Written in 1996, it was the first time in the history of Chinese legislation that legal assistance was written into law.
The Center for Legal Assistance under the Ministry of Justice was created in 1997 to supervise and coordinate legal assistance across the country. On the same day, the China Legal Aid Foundation was created to raise, manage and use funds, publicize the legal aid system, and promote judicial justice. Funding comes from donations and sponsorships given by domestic organizations, enterprises and individuals.
Applicants for legal aid must meet two conditions. They need sufficient reason to prove they need legal assistance to safeguard their lawful rights and interests and they must be unable to pay legal fees. In China, legal aid is funded by three sources: the government, social donations and volunteers.
"We set the conditions for the applicants, but who should be the defense attorneys for them? Should the court have a fixed group of defense attorneys just for legal aid?" said Xie Youping, a professor at Fudan University and Deputy Director of China Law Society's Criminal Procedure Law Center. "In some remote or rural areas, when the court has no defense attorneys, who should the defendants turn to? Because of this, the public defender system is a must for improving the legal assistance system, especially for criminal cases."
"The law states it is a must for defendants who might get a sentence of death to have a lawyer," said Li Guifang, a lawyer from the All China Lawyers Association. "But we have many more defendants with fixed-term imprisonment. When these people can't afford to have a lawyer, how do we make sure that they can get one?"
Li also said some legal aid lawyers did not perform their duties seriously. "Some lawyers don't even meet the defendants before going to the court and some don't know which one they are defending when there is a group of defendants," he said.
Although it is agreed by many the public defender system will help better the legal assistance system in China, there is still heated debate on issues such as the status of public defenders and details of the system's operational rules.
"First we should make clear whether the public defender is a civil servant or a lawyer," said Wan Yi, a professor at Sichuan University's School of Law. "It depends on who pays public defenders, the government or some other organizations. And where should the public defenders work, the court or justice authorities?"
Professor Wan said if public defenders could be categorized as civil servants, it might help to improve the quality of defense on criminal cases. "The defendants might trust salaried lawyers more since they doubt private lawyers just want to get the money and don't really help them. Since criminal proceedings are all advanced by public prosecutors, if the defender is also a civil servant, they can argue on an equal footing in court."
Wu Gaoqing, a professor at Zhejiang Gongshang University's School of Law, also agrees the government should pay public defenders, saying it is good for the country to improve the defending quality at court and boost judicial justice.
But he suggests public defendants should be defined as lawyers. "Only in this way can public defendants maintain their independence. Since public defenders don't charge the defendants, they don't necessarily doubt the defenders just want to cheat money," Wu said.
Gu Yongzhong, a professor at China University of Political Science and Law in Beijing, said the government could use tax from lawyers on paying public defenders.
"Annually the combined income of lawyers all over China is 10 billion yuan ($1.47 billion), and they pay more than 1.5 billion yuan ($221 million) in income tax," he said. "If we use the money on the public defenders, it is reasonable."
According to Gu, 80-90 percent of criminal defendants in China are from the lower class of society and can't afford to hire a lawyer.
"But I also learned they don't all need to have lawyers," said Gu. "Many just plead guilty and they think lawyers are not necessary for them. We should take this into consideration when deciding whether we really need to assign a public defender to every criminal defendant. If we do so, it might be a waste."
Zhou Changjun, a professor at Shandong University's School of Law, has different ideas on this.
"We should find out if the defendants really don't need lawyers or they don't think the lawyers would help even when they get the wrong sentence," said Zhou. "Even though the defendants plead guilty, since most of them have very limited knowledge of the law, they don't know whether the sentence on them is proper or not. Should it be three years, five years or 10 years, it is a big difference for their life. So they do need public defenders to help them on that."