Legal Aid for Criminal Cases and
Responsibilities of Defenders
Wang Minyuan
The legal aid for the criminal cases means in the course of criminal
proceedings, the institutions and the persons that take responsibility for the
legal aid should provide the criminal defendants and the crime suspects
who face financial difficulties and the parties involved in special cases with
free legal aid services in order to safeguard their lawful rights and interests.
On account of the special value of the legal aid for the criminal cases in the
whole criminal defense system,1 and in view of its positive significance
for the criminal judicial justice, I will discuss some issues related to the
defenders’ responsibilities during the legal aid for the criminal cases, which
is beneficial to deepening of the theoretical studies, promoting the system
construction of the legal aid for the criminal cases, developing the criminal
defense, and full promotion of the functions of the defenders providing
legal aid for the criminal cases. Although debate on this issue based on
actual practices will be much more significant, here I will only demonstrate
theoretical analysis according to the basic characters of the legal aid for the
criminal cases due to a limited understanding of the actual practices.
I. The Defense Responsibility Required by Extended
Content of the Legal Aid for Criminal Cases
The extended content of the criminal legal aid is that the defenders
who take responsibility for providing legal aid services offer more legal

1
Professor of Institute of Law, Chinese Academy of Social Sciences
Chinese criminal legal aid system plays an important role in the criminal defense system, which is
reflected not only by the actual number of the criminal cases involving with the legal aid (the
statistics show that the number of the criminal cases involving the legal aid amount to 60,693 in
2002, reference to Rule of Law Blue Book------China Rule of Law Development Report, P460, Xia
Yong, chief editor, Social and Scientific Document Press, 2004.), but also by the positive
influence on the total number of the criminal cases involving with the defense (the percentage of
the criminal defense is lower than 30/100 in China, yet the percent of the criminal legal aid cases
is considerable).
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services for the targets and bear heavier responsibility compared to the
legal aid for civil cases and other cases. In specific, the lawyers affording
the legal aid for the criminal cases provide the targets with both the
defence in courts and the legal services required by the criminal defendants
and suspects.
The extended content of the criminal legal aid is mainly based on the
extended rights of the criminal defendants and criminal suspects. In the
modern criminal procedure legal system, the right to defense is a
fundamental right of the criminal defendants and suspects. Therefore, the
lawyers who are responsible for providing the legal aid to the criminal
defendants and suspects are obliged to provide legal services for the
criminal defendants and suspects; furthermore, they shall afford other legal
services such as application for the bailment and await trial for the criminal
defendants and suspects arrested with an aim to protect legal rights and
interests of the criminal defendants and suspects. The latter is quite
different from the defence, yet it is a kind of important legal service which
has a significance for the protection of the legal rights and interests of the
criminal defendants and the suspects.
Of course, the extended content of the criminal legal aid is
preconditioned by the integrality of the legal aid in the course of criminal
proceedings. If the lawyers who are responsible for providing the criminal
legal aid don’t take part in the whole criminal proceedings, in other words,
without complete participation in the whole criminal proceedings, the
characteristic of the extension of the content of the criminal legal aid will
be greatly restricted. For instance, if the lawyers who are responsible for
providing the criminal legal aid don’t get involved in the criminal
proceedings at the investigation stage, they certainly may not provide the
legal services such as legal consulting opinions and applying for the
bailment and await trial to the suspects at this stage. Therefore, the
integrality of the legal aid in the course of criminal proceedings is another
characteristic that shall be paid more attention to when we emphasize the
defenders’ responsibility.
II. The Integrality of the Legal Aid in the Course of the
Criminal Proceedings and Defense Responsibilities
The integrality of the legal aid in the course of the criminal
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proceedings means the lawyers who are responsible for providing the
criminal legal aid shall provide legal services for the criminal defendants
and suspects during the whole criminal proceedings. It developed on a
basis that the criminal proceedings are not limited to the court trial. We
know that most public prosecution cases shall be brought into the court
trial after the investigation and institution, however as the targets
prosecuted in criminal proceedings the criminal defendants (they are called
“suspects” at the stage of investigation) are the core from investigating to
instituting an action and trial all the time. Therefore, the legal aid required
shall be provided in the whole course of the criminal proceedings from
investigating to instituting an action and trial. Clearly, if the legal aid were
provided at the stages of the criminal prosecution or trial but not at the
stage of investigating, the positive significance of the criminal legal aid for
protecting legal rights and interests of the criminal defendants and suspects
will be seriously damaged. In Chinese criminal proceedings, in view of the
special practice that if the criminal defendants convict guilty are mainly
determined by the result of the investigation, the general fact that the
suspects’ legal rights and interests are frequently violated at the
investigating stage, the legal aid shall be provided during the all criminal
proceedings with an aim to assure availability of the legal aid to the
suspects during the investigation stage.
At this point, if the criminal legal aid were provided in some
proceedings rather than the whole proceedings of the three stages from the
investigating to the prosecuting and the trial in the criminal proceedings, it
is inadequate and can not fully protect the legal rights and interests of the
criminal defendants and suspects. In this sense, the relative provisions2 in
Legal Aid Regulation enacted by the State Council in 2003 assure the
availability of the legal aid to the suspects at the investigating stage, which
plays a positive role in perfecting China’s criminal legal aid system, fully
promoting the functions of the criminal defenders, and assuring their
performance of the defense responsibilities.
III. The Special Characters of the Targets of the Criminal
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Legal Aid Regulation Article 11(1) provides that the criminal suspect, due to financial difficulties,
has not retained a lawyer after first being interrogated by an investigative organ or from the date
that compulsory measures are adopted, may apply for the legal aid. This provision makes up for
the legal aid at the investigation stage. However, if we take into account of the compulsory
defence which will be discussed later on, this provision needs further improved.
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Legal Aid and Defense Responsibility
The special characters of the targets of the criminal legal aid are
mainly reflected in two aspects. Firstly, the targets of the legal aid in civil
and administrated cases are plaintiffs in the proceeding, whereas the targets
of the legal aid in the criminal proceeding are criminal defendants; 3
secondly, compared to the legal aid in civil and administrative cases, the
legal aid in the criminal proceedings are based on both financial difficulty
of the criminal defendants and suspects and special characters of the
criminal cases.
As it is known, the establishment of the legal aid system mainly helps
those people who, due to financial difficulty, have not retained legal
counsel. Therefore, the targets are those people who, due to financial
difficulty, have not retained a lawyer or a legal counsel. In some special
civil or administrative proceedings, the parties, due to financial difficulty,
have not retained a counsel may apply to the legal aid organ for the legal
aid. However, in the criminal proceedings, the targets of the legal aid
have the specific characteristic. On one hand, in all public prosecution
cases, if the public prosecutor holding the public action appears in court,
while the defendant hasn’t retained the defender due to financial difficulty
or other reasons, the defendant may apply for the legal aid; on the other
hand, if the criminal cases possessed specific nature and the criminal
defendants had the specific circumstance, the premise of the ’financial
difficulty ’ will not be essential for the criminal defendant to apply for the
legal aid. For example, if there is possibility that the defendant may be
sentenced to death and yet he hasn’t entrusted anyone to be his defender; or
if the defendant is blind, deaf, mute or if he is a minor, the legal aid must
be provided to them even without the premise of the ‘financial difficulty’.
Compared with the targets of the legal aid in the civil or
administrative proceedings, the targets in the criminal proceedings have
special characteristics, the reason are as follows: firstly, if the plaintiffs in
3
Of course, according to the Legal Aid Regulation Article 11(2) and (3), in the course of public
prosecution, the victim and his lawful representative or close relatives, an individual
initiating private prosecution and his lawful representative, due to financial difficulty,
have not retained legal counsel, may apply for the legal aid. Yet the legal aid in the
criminal proceedings mainly refers to the legal aid provided to the criminal defendants and
suspects, which this paper focus on.
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some specific civil or administrative proceedings may apply for the legal
aid is because of their disadvantaged position and it is necessary to provide
them with the legal aid; in the criminal public action cases, to certain
extent, it is necessary to provided the criminal defendants with the legal aid
since they are disadvantaged group compared to the prosecutorater organs.
if the defendant is blind, deaf, mute or if he is a minor, the free legal aid
must be provided to them in consideration of their disadvantaged position;
secondly, Secondly, because of the criminal proceedings relating to the
criminal defendants’ important rights, such as right to property, right to
freedom even right to life and so on, therefore, it is very important that the
defenders play a great role in safeguarding the criminal defendants’ rights
and interests in proceedings. In the cases in which defendants might be
sentenced to death, their rights and interests shall be more completely
protected. From this sense, the defenders undertake more important
responsibility for providing the legal aid in the criminal proceedings than
that in other kinds of proceedings. Furthermore, they confront with the
stronger prosecution and face more difficulties in the criminal proceedings
compared with other kind of proceeding. These difficulties are
compounded by the failure of the guaranteeing mechanism for the
defenders to perform their duties in Chinese Criminal Procedural Law.
The above-mentioned characteristics of the targets of the legal aid in
the criminal proceedings and the specific requirements put forward for the
defenders and the difficulties faced by them will be further illustrated by
the mandatory characteristic of the legal aid in the criminal proceedings.
IV. The Mandatory Characters of the Legal Aid in Criminal
Proceedings and Defense Quality
The mandatory characters of the legal aid in criminal proceedings
means the court presiding a trial, the prosecutorates organ responsible for
prosecution and institution of proceedings and the investigation organ shall
designate a lawyer to the targets of the legal aid in cases ‘demanded by the
judicial interests’, which is a duty and mandatory.
Although there is a clear provision about the cases ‘demanded by the
judicial interests’ in UN Civil Rights and Political Rights Convernant
Article 14(3), it mainly means the criminal cases committed by minors in
view of the related international documents. what’s more, UN Economic
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and Social Council considers that the cases involving the death penalty
obviously needs lawyers, which falls into the category of cases ‘demanded
by the judicial interests’.4
Of course, the mandatory characteristic of the legal aid in criminal
proceedings has different meaning to the different subjects in criminal
proceedings. From actual situation in China at the moment, the mandatory
character is reflected mainly in the two aspects. On one hand, the court
presiding a trial, the prosecutorater organ responsible for prosecution and
the investigating apparatus shall designate a lawyer to the parties in cases
involving possible imposition of the death penalty, or if the defendant is a
minor, or if the defendant is a blind, deaf or mute, and have not entrusted
anyone to be his defender due to financial difficulty or other reasons5; on
the other hand, the legal aid organs, when the court assigned the defenders
to provide legal aid, are obliged to provide the legal aid.
This mandatory characteristic of the legal aid in criminal proceedings
helps to extend its application scope in order to fully promote judicial
justice and protection of human rights in the criminal proceedings. Of
course, it also means greater difficulties for assuring defence quality. On
one hand, the court presiding a trial and the prosecutorater organ
responsible for prosecution and the investigating apparatus shall designate
a lawyer for the criminal defendants and suspects in cases ‘demanded by
the judicial interests’, which often reveals inadequate qualification and
defence experience of the designated lawyer; on the other hand, the
designated lawyer may not provide best defence for the defendants due the
mandatory character of the defence responsibility. If we consider the
present misunderstanding for the criminal defenders and their
responsibility, which comes from both official and civil society, if we
consider different kinds of actual difficulties in carrying out the defence
responsibility, we shall have a further understanding for the responsibility
of the criminal lawyers in the legal aid in criminal proceedings.
By the above analysis, we can conclude that although the legal aid in
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5
“Provisional Agenda Item” Article 10(D), adopted by UN Economic and Social Council,in1991.
Pursuant to the Revised Criminal Procedure Law, Act of Lawyer, Legal Aid Regulation mentioned
above and the relative judicial interpretations, at present, cases involving possible imposition of
the death penalty or if the defendant is a minor or if the defendant is blind, deaf and mute fall into
the category of the cases ‘demanded by the judicial interests ’ in China and the mandatory
defence shall be provided to them.
Pursuant to the “The Explanation of Problems about Executing Criminal Procedure Law of PRC”
Article 38, the Supreme Court, in 1998, the force is so emphasized prominently that the problems
with the defendants refusal of defense in this kind of case also become very complex.
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criminal proceedings is important, and defence lawyers take important
responsibility, the promotion of their functions still faces different kinds of
actual difficulties. Greater efforts shall be made to assure availability of the
legal aid in criminal proceedings provided by the defence lawyers and to
assure promotion of the positive development of the legal aid in criminal
proceedings.
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