| Legal aid system is a free legal service legislated and systematized by the state, and is conducted by legal professionals assigned by special government agency, aiming at guaranteeing the basic rights of the financially-disadvantaged as well as the interested parties in special cases. Though being a new system in China, Legal aid system is a widely-adopted way of judicial relief in most countries. Fundamentally speaking, Legal aid system is an inalienable social right for every citizen, a due obligation for the state and an indispensable method for people to realize their rights as citizens. Legal aid system fully displays the tangibility of rights, because it moves off the obstacles to realizing the legal rights of the finally-disadvantaged and interested parties in special cases. It is the role model of realization of rights.This essay analyzes the legislation and realization of China's existing legislation -- Legal aid ordinance in consideration the history, foundation and the value orientation of Legal aid system. It also inspects the shortcomings and drawbacks of the system. Furthermore, the essay gives some suggestions on how to perfect China's Legal aid system, especially on the significance and necessity of enacting the law on Legal aid system, by combining the contemporary foreign Legal aid systems with China's Legal aid system experience of the recent decade. Thus, to seek effective and efficient ways for solving the problems and concerns arose in the process of the development of Legal aid system in China.The essay is divided into three parts:Part one is the introduction of Legal aid system. In order to keep perfecting and developing China's Legal aid system, it is important to not only absorb practical experiences from within China and abroad, but also to explore and innovate. The development of Legal aid system in western countries has experienced a process form being philanthropic and ethic to being a part of the social welfare. It finally developed as the state's duty and government's responsibility. Form what we can see in this process, it is obvious that Legal aid system, as one of the basic legal systems in modern countries and the important part in social laws and procedural laws, has its foundation and value orientation, no matter which pattern it followed. The foundation of Legal aid system is both legally and economically: the principle of rule by law is the prerequisite; the qualified and professional legal practitioners along with the regulation of their responsibilities are the key; the relating social enforcing system is the guarantee; and the prosperity of economy provides the material foundation of its developing. To better enforce the Legal aid system, the following steps should be equally important: first, it must be regulated by the state. Second, a specific government department should conduct the supervision of it. Third, certain criterion of its'accessibility should be carefully decided. Lastly, the funds of it should also be ensured for its goal lies in assisting people with financial difficulty. The author believes that justice, efficiency and order should be fully represented the value orientation of China's Legal aid system.Part two deals with China's existing legislation on Legal aid system. Legal aid ordinance, which is put into practice in 2003, is an important legal system, which is legislated by the State's Council. The goal of it is to protect the rights of the disadvantaged and to achieve the social fairness and justice. It plays an irreplaceable role in the development of China's Legal aid system. However, as a new system in China, there is still long way for it to go to meet the international criteria, as well as to better fit for the economic system, political system and the judicial system in contemporary China. The following aspects are those which should be modified and adjusted: the level of its legislation; the setup of departments; the setup of institutions; the contradicted relationship between the Legal aid system and the concept of administrative law; the inner legal relationship of it; the boundary of target receivers; the inadequacy of its funds; the supply and demand imbalance; the supervision of it; and the quality of it. Form the perspective of most countries, a complicated and specialized law of Legal aid system as the prerequisite of Legal aid system is characteristic in modern Legal aid system. The author maintains that the existing Legal aid ordinance has already been outmoded, for the reality of Legal aid system and the needs of the society have changed. Therefore, it is the high time that the Legal aid system found the alternative legislative choice. The upgrading of Legal aid ordinance to the Law of Legal aid becomes an inevitable approach.Part three focuses on the necessity and basic ideas of a new and Chinese-characterized Law of Legal aid. Both theoretical and practical experience proved the necessity and feasibility of the Law of Legal aid: it is the unavoidable choice for socialism, the right way of realizing social fairness and justice, the embodiment of government responsibility, and the procedural insurance of legal relief. The Legal aid system is an indispensable part of a Chinese-characterized judicial system. Thus, it should be made according to China's reality with scientific research. That is to say, the Legal aid system should be a principle written in the Constitution; The Law of Legal aid should be drafted and enacted by the state's legislative body along with additional regulations and rules. Besides, the government's responsibility in Legal aid system should be specific and detailed, a special supervising and executing department should be set up. Moreover, the legal relationship between the provider and receiver, the boundary of the receivers and the reasons for rejection should all be specific and detailed. Last but not the least, the relationship between Legal aid system and relating department should be regulated. The management of Legal aid system should be strengthened. The efficiency and quality of Legal aid system should be guaranteed. Several principles should also be set: the Legal aid system is the duty of the state; the right to get Legal aid system is inalienable for people; the procedural justice should be well insured; the Legal aid system practitioners should be fully aware of their duties and responsibilities; The combination of Legal aid system and legal relief; The goal of legislating the Law of Legal aid system is to make it the state's responsibility, people's rights, and to regulate the range, procedure, funds and liability of Legal aid system. Law of Legal aid should function as the protector of human rights, social security, social order and stability. It is also a positive adding to the basic laws of China. |
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