Rural Legal Aid in the Perspective of Human Rights:
Status Quo and Reform
HUANG Juan*
Status Quo and Reform
HUANG Juan*
Abstract: As one of the human rights protection systems for ru-ral residents, legal aid is an important well-being project. It provides legal assistance to the rural population with regard to every aspect of the application of the law, and reflects the care and assistance given to rural residents. It is an important way to ensure the equal realiza-tion of legitimate rights and interests of rural residents, and it is also a powerful measure to promote the all-round development of the rural population. After more than 20 years of growth, China’s rural legal aid work has achieved gratifying results. However, there are still out-standing problems such as unbalanced supply and demand, narrow scope, and tight funding. Therefore, we should build on the practice of rural legal aid to expand the number of aid teams, improve the quality of legal aid, broaden the scope of aid, and provide financial support so that rural legal aid can be truly visible, accessible, affordable and well performed.
Keywords: human rights ¿ right to equality ¿ right to develop-ment ¿ legal aid
I. Propose the Problems
Affected by economic backwardness and knowledge inadequacy, some groups of people cannot protect their legitimate rights and interests and are mired in an unfavor-able position. In such circumstances, the legal aid system has emerged for the needy people and has been gradually established in most countries across the world. Legal aid was institutionalized in the 1990s. While 2017 saw the establishment of more than 3,200 legal aid institutions, more than 70,000 legal aid work stations and more than 3,000 convenient service windows.1 The establishment and application of the legal aid system have played a positive role in guaranteeing justice, eliminating social contra-dictions and maintaining the social order, etc.
In China, agriculture, rural areas and rural residents are three major factors in-fluencing the effects of China’s social construction. In the special social structure, the relatively disadvantaged rural residents are unlikely to win favors in the distribution of limited social resources and consequently become vulnerable groups. The China National Human Development Report 2005 written by the China Development Re-search Foundation, as entrusted by the United Nations Development Program (UNDP), includes landless laborers, migrant workers and rural inhabitants in the scope of vul-nerable groups. The unfavorable social position of the rural population has caused multi-faceted unreasonable phenomena. Apart from impoverishment, absence or the ineffective guarantee of rights is also a practical predicament directly confronting the vulnerable rural population and discriminatory incidents occasionally occur. On the one hand, the inferior position of the farmers in the benefits structure decides that their demands cannot be timely, effectively met and the identification and endowment of their rights are insufficient. On the other hand, due to their comparatively backward intellectual and cultural level, the rural residents feel at a loss and helpless when their rights and interests are violated. Poverty and incomplete rural legal services pose greater difficulties for them to safeguard their rights and interests in a legal way and the protection and relief of their rights and interests are not satisfactory. The rural legal aid with the joint participation of government and society provides legal aid to the ru-ral targets of the service in all the aspects within the applicable law in the institution-alized manner, which reflects the care and help for the rural population, safeguards the legitimate rights and interests of rural residents and serves as the effective measure to guarantee the citizens’ equal access to legal aid and stimulate social stability and de-velopment.
II. Legal Aid is an Effective Measure to Realize Farmers’ Rights
To realize the coordinated distribution of the rights and interests between the state, society and individuals is the objective of governing a law-based country. In China, people have universally recognized the necessity of restricting civil rights and guaranteeing the fundamental rights and freedom of citizens. Article 33 of the Consti-tution of the People’s Republic of China clearly stipulates that “the state should respect and protect the human rights”. At the Third Plenary Session of the 18th Communist Party of China Central Committee held in 2013, it was further explicitly proposed to improve the human rights judicial guarantee system. Historically, the huge rural in-terest group has been an indispensable force to influence the overall society and the protection and realization of their rights deserves top priority in legal construction since they can directly reflect the fundamental conditions of human rights protection in China.
A. Legal aid is a vital channel to protect the farmers’ equal rights and interests
Equality is reflected in the interpersonal relations and reflects people’s attitude and cognition of the behavioral objects and themselves. Equality and freedom are among the due fundamental rights of the people, which directly affect the realization of other fundamental rights and are the basis for protecting individual rights. As the
Universal Declaration of Human Rights claims, “All human beings are born free and equal in dignity and rights”; “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, lan-guage, religion, political or other opinion, national or social origin, property, birth or other status.” The equality of human beings means the equal status, equal rights and interests and corresponding obligations of the subjects. It is the affirmation and respect for the basic personality of individuals.
Nevertheless, the equality in the sense of the natural law should not be idealized in reality. Individual differences and the complexity of the social environment usually make the distinction between the strong and the weak an unavoidable social phenome-non. The differences in such physiological factors as sex, age, physical characteristics and fitness as well as the unbalanced institutional arrangement in terms of properties, political competence and social status may give rise to advantages, disadvantages and inequalities. In addition to overlapping conceptualization, poor competence and low status are always the common characteristics of the weak in the universal sense. Just for this reason, both the physiological weak people and the institutionally weak groups need more care and consideration.
The Chinese word “ 农民 (farmer)” has complicated implications. In addition to professional work, it also represents a special identity formed during historical de-velopment. “As a matter of fact, in a society, there are always conflicts of symbolic power aimed to legally distinguish the field of vision, that is, to construct the conflicts of symbolic power between different groups. In this sense, the symbolic power is a force to ‘make the world’.”2 The differentiation between the cities and the rural areas in terms of grain and oil distribution, employment, cultural education and social wel-fare under the urban-rural dual management model does not make the rural people enjoy their deserved equal treatment and respect and the farmers have to bear the results of differentiation from the urban population in economic benefits and social welfare, for instance, lower incomes, inferior education resources, less sound medical and sanitary conditions, less public investment and a poorer living environment. With medical treatment as an example, in 2016, 49 registered nurses served every 10,000 urban residents on average while the figure was merely 15 in the rural area; 84.13 beds were available in urban medical institutions on average while the figure was only 39.09 in rural areas. The available medical resources in rural areas are markedly inferior to those in cities. During the social transformation, in-depth political and eco-nomic structural reforms have changed and modified the industrial structure, regional structure, employment structure and distribution structure, which have brought new problems and opportunities to urban and rural development. In the new era of socialist construction with Chinese characteristics, all kinds of rural problems have arisen and unreasonable, differentiated treatment is the root of inadequate rights of the farmers and the crux of the rural problems.
To realize fairness and justice is the ultimate goal of the law. In this sense, the law should more positively assume the responsibility to grant, help and protect the legit-imate rights and interests of the vulnerable groups. In the field of law, the vulnerable groups chiefly suffer from blank stipulations on their rights and interests, biased law enforcement, legal injustice and weak relief, etc., for the lack of individual conditions or social factors. Equality refers to that in form and that in essence and stresses that in legal contents and that in law application. The Chinese government explicitly stipu-lates the fundamental principle in the Constitution that “the citizens are legally equal”. Besides, it also reaffirms the equal status of the disadvantaged villagers in the laws and regulations on employment, marriage, inheritance, culture and education. Never-theless, when systemized achievements were initially made in legislation, difficulties were posed to the handling of individual cases violating the right to equality in the administration of law. The right of equality, without specific rights in politics, econ-omy and social life as the carrier, will be worthless. It is just due to the uniqueness of connotation and the generalization of application that the formalized equality in prac-tice usually covers the equality in essence and makes the right of equality an empty word and becoming the most familiar but the most easily neglected. For this reason, to avoid mere formality, it is imperative to put the loud slogan of equality into the details of the applicable law. Apart from prohibiting such inequalities as discrimination, privi-lege and improper restrictions, it is also required to positively make compensations for their due proper treatment and energetically rectify the inequalities in fact. Article 8 of the Universal Declaration of Human Rights stipulates: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamen-tal rights granted him by the constitution or by law.” The non-profit legal aid has been a pivotal channel for the vulnerable groups of people to get their rights and interests protected in practice under law so that they won’t feed on illusions. Due to their weak awareness and limited ability, some farmers either passively face their unfair treat-ment or seek social attention in the extreme manners including self-mutilation, mak-ing disturbance or vexatious suit. The practice of providing the rural population with economic difficulties or involved in special cases with legal aid shows the special care and protection to the vulnerable groups and is the necessary requirement to pursue substantive equality.
Nevertheless, the equality in the sense of the natural law should not be idealized in reality. Individual differences and the complexity of the social environment usually make the distinction between the strong and the weak an unavoidable social phenome-non. The differences in such physiological factors as sex, age, physical characteristics and fitness as well as the unbalanced institutional arrangement in terms of properties, political competence and social status may give rise to advantages, disadvantages and inequalities. In addition to overlapping conceptualization, poor competence and low status are always the common characteristics of the weak in the universal sense. Just for this reason, both the physiological weak people and the institutionally weak groups need more care and consideration.
The Chinese word “ 农民 (farmer)” has complicated implications. In addition to professional work, it also represents a special identity formed during historical de-velopment. “As a matter of fact, in a society, there are always conflicts of symbolic power aimed to legally distinguish the field of vision, that is, to construct the conflicts of symbolic power between different groups. In this sense, the symbolic power is a force to ‘make the world’.”2 The differentiation between the cities and the rural areas in terms of grain and oil distribution, employment, cultural education and social wel-fare under the urban-rural dual management model does not make the rural people enjoy their deserved equal treatment and respect and the farmers have to bear the results of differentiation from the urban population in economic benefits and social welfare, for instance, lower incomes, inferior education resources, less sound medical and sanitary conditions, less public investment and a poorer living environment. With medical treatment as an example, in 2016, 49 registered nurses served every 10,000 urban residents on average while the figure was merely 15 in the rural area; 84.13 beds were available in urban medical institutions on average while the figure was only 39.09 in rural areas. The available medical resources in rural areas are markedly inferior to those in cities. During the social transformation, in-depth political and eco-nomic structural reforms have changed and modified the industrial structure, regional structure, employment structure and distribution structure, which have brought new problems and opportunities to urban and rural development. In the new era of socialist construction with Chinese characteristics, all kinds of rural problems have arisen and unreasonable, differentiated treatment is the root of inadequate rights of the farmers and the crux of the rural problems.
To realize fairness and justice is the ultimate goal of the law. In this sense, the law should more positively assume the responsibility to grant, help and protect the legit-imate rights and interests of the vulnerable groups. In the field of law, the vulnerable groups chiefly suffer from blank stipulations on their rights and interests, biased law enforcement, legal injustice and weak relief, etc., for the lack of individual conditions or social factors. Equality refers to that in form and that in essence and stresses that in legal contents and that in law application. The Chinese government explicitly stipu-lates the fundamental principle in the Constitution that “the citizens are legally equal”. Besides, it also reaffirms the equal status of the disadvantaged villagers in the laws and regulations on employment, marriage, inheritance, culture and education. Never-theless, when systemized achievements were initially made in legislation, difficulties were posed to the handling of individual cases violating the right to equality in the administration of law. The right of equality, without specific rights in politics, econ-omy and social life as the carrier, will be worthless. It is just due to the uniqueness of connotation and the generalization of application that the formalized equality in prac-tice usually covers the equality in essence and makes the right of equality an empty word and becoming the most familiar but the most easily neglected. For this reason, to avoid mere formality, it is imperative to put the loud slogan of equality into the details of the applicable law. Apart from prohibiting such inequalities as discrimination, privi-lege and improper restrictions, it is also required to positively make compensations for their due proper treatment and energetically rectify the inequalities in fact. Article 8 of the Universal Declaration of Human Rights stipulates: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamen-tal rights granted him by the constitution or by law.” The non-profit legal aid has been a pivotal channel for the vulnerable groups of people to get their rights and interests protected in practice under law so that they won’t feed on illusions. Due to their weak awareness and limited ability, some farmers either passively face their unfair treat-ment or seek social attention in the extreme manners including self-mutilation, mak-ing disturbance or vexatious suit. The practice of providing the rural population with economic difficulties or involved in special cases with legal aid shows the special care and protection to the vulnerable groups and is the necessary requirement to pursue substantive equality.
B. Legal aid is the effective measure to stimulate rural development and the intrinsic requirement of rural residents’ right to development
Development is the manifestation of social progress and the reflection of individ-ual growth. “The free development of individuals is the precondition of the free devel-opment of all.”3 The right of individual development refers to the qualification of the subject to participate in social development and share the achievements of social de-velopment, specifically manifested in the full play of individuals’ sustainable abilities and the comprehensive improvement of individuals’ quality. Development is the result pursued by the subjects and the process of their social behaviors. Only by develop-ment can the fundamental rights of individuals be realized and maintained. If the right to survival is the prerequisite of individual existence, the right to development reflects the underlying value of individual existence. The right to development now included into the spectrum of human rights shows the progress of the concept of modern hu-man rights. The Declaration on the Right to Development adopted by the General As-sembly of the United Nations in 1986 made it clear that “The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and polit-ical development, in which all human rights and fundamental freedoms can be fully realized.” It thus can be seen that the right to development pursues the comprehensive, all-round development of the country and the individuals and involves politics, econ-omy, culture and education etc. The modern welfare states regard “improving peo-ple’s welfare” as their fundamental purpose, including the help and aid for vulnerable groups. Such features of poverty and low level severely restrict the development of the vulnerable groups. More importance should be attached to the realization of their right to development and preferential treatment should be properly given to them.
The specific contents and degree of realization of the right to development reflect the depth and width of the subjects to participate in political, economic and social activities. As part of society, rural residents deserve the equal right to pursue free development. The problem for rural residents is the special background of historical development resulted from more complicated social reasons. In the special circum-stances such as “encouraging industry rather than agriculture”, “nurturing industry by agriculture”, “applying the urban-rural dual structure” and the “price scissors” of in-dustrial produce, the unequal preferential policies lessen rural residents’ opportunities for self-development, the production and operation of produce cannot timely respond to market demands and the rural infrastructure is relatively inadequate and backward. In accordance with the statistics released by the National Bureau of Statistics, the per capita disposable income of the urban and rural residents in 2016 was respectively 33,616 yuan and 12,363 yuan; the per capita expenditure of the urban residents was 23,079 yuan and the rural counterpart was 10,130 yuan. Obviously, compared with ur-ban residents, the rural population was generally still the weak group in economy. As of the end of 2017, the poverty-stricken Chinese rural population amounted to 30.46 million and the poverty incidence was 3.1 percent. Economic poverty not merely low-ering the living standards of rural residents but also affects the exercising of their oth-er abilities and the unequal treatment for them in education, employment and medical care restrict their development. Additionally, the obscurity of the identity of the right’s subject and the abstract stipulations in the laws and regulations on rural residents’ right to development aggravate the difficulties in safeguarding their right to develop-ment.
Thus it can be seen that the special natural conditions and the man-made systems have posed some obstacles for rural residents to enjoy their right to development. In recent years, to solve the problems of agriculture, rural areas and rural residents and promote the rural modernization drive, the state has drawn up pertinent plans and launched measures to comprehensively deepen rural reforms such as the anti-poverty measures, the new urbanization construction and the rural rejuvenation strategy and provided good opportunities for the development of rural residents’ rights. Nonethe-less, the negative influence of the urban-rural dual division pattern still exists and rural residents laboring but not receiving returns cannot effectively share the accomplish-ments of social development but are still mired in poverty of materials, ability and rights.
The law is a major control measure in the modern society and an important tool to establish and maintain the basic social order. To realize rural residents’ right to de-velopment is not just a theoretical topic but also a practical activity requiring feasible, specific measures. Legal aid is a component of the social public service system and the inevitable requirement of the farmers’ right to development. On the one hand, legal aid can help the farmers voice their right to speak, advocate the reasonable dis-tribution of legal resources and grant them more rights to development. On the other hand, legal aid instructs the needy rural population to legitimately advocate their rights through lawsuits or non-litigation and properly solve all sorts of conflicts and disputes in their work and life.
III. Examination on Status Quo of Rural Legal Aid
Legal aid implies the strong humanitarian care and reflects the pursuit for the fair, just spirit of law. With the national efforts in recent years, the rural legal aid reg-istered amazing achievements. For instance, more than 440,000 cases of legal aid for farmers were handled nationwide, helping more than 490,000 rural residents, asking for salaries worth more than 8.3 billion yuan for migrant workers nationwide in 2017 and effectively safeguarding their legitimate rights and interests.4 Effective gover-nance is the foundation of rural rejuvenation. As an institutionally vulnerable group, the rural population is confronted with complex problems concerning their rights and interests. Especially, in modern society featuring rapid economic growth and overall social transformation, all the old and new contradictions are intertwined, disputes have surged in number and in their different forms, rural land has been appropriated by force, migrant workers’ wages defaulted on, the working environment and labor protection for them are unsatisfactory, their children have difficulties being enrolled in urban schools and the pollution in rural areas is quite serious. All these phenomena have captured much attention and posed new requirements and challenges to legal aid.
A. The imbalance between limited aid teams and the gigantic realistic demands
In the modern law-based society, right has become the voice to occupy the main-stream social status. The farmers’ awareness of right has been increasingly on the rise and their demand of law significantly increases. Nonetheless, the realization and pro-tection of the farmers’ right cannot be won easily and still need professional guidance and help.
Since its establishment, China’s legal aid system has gained rapid development and a relatively complete system of the aiding institutions has been set up. However, the increase of the overall number cannot fully satisfy the ever-growing demand of law in rural areas and a great majority of legal aid providers and institutions are far away from the relatively backward rural area, resulting in the imbalance between the supply and demand in the rural market of public legal service. In addition to the unreasonable distribution of amount, the quality of the urban and rural legal aid team members is notably different. The conflicts between low yields and high costs make veteran lawyers unwilling or unable to spare their energy to handle cases concern-ing rural legal aid. The knowledge of the judicial assistants and the basic-level legal service workers rooted in grassroots work chiefly comes from short -term training. The lack of systematic learning and examination means the quality of the legal aid is tremendously low and consequently results in the dissatisfaction and suspicion from those it is meant to help.
B. The imbalance between the narrow scope of aid and the complicated conflicts
Whether agriculture is strong or not, the rural scenery is beautiful or not and the farmers are rich or not decides the performance of the all-round prosperous society and the quality of the socialist modernization drive. The Chinese government has always placed the “issues relating to agriculture, rural areas, and rural people” on the top agenda of government work and successively launched a series of policies to guarantee rural infrastructure construction, improve the appearance of rural areas and encourage steady agricultural development. In the lively practice of deepening rural reform, the incomes of rural residents have been improved significantly and their liv-ing conditions have been enormously changed. Nevertheless, the social transformation has also accelerated the disintegration of the traditional rural structure and revealed many accumulated social malpractice. Besides, such new problems as labor disputes, village management disputes, land requisition, demolition, settlement and compensa-tion disputes, patient-hospital disputes and property management disputes have con-stantly arisen. Rural residents lacking sufficient legal knowledge feel more at a loss in the process of reform and hope for professional guidance and support. Hence their demands for legal aid have been on the rise year by year. However, the rural legal aid featuring comparatively backward development is still entrenched in the restrictions of the sweeping approach and excludes many objects and incidents awaiting aid, re-sulting in the fact that the rural population has the wrong recognition of legal aid; they universally do not dare to, cannot or are not willing to ask for help and their demands for rural legal aid in the new circumstances cannot be fully satisfied.
The relatively single standard decides the high threshold of rural legal aid and makes some people eager for legal aid but failing to afford or employ lawyers feel powerless and frustrated. Pursuant to the prevailing law, the objects applying for legal aid are restricted to special groups of people who are in economic hardship, blind, deaf, dumb or under age. The specific standard of economic hardship should be de-fined by the local governments according to the per capita disposable income of local residents. In a rather long time, only the destitute urban and rural residents receiving subsistence allowances are qualified to apply for legal aid while such people only account for a small proportion of the huge poverty-stricken rural population and more relatively poor groups of people who have just had enough food and clothing but have unstable income are excluded.
Furthermore, the restrictions on the items of aid further narrow the scope of legal aid. Many applications up to the standard of economic hardship cannot be really ap-proved. Especially, some issues closely related with the farmers’ fundamental interests are excluded. All these phenomena run counter to the objectives of the legal aid to serve the needy people and pursue substantial justice, and severely affect the effects of legal aid.
C. The imbalance between inadequate aid funds and ever-increasing business activities
In recent years, with the attention and support of the Party and the state, the amount of legal aid funds have continuously risen. About 91.4 percent of the local governments nationwide have included the expenditure for legal aid in the financial budget, 23 provinces (municipalities, districts) have established provincial-level spe-cial funds for legal aid and 22 provinces have adjusted the standards for subsidizing the handling of such cases. In 2014, the local finance at all levels totally input more than 1.29 billion Yuan in legal aid, nine times of the figure before the promulgation of the Legal Aid Regulations. However, the problems of low starting point, imperfect su-pervision and chaotic management could not be thoroughly solved. With the expand-ing demands for rural legal aid, the awareness rate of legal aid has been continuously heightened and the overall growth of aid has been remarkably boosted. According to statistics, during the period of the 12th Five-Year Plan (2011-15), the Hunan provincial government designated personnel to handle 142,000 legal aid cases of all sorts with an average annual increase of more than 10 percent, provided legal counseling for more than 500,000 people and benefited up to 1million people. The increase of the handled cases indicates that more funds are needed as guarantee. Moreover, rural disputes display the features of diversity, complexity and confinement to certain groups, in ad-dition to the social environment featuring blending and integration of regulations on morality, laws and conventions. All these factors augment the difficulties in handling legal cases, increase the costs for rights maintenance and pose higher requirements for financial input in legal aid.
In line with the Legal Aid Regulations, the legal aid in China primarily adopts the funding model led by the government and supported by the non-governmental sectors. The people’s governments above the county level should take positive measures to fi-nance legal aid and concurrently the state encourages the non-governmental sectors to donate for legal aid activities. However, for lack of detailed, standardized regulation, the expenditures for legal aid cannot be put in place. On the one hand, government fiscal appropriation, the main source of funding for legal aid, is significantly arbitrary and lacks strict restrictions. The blurry objects of expenditure and the vacancy of min-imum security funds for legal aid make the governments comparatively independently decide the budget and appropriation of funding for legal aid and the different local fiscal revenues and different attitudes to legal aid decide the drastic gap of the amount of finance for legal aid in different regions. Especially, some rural regions suffering comparative economic backwardness cannot have access to the funds for fundamental legal aid and the rural judicial organs assuming the primary responsibilities for basic level legal aid have too many problems to handle and make do with shabby facilities. On the other hand, widely raising social funds is also a vital source of funding for le-gal aid in China. During more than 20 years since its establishment in 1997, the China Legal Aid Foundation totally subsidized the handling of more than 470,000 cases con-cerning legal aid and directly benefited 16.4 million people. Since 2015, the Founda-tion has incessantly upgraded the supply capacity to provide non-profit legal services, energetically stepped up the deepening and implementation of the legal aid charity projects and grossly helped handle up to 200,000 legal aid cases which save economic losses of more than 12.9 billion yuan for more than 320,000 impoverished people. Nonetheless, the non-profit nature of legal aid decides that social donations follow the principle of voluntariness and consequently the shortage of effective management and supervision has exposed the development of the voluntary behaviors to hidden dan-gers.
C. The imbalance between inadequate aid funds and ever-increasing business activities
In recent years, with the attention and support of the Party and the state, the amount of legal aid funds have continuously risen. About 91.4 percent of the local governments nationwide have included the expenditure for legal aid in the financial budget, 23 provinces (municipalities, districts) have established provincial-level spe-cial funds for legal aid and 22 provinces have adjusted the standards for subsidizing the handling of such cases. In 2014, the local finance at all levels totally input more than 1.29 billion Yuan in legal aid, nine times of the figure before the promulgation of the Legal Aid Regulations. However, the problems of low starting point, imperfect su-pervision and chaotic management could not be thoroughly solved. With the expand-ing demands for rural legal aid, the awareness rate of legal aid has been continuously heightened and the overall growth of aid has been remarkably boosted. According to statistics, during the period of the 12th Five-Year Plan (2011-15), the Hunan provincial government designated personnel to handle 142,000 legal aid cases of all sorts with an average annual increase of more than 10 percent, provided legal counseling for more than 500,000 people and benefited up to 1million people. The increase of the handled cases indicates that more funds are needed as guarantee. Moreover, rural disputes display the features of diversity, complexity and confinement to certain groups, in ad-dition to the social environment featuring blending and integration of regulations on morality, laws and conventions. All these factors augment the difficulties in handling legal cases, increase the costs for rights maintenance and pose higher requirements for financial input in legal aid.
In line with the Legal Aid Regulations, the legal aid in China primarily adopts the funding model led by the government and supported by the non-governmental sectors. The people’s governments above the county level should take positive measures to fi-nance legal aid and concurrently the state encourages the non-governmental sectors to donate for legal aid activities. However, for lack of detailed, standardized regulation, the expenditures for legal aid cannot be put in place. On the one hand, government fiscal appropriation, the main source of funding for legal aid, is significantly arbitrary and lacks strict restrictions. The blurry objects of expenditure and the vacancy of min-imum security funds for legal aid make the governments comparatively independently decide the budget and appropriation of funding for legal aid and the different local fiscal revenues and different attitudes to legal aid decide the drastic gap of the amount of finance for legal aid in different regions. Especially, some rural regions suffering comparative economic backwardness cannot have access to the funds for fundamental legal aid and the rural judicial organs assuming the primary responsibilities for basic level legal aid have too many problems to handle and make do with shabby facilities. On the other hand, widely raising social funds is also a vital source of funding for le-gal aid in China. During more than 20 years since its establishment in 1997, the China Legal Aid Foundation totally subsidized the handling of more than 470,000 cases con-cerning legal aid and directly benefited 16.4 million people. Since 2015, the Founda-tion has incessantly upgraded the supply capacity to provide non-profit legal services, energetically stepped up the deepening and implementation of the legal aid charity projects and grossly helped handle up to 200,000 legal aid cases which save economic losses of more than 12.9 billion yuan for more than 320,000 impoverished people. Nonetheless, the non-profit nature of legal aid decides that social donations follow the principle of voluntariness and consequently the shortage of effective management and supervision has exposed the development of the voluntary behaviors to hidden dan-gers.
IV. Strategies to Improve the Rural Legal Aid System
It is imperative to practically solve the problems of rural residents so as to realize the sound objective of building a new socialist countryside. In 2015, the General Of-fice of the CPC Central Committee and the General Office of the State Council jointly published the Opinions on Improving the Legal Aid System which defines the require-ments for the coverage scope, quality control, resources guarantee and organizational leadership of legal aid and pinpoints the direction for the future legal aid undertaking. In 2017, the State Council issued the Program for Promoting Equalization of Basic Public Service during the 13th Five-Year Plan Period and made it clear once again that legal aid was one of the basic social service items and an important part of social aid. We should keep a sober mind over the deficiency of rural legal aid, properly work out the conflicts between system design and development requirements and build a rural legal aid system adaptable to China’s realities.
A. Expanding the rural legal aid teams and enhancing the quality of rural legal aid
To realize the objective of rural modernization, the Party and the state have de-cided the major strategic measures to build the new socialist countryside according to the requirements of developed productivity, higher incomes, the building of a rural civilization and clean rural environment and democratic management. Among them, to build a complete rural public legal service system and the law-based countryside is the focus of rural governance. To address the unbalanced supply and demand in the rural public legal service market, efforts should be made to unceasingly expand the rural legal aid teams and link the amount of supply with the ever-rising demand. First and foremost, work must be done to adjust the distribution status of the original legal resources teams, change the unconventional, unreasonable structure of distribution of legal aid in the cities and the countryside, appropriately increase the authorization for rural legal aid organs and lead the certified lawyers to the rural legal aid market. Then, the legal aid organs under the jurisdiction of the governments are not the sole main bodies to undertake legal aid and the legal aid teams built by the social groups, enterprises, public institutions, people’s organizations or other organizations are major participants in legal aid at the basic level. For instance, the “1+1” large-scale non-profit legal aid campaign initiated jointly by the Ministry of Justice and the Cen-tral Committee of the Communist Youth League called on and pooled together legal aid volunteers including some lawyers, undergraduates and grassroots legal service providers to devote themselves to the legal aid in Central and West China suffering relatively inadequate legal resources, which enormously expanding the teams of legal aid. Since the implementation of the project in 2009, the campaign has dispatched more than 1,300 legal aid volunteers to 392 counties (districts) in Central and West China for eight consecutive years, helped handle more than 54,000 legal aid cases, held more than 18,000 lectures on the law to raise residents’ awareness of the for law, provided high quality legal aid to up to one million needy people, solved up to 10,000 mass conflicts, directly benefited more than 15.7 million people and saved economic losses of up to 3 billion yuan. It should be pointed out that more and more individuals joined the promising rural society and delivered their endeavors to the rural legal aid undertaking. For instance, Hunan Qin Xiyan United Law Firm set up the “Non-profit Legal Aid Team for Payment for Migrant Workers” in 2003 and continuously con-tributed to getting payments that were in arrears for the migrant workers. As of 2017, it had successfully helped up to 30,000 migrant workers get wages in arrears totaling 300 million yuan.
The quality of legal aid is a crucial factor to measure legal aid. Only by realizing high quality legal aid can equal treatment and effective implementation of the rights and interests of rural residents be really guaranteed. For the time being, the main bod-ies in China participating in rural legal aid are different in professional quality and cannot guarantee the effects of legal aid. For this reason, it would be of great signif-icance to boost the overall professional knowledge and skills of the legal aid provid-ers and realize the normalization and specialization of the legal aid teams. First, the grassroots legal aid providers are the main bodies to practice rural legal aid. Utmost efforts should be made to effectively use the local legal resources and hold training and exchanges to boost the professional skills and ethics of the grassroots legal ser-vice providers, scientifically design the mode of examination and help them quickly become the pacesetters for grassroots legal aid. Second, some outstanding legal per-sonnel with rich experience and profound professional knowledge should be selected to join the rural legal aid teams to direct and help the rural legal service providers hold legal activities. The trial practice of arranging duty lawyers should be promoted to the rural society in a bid to progressively form the relatively fixed rural legal aid working system.
With only the participation of the authorized legal aid personnel, the surging demands for rural legal aid will not be satisfied and more social forces should be mobilized to join such campaigns to counteract the present defect of insufficient personnel. For instance, the staff of such organizations as the trade union, the women’s federations and the consumers’ associations often join the legal aid organs to form the conventional legal aid teams to provide more comprehensive and professional services for the objects of rural legal aid. Besides, the teachers and students of legal education organizations and the social groups equipped with legal knowledge and readily dedi-cated can be fully mobilized to help and participate in the rural legal aid campaigns to respond to the demands of the objects of aid in time and in detail.
B. Enhancing the farmers’ awareness of right and expanding the scope and channels of rural legal aid
Legal aid is a vital well-being project. The fundamental principles of focusing on the people and encouraging fairness and justice require for “maximal due aid” and provide handy legal aid to the ordinary people. The original conditions for legal aid cannot adapt to the new situation and circumstances driven by overall reforms and it is imperative to constantly adjust and modify the application of legal aid in line with the changing social situation.
Primarily, the correct concept of the rule of law and the necessary legal knowl-edge lay the foundation for creating a sound rural legal environment. For this reason, work must be done to popularize the laws and regulations, pertinently spread the basic policies on the legal issues and legal aid commonly seen in the work and life of the rural population, enhance rural residents’ awareness to safeguard their right and tell more rural residents the significance of legal aid and the ways to obtain it.
Second, in order that “the poor groups who cannot afford lawsuits” can get due legal aid, the items and scope of rural legal aid should be adjusted and the threshold concerned can be appropriately lowered. The standard of financial difficulty should not be unchangeable but adjustable at a proper time in line with the development level of the social economy. In addition, financial difficulty is only one of the circumstances for the application of legal aid rather than the only standard. It is of necessity to con-sider the status quo of the countryside, include such items as labor security, marriage, family, food, drug, education, medical care and land ownership closely concerning people’s well-being in the scope of rural legal aid, practically help the rural population to legitimately and effectively solve the problems in production, operation and social life and bring legal aid closer to life. In 2017, up to 30 provinces nationwide included such items as labor security, marriage, family, food, drug, education and medical care closely concerning people’s well-being in the supplementary scope of rural legal aid and 20 provincial governments doubled the standards of low income, minimum wages or subsistence allowances as the standards of subsidy for financial difficulty.5
For the convenience of the people and timely aid for them, the procedure for le-gal aid should be simplified. Efforts should be made to set up convenient windows in towns and villages, apply the modern information service measures including hotlines, the internet and e-platforms to expand legal aid channels, benefit more poverty-stricken rural residents and make legal aid, the tool to safeguard their right, useful and ac-cessible to the rural population.
C. Improving the rural legal aid fund guarantee system and giving full play to the government and society
Turning slogans into action will not do without resources. The sufficiency of hu-man resources and materials affects the results of behaviors. The shortage of funds is a main reason for the bottleneck of the rural legal aid system.
The legal aid in China was set up as a government-led model. Efforts should be made to further implement the government’s responsibility for legal aid, guarantee financial appropriation by the government for legal aid, clarify the structure and stan-dard of legal aid funds and ensure input in legal aid for the rural areas, especially the remote, backward regions. To effectively attract legal talents to participate in legal aid, considerations can be given to appropriately increase the subsidies for handling legal aid cases and leading the urban lawyers into the rural legal aid market as planned and paid by the government.
Given the reality of a relative shortage of resources, endeavors should be made to integrate social resources, positively win the support of social capital through diverse channels, flexibly expand legal aid popularization, draw social attention to the devel-opment of the undertaking of rural legal aid, attract the people from all walks of life to contribute their support and cement management and supervision for the established special legal aid funds to guarantee the use of funds as earmarked.
There’s no best only better safeguarding of human rights. The development of the equal rural population has a bearing on the overall social progress and is crucial for China’s economic and social growth. With government guidance and help, the rural area has taken on a new look and the rural residents are living an increasingly better life. However, the urban-rural discrimination still exists and further improve-ments should be made to guarantee the basic human rights of the rural population. The Opinion on Implementing the Rural Rejuvenation Strategy jointly released by the CPC Central Committee and the State Council in January 2018 clearly points out that: “It is imperative to build a complete legal aid system for the rural public and enhance legal aid and judicial aid for the rural population.” The legal aid system provides an effective way to dissolve the contradictions between the increasingly growing de-mands for legal aid in the rural areas and the relatively insufficient legal resources and is a significant move to implement the fundamental legal principle of respecting and safeguarding human rights. We have every reason to believe that with the great strate-gic arrangement of new rural construction we can change the unreasonable conditions featuring a large number of the aided while a small amount of aid providers and make the rural legal aid truly visible, accessible, affordable and well performed through the efforts of fulfilling support in personnel and funds guarantee, timely updating the con-cept of legal aid and constantly improving the legal aid system construction.
(Translated by JIANG Lin)
