Notice on Issuing the Working Measures for Legal Aid Duty Lawyers

Notice of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, and the Ministry of Justice on Issuing the Measures for the Work of Legal Aid Duty Lawyers

Division Gui [2020] No. 6

Higher people's courts, people's procuratorates, public security departments (bureaus), national security departments (bureaus), judicial departments (bureaus) of all provinces, autonomous regions and municipalities directly under the Central Government, military courts and procuratorates of the people's Liberation Army, production and Construction Corps Branch of the higher people's Court of Xinjiang Uygur Autonomous region, people's Procuratorate of Xinjiang production and Construction Corps, Public Security Bureau, State Security Bureau and Judicial Bureau:

In order to correctly implement the relevant provisions of the the People's Republic of China Criminal Procedure Law on duty lawyers, improve the working mechanism of duty lawyers, provide effective legal assistance to criminal suspects and defendants without defenders in accordance with the law, and promote fair justice and human rights protection, the Supreme People's Court, The Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security, and the Ministry of Justice have formulated the "Measures for the Work of Legal Aid Duty Lawyers", which are hereby issued.

Supreme People's Court

Supreme People's Procuratorate

Ministry of Public Security

Ministry of National Security

Ministry of Justice

20 August 2020

Legal Aid Duty Lawyer Working Methods

Chapter I General Provisions

Article 1 in order to protect the litigation rights enjoyed by criminal suspects and defendants in accordance with the law, strengthen the judicial protection of human rights, and further standardize the work of lawyers on duty, these measures are formulated in accordance with the provisions of the Criminal procedure Law of the the People's Republic of China of China and the Law on the People's Republic of China lawyers.

Article 2 the term "on-duty lawyer" as mentioned in these Measures refers to the legal aid institutions that set up legal aid workstations in detention centers, people's procuratorates, people's courts and other places to provide legal assistance to criminal suspects and defendants who do not have defenders by means of stationing or arrangement.

Article 3 The work of duty lawyers shall adhere to the principles of law, fairness, impartiality and efficiency, and duty lawyers shall provide legal services that meet the standards.

Article 4 Public security organs (detention centers), people's procuratorates, people's courts, and judicial administrative organs shall guarantee the right of criminal suspects and defendants without defenders to obtain legal assistance from lawyers on duty.

Article 5 The work of duty lawyers shall be organized and implemented by the judicial administrative organs, and the public security organs (detention centers), people's procuratorates, and people's courts shall provide assistance in accordance with the law.

Chapter II Duty of Duty Lawyer

Article 6 Duty lawyers shall provide the following legal assistance:

(I) legal advice;

(II) provider selection recommendations;

(III) help criminal suspects and defendants to apply for changes in compulsory measures;

(IV) put forward opinions on the handling of cases;

(V) help criminal suspects, defendants and their close relatives apply for legal aid;

Other matters stipulated by (VI) laws and regulations.

In the case of pleading guilty and punishing, the lawyer on duty shall also provide the following legal assistance:

(I) explain to the criminal suspects and defendants the nature and legal provisions of confession and punishment;

(II) put forward opinions on such matters as charges charged by the people's procuratorate, recommendations on sentencing, and the application of litigation procedures;

(III) suspects were present when they signed a confession statement.

When handling a case, the lawyer on duty may meet at the appointment of the criminal suspect or defendant, or may take the initiative to meet with the permission of the case-handling organ; from the date when the people's procuratorate examines and prosecutes the case, it may consult the case file materials and understand the case.

Article 7 when providing legal advice, the lawyer on duty shall inform the criminal suspect and the defendant of the relevant provisions on legal assistance, explain the relevant litigation rights and procedural provisions in combination with the litigation stage of the case, and answer the legal questions consulted by the criminal suspect and the defendant.

If a criminal suspect or defendant pleads guilty and confesses punishment, the lawyer on duty shall understand whether the criminal suspect or defendant has any objection to the facts and charges of the alleged crime, inform the legal sentencing range of the alleged crime, explain the circumstances of lenient and heavier punishment, and the leniency range of confession and punishment, and provide procedural selection suggestions based on the situation of the case.

If a lawyer on duty provides legal advice, he shall record the suspected charges of the criminal suspect or defendant, the legal questions consulted, and the legal answers provided.

Article 8 In the stage of examination and prosecution, if a criminal suspect pleads guilty and confesses punishment, the lawyer on duty may put forward opinions to the people's procuratorate on the following matters:

(I) the facts of the alleged crime, the charges and the applicable legal provisions;

(II) recommendations for lenient punishment such as lighter, mitigated or waived punishment;

(III) the procedures applicable to the trial of cases after pleading guilty;

(IV) other matters requiring comments.

If the duty lawyer puts forward opinions on the matters in the preceding paragraph, the people's procuratorate shall record them and attach them to the file. If the duty lawyer's opinions are not adopted, the reasons shall be explained.

Article 9: Where a criminal suspect or defendant applies for a review of the necessity of detention, the lawyer on duty shall inform him of the applicable conditions and relevant laws and regulations of the compulsory measures such as bail pending trial, residential surveillance, arrest, etc., and the procedures for the People's Procuratorate to review the necessity of detention; If the criminal suspect or defendant has been arrested, the lawyer on duty may help him apply to the People's Procuratorate for review of the necessity of detention and assist in providing relevant materials.

Article 10 when a criminal suspect signs a confession and punishment statement, if the lawyer on duty has no objection to the voluntary nature of the criminal suspect's confession and punishment, the sentencing suggestions of the people's Procuratorate, and the application of the procedures, he shall sign the statement and keep a copy for filing.

If the lawyer on duty has any objection to the application of the sentencing recommendations and procedures of the people's Procuratorate, after confirming that the criminal suspect has voluntarily pleaded guilty and punished, he shall sign the statement and may submit legal opinions to the people's Procuratorate at the same time.

If the criminal suspect refuses the help of the lawyer on duty, the lawyer on duty does not need to sign the statement, and shall keep a file of the written materials signed by the criminal suspect refusing legal help.

Article 11 For a criminal suspect or defendant in custody, the same duty lawyer stationed in the detention center may provide legal assistance at different stages of the proceedings. For criminal suspects and defendants who have not been detained, the lawyer on duty in the previous litigation stage can continue to provide legal assistance to the criminal suspects and defendants in the subsequent litigation stage.

Chapter III Procedures for Legal Assistance

Article 12: Public security organs, people's procuratorates, and people's courts shall respectively inform criminal suspects and defendants who have no defenders at the stages of investigation, review, prosecution, and trial that they have the right to make an appointment with a duty lawyer to obtain legal assistance, and provide them with an appointment with a duty lawyer Convenience.

Article 13 The detention center shall inform the criminal suspects and defendants that they have the right to make an appointment with the duty lawyer and provide convenience for them to make an appointment with the duty lawyer.

The detention center should incorporate the relevant contents of the duty lawyer system into the notice of rights and obligations of the detainees, and inform the criminal suspect and defendant that they have the right to obtain legal assistance from the duty lawyer when they enter the detention center.

If a criminal suspect or defendant requests an appointment with a lawyer on duty, he or she may apply in writing or orally. In case of a written application, the detention center shall promptly forward the application form for legal assistance completed by it to the on-duty lawyer. If the application is made orally, the detention center shall arrange to fill in the application form for legal assistance on its behalf.

Article 14: If a criminal suspect or defendant does not entrust a defender and does not meet the conditions for a legal aid agency to appoint a lawyer to provide defense for him, and requires an appointment with a lawyer on duty, the public security organ, the people's procuratorate, and the people's court shall promptly notify the legal aid agency of the arrangement.

Article 15 If the duty lawyer should be notified to provide legal assistance in accordance with the law and the criminal suspect or defendant explicitly refuses, the public security organ, the people's procuratorate, and the people's court shall record it.

If the criminal suspect or defendant in the former procedure explicitly refuses the legal help of the lawyer on duty, the case handling organ of the latter procedure still needs to inform him of his right to obtain legal help from the lawyer on duty, and the relevant information shall be recorded.

Article 16 If a public security organ, a people's procuratorate, or a people's court needs a legal aid agency to notify a lawyer on duty to provide legal assistance to a criminal suspect or defendant, it shall issue a legal assistance notice to the legal aid agency and attach relevant legal documents.

In the case of a single batch notification, the relevant information of multiple criminal suspects and defendants can be attached to a legal assistance notice.

In addition to notifying the lawyer on duty to provide legal assistance in the place of detention, the people's procuratorate and the people's court may consult with legal aid institutions to simplify the notification methods and procedures.

Article 17 judicial administrative organs and legal aid institutions shall, in accordance with the resource situation of local lawyers and the demand for legal assistance, work together with detention centers, people's procuratorates and people's courts to reasonably arrange the duty mode and frequency of duty lawyers on duty.

The mode of duty can be combined with on-site duty, telephone duty and network duty. On-site duty, can take a fixed person or take turns on duty, can also take an appointment on duty.

Article 18 A legal aid institution shall determine the candidates for lawyers on duty based on their political quality, professional ability and length of practice, and establish a roster of lawyers on duty or a library of lawyers on duty. And inform the public security organ (detention center), the people's procuratorate and the people's court in advance of the information of the on-duty lawyer library or roster and the work arrangement of the on-duty lawyer.

Article 19 the public security organ, the people's procuratorate and the people's court shall serve the notice of legal assistance on the legal aid institution or directly on the on-site lawyer on duty three working days before the determined date of legal assistance.

If there is no on-site lawyer on duty during this period, the legal aid agency shall determine the on-duty lawyer within two working days from the date of receiving the notice of legal assistance, and notify the public security organ, the people's procuratorate, and the people's court.

The methods of service and notification between public security organs, people's procuratorates, people's courts and legal aid institutions may be simplified through consultation.

The notice and time limit for assignment of special circumstances such as cases subject to the expedited procedure and the need for legal aid agencies to deploy lawyers across regions are not subject to the preceding paragraph.

Article 20 If a duty lawyer is on duty at the people's procuratorate or the people's court, he shall provide legal assistance to the criminal suspect or defendant in a timely manner in accordance with the arrangement of the legal aid institution or the notice served by the people's procuratorate or the people's court.

If the criminal suspect or defendant submits an application for legal assistance and the detention center transfers it to the on-site lawyer on duty, the on-duty lawyer shall provide legal assistance in a timely manner in accordance with the arrangements of the detention center.

If the lawyer on duty is on duty by telephone or network, he shall provide legal assistance in a timely manner, and a consultation time may be reserved for difficult cases.

Article 21 at the stage of investigation, the lawyer on duty may learn from the investigation organ about the suspected charges of the criminal suspect and the relevant information of the case; after the case enters the stage of examination and prosecution, the lawyer on duty may consult the case file and understand the case. The people's Procuratorate and the people's court shall arrange in a timely manner and provide convenience. Where files have been digitized, people's procuratorates and people's courts may arrange for online marking.

Article 22 the lawyer on duty shall go to the detention center to go through the formalities of legal assistance meeting with the lawyer's practice license or lawyer's work permit, the application form for legal assistance or the notice of legal assistance, and the detention center shall arrange the meeting in time.

In the case of crimes endangering national security or terrorist activities, if the lawyer on duty meets with the criminal suspect in custody during the investigation, he shall get the permission of the investigation organ.

Article 23 When providing legal assistance, a lawyer on duty shall present his lawyer's practice card or lawyer's work card or relevant legal documents to indicate the identity of the lawyer on duty.

Article 24 The lawyer on duty shall not be monitored when meeting with the criminal suspect or defendant.

Article 25 in the process of providing legal assistance, if the criminal suspect or defendant expresses to the lawyer on duty that he is willing to plead guilty and punish, the lawyer on duty shall promptly inform the relevant public security organs, people's procuratorates and people's courts.

Chapter IV Job Security for Duty Lawyers

Article 26 the legal aid workstations set up in detention centers, people's procuratorates and people's courts shall be stationed and managed by the legal aid institutions subordinate to the judicial administrative organs at the same level.

Where the offices of detention centers, people's procuratorates, people's courts and other organs are close to each other, legal aid institutions may set up joint legal aid workstations to send lawyers on duty.

Detention centers, people's procuratorates and people's courts shall provide necessary office space and facilities for legal aid workstations. Conditional people's procuratorates and people's courts may set up special office areas for cases such as confession and punishment, and set up special meeting rooms for lawyers on duty.

Article 27 The legal aid workstation shall publicize the conditions and application procedures for legal aid, the duties of the lawyer on duty, the basic information of the lawyer on duty on that day, etc., and place legal aid format documents and publicity materials.

Article 28 the relevant information of legal assistance activities such as providing legal advice, consulting case files, meeting with criminal suspects or defendants, and putting forward written opinions shall be recorded and transferred with the case.

The duty lawyer shall record the situation of providing legal assistance in the work account or form a work file, and transfer it to the legal aid institution in accordance with the prescribed time limit.

Public security organs (detention centers), people's procuratorates, and people's courts shall determine the format of work accounts with legal aid agencies, record the performance of duties by lawyers on duty, and transfer them to legal aid agencies on a regular basis.

Article 29 when providing legal assistance, the lawyer on duty shall abide by the relevant laws and regulations, practice discipline and professional ethics, keep state secrets, commercial secrets and personal privacy in accordance with the law, and shall not disclose to others the information of the cases he has mastered in his work. shall not collect property from the recipient or seek illegitimate interests.

Article 30 the judicial administrative organ shall, in conjunction with the financial department, reasonably formulate the standard of legal assistance subsidy for lawyers on duty according to the direct expenses, basic labor costs and other factors, and incorporate it into the budget to guarantee it.

The subsidy standard for lawyers on duty to provide legal advice, transfer legal aid applications and other legal assistance shall be calculated on a working day basis; the subsidy standard for providing legal assistance to criminal suspects and defendants in cases of confession and punishment shall be calculated on a case-by-case basis or on a working day basis in accordance with local actual conditions.

The legal aid institution shall, according to the duty lawyer's performance of work duties, pay the duty lawyer's legal aid subsidy according to the provisions.

Article 31 Legal aid institutions shall establish a mechanism for the access and withdrawal of duty lawyers, establish a system for assessing and evaluating the service quality of duty lawyers, and ensure the service quality of duty lawyers.

Legal aid institutions shall establish a training system for lawyers on duty. Lawyers on duty shall participate in the training before taking up their posts for the first time, and public security organs, people's procuratorates and people's courts shall provide assistance.

Article 32 Judicial administrative organs and legal aid institutions shall strengthen the supervision and guidance of the work of duty lawyers in their respective administrative regions. For areas where there is a shortage of lawyer resources, methods such as coordinating the deployment of lawyer resources within the province and city, and establishing a service mechanism for the government to purchase lawyers on duty can be adopted to ensure the orderly development of the work of lawyers on duty.

Article 33 the judicial administrative organs, together with the public security organs, the people's procuratorates and the people's courts, shall establish a consultation mechanism for the work of lawyers on duty, clarify special contacts, communicate the situation in a timely manner, and coordinate and solve relevant problems.

Article 34: Judicial administrative agencies shall strengthen the supervision and management of on-duty lawyers, and commend on-duty lawyers who have outstanding performance; on-duty lawyers who violate laws and disciplines shall be dealt with according to their powers or transferred to the competent handling agencies in accordance with laws and regulations.

The legal aid institution shall notify the lawyers association of the performance of duties by the duty lawyer.

The Bar Association shall include the performance of duties and commendations of on-duty lawyers in the annual assessment of lawyers and the records of lawyers' integrity services, and deal with on-duty lawyers who violate professional ethics and practice discipline in accordance with laws and regulations.

Chapter V Supplementary Provisions

Article 35 Where the State security organs, the China Maritime Police Bureau and prisons perform their duties as prescribed in the Criminal procedure Law and involve the work of lawyers on duty, the provisions of these measures relating to public security organs shall apply.

Article 36 These Measures shall enter into force as of the date of promulgation. The Opinions on Carrying out the Work of Legal Aid Duty Lawyers (Si Fa Tong [2017] No. 84) shall be repealed at the same time.