China / Society

Expatriates have right to obtain attorney in country

(China Daily) Updated: 2015-12-22 07:58

Many foreigners are not familiar with Chinese laws. Many also find it difficult to resolve civil and commercial disputes and often need legal services.

Fortunately, foreigners in China, according to the law, can hire a lawyer to deal with these disputes. Those with financial difficulties can also obtain legal aid in the country.

According to the Regulation on Legal Aid, expatriates in China in a civil or commercial dispute or facing criminal litigation can obtain legal aid.

In practice, a suspect in a criminal case can obtain the help of a legal aid lawyer appointed by the people's court. A suspect who is from a foreign country and is involved in a civil or commercial case but who also faces financial difficulties can obtain legal aid if his or her home country has signed a relevant treaty or agreement with China.

In the case of a foreign defendant who has not entrusted anyone to be his defender, the people's court may inform the legal aid agency to appoint a lawyer. If the defendant refuses the attorney, the defendant shall issue a written declaration or make an oral statement to state that refusal.

If legal aid is required for a case but the defendant refuses the appointed lawyer, the people's court shall ascertain a reason from the defendant. If the reason is justified, the court shall oblige, but the defendant still must select another lawyer. If the defendant does not do so, the people's court shall notify the legal aid organization in writing to appoint another lawyer to defend him or her within three days.

Criminal proceedings

According to the Criminal Procedure Law, the Regulation on Legal Aid and judicial interpretations of the Supreme People's Court, foreigners involved in criminal proceedings in China can obtain legal aid.

If a suspect or defendant suffers from impairments in vision, hearing or speech or has a mental disorder but has not completely lost the ability to recognize or control their behavior, and also has not selected an attorney, the people's court, the people's procuratorate and the public security organ shall notify a legal aid organization to appoint a lawyer. Where a criminal suspect or defendant who is facing the possibility of being sentenced to life imprisonment or death penalty and has not entrusted anyone as his defender, the people's court, people's procuratorate, and the public security organ shall notify legal aid organization to appoint a lawyer to defend him.

Foreigners can also apply for legal aid in criminal proceedings by applying to a legal aid organization in China for legal aid according to the international treaties signed by their home countries and China, the multilateral or bilateral judicial assistance treaties signed by the home countries and China, or according to the principal of reciprocity. If there is no specific provision, relevant rules and principles on international judicial assistance in these treaties can be followed.

Civil disputes

In addition to criminal litigation, there are also laws and regulations governing civil and commercial disputes.

According to China's laws and regulations, foreigners in the country have four primary ways to resolve civil and commercial disputes:

reconciliation, in which the parties negotiate among themselves.

mediation, in which a third party assists in the communication between the disputed parties and leads them to reach a mutual understanding, compromise and a possible resolution. The mediator can be a person, an administrative body or a judicial organ.

arbitration, in which an arbitration tribunal shall, in accordance with the law, try civil and commercial disputes and make a legal document to resolve conflicts. Arbitration is private by nature and is based on an agreement from the parties involved.

litigation, otherwise called a civil lawsuit, is a typical public remedial measure and is the most effective and final means to resolve civil disputes.

China Legal Publicity Center provided this article.

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