservation.[35]
  • Property preservation in litigation. The applicable conditions: For a case where, for the conduct of a party or for other reasons, it may be difficult to execute a judgment or any other damage may be caused to a party, a people’s court may, upon application of the opposing party, issue a ruling on preservation of the party’s property, order certain conduct of the party or prohibit the party from certain conduct. After accepting an application, a people’s court must, if the circumstances are urgent, issue a ruling within 48 hours; and if it rules to take a preservative measure, the measure shall be executed immediately. If no party applies, the people’s court may, when necessary, issue a ruling to take a preservative measure. In order to guarantee rights of the other side, a people’s court may order the applicant to provide security for taking a preservative measure and, if the applicant fails to provide security, shall issue a ruling to dismiss the application.[36]
  • Advance enforcement. Before making a judgment, in order to meet the urgent needs of one party’s life or production, the people’s court may, on the basis of the application, issue a ruling on the other party to pay the applicant a certain amount of money or goods or stop carrying out a certain act immediately. In accordance with Article 106 of Civil Procedure Law , a people’s court may, upon application of a party, issue a ruling on advance enforcement for the following cases: (i) Cases to recover support for elderly parents, support for other adult dependants, child support, consolation money or medical expenses. (ii) Cases to recover labor remuneration. (iii) Cases requiring advance enforcement under urgent circumstances.
  • Restraining orde In accordance with Chapter 4 of Anti-domestic Violence Law , where cases involving domestic violence, a party suffering from domestic violence or facing the real danger of domestic violence shall apply to a people’s court for restraining order. After accepting an action, the Basic People’s Court at the place of domicile of the applicant or appellee and the violence shall issue a restraining order or dismiss the application within 72 hours; if the circumstances are urgent, issue an order within 24 hours.

C. Alternative dispute resolution before or during the procedure

In accordance with Article 9 of Civil Procedure Law, civil cases shall be subject to principle of mediation first. When trying civil cases, the people’s courts shall conduct mediation under the principles of free will of the parties and legality; and if mediation fails, shall enter a judgment in a timely manner. Chapter 8 of Civil Procedure Law clearly stipulates provisions on principles, forms, agreements of medimediationation and consent judgment. In addition, in accordance with Article 122, Article 133, Article 142 and Article 172, where mediation is appropriate for the civil dispute during the period of docketing a case and before a court session or a judgment, mediation shall be conducted first; mediation shall be conducted as well in the procedure at second instance.

  • Labor dispute. In accordance with Labor Law , for labor disputes, a party may file an application for mediation by the labor dispute mediation committee according to law; if mediation fails, he or she may submit the case to labor dispute arbitration committee for arbitration; against the arbitration, a party may institute an action in a people’s court. In accordance with Article 77 of Labor Law, principle of mediation applies to arbitration and civil procedure.
  • Divorce cases. In accordance with Article 32 of Marriage Law, a people’s court shall conduct mediation when trying marriage cases. Thus mediation is a compulsory procedure for a people’s court trying a marriage case. If mediation fails, a judgment may be entered.
  • Special civil disputes. In judicial practice, prepositive mediation is encouraged to apply to special civil disputes, which means mediation shall be conducted first in a court session. In accordance with Article 14 of Provisions involving the application of summary procedure in the trial of civil cases (legal interpretation [2003] NO. 15) by the Supreme People’s Court, “A people’s court shall conduct mediation first in a court session in the following civil cases: (1) cases of disputes over inheritance of marriage and family; (2) cases of disputes over labor contract; (3) cases of compensation disputes over clear jural relations in traffic accidents and industrial accidents; (4) cases of disputes over homestead and adjacent relation; (5) cases of partnership agreement disputes; (6) cases of disputes over which the subject matter of the action is relatively small.”

D. The extent of participation of the judge

In civil procedures, a party shall be responsible for evidence collecting, evidence exchange in court, investigation of evidence in court and court debate. In accordance with Article 129, Article 130 and Article 131 of Civil Procedure Law, judges shall be responsible for investigating and collecting evidence. However, in judicial practice, it is mainly done by both plaintiff and defendant. Judges shall not investigate and collect evidence generally.

In the trial of civil cases, judges tend to be “ managers of the procedure” and “neutral adjudicates” who shall be responsible for ensure the civil procedure with fairness, justice and effectiveness.

3.2.2. Administrative procedure

According to Article 12 of Administrative Procedure Law, “The people’s courts shall accept the following complaints filed by citizens, legal persons, or other organizations: (1) A complaint against any administrative punishment, such as administrative detention, suspension or revocation of a license or permit, ordered suspension of production or business, confiscation of illegal income, confiscation of illegal property, a fine, or a warning. (2) A complaint against any administrative compulsory measure, such as restriction of personal freedom or seizure, impoundment, or freezing of property, or administrative enforcement. (3) A complaint against an administrative agency’s denial of, or failure to respond within the statutory period to, an application for administrative licensing or any other administrative licensing decision made by the administrative agency. (4) A complaint against an administrative agency’s decision to confirm the ownership or the right to use any natural resource, such as land, mineral resources, water, forest, hill, grassland, wasteland, tidal flat, or sea area. (5) A complaint against a decision on expropriation or requisition or a decision on compensation for expropriation or requisition. (6) A complaint against an administrative agency’s refusal to perform, or failure to respond to an application for the administrative agency to perform, its statutory duties and responsibilities in respect of protecting personal rights, property rights, and other lawful rights and interests. (7) A complaint claiming that an administrative agency has infringed upon the plaintiff’s autonomy in business management, right in the contractual operations on rural land, or right in operations on rural land. (8) A complaint claiming that an administrative agency has abused its administrative power to preclude or restrict competition. (9) A complaint claiming that an administrative agency has illegally raised funds or apportioned expenses or illegally required performance of other obligations. (10) A complaint claiming that an administrative agency has failed to pay consolation money, minimum subsistence, or social insurance benefits according to the law. (11) A complaint claiming that an administrative agency has failed to perform according to the law or as agreed upon, or illegally modified or rescinded, an agreement, such as a government concession agreement or a land and building expropriation compensation agreement. (12) A complaint claiming that an administrative agency has otherwise infringed upon personal rights, property rights, or other lawful rights and interests.” “In addition to those as set out in the preceding paragraph, the people’s courts shall accept administrative cases which may be filed as prescribed by laws and regulations.”

The accused administrative agency has the burden of proof for the administrative cases. In accordance with Article 60 of Administrative Litigation Law , “In the trial of an administrative case, a people’s court may not conduct mediation, unless the case involves administrative compensation or indemnity or involves an administrative agency’s exercise of discretionary power prescribed by any law or regulation.”

Where this Law is silent regarding any procedure, the relevant provisions of the Civil Procedure Law  shall apply.[37]

3.2.3. Diversified dispute settlement mechanism

In the practice of civil trial, the court system has always attached importance to mediation in civil disputes. In 2016, the Supreme People’s Court issued Opinions on People’s Courts to Further Deepen the Reform of Diversified Dispute Settlement Mechanisms, requiring that the construction of diversified dispute settlement mechanism should be led by mediation system. At the beginning of 2019, the Supreme People’s Court issued Opinions on Deepening the Comprehensive Reform of Judicial System of the People’s Court-the Fifth Five-Year Reform Outline of the People’s Court (2019-2023). The document once again emphasizes “the reform of diversified dispute settlement mechanism”. It is required to “generally carry out the reform of the mechanism of ‘case distribution, mediation, fast adjudication and quick trial’, improve corresponding information system and promote a timely and fast settlement of disputes”; “improve the diversified dispute settlement system in which mediation, arbitration, administrative adjudication, administrative reconsideration and litigation are linked and coordinated”; “further promote the role of professional mediation”; “for cases with mediation basis, in accordance with principles of voluntariness and legality, improve the working mechanism of advance mediation and delegated mediation, and guide and encourage parties to choose non-litigation methods to resolve disputes”; “establish a unified online platform for resolving disputes in multiple ways and achieve online consultation, evaluation, distribution, mediation and confirmation. Promote the judicial confirmation model combining online and offline to ensure that mediation works on the spot and disputes are resolved on the spot.”

In accordance with 2019 work report of the Supreme People’s Court, in 2018, courts at all levels closed a total of 3.135 million cases by means of mediation on the basis of the national court system adhering to the principle of voluntary mediation.

3.2.4. Comments

Civil Procedure Law stipulates the principle of equality of parties, punishment, good faith, voluntary mediation and other basic principles of civil actions, fully respecting the status of parties as subjects of litigation. Since 2013, the Supreme People’s Court has promoted the construction of three major platforms for judicial disclosure[38], which have realized the disclosure of trial process, judicial documents and enforcement information. The reform of the case registration system in 2015[39] ensures that the parties fully enjoy the right to access to justice. The reform of judge quota system in 2017 ensured the professional ability and professional conduct of judicial judges and laid a solid foundation for just adjudication.

3.3. Alternative Dispute Resolution

3.3.1. The compulsory diversion of disputes

In accordance with Labor Law, for labor disputes, a party may submit the case to labor dispute arbitration committee for arbitration, against the arbitration, he or she may institute an action in a people’s court.

3.3.2. The voluntary or consensual diversion of disputes

In judicial practice, where a civil action is instituted, except court mediation, there are people mediation, mediation in arbitrary and other types of mediation out of lawsuit. The parties may also reconcile of their accord.

Where a case is mediated by the court, the consent judgment shall have the legal effect of compulsory execution after being signed and received by both parties. Mediation out of litigation or conciliation between the parties does not have a binding force; If the party reneges, he or she may institute an action in court again.

3.3.3. The policy supporting the development of ADR processes

In cultural tradition, China has always had the concept of “no litigation” and “peace is most valuable”. Therefore, the diversified dispute settlement mechanism based on mediation system has a profound cultural foundation. In recent years, the Supreme People’s Court has encouraged courts at all levels to settle cases through mediation in order to effectively address the pressure of “too many cases but few judges” in the judicial system.

3.4. Simplification of law and by-passing legal processes

3.4.1. Criminal field

  • Plea guilt and leniency system. In 2018, Criminal Procedure Law stipulates regulations where a criminal suspect admits guilt and accepts punishment and relevant regulations. In accordance with Article 174 of Criminal Procedure Law, if the investigation of a criminal case is completed and during the period when it is transferred to procuratorial authorities for a trial, where a criminal suspect voluntarily admits guilt and agrees with the sentencing recommendation and the applicable procedures, the criminal suspect shall sign a recognizance to admit guilt and accept punishment in the presence of the defender or duty lawyer. Where a criminal suspect voluntarily admits guilt, no arrest may be made, the case may be dealt with quickly through a fast-track procedure, and lenient sentence may be given.
  • Procedures for public prosecution cases where parties have reached settlement. In 2012, Criminal Procedure Law stipulates procedures for public prosecution cases where parties have reached settlement and encourages crime suspects and defendants to reach settlement with victims. In accordance with Article 288 of Criminal Procedure Law, in the cases of public prosecution that meet the statutory conditions, if the criminal suspect or defendant has showed genuine repentance and obtained forgiveness from the victim by making compensation or an apology to the victim, and the victim voluntarily agrees on a settlement, both parties may reach a settlement. For a case where a settlement agreement is reached, a public security authority may provide a leniency suggestion to the people’s procuratorate. A people’s procuratorate may provide a leniency suggestion to the people’s court; and, if the circumstances of a crime are minor and no criminal punishment is necessary, may make a decision not to initiate a public prosecution. A people’s court may render a lenient sentence to a defendant in accordance with the law.[40]

3.4.2. Civil field

  • Cases of small claims. Where a Basic People’s Court or its detached tribunal tries a simple civil case, if the amount of subject matter is lower than 30 percent of the previous year’s average annual wages of workers in a province, autonomous region or municipality directly under the Central Government, small claims procedure shall be applicable.

The procedure of small suit is more simplified and free and the time limit of proof is less than 7 days generally; if the facts have been confirmed by both parties, no evidence or cross-examination may be given; judgment instruments can be simplified; the adjudication of the Basic People’s Court or detached tribunal at first instance shall be final.

  • Internet court. China’s first internet court was established in Hangzhou, Zhejiang in August, 2017. Internet courts were established subsequently respectively in Beijing and Guangzhou. In 2018, the Supreme People’s Court issued Provisions on certain issues concerning the trial of cases by Internet courts. In accordance with the provisions, internet courts shall try a case online and procedures may be conducted online, including accepting an action, service of process, mediation, exchange of evidence, pre-trial preparation, court trial and pronouncing a judgment etc. Internet courts have jurisdiction over civil and administrative disputes related to internet: disputes over online shopping contract; disputes over contract of online service, financial loan and petty loan provided through internet; disputes over intellectual property in internet field; disputes over violating personal rights of others, property rights and other civil rights; etc.[41]

In China, strict (no-fault) liability rules for defective products and no-fault compensation rules have established for a long time. However, the law does not allow the judge, tribunal, arbitrator, or other adjudicatory body substantially to abandon the usual statutory or precedential rules and to base the decision upon an appraisal of the equities of the individual dispute (with regard to small, modest, or otherwise socially significant claims). There is not automobile accident compensation law.

4. ACCESS TO JUSTICE, EQUAL ACCESS TO COURT AND FAIR TRIAL

4.1. The rights in national law

From the perspective of international legislation, although the requirements of international normative documents regarding legal aid cannot be directly applied in China, they greatly influence the legal aid legislation and policy-making process in China. The Chinese government has signed or acceded to a series of international conventions, such as the International Convention on Civil and Political Rights (signed in October 1998, but not adopted by the National People’s Congress) and the Convention on the Rights of the Child (acceded to). Chinese government also approved a series of UN legal documents, which are binding and consultative in China, i.e. Standard Minimum Rules for the Treatment of Prisoners, Beijing Rules (United Nations Standard Minimum Rules for the Administration of Juvenile Justice), Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, Basic Principles on the Role of Lawyers, Guiding Principles for Crime Prevention and Criminal Justice in the Context of Development and A New International Economic Order, etc. The Chinese government has also signed 43 bilateral treaties (or agreements) on criminal or civil judicial assistance with more than 30 countries, all of which contain mutual legal obligation on the provision of legal aid in accordance with the principle of national treatment.

From the perspective of domestic legislation, the main legal provisions on legal aid system are as follows: 1. The Regulations of Legal Aid System promulgated by the State Council in 2003, which is the first administrative regulation on legal aid in China. In addition, provinces and municipality with legislative power also have special laws and regulations on local legal aid; 2. Articles 35, 36 and 278 of the Criminal Procedure Law stipulate the scope of criminal legal aid; 3. Provisions on Procedures for Handling Legal Aid Cases promulgated by the Ministry of Justice in 2012.

4.2. Political commitment

“Improving the legal aid system” is an important political commitment of China communist Party (hereafter CPC). In 2013, the Third Plenary Session of the 18th CPC Central Committee put forward the reform task of “improving the legal aid system”. In 2014, the Fourth Plenary Session of the 18th CPC Central Committee adopted The Decision of the CPC Central Committee on Several Major Issues of Comprehensively Promoting the Rule of Law. The Decision requires to improve the legal aid system, expand the scope of assistance, and improve the judicial assistance system, so as to ensure that timely and effective legal assistance could be provided to those faces legal problems or rights have been infringed.

In 2015, the general office of the CPC Central Committee and the general office of the State Council issued The Opinions on Improving the Legal Aid System, which outlined the basic framework for further improving the legal aid system in China. In 2018, the Standing Committee of the National People’s Congress included the Legal Aid Law into the legislation programme.

4.3. Government body responsible for access to justice policy

China has a dual management system for legal aid. The Department of Public Legal Services of Ministry of Justice (hereafter MoJ) used to be the Department of legal aid, the administrative organization in charge of making macroscopical policy regarding national legal aid work. It is responsible for guiding and supervising the national legal aid work. The judicial administrative departments of the local governments at each levels supervise and guide the work of legal aid within their jurisdiction.

The National Legal Aid Center of the MoJ is the implementing agency of legal aid services established in 2008. The center is responsible for supervising and standardizing the legal aid work carried out nation-widely, which include four functions generally:

  • Publicity of legal aid, organization of legal aid training,
  • Quality assessment of legal aid cases, communication and cooperation of international legal aid projects,
  • management of national “148” legal aid hotline service, and theoretical research in terms of legal aid.

According to Article 5 of the Regulations of Legal Aid System, “The judicial administrative departments of the municipal or county governments shall determine the legal aid institutions of their respective administrative regions as needed. Legal aid institutions shall be responsible for accepting and examining applications for legal aid, appointing or arranging personnel to provide legal aid to citizens who meet the provisions of these regulations.”[1] Accordingly, local legal aid centers are agencies to provide legal aid services within their administrative district. Local legal aid centers are independent non-departmental public bodies.

4.4. Government policy of access to justice

In China, government policy of access to justice is not just focused on the functioning of the courts. Legal aid service is a part of commitment of national public services system since 2019, although the free legal presentation, legal advice still are the main functions of legal aid service. According to the Opinions on Accelerating the Construction of the Public Legal Service System issued by the General Office of the CPC Central Committee and the General Office of the State Council in 2019, “the goal of the construction of the public legal service system is to basically form a modern public legal service system by 2022 which covers urban and rural areas, and is convenient, efficient, equal and inclusive. Specifically, the public legal service system have been continuously improved, the service platform has played an effective role; the facilities to provide legal service have been fully covered and interconnected; the standardization system of public legal services has been basically formed; the equalization of basic public legal services in urban and rural areas has been continuously promoted; and the quality and level of basic public legal services enjoyed by the people have been increasingly improved.”[2] “By 2035, a public legal service system will be basically formed that is compatible with the goal of building a country, a government and a society under the rule of law.”[3] Among them, in order to promote the balanced development of basic public legal services, the following issues will be focused on: allocating the basic public legal services resources in urban and rural areas evenly; strengthening the construction of public legal services in undeveloped areas; guaranteeing the right of special groups to basic public legal services.

4.5. The problems in ensuring equal access to justice for special groups

In order to meet the needs of legal aid services for migrant workers, the elderly, the disabled, women, minors and other special groups, the Chinese government set up special legal aid projects with special legal aid fund, with China Legal Aid Foundation in charge of its operation. The project was implemented in 2009. As of December 20th 2019, the project has invested 936 million RMB in legal aid, funded more than 540 thousand legal aid cases, and recovered more than 31.9 billion RMB of economic losses for more than 830 thousand people in need, with an investment return ratio of more than 1:34.

In order to meet the challenge of lawyer shortage in Northwest China, the state established “1+1” China Legal Aid Volunteer Action in 2009. Lawyers and university students who from provinces with abundant lawyer resources in the East China, were selected as volunteers to provide legal aid services in the northwest provinces. By the end of December 2019, the “1+1” action has sent more than 1,800 volunteers to more than 400 counties in 19 provinces in the central and western China, handled more than 74 thousand legal aid cases and resolved more than 10 thousand collective disputes.

When it comes to the legal aid practice in China, the main problem is not the legal aid for special groups, but the poor service quality caused by the lack of lawyers in the Northwest. Especially in the minority areas, such as Tibet, Qinghai, Xinjiang, Inner Mongolia etc, where people mainly use minority languages, only limited lawyers can speak the local language fluently, making it difficult to meet the large demands of legal aid.

4.6. Public or scholarly debates

4.6.1 Debates on the quality of legal aid services

In China, there are many factors affecting the quality of legal aid services. For example, the low subsidy standard for legal aid lawyers, which is not attrative for excellent lawyers to advocate in legal aid cases; the insufficient professional training; less lawyers in the northwest; and so on.

4.6.2. Debates on related issues of criminal legal aid system

Firstly, the nature of the duty solicitor. In 2018, the Criminal Procedure Law established the duty lawyer system. However, there is no consensus on the issues such as what legal aid services should be provided, what rules should be played by duty lawyers.

Secondly, research on the full coverage of criminal defense. According to the current Criminal Procedure Law, the scope of criminal legal aid cases is relatively limited. In order to ensure that more suspects and defendants can have access to legal aid services, the MoJ and the Supreme Court implemented the pilot of full coverage of criminal defense in 2017. However, the pilot showed that the number of criminal lawyers, the investment of legal aid funds, the professional ability of criminal legal aid providers and the support of judicial organs will directly affect the smooth progress of the pilot.

4.6.3. Legal aid legislation

Around the legislation of legal aid, scholars have conducted extensive research on topics, such as the establishment of legal aid institutions, the guarantee system of legal aid funds, the scope of legal aid and requirements for applicants, and the quality assurance system of legal aid.

6. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY

6.1 Overview of judicial costs for litigants

In criminal cases, individual parties (including criminal suspects, defendants, victims and private prosecutors) shall not be charged any fees. However, if a party hires a lawyer or applies for identification and evaluation, he or she needs to bear the corresponding fees.

In civil cases and administrative cases, in addition to the fees arising from hiring a lawyer and applying for identification and evaluation, the plaintiff also needs to pay certain court fees to the people’s court. The court fees that the parties shall pay to the people’s court include: (i) the fee for accepting the action; (ii) the application fee; and (iii) the transportation expenses, accommodation expenses, living expenses and allowance for missing work incurred by witnesses, identification or evaluation experts, translators and adjusters appearing in court on the day appointed by the people’s court.

Whether the procedure of first instance or the procedure of appeal it is, the parties need to bear the corresponding attorney’s fee and court fees.

In principle, the court fees shall be borne by the losing party. But the winning party has no right to go to the other party to bear its own attorney’s fees.

The legal provisions concerning court fees are mainly stipulated by Measures for the Payment of Court Fees.[1]

6.2. Exemption from judicial costs

6.2.1. The eligibility criteria for exemption from judicial costs

In accordance with Chapter 6 of Measures for the Payment of Court Fees, the state shall provide judicial succor for a party having genuine difficulty in paying court costs. Where a party has genuine difficulty in paying court costs, the aforesaid party may, in accordance with these Measures, apply to the people’s court concerned for judicial succor, i.e. the deferment, reduction or exemption of court costs. Judicial succor on judicial cost includes exemption, reduction and deferment.

  • Exemption of court costs. In accordance with Article 45 of Measures for the Payment of Court Fees, where a party applies for judicial succor, the people’s court concerned shall grant an exemption of court costs, if: the party is a disable person and has no regular source of income; the case involves a claim for payment of maintenance for parents, spouse, children, or pension for the disabled or the family of a decedent; the party is covered by the system foe ensuring a minimum standard of living or the system of regular relief foe especially poor rural residents, or is a rural resident enjoying the five guarantees, or receive unemployment insurance benefits, and has no other source of income; the party, or a close relative of the party, claims for damages or compensation because the legal rights or interests of the party are damaged as a result of the act of justice and courage or act aiming at protecting the public interest; or the party falls into any other circumstances that require an exemption of court costs. Only natural persons are subject to the exemption of court costs.
  • Reduction of court costs. In accordance with Article 46 of Measures for the Payment of Court Fees, where a party applies for judicial succor, the people’s court concerned shall grant a reduction of court costs, if: the party lives in hardship and receives social relief allowances, or has difficulty in continuing the household production or operation, due to any natural disaster or any other force majeure; the party is a person who enjoys the government’s special care and preferential treatment or arrangements; the party is a social welfare institution or relief management station; or the party falls into any other circumstances that require a reduction of court costs. Where a people’s court approves a reduction of court costs, the reduction rate shall be at least 30%.
  • Deferment of court costs. In accordance with Article 47 of Measures for the Payment of Court Fees, where a party applies for judicial succor, the people’s court concerned shall grant a deferment of court costs, if: the party claims for social insurance benefits or financial compensation; the party claims for compensation as a victim of a maritime, traffic, medical, work related or product quality accident or any other personal injury; the party enjoys legal aid provided by a relevant institute; or the party falls into any other circumstances that require a deferment of court costs.

6.2.2. The process for applying for exemption from judicial costs

A. Apply for judicial succor

In accordance with Article 48 of Measures for the Payment of Court Fees, to apply for judicial succor, a party shall, when bringing an action or filing an appeal, submit a written application, materials certifying the genuine financial difficulties thereof and other relevant certifying materials. A party who applies for an exemption or reduction of court costs on the grounds of financial difficulties or claims for basic living costs shall in addition provide a document certifying that the financial conditions of the party and the family thereof are regarded as being financially difficult in accordance with the standards set out by the local department of civil affairs or labor and social security.

B. The rights of the parties

In accordance with Article 45, Article 46 and Article 47 of Measures for the Payment of Court Fees, a people’s court shall make a decision on whether granting deferment, reduction and exemption or not. Where a people’s court disapproves an application for judicial succor, it shall give the party the reason therefore in writing and the appellant has no rights to institute an appeal on it.

After the conclusion of the litigation, there is no need for the parties to reimburse the court costs that have been exempted and reduced in accordance with the laws.

6.2.3. The losing party shall bear the court costs in principle.

In accordance with Article 29 of Measures for the Payment of Court Fees, court costs shall be borne by the party who loses the case, unless the party who wins the case volunteers to pay the costs. In a case where each party thereto partially loses the case, the people’s court concerned shall, in light of the specific conditions of the case, determine the amount of court costs to be borne by each party respectively. Where the parties to a joint action lose the case, the people’s court concerned shall, based on their respective interest in the objection of action determine the amount of court costs to be borne by each of them.

In a case where an agreement is reached through conciliation by a people’s court, the bearing of court costs shall be determined by the parties to the case through consultation; if the consultation fails, the bearing of court shall be determined by the people’s court concerned. The bearing of court costs in a divorce case shall be determined by the parties thereto through consultation; if the consultation fails, the bearing of court costs shall be determined by the people’s court concerned.

6.2.4. Evaluation on court costs

In China, the court cost is not high thus accounts for a small proportion of the whole cost that a party has to pay. In addition, the state authorities provide judicial succor for a party having genuine difficulty in paying court costs. Therefore, court costs may not influence the right to access to justice of individuals.

6.3. Mechanisms to reduce costs by variations to courts and procedures

6.3.1. Summary Procedure

In civil cases and administrative cases, procedure at first instance includes common procedure and summary procedure. The trial procedure of summary procedure is relatively simple and takes less time (Chapter 13 of Civil Procedure Law of the People’s Republic of China). The acceptance fee in a case where the summary procedure is followed shall be paid by half of the prescribed rates (Article 16 of Measures for the Payment of Court Fees).

Civil Procedure Law of the People’s Republic of China (2017 Amendment) also added provisions on small claims procedure (Article 162). First instances shall be the final instance for small claims cases.

6.3.2. Other mechanisms for reducing court costs

The current legal system encourages parties to deal with cases through mediation, reconciliation and joint trial. In accordance with Article 15 of Measures for the Payment of Court Fees, where a case is settled through conciliation or withdraw of suit upon application by the party concerned, the acceptance fee shall be paid by half of the prescribed rates. In accordance with Article 18 of these measures, where a defendant files a counterclaim or a third party having an independent claim files a claim related to the current case, and the people’s court concerned decides to consolidate the trials, the acceptance fee shall be paid by half of the prescribed rates respectively.

There is no special court that does not require parties to pay court costs in China.

7. THE PROTECTION OF DIFFUSE AND COLLECTIVE RIGHTS

7.1. Overview of legislative regulations for collective rights

7.1.1. Public interest litigation system

With regard to collective right protection system, in addition to traditional class action, Civil Procedure Law of the People’s Republic of China (2017 Amendment) established public interest litigation system as well. In accordance with Article 55 of Civil Procedure Law of the People’s Republic of China, “for conduct that pollutes environment, infringes upon the lawful rights and interests of vast consumers or otherwise damages the public interest, an authority or relevant organization as prescribed by law may institute an action in a people’s court.”

Environmental Protection Law of the People’s Republic of China (Revised in 2014) and Interpretation of the Supreme people’s Court involving certain issues concerning the Application of Law to the trial of Environmental Civil Public interest Litigation cases[1]further defined the following “social organization” shall have the right to initiate public interest litigation: the determined purposes and main business of social groups, private non-enterprise units and social organizations such as foundation registered by civil affairs departments of the people’s governments at or above the level of district-constituted municipalities are to maintain social public interest and they specialize in environmental protection public welfare activities for five consecutive years.

In addition, in the course of performing its duties, where the people’s Procuratorate has found acts that damage the ecological environment and the protection of resources, infringe upon the legitimate rights and interests of consumers in the field of food and drug safety, it may also institute an action in a people’s court if there is no authority or organization specified in the preceding paragraph or the authority or organization specified in the preceding paragraph does not institute an action. If an action is instituted by the authority or organization specified in the preceding paragraph, the people’s procuratorate may support the prosecution.

7.1.2. Class action system

In civil actions, class action system is mainly in the form of joint action and representative action.

  • Joint action system. In accordance with Article 55 of Civil Procedure Law of the People’s Republic of China, “A joint action means that one side or both sides of a civil action consist of two or more persons, the subject matter of action for each party is same or is of the same kind and the people’s court deems that the disputes of all the parties may be tried concurrently, to which all the parties agree. Where the parties on one side of a joint action have common rights and obligations regarding the subject matter of action, the litigation conduct of any of such parties shall bind the rest of such parties if the conduct is recognized by the rest of such parties; or where the parties on one side of a joint action have no common rights and obligations regarding the subject matter of action, the litigation conduct of any of such parties shall not bind the rest of such parties.”
  • Representative action system. In accordance with Article 53 and Article 54 of Civil Procedure Law of the People’s Republic of China, representative action system is a special type of joint action. Where the parties on one side of a joint action is numerous, such parties may recommend a representative or representatives to participate in the action.

7.2. The functions of legal aid agencies or legal aid providers

In accordance with the provisions of the current public interest litigation system, Chinese legal aid agencies do not have the qualification to bring public interest litigation. Where a plaintiff is qualified to bring public interest litigation, a legal aid agency shall offer legal aid services to him or her.

The current laws and regulations do not prohibit legal aid agencies from providing legal aid services for plaintiffs and defendants in joint action and representative action. However, there is no incentive to encourage lawyers or legal aid agencies to actively participate in such cases.

There is no special official statistic related to lawyers that participated in joint actions and representative actions.

7.2.1. The adequacy and value of present policies

With regard to collective right protection system, civil procedure has established relatively perfect mechanism of security in litigation based on joint action system. In recent years, public interest litigation system has made giant progress in protecting the common interests of the public (non-specific groups).

9. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE

9.1. General situation regarding access to technology

A survey shows that China’s smartphone coverage rate is about 68%[1]. Internet technology has been widely applied to various fields of social life, such as online shopping, online education, online medical treatment, etc. By June 2019, China’s Internet population had reached 854 million[2]. At present, the proportion of broadband connections in administrative villages in China has exceeded 96%, and the coverage rate of broadband connections in poor villages has reached 86%[3]. Generally speaking, most netizens can obtain professional legal knowledge and seek legal help through the Internet.

9.2. Legal professionals’ use of technology in legal practice

Generally speaking, legal practitioners are proficient in Internet technology, such as skilled use of office software, communication with parties through email or SMS.  In addition, the wide application of WeChat, a social software, has greatly shortened the distance between lawyers and clients and made contact more convenient.

Most legal practitioners, particularly those concerned with low income clients, also use technology for business purposes in their average life. It is very common for legal service providers including the NGOs to use APPs based on internet technology in their work. For example, law firms use face recognition technology to check on work attendance of the lawyers, while lawyers use remote video software to communicate with clients, and use office software to scan and store files. Of course, traditional communication tools (such as telephone, SMS, email, etc.) are still in use, but the frequency of their use has been greatly reduced.

In legal practice, based on the smart phone and computer, the internet technology tools has been used in all areas, including but not limited to assist in the referral of people to appropriate provision or to identify their eligibility for services, to empower and help self-represented litigants to take their own cases through government-led online initiatives or services set up by legal aid providers, to assist in the delivery of pro bono services by private legal practitioners, to support for paralegals or other workers in remote locations away from their offices, to campaigning and advocacy through social media, like Tik Tok, WeChat, Microblog, etc.

9.3. Legal services online

In May 2018, China’s Legal Services of China (http://www.12348.gov.cn) officially provided public legal services to the public. China’s legal service network is called “legal Taobao” and “close and intimate legal advisor to the masses”. Through this website, netizens can invite lawyers, apply for notarization, seek legal aid, find mediators for mediation, request appraisers for judicial authentication, and submit arbitration requests. In addition, the website can also provide administrative law enforcement services, help netizens to learn legal knowledge and inquire about cases，etc.

The parties concerned can conduct legal consultation through 12348 hotline. In addition, the parties concerned can also conduct legal consultation and apply for legal aid through the China Legal Service Network (12348 Legal website), or seek face-to-face legal aid services according to the contact information provided by various legal aid centers on the network platform.

The China Legal Service Network (12348 Legal website) has an online legal consultation service platform. The platform is divided into three sections: “intelligent legal consultation”, “message consultation” and ” question-answer consultation”. First of all, the parties can fill in the consultation questions in the form online, and the staff in the “intelligent legal consultation” section will issue professional legal consultation opinions online according to the relevant information filled in by the parties to provide reference for the parties. Secondly, the parties can fill in the questions they want to consult in the “message consultation” section. The above questions are answered by the authoritative star lawyer team in China, and legal experts will comment on the answers and provide adoption of opinions. Finally, the parties concerned can also learn the legal knowledge compiled by legal experts and the usage of the law through the “knowledge question and answer consultation” section.

In remote areas far away from cities and inconvenient transportation, Internet communication technology provides technical support for paralegals and other staff to contact clients and offices in a timely manner. In conclusion, the development and wide application of Internet technology have not only facilitated private legal service providers to provide public legal services, but also made it possible for poor people or special groups in marginal areas to obtain legal services.

At the same time, legal workers can also use social media to promote the rule of law. For example, they can analyze typical cases to explain legal knowledge and publicize the law.

Some legal services are funded by public welfare funds. In these projects, lawyers engaged in legal services generally receive financial support and work tasks through legal service project managers or institutions, rather than directly communicating with the fund owner. Besides，funders also strongly encourage practitioners to use technical means to expand the scope of services.

9.4. Online resolution system

9.4.1. Internet courts

The Chinese government encourages and actively explores online resolution mechanisms. China has set up Internet courts in Hangzhou, Beijing and Guangzhou. By July 2019, Hangzhou Internet Court has accepted a total of 5,080 Internet financial dispute cases since its establishment in May 2017. Among them, the court accepted 67 disputes over financial loan contracts and 193 disputes over small loan contracts in 2017. In 2018, 3,304 disputes over financial loan contracts and 139 disputes over small loan contracts were accepted, accounting for 32.8% of the total number of court cases in the same period. From January to July 2019, 861 disputes over financial loan contracts and 516 disputes over small loan contracts were accepted, accounting for 22% of the total number of court cases received during the same period.

9.4.2. Construction of smart courts

Courts at all levels actively use modern artificial intelligence to conduct judicial trials, provide litigation services and administer justice. In the end, the court succeeded in implementing online business management, legal disclosure of handling procedures and all-round intelligent services, thus promoting the in-depth integration of modern science and technology as well as judicial work. In daily trial activities, the whole process of trial activities is networked, electronic files are generated synchronously with case judgments, judgment documents are transmitted to the internet, relevant laws are automatically presented to readers of the documents, and big data is used for analysis and sentencing. The above-mentioned technical means not only facilitate the masses, but also improve the judicial efficiency.

In addition, the online court trial system is also being implemented. The parties can participate in the court trial through the Internet in their own homes or offices. In the court trial process, the evidence presentation, exchange and cross-examination process of the parties can be instantly presented through the Internet. This not only shortens the time for handling cases, but also realizes the purpose of providing more services with technologies and making the masses run less.

9.4.3. Internet online rights protection mechanism

The online rights protection mechanism mainly deals with network infringement, such as malicious rumors and slander, personal attacks, infringement of intellectual property rights and other cases. The operation process of the mechanism is as follows: Internet communities first set up self-discipline organizations for netizens , such as “community committees”. First, the party concerned reported and applied for the establishment of the file, and then the file was systematically transferred to several community members who knew more about the field for adjudication. During this period, both the informer and the accused have the right to provide evidence and reply online. Finally, the community committee will make a “judgment” after making a comprehensive judgment on the dispute. Then the system will delete the infringing contents, reduce the credit points of the accused, prohibit the accused from speaking for a period of time, or seal the defendant’s account number used for infringement according to the judgment result.

9.4.4. Online dispute resolution is voluntary

Whether to use the online dispute resolution mechanism depends on the choice of the parties. For parties with weak litigation ability, if they meet the conditions, they can apply for legal aid according to relevant legal provisions.  (See Part 5 of the report for details).

9.5. China’s experience in successful use of technology to provide legal services

Applying for legal aid online and obtaining free legal advice through the internet provide great convenience for the parties concerned because they can obtain legal aid without leaving home.

The application of Internet courts and smart courts improves the efficiency of judicial work and create convenient conditions for people to have more convenient access to justice.

Online rights protection mechanism allows netizens not to have to pay any actual expenses for the protection of rights. The resolution of disputes generally takes only one or two days. The process of “judging” does not require the parties concerned to reveal their real identities, nor does it require sanctions beyond the network. It really achieves “online resolution of online disputes”. Judging from Sina Weibo and Xianyu’s “small courts”, which currently operate the mechanism, the effect is quite obvious.

12. GLOBAL EFFORTS ON ACCESS TO JUSTICE

12.1. International efforts and collaboration on Access to Justice

The establishment of China’s legal aid system began in the mid-1990s. In the development of China’s legal aid system, we have been learning the experience of legal aid systems from various countries in the world, especially the good practice in those developed countries. For example, the Legal Aid Center of the Ministry of Justice translated and published the Selected Laws and Regulations on Legal Aid in Various Countries in 1999. At the same time, through cooperation with international organizations such as the United Nations Development Programme (UNDP), the United Nations Office on Drugs and Crime (UNODC), the Ford Foundation and the Canadian International Development Agency, we have gained strong theoretical support for the development of our legal aid system. Activites usually take in forms of international conference on legal aid or the launching of pilot projects.

The Chinese government attaches great importance to the cooperation with international organizations in terms of legal aid and actively participates in various international legal aid activities held by UNODC and the Internal Legal Aid Group (ILAG). For example, in 2012, Ministry of Commerce of PRC and the EU delegation signed a three-year China-EU access to justice programme in China, which is aimed at promoting information exchanges and enhancing cooperation between China and the EU in the field of legal aid and giving full play to the role of legal aid in promoting judicial justice and safeguarding social fairness and justice. As one of the results of the programme, China and the EU held legal aid policy dialogue in September 2014, September 2015 and September 2016 on the themes of “future direction of legal aid development”, “criminal legal aid” and “legal aid for groups with special needs” respectively, which played a positive role in promoting understanding and exchanges in the field of legal aid between China and the EU and deepening cooperation in this field.

The Chinese government has carried out a series of activities in cooperation with the UNODC. For example, in 2017, China dispatched representatives of the Ministry of Justice and legal aid experts to participate in the formulation of the Model Law on Legal Aid in Criminal Justice Systems. With the financial support of the Chinese government, the UNODC organized a group of experts to write and publish the UNODC Handbook on Ensuring Quality of Legal Aid Services in Criminal Justice Processes: Practical Guidelines and Promising Practices. In November 2019, the UNODC and the Ministry of Justice of PRC jointly held a “Training Course on Advancing the Quality of Legal Aid Services in Criminal Justice Processes for Southeast Asian Countries” in Jakarta, Indonesia.

12.2. Efforts and collaboration by NGOs on Access to Justice

Chinese non-governmental organizations have made many efforts and contributions on access to justice, especially for vulnerable groups. At present, there are mainly three types of social organizations participating in legal aid services. The first one includes legal aid organizations established by social organizations such as workers, youth, women, the elderly and the disabled. The second one includes legal aid organizations established by law schools, such as legal clinics and student volunteer organizations of legal aid. The third one includes non-governmental legal aid organizations, including law firms and so on.

Non-governmental legal aid organizations also continuously explore innovative modes of providing legal aid services, which plays a positive role in the development of legal aid. For example, with the support of UNDP and the All-China Lawyers’ Association, the Ministry of Justice has set up a Beijing legal aid office as a pilot in Beijing Zhicheng Law Firm and 20 legal aid stations across China to provide free legal aid to migrant workers. In 2016, the number of legal aid stations reached 33, and a total of RMB 423 million in wages and other compensation was recovered for migrant workers.

12.3. Steps being taken to articulate and elaborate Sustainable Development Goal 16.3

At the legislative level, in addition to the Legal Aid Law, China’s legislature established the duty lawyer system in the amendment of the Criminal Procedure Law in 2018 to ensure that all suspects and defendants without the assistance of defense lawyers can receive free legal advice and legal assistance. At the same time, through the pilot of full coverage of criminal defense, China has actively ensured that more criminal defendants have access to justice.

In terms of theoretical research and personnel training, the Ministry of Justice and China University of Political Science and Law (CUPL) jointly established National Institute of Legal Aid, CUPL (NILA) in 2018. As China’s first think-tank research institution featuring legal aid research, NILA actively participates in legal aid legislation and promotes legal aid theoretical research. NILA also promotes international legal aid cooperation and exchanges, and actively learns from the experience of legal aid systems in various countries. In addition, NILA strengthens the training of legal aid personnel to cultivate reserve forces for the sustainable development of legal aid.

In terms of practical innovation, China’s legal aid agencies aim to build a modern public legal service system covering urban and rural areas, which is convenient and efficient, and is equally inclusive. With the website “legal services of China” as a platform, China actively uses modern scientific and technological means such as Internet and AI technology to promote innovation on the access to justice.

13. CONCLUSIONS

13.1. Evaluation of the state of access to justice

Over the past two decades, the legal aid system in China has developed from an infant to a comprehensive legal aid framework which covers each municipal jurisdiction in both urban and rural areas nationwidely. In practice, in order to meet the actual needs of the public, the government provided special funds to establish special legal aid projects specially for migrant workers, the elderly, the disabled, women, minors and other vulnerable groups. The policy-makers hope that the shortage of lawyer resource in Northwest China could be relieved through enacting lawyer public welfare projects ‘legal aid 1+1’. However, reviewing the development of legal aid in China in the past 20 years, there are still structural problems that only can be solved by fixing the existing legal system from the following perspectives.

Firstly, establish a proper and well-functioning legal aid management system. According to the existing law, the governments of each hierarchy in charge of the legal aid matters within its jurisdiction and they in charge of the organizational structure, personnel and funds. In recent years, although financial support for legal aid have been increased both in the central and provincial governments, the development of legal aid in local areas still depends heavily on the support of local governments. Therefore, in order to promote the development of the legal aid system in China, reform should be start from the management system, which means to clearly distinguish the central and local powers under the prerequisite of emphasizing the integration of criminal and civil legal aid.

To be more specific,

(i) In terms of the legal aid institutions, a central-governed legal aid institution should be established, and the central government should uniformly determine the responsibilities, personnel requirements, funds safeguard and other basic matters of legal aid institutions.

(ii) For the legal aid coverage, only the central government can decide the criminal cases which could enjoy legal aid service, in order to ensure its unity; civil legal aid matters can be authorized to local governments, which means that the general scope of civil legal aid shall be determined by national legislation, and the local government shall set the specific scope through local regulations.

(iii) For criminal legal aid cases and civil legal aid matters stipulated by legislation, the central government shall provide corresponding financial support according to the number of cases in the previous year. The civil legal aid matters set by local regulations shall be funded by local governments in line with the local social and economic development.

Secondly, given the fact that lawyer is the vital important element in carrying out legal aid services, the lack of legal aid lawyer team is a problem need to be solved in China. Moreover, due to the lack of effective incentive mechanism, most excellent lawyers are reluctant to provide legal aid services. Therefore, the key issue for further development is finding the incentives to attract high-quality lawyers to participate in legal aid services, which also directly related to the quality and credibility of legal aid.

Thirdly, solving problems of unbalanced legal aid resources from the national level. Along with the development of legal aid in China, there still exist the problem of wide gap between the eastern and western regions on economic development, therefore, the distribution of legal aid resources, such as people, finance, and other materials, also shows great differences. Therefore, how to balance those differences through national legislation is an urgent issue for the legal aid in China.

13.2. Good practice and lessons

13.2.1. Good Practices

Considering the development of legal aid in China, especially recent years, some good practices have been generated. The key points are as follows:

  • Cooperate closely with law schools to integrate the awareness of legal aid with legal education. For law schools, they should be encouraged to establish specialized legal aid research institutions to provide theoretical support for the development of legal aid system from the perspective of theoretical research. Law schools should also be encouraged to offer legal aid courses to students to build their sense of legal aid. For law school students, they should be encouraged to join in legal aid practice and provide them with institutional support at the same time, so as to devote themselves in legal aid services in their earlier career.
  • Make full use of Internet technology and artificial intelligence technology to provide accessible, affordable, equitable, effective, credible and sustainable legal aid services to those who are in need of legal aid in remote areas.

13.2.2. Lessons

  • When constructing the legal aid framework, we must attach great importance to ‘providers’. For the sustainable development of legal aid system, it is necessary to start with law education, cultivating students’ spirit of public legal service; then establish sufficient incentive mechanism to attract high-quality lawyers to deliver legal aid services; and provide better chances of career advancement for lawyers participating in legal aid service to encourage them to provide legal aid service with high quality.
  • The practice of legal aid is inseparable from the support of the police, prosecutors and judges, as well as the bar association.
  • The development of legal aid should in line with the economic development, and be timely adjusted according to the situation of social and economic development.

[1]National Bureau of Statistic,”At the end of 2018, China’s total population was close to 1.4 billion and the demographic dividend still exists, see http://www.chinapaper.net/news/show-34314.html (final access on Feb. 14, 2020).

[2] UNDP, Human Development Indices and Indicators (2018)

[3] A brief History of the Poor population in China，see https://www.thepaper.cn/newsDetail_forward_2998510 (final access on Feb. 14, 2020)

[4] More information, see http://www.nhc.gov.cn/guihuaxxs/s10748/201905/9b8d52727cf346049de8acce25ffcbd0.shtml (final access on Feb. 14, 2020)

[5]Ibid 2.

[6]ibid2.

[7]Article 11 of Administrative Regulations for the Practice of Law by Lawyers: to apply for the lawyer’s practice certificate, following materials shall be submitted to the judicial administrative organs at  municipality level or district (county) level in municipality directly under the Central Government: (1) an application; (2) a lawyer qualification certificate; (3) the materials issued by the Bar Association to prove pass of internship examination; (4) identity certificate; (5) the certificate issued by the law firm to agree to accept the applicant. When applying for a lawyer’s practice certificate, applicant shall truthfully fill in the registration form of  application for lawyer’s practice certificate.

Article 12: to apply for part-time lawyer’s practice certificate, in addition to submitting relevant materials in accordance with the provisions of Article 11, the following materials shall also be submitted: (1) the materials that prove legal teaching and research experience in institutions of high learning and scientific research institutions; (2) the certificate of the employer agreeing to the applicant’s part-time lawyer practice.

[8] Article 10 of the Measures for the Administration of Partnership Law firms

[9] Ibid Article 11

[10] Article 25 of Regulation on Safeguarding the Right of Lawyers to Practice in Accordance with the Law ( by Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security, Ministry of Justice, 16 September 2015): lawyers may, as necessary, apply to the People’s Court for bringing assistant lawyers to join trials. Assistant lawyers can only engage in relevant auxiliary work when participating in the trial, and shall not defend or express agency comments.

[11] Article 35 and 278 of the Criminal Procedure Law

[12] Article 12 of the Judges Law

[13] Article 13 of the Judges Law

[14] Paragraph 1, Article 19 of Criminal Procedure Law

[15] Paragraph 2, Article 19 and Article 308 of Criminal Procedure Law

[16] Article 11 and Article 15 of Supervision Law

[17] Article 82 of Criminal Procedure Law

[18] Paragraph 1 and Paragraph 2, Article 93 of Criminal Procedure Law

[19] Article 80 and Article 87 of Criminal Procedure Law

[20] Article 156 of Criminal Procedure Law

[21] Article 157-160 of Criminal Procedure Law

[22] Article 114 of Criminal Procedure Law

[23] Article 176 of Criminal Procedure Law

[24] Article 173 and Article 174 of Criminal Procedure Law

[25] Article 176 of Criminal Procedure Law

[26] Article 175 of Criminal Procedure Law

[27] Paragraph 1, Article 177 of Criminal Procedure Law

[28] Paragraph 2, Article 177 of Criminal Procedure Law

[29] Article 282 of Criminal Procedure Law

[30] Article 190 of Criminal Procedure Law

[31] Article 200 of Criminal Procedure Law

[32] Article 201 of Criminal Procedure Law

[33] Article 208 of Criminal Procedure Law

[34] Article 220 of Criminal Procedure Law

[35] Article 222 of Criminal Procedure Law

[36] Article 225 of Criminal Procedure Law

[37] Article 293 of Criminal Procedure Law

[38] Article 300 of Criminal Procedure Law

[39] Article 237 of Criminal Procedure Law

[40] Article 251 of Criminal Procedure Law

[41] Article 177 of Civil Procedure Law

[42] Article 178 of Civil Procedure Law

[43] Article 164 of Civil Procedure Law

[44] Article 157 of Civil Procedure Law

[45] Article 160 of Civil Procedure Law

[46] Article 123 of Civil Procedure Law

[47] Article 125 of Civil Procedure Law

[48] Article 101 of Civil Procedure Law

[49] Article 100 of Civil Procedure Law

[50] Article 101 of Administrative Litigation Law

[51] Opinions of the Supreme people’s Court on disclosing the Construction of the three platforms for Judicial publicity（SPC’s report〔2013〕No.13）

[52] Provisions of the Supreme people’s Court on several issues concerning the Registration of case of the people’s Court（SPC’s legal interpretation〔2015〕NO.8）

[53] Article 290 of Criminal Procedure Law

[54] Article 2 of Provisions involving certain issues concerning the trial of cases by Internet Courts（SPC’s legal interpretation〔2018〕No.16）

[55] The Fourth Plenary Session of the 18th CPC Central Committee, Regulations of Legal Aid System, Article 5,

[56] General Office of the CPC Central Committee and the General Office of the State Council, Accelerating the Construction of the Public Legal Service System

[57] Ibid.

[58]Supervisory and Judicial Committee of the National People’s Congress, Report on the Results of Deliberation of Motions Submitted by Deputies to the First Session of the Thirteenth National people’s Congress, 22 October 2018.

[59]Administrative institutions of legal aid refer to the internal or directly subordinate administrative institutions established by MOJ to supervise and manage the legal aid work.

[60] Ministry of Justice: Opinion on Promoting Lawyers’ Participation in Public Legal Services (24 October 2019).

[61] Ministry of Justice: Statistical Analysis of the work of lawyers and Grass-roots legal Services in 2018，seehttp://www.moj.gov.cn/government_public/content/2019-03/07/634_229827.html

[62]The “1+1” China legal Aid Volunteer Initiative is initiated by the Ministry of Justice and the Central Committee of the Communist Youth League, and organizes a group of volunteer lawyers, college students or grass-roots legal service workers every year to serve for one year in non-lawyer counties and poor counties with shortage of lawyer resources in the central and western regions, so as to provide legal aid services to local people in financial difficulties.

[63] The exchange rate is based on 1 US dollar: 7.0334 RMB. The data come from the China legal Aid Yearbook, the legal Aid Network, and the legal aid press conference of the Ministry of Justice.

[64] Case-handling subsidies and expenses include subsidies and direct costs for handling legal aid cases, consulting subsidies, surrogate subsidies and other expenses that are directly used to provide legal aid to recipients.

 

[65]It refers tothe staff members who perform public functions according to law, are incorporated into the administrative staff of the state, and are paid wages and benefits by the state finance.

[66]A mechanism for the selection of staff of national and local institutions, focusing on the assessment of basic knowledge and writing skills of applicants.

[67] It means thestaffing recommendationsthe state creates to improve production conditions, promote social welfare, and meet the people’s needs of culture, education, health, etc. its funds are generally the money of  public institutions from the State. Generally speaking, civil servants enjoy better benefits than staff of public institutions.

[68]the examination mechanism for the staff of public institutions of the local government.

[69]China Business Law Journal:Fee Survey of Chinese Law firms in 2018, seehttp://www.sohu.com/a/286365106_650902

[70]According to Article 43 of the Interpretation of the Supreme people’s Court on Several Issues Concerning the Implementation of theCriminal Procedure Lawof the people’s Republic of China, if the defendant does not entrust a defender, the people’s court may notify the legal aid institution to appoint a lawyer to defend him: (1) in joint crime cases, other defendants have entrusted defenders; (2) cases with significant social influence; (3) cases protested by the people’s procuratorate; (4) the conduct of the defendant may not constitute a crime; (5) other circumstances in which it is necessary to appoint a lawyer to provide a defence.

[71] Ministry of Justice: National Regulation on Criminal legal Aid (Feb., 2019).

[72]The data come from the China legal Aid Yearbook, the press conference on legal aid work of the Ministry of Justice and the annual report of the Supreme people’s Court.

[73]Opinions of the State Council and the Central military Commission on Further Strengthening the Legal Aid Work for Military Families (23 September 2014).

[74]The data come from China legal Aid Yearbook, the press conference on legal aid work of the Ministry of Justice and the annual report of the Supreme people’s Court.

[75] Measures for the Payment of Court Fees by the State council (Decree No.481 of the State Council, December 19, 2006)

[76]Interpretation of the Supreme people’s Court involving certain issues concerning the Application of Law to the trial of Environmental Civil Public interest Litigation cases（SPC’s legal interpretation〔2015〕NO.1）

[77] Basic Rules on Professional Ethics of Judges of the People’s Republic of China Issued by Supreme People’s Court（December 2010）、the Code of Conduct for Judges Issued by Supreme People’s Court（December 2010）

[78] Basic Rules on the Professional Ethics of Public Prosecutors of the People’s Republic of China Issued by Supreme people’s procuratorate（November 2016）

[79] Lawyers Law of the People’s Republic of China (2017)

[80] Articles of association of the all China lawyers association（2018）

[81] All China Lawyers Association, the Codes of Profession Conduct for Laweyers（2018）

[82] All China Lawyers Association, Disciplinary rules for members of the bar association（2017）

[83] 39 Lawyers as the Thirteenth Session of National People’s Congress and the CPPCC National Committee, see http://news.sina.com.cn/c/2018-02-28/doc-ifyrzinh0363617.shtml  (final read on Feb. 14, 2019)

[84] Article 46 of the Lawyers Law of the People’s Republic of China.

[85] United Nations congress on the prevention of crime and the treatment of offenders, Basic principles on the role of lawyers, Aug. 27,1990.

[86] China’s smartphone penetration rate is only 68%，See http://www.sohu.com/a/237698983_237972 (final access on Feb. 14, 2020.

[87] China has 854 million Internet users, over 99% of whom use mobile phones, see https://china.huanqiu.com/article/9CaKrnKmxvp (final access on Feb. 14, 2020)

[88] Ministry of industry and information technology: over 96% of the administrative villages have broadband access, and 86% of the poor villages have access to broadband，see http://news.cctv.com/2017/10/27/ARTIuo72HcTjTuvEIj4PAc2p171027.shtml (final access on Feb. 14, 2020)

[89] http://www.npc.gov.cn/zgrdw/npc/xinwen/2016-04/29/content_1988777.htm

[90] Ministry of Education, Ministry of Justice, National Office for the Popularization of Common Sense of Law, Outline of Legal Education for Young People (June 28, 2016).