my country’s research on the judicial assistance system in criminal trials precedes civil and administrative trials, and criminal judicial assistance has been systematized and standardized. In our country, the main way to provide criminal judicial assistance to defendants due to financial difficulties or other reasons is for the People's Court to appoint defenders to defend them. The Criminal Procedure Law of the People's Republic of China and the Judicial Interpretation of the Supreme People's Court on the Implementation of the Criminal Procedure Law of the People's Republic of China have clear and specific provisions. Article 34 of the "Criminal Procedure Law of the People's Republic of China" stipulates three situations in which the defendant fails to retain a defender due to financial difficulties or other reasons: (1) The defendant is blind, deaf or mute; (2) The defendant is not Adults; (3) The defendant may be sentenced to death. Article 36 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of the People's Republic of China" is supplemented; Article 37 stipulates seven circumstances under which the People's Court may appoint a defender: (1) In compliance with local requirements The financial difficulty standard set by the government; (2) I really have no financial resources and my family’s financial situation cannot be ascertained; (3) I really have no financial resources, but my family members are still unwilling to bear the defense lawyer’s fees despite repeated persuasion; (4) ) *** Affect the correct conviction and sentencing.
2. Provisions on Judicial Assistance in Civil and Administrative Litigation
After the founding of the People’s Republic of China, the People’s Court began to provide judicial assistance to litigants with financial difficulties, allowing them to obtain judicial assistance through legal procedures. judicial relief and protection of their civil rights. From the founding of the People's Republic of China to 1984, civil litigation in my country was basically free, with only a few places charging litigation fees. If a person is truly unable to pay, they can receive a waiver. The "Civil Procedure Law of the People's Republic of China (Trial)" promulgated and implemented in 1982 established the basic system of litigation expenses, but did not provide for judicial assistance. Article 12 of the "Measures for Civil Litigation Fees (Trial)" formulated by the Supreme Court in 1984 stipulates: "If a natural person really has difficulty in paying litigation fees, the People's Court shall review and decide whether to apply for deferment, reduction or exemption of payment." 1989 Supreme Court Article 27 of the "Measures on Litigation Fees of People's Courts" formulated also provides similar provisions. Article 107 of the "Civil Procedure Law of the People's Republic of China" promulgated in 1992 stipulates: "If a party has real difficulty in paying litigation fees, he may apply to the People's Court for deferment, reduction or exemption of payment." This provision marks the judicial The rescue system was formally established. The "Supplementary Provisions on the Litigation Fee Measures of the People's Courts" formulated by the Supreme People's Court in 1999 modified Article 27 of the original measures and added five situations in which the people can apply for judicial relief from the People's Court. On July 12, 2000, the Supreme People's Court issued the "Regulations on Judicial Aid to Parties with Real Financial Difficulties", formally proposing the concept of "judicial aid" in legal form and clarifying my country's judicial aid system for the first time. According to the definition in Article 2 of the Regulations, judicial relief refers to the people's court deferring, reducing or waiving litigation fees for parties who have sufficient reasons to prove that their legitimate rights and interests have been infringed but are indeed in financial difficulties.
If a party has any of the following circumstances, he or she may apply for judicial assistance from the People's Court: (1) The party requests alimony, support, childcare, or pension; (2) The party is truly in difficulty and cannot recover pensions, social insurance (3) The party concerned is a victim of a traffic accident, medical accident, work-related injury or other personal injury accident and requests medical expenses and material compensation, and the party concerned is indeed having difficulty in living; (4) The party concerned is having difficulty in living. Lonely elderly people, orphans or rural "five-guaranteed households"; (5) The client is a disabled person with no fixed source of income; [6] The client enjoys preferential care stipulated by the state and has difficulty living; (7) The client is enjoying the minimum living security for urban residents Or receiving unemployment benefits and having no other income and difficulty in living; (8) The party has difficulty in living due to natural disasters or other force majeure and is receiving state relief or the family production and operation are unsustainable; (9) The party files a lawsuit against an administrative agency for violating the law Requiring farmers to perform their obligations and causing difficulties in their lives; ⑽ The parties concerned are receiving legal aid from relevant departments; ⑾ The parties concerned are in charge of social welfare institutions and civil affairs departments such as welfare homes, orphanages, nursing homes, special care hospitals, mental hospitals, SOS Children's Villages, etc. Social welfare enterprise.
In 2005, the Supreme People's Court revised this provision. The "Regulations" increase the number of judicial relief objects from the original 5 cases to 14 cases, and also stipulates the procedures for applying for judicial relief.
On February 8, 2006, the State Council promulgated the "Measures for the Payment of Litigation Fees" No. 65438, which further improved the judicial aid system based on the practice of judicial aid carried out by the people's courts in recent years.
In addition, in fact, the "Civil Procedure Law of the People's Republic of China" also stipulates the nature of judicial relief:
(1) The content of advance execution in the Civil Procedure Law. Article 97 of the Civil Procedure Law stipulates three situations that can be adjudicated by the People's Court before execution: (1) Recourse for alimony, support, nursing expenses, pensions, and medical expenses; (2) Recourse for labor Remuneration; (3) Need to be executed before emergencies occur. However, two conditions should be met: (1) The rights and obligations of the parties are clear, and previous failure to perform will seriously affect the applicant's life or production and operation; (2) The respondent has the ability to perform.
(2) The provisions of the Civil Procedure Law regarding the court’s investigation and collection of evidence. Article 64 of the Civil Procedure Law stipulates that the People's Court shall investigate and collect evidence that the parties and their agents ad litem cannot collect on their own due to objective reasons, or that the People's Court deems necessary to hear the case. 1. Lack of unified and complete legislation. It can be seen from the current status of the judicial aid system mentioned above that the provisions on judicial aid are reflected in criminal and civil legal documents respectively. In July 2000, the Supreme People's Court formulated the "Regulations on Judicial Assistance for Parties with Real Financial Difficulties" which was limited to civil and administrative litigation and did not incorporate the relevant content of criminal judicial assistance in criminal proceedings into the judicial assistance system.
2. The concept of judicial assistance is inaccurate and too narrow. Judicial relief is not only the reduction of litigation fees, but also includes some relief actions during litigation. However, Article 2 of the "Regulations of the Supreme People's Court on Judicial Assistance to Parties with Financial Difficulties" only refers to litigation fees, and there is no specific provision on the exemption of litigation fees.
3. The scope of judicial assistance is too narrow and difficult to exhaust. There are also quite a number of parties who are really in difficulty and cannot afford to file a lawsuit but cannot obtain assistance according to the law. The ways to implement judicial relief are limited to litigation costs and need to be expanded. When the People's Court conducts civil litigation against parties who are truly in financial difficulty, the litigation fees will be postponed, reduced or waived, and only financial assistance will be provided. Can legal remedies be used to ensure that their civil rights are protected and realized? This is not enough. In trial practice, we often encounter parties who not only need to reduce, defer or waive litigation fees, but also need to be provided with legal aid. Reducing and reducing litigation fees is only an important part, but when some parties have weak legal knowledge, encounter legal obstacles when exercising their rights in litigation, and are unable to protect their legitimate rights and interests through their own abilities, shouldn't this provide them with justice? Rescue? Therefore, judicial relief is not only the reduction of litigation fees, but also includes some relief actions in litigation. The answer has been found in judicial practice. For people who are incompetent in criminal proceedings, the court requires legal aid centers to send lawyers to defend their attorneys in court, but this is a soft rule.
If a lawyer with legal aid obligations fails to fulfill this obligation, the client will have no choice. If an institution with coercive state power like the People's Court intervenes, the outcome will be very different. However, in civil and administrative litigation, the law does not stipulate that the law "should" or "may" appoint an attorney for the parties. Therefore, in civil and administrative litigation, it is also necessary for the People's Court to designate lawyers with legal aid obligations as litigation agents for parties in civil and administrative cases who have real financial difficulties. Also, is the judge’s explanation a salvation? It should be said that it is also a kind of salvation. Because when a party’s litigation claims are incorrect, contradictory, unclear or insufficient, or the party mistakenly believes that the evidence presented by it is sufficient, the judge has the power to raise relevant factual and legal questions or explanations to the parties ex officio, allowing the parties to rule out incorrect Correct and contradictory claims, clarify unclear claims, and supplement insufficient evidence. In short, the judge’s right of explanation is to make the original unknown clear and allow the parties to complete their incomplete statements, statements and evidence.
4. The objects of judicial relief are not clear. It can be seen from the Supreme People's Court's "Regulations on Judicial Assistance to Parties with Real Financial Difficulties" that the objects of judicial assistance are parties with real financial difficulties. As for who is the party with real financial difficulties? Is it the low-income group, the elderly, the weak, the sick, the people below the poverty line, the high-income people who are in trouble before the lawsuit, and the people who are unable to protect their legal rights during the lawsuit? The rules are unclear. Does the object of judicial relief include the defendant and the appellee, the applicant and the respondent? Judging from the current legal provisions on judicial assistance, the target of judicial assistance seems to be very clear. In short, it is the party who is in financial difficulty. Specifically, the Supreme People's Court's "Regulations on Judicial Assistance for Litigants with Real Financial Difficulties" stipulates 14 categories of parties; the State Council's "Measures for the Payment of Litigation Fees" respectively stipulates five categories of parties that should be exempted from paying litigation fees, reduced payment There are four types of parties involved in litigation costs and four types of parties involved in deferred payment of litigation costs. It is undoubtedly necessary and correct for these regulations to define the objects of judicial assistance based on the economic status of the parties (natural persons) and the economic status of the family. However, in civil and administrative litigation, parties are referred to differently in different proceedings. In the first instance procedure, there is a plaintiff and a defendant; in the special civil litigation procedure, there is a difference between the plaintiff and the applicant; in the supervision, publicity and bankruptcy debt repayment procedures, there are the names of the applicant and the respondent; in the second instance procedure, There is an appellant and an appellee; in the trial supervision procedure, the original trial is called the plaintiff and the defendant; in the execution procedure, it is called the person applying for execution and the person applied for execution. Wait a moment. Since the object of judicial relief is parties with real financial difficulties, does it include all the above types of parties? The provisions of Article 107 of the Civil Procedure Law are general and should be understood as such. The problem is that Article 48 of the "Measures for the Payment of Litigation Fees" of the State Council stipulates: "A party applying for judicial relief shall submit a written application, sufficient supporting materials to prove that it has financial difficulties, and other relevant supporting materials when filing a lawsuit or appeal." Leaving aside the litigation costs such as special procedures, at least we are told here that the parties only have the right to apply for judicial relief as a plaintiff in the first instance or as an appeal against the first instance. The defendant or the appellee are not eligible. During the supervision, trial supervision and execution procedures, the parties have no right to apply for judicial relief, and applicants for pre-litigation preservation have no chance to obtain judicial relief. According to this understanding, the defendant has no right to apply for judicial relief in the first instance. If you are dissatisfied with the first instance, you can apply for judicial relief again. Isn’t this an encouraging call? In addition, in the practice of criminal trials, we often encounter victims in some criminal private prosecution cases. Due to their lack of ability to investigate and collect evidence, some private prosecution cases cannot be filed and the legal rights of the victims cannot be protected. When these victims involve vulnerable groups, it is necessary for the people's courts to provide them with judicial relief. Therefore, in criminal proceedings, the scope of judicial assistance should be expanded to private prosecution cases where the victims are vulnerable groups (1. Criminal cases of abuse of women, children, and the elderly; 2. Criminal cases of violent interference with freedom of marriage; 3. Abandonment of the elderly, Criminal cases involving children, the disabled and the mentally ill; 4. Other private prosecutors who violate the personal rights, democratic rights and property rights of minors, women, children and the elderly.
Therefore, the establishment of the judicial aid system aims to ensure that the parties can equally exercise their litigation rights in accordance with the law and enjoy equal access to national judicial resources, embody the superiority of the socialist judicial system, and safeguard the legitimate rights and interests of the parties. Therefore, whether it is a plaintiff, defendant, applicant, respondent, private prosecutor in a criminal case, or a plaintiff in a civil lawsuit attached to a criminal case, as long as he meets the conditions for judicial relief, he should be given judicial relief, and his litigation rights should be equal. Protect. If one party favors the other party, it will make the other party, who is also a vulnerable group, cry, which obviously loses justice.
5. The rescue standards are vague. According to the "Regulations", the objects of judicial relief are parties with real financial difficulties. "Difficulty in living" is a qualifying condition for obtaining judicial relief, but what is difficulty in living? What income level defines hardship? However, those who do have financial difficulties, those who live on the poverty line, obviously have financial difficulties and have better financial income, but those who were in trouble before the lawsuit, are they in financial difficulty? Wait a moment. The regulations are vague and there are no quantitative standards.
6. There are no regulations on whether legal persons can become aid subjects. Legal persons should be able to become the subject of assistance. Because legal persons are the subject of litigation. Legal persons will also encounter the same situation as natural persons when safeguarding their civil rights. When a legal person is in a critical state of bankruptcy, it needs to litigate to maintain the living expenses of its employees, but because the litigation fees cannot be paid, the right to litigate cannot be realized. Legal persons are established imitating natural persons. Legal persons and natural persons have many of the same civil rights, and their litigation rights should be equal to those of natural persons. Therefore, in civil litigation, legal persons should be given the same rights to judicial relief as natural persons.
7. The provisions on judicial assistance evidence materials are not clear enough. The "Regulations" list eleven items in detail regarding the scope of judicial relief. The parties concerned may apply to the People's Court for judicial relief under the eleven listed circumstances. If a party requests judicial assistance from the People's Court, he or she must submit a written application and sufficient evidence to prove his or her financial difficulties. The judge responsible for filing the case will submit an opinion. After being reviewed and approved by the president in charge, the case shall be submitted to the deputy president in charge for approval. If the amount is relatively large, it shall be submitted to the president for approval. In trial practice, when reviewing the evidentiary materials submitted by the parties, it is difficult to know what materials the parties need to provide because there are no detailed regulations. For example, Article 3, Paragraph 6 of the "Regulations" stipulates that "the party concerned is a preferential care recipient stipulated by the state and has difficulties in living" can apply for judicial assistance. It is not clear which level of civil affairs department should certify whether a person is a recipient of preferential treatment. Whether the person is living in difficulty should be certified by the local office or township, or by the unit where he or she works. Therefore, in order to make judicial assistance more standardized in specific practice, the Supreme People's Court should clearly stipulate the relevant evidence materials for parties to apply for judicial assistance.
8. The mitigation regulations are too principled and are not conducive to operation.
(1) The law provides for three situations: tax deferral, tax reduction, and exemption, but it does not clarify the different applicable standards for the three situations, making it difficult to operate in practice. For safety and convenience, some courts only provide extended assistance during the case filing stage. For those applicants with financial difficulties, if they are unable to pay the legal fees after losing the case, the court requires them to apply for relief again. Although this approach makes up for all the shortcomings of delay, it undoubtedly increases the procedural burden on the applicant and fails to reflect the original intention of judicial relief. In addition, because there are no different applicable standards, it is easy for the court to arbitrarily reduce the legal fees that should be paid by those applicants who are not qualified, thus making judicial aid a kind of favor aid.
(2) The enforcement of litigation costs lacks procedural provisions. The "Regulations" require the court to enforce enforcement against those who refuse to pay litigation fees, but the regulations are too principled and lack practicality, resulting in the loss of litigation fees. There are two kinds of losses in practice. One is that the other party refuses to pay the legal fees after losing the case. The other is that the plaintiff is allowed to postpone the payment of legal fees, but the plaintiff refuses to pay the unpaid fees after losing the case. "Due to the lack of compulsory measures for collection, these two situations have essentially become 'exemption from payment' and become a perfect footnote to 'improper rescue' and 'rescue when necessary', which undermines the seriousness and credibility of the law. 1. Court Inconsistency in internal judicial assistance.
Due to the above-mentioned legislative flaws in my country’s judicial assistance system, judicial assistance within courts is not consistent in judicial practice.
(1) Courts in developed regions and underdeveloped regions. The differences in performance are reflected in: ① There are obvious differences in the judicial relief concepts of courts in developed regions and courts in underdeveloped regions.
Developed areas have a developed economy, better living conditions for their people, and fewer people with financial difficulties. At the same time, courts in developed areas are not worried about funding issues. The requirements for vetting aid applications for people in need should be broader. The court will recognize the parties who usually have good economic conditions but have difficulties before litigation. In underdeveloped and impoverished areas, there are many poor people, and courts are short of funds for handling cases. Applying for judicial relief is much stricter, and parties who are in trouble before litigation generally do not agree to apply for relief. ②The scope of rescue is also different. The scope of assistance in developed areas is significantly larger and larger than that in underdeveloped areas. The scope of aid for applicants is limited to “three-branch” cases, poverty-stricken people’s litigation and labor dispute cases, while judicial aid in economically developed areas involves all civil and commercial cases. ③The standard conditions for rescue are different. The basic standards of economic assistance in underdeveloped areas are mostly for the needy people who are lower than the local subsistence allowance standards, while the basic standards of economic assistance in developed areas are much higher than them. There are different rescue subjects. Underdeveloped and underdeveloped regions will not agree to rescue applications for civil lawsuits against companies, while developed regions will provide relief when companies meet the rescue conditions. (4) Litigation assistance takes different forms. In developed areas, judges exercise their power of interpretation to help litigants, and legal aid is available to assist in litigation. However, judges in underdeveloped and underdeveloped areas do not have a strong concept of exercising their power of interpretation, seldom exercise their power of interpretation, and have no and difficult access to legal aid.
(2) There are also differences in the judicial assistance provided by courts in the same province. Since there is only one principle and no specific operating rules, there are some differences in the understanding of assistance, the form of assistance, and the subject of assistance within the court.
(3) Judges in the same court have different understandings of the rescue objects, subjects, scope of cases, and financial capabilities, resulting in different results in whether the parties apply for rescue. For example, in a labor dispute case, if the plaintiff is dismissed or terminated by the defendant, refuses to accept the arbitration award, and files a lawsuit in court, and the plaintiff applies for relief, there will be different understandings of whether the plaintiff is in financial difficulty, because each place has subsistence allowance standards and per capita Income statistics. Who can measure the poor? Different standards have different results.
2. The conflict and coordination between litigation cost relief and the court’s own interests. Since reducing litigation fees will directly lead to a reduction in the litigation fees charged by the court, the courts are unwilling to generally implement litigation fee reductions out of their own interests. The litigation fee system is a basic system stipulated by law, and litigation fees are national fiscal revenue. At this stage, the important purpose of judicial organs in collecting litigation fees is to cover all court expenses during the trial process, ensure that the court has sufficient working funds, and maintain the normal work of the court. So judicial relief equals a reduction in court funding. Many courts, especially grassroots courts, cannot guarantee their own funding. In order to ensure the normal operation of the courts, many courts have to raise the threshold for relief, which makes many parties who should receive relief lose the opportunity to be rescued. That is, parties in the same situation may or may not receive judicial relief. This is not in line with modern times. Judicial philosophy.
3. The scope of judicial assistance tends to expand and contract at will.
The basic principle for establishing and improving judicial relief is that the law does not explicitly provide for it, but the law does, and relief must be provided. On the one hand, it is necessary to enable parties whose legitimate rights and interests have been infringed but who are in financial difficulties to go to court. At the same time, it is necessary to avoid arbitrarily reducing, deferring or waiving the parties' litigation fees in the name of judicial aid, causing losses to national property. However, in trial practice, two tendencies have emerged: First, the scope of judicial assistance has expanded, and some people who are not qualified for judicial assistance have also applied for judicial assistance. In order to expand the source of cases, some grassroots courts have reduced, suspended or waived litigation fees at a high rate without conducting strict review. Second, the scope of judicial assistance has been reduced, and some parties who meet the conditions for judicial assistance have not received judicial assistance that reflects social fairness. If some parties do not understand the relevant provisions of the judicial aid system and borrow money to file a lawsuit despite financial difficulties, the court will accept the case normally and they will lose the right to judicial aid.
4. There is improper judicial assistance. Judicial relief is available to parties with real financial difficulties. In practice, in addition to the above-mentioned reasons for insufficient court funding, judicial assistance is also distorted by human relationships and human factors in society. Some judges have relaxed applicable conditions and granted parties reductions, deferrals, or exemptions from payment of litigation fees as "favors," resulting in irregular judicial relief and helping parties who should not receive relief. The parties who should be rescued cannot be rescued, causing losses to state property, seriously distorting and eroding judicial authority, tarnishing the image of the court, and disrupting the normal order of the court.