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Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Justice on Gradually Implementing the System of Representation of Petitioners by Lawyers [Effective]
最高人民法院、最高人民检察院、司法部关于逐步实行律师代理申诉制度的意见 [现行有效]
【法宝引证码】

Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Justice on Gradually Implementing the System of Representation of Petitioners by Lawyers 

最高人民法院、最高人民检察院、司法部关于逐步实行律师代理申诉制度的意见

(No. 8 [2017] of the Supreme People's Court, April 1, 2017) (2017年4月1日 法发〔2017〕8号)

Representation of the parties by lawyers in petition cases is an important way of protecting the right of the parties to lodge petitions according to the law, satisfying the requirements of rule of law in petition cases, promoting judicial impartiality, enhancing public confidence in the judiciary, and maintaining judicial authority. For the purpose of implementing the Decision of the CPC Central Committee on Major Issues concerning Comprehensively Promoting the Rule of Law and the Opinions of the Commission of Politics and Law of the CPC Central Committee on Establishing the System of Lawyers' Participation and Representation in the Resolution of Public Complaint Cases Involving Legal Issues or Litigation, representation by lawyers shall be gradually implemented in petitions against effective judgments, rulings, and decisions of judicial authorities. In accordance with the relevant laws and in view of the practices in the administration of law, these Opinions are developed. 实行律师代理申诉制度,是保障当事人依法行使申诉权利,实现申诉法治化,促进司法公正,提高司法公信,维护司法权威的重要途径。为贯彻落实《中共中央关于全面推进依法治国重大问题的决定》和中央政法委《关于建立律师参与化解和代理涉法涉诉信访案件制度的意见》,对不服司法机关生效裁判和决定的申诉,逐步实行由律师代理制度。根据相关法律,结合人民司法工作实际,制定本意见。
I. Insisting on the principles of equality and free will: Against the effective judgments, rulings and decisions of the people's courts or the effective decisions of the people's procuratorates, the parties may, on their own initiative, retain lawyers to lodge petitions; and the people's courts and people's procuratorates may direct petitioners and respondents to retain lawyers to represent them in petition procedures.   一、坚持平等、自愿原则。当事人对人民法院、人民检察院作出的生效裁判、决定不服,提出申诉的,可以自行委托律师;人民法院、人民检察院可以引导申诉人、被申诉人委托律师代为进行。
A petitioner failing to be represented by a lawyer due to financial hardship may apply to a legal aid agency for representation by a lawyer. 申诉人因经济困难没有委托律师的,可以向法律援助机构提出申请。
II. Improving working mechanisms for the convenience of the people: By relying on pro bono legal service providers and legal aid agencies, multiple channels shall be provided for the parties seeking legal services and legal aids, via Internet platforms and legal service hotlines, among others.   二、完善便民工作机制。依托公益性法律服务机构和法律援助机构,运用网络平台,法律服务热线等多种形式,为当事人寻求律师服务和法律援助提供多元渠道。
III. Exploring the establishment of a working system of stationed lawyers: The people's courts and the people's procuratorates may set up special rooms at the litigation service halls and other places with necessary office equipment where lawyers stationed by the law societies provide legal consulting and other services. A petitioner not represented by a lawyer may be first directed by a people's court or a people's procuratorate to receive legal advice from a stationed lawyer. A legal aid agency shall arrange for lawyers to provide petitioners with free legal consulting services over issues involved in the petitions.   三、探索建立律师驻点工作制度。人民法院、人民检察院可以在诉讼服务大厅等地开辟专门场所,提供必要的办公设施,由律师协会派驻律师开展法律咨询等工作。对未委托律师的申诉人到人民法院、人民检察院反映诉求的,可以先行引导由驻点律师提供法律咨询。法律援助机构安排律师免费为申诉人就申诉事项提供法律咨询。
IV. Specifying the scope of and conditions for legal aid: A petitioner applying for legal aid shall satisfy the standard of financial hardship for legal aid and the scope of matters as specified in the Regulation on Legal Aid and the local regulations and rules on legal aid, with a statutory cause of petition and a specific factual basis.   四、明确法律援助范围条件。申诉人申请法律援助应当符合《法律援助条例》、地方法律援助法规规章规定的法律援助经济困难标准和事项范围,且具有法定申诉理由及明确事实依据。
The scope of legal aid shall be expanded, and the standard of financial hardship shall be further relaxed, so that the scope of legal aid will gradually extend to low-income groups. 扩大法律援助范围,进一步放宽经济困难标准,使法律援助范围逐步拓展至低收入群体。
V. Standardizing the legal aid procedures for representation by lawyers in petitions: To apply for legal aid, a petitioner shall file an application with the legal aid agency under the same-level justice administrative authority at the place where the people's court rendering the effective judgment, ruling or decision is located or the legal aid agency under the same-level justice administrative authority at the place where the people's procuratorate making the criminal disposition decision to close criminal proceedings is located. Where a petition has been accepted by a people's court or a people's procuratorate, the application shall be filed with the legal aid agency under the same-level justice administrative authority at the place where the people's court or the people's procuratorate is located.   五、规范律师代理申诉法律援助程序。申诉人申请法律援助,应当向作出生效裁判、决定的人民法院所在地同级司法行政机关所属法律援助机构提出,或者向作出人民检察院诉讼终结的刑事处理决定的人民检察院所在地同级司法行政机关所属法律援助机构提出。申诉已经人民法院或者人民检察院受理的,应当向该人民法院或者人民检察院所在地同级司法行政机关所属法律援助机构提出。
Deeming that the conditions for legal aid are met upon examination, a legal aid agency shall designate a lawyer for the petitioner, and in a letter, notify the people's court or the people's procuratorate of the name of the designated lawyer. 法律援助机构经审查认为符合法律援助条件的,为申诉人指派律师,并将律师名单函告人民法院或者人民检察院。
VI. Expanding the scope of lawyers' services: During their representation of petitioners, lawyers may carry out the following work: listening to the petitioner's claims, inquiring about case information, and providing legal consulting; carefully explaining the law to the petitioner if as determined after examination, it does not meet the conditions for the people's court or the people's procuratorate to open a petition case; preparing legal instruments on behalf of the petitioner and accepting representation of the petitioner if as determined after examination, it meets the conditions for the people's court or the people's procuratorate to open a petition case; assisting in application for legal aid if as determined after examination, the conditions for legal aid are possibly met; and after accepting representation, submitting petition materials and receiving process on behalf of the petitioner, and representing the petitioner in a hearing, interview, interrogation, and court session, among others .   六、扩大律师服务工作范围。律师在代理申诉过程中,可以开展以下工作:听取申诉人诉求,询问案件情况,提供法律咨询;对经审查认为不符合人民法院或者人民检察院申诉立案条件的,做好法律释明工作;对经审查符合人民法院或者人民检察院申诉立案条件的,为申诉人代写法律文书,接受委托代为申诉;经审查认为可能符合法律援助条件的,协助申请法律援助;接受委托后,代为提交申诉材料,接收法律文书,代理参加听证、询问、讯问和开庭等。
VII. Improving the examination procedures for opening a petition case: After accepting representation of a petitioner, a lawyer may submit petition materials at a petition reception site of the people's court or the people's procuratorate or by mail, an online petition platform, a remote video reception system, or a lawyer services platform, among others.   七、完善申诉立案审查程序。律师接受申诉人委托,可以到人民法院、人民检察院申诉接待场所或者通过来信、网上申诉平台、远程视频接访系统、律师服务平台等提交申诉材料。
If the materials submitted do not satisfy the prescribed requirements, the people's court or the people's procuratorate may notify the lawyer of making supplementation and/or correction during a specified period, but shall notify the lawyer of all required supplements and/or corrections at one time. If the aforesaid supplements and/or corrections are not submitted during the period as specified in the notice, the people's court or the people's procuratorate shall not accept the petition. 提交的材料不符合要求的,人民法院或人民检察院可以通知其限期补充或者补正,并一次性告知应当补充或者补正的全部材料。未在通知期限内提交的,人民法院或者人民检察院不予受理。
For a petition meeting the conditions prescribed by the law, a people's court or a people's procuratorate shall receive the materials, and according to the law, conduct examination for opening a petition case. Determining that the conditions for opening a petition case are not met after examination, it shall notify in writing the petitioner and the lawyer of the petitioner. 对符合法律规定条件的申诉,人民法院、人民检察院应当接收材料,依法立案审查。经审查认为不符合立案条件的,应当以书面形式告知申诉人及代理律师。
VIII. Respecting the opinions of lawyers of petitioners: A people's court or a people's procuratorate shall carefully examine the petitions submitted by lawyers on behalf of petitioners, and complete examination within the time limit prescribed by the law.   八、尊重代理申诉律师意见。人民法院、人民检察院应认真审查律师代为提出的申诉意见,并在法律规定期限内审查完毕。
Holding that a petition is unfounded, a people's court or a people's procuratorate shall issue a legal instrument to the petitioner according to the law, with a copy thereof concurrently served on the lawyer of the petitioner. Holding that there is an error in the case involved, it shall correct the error according to the law. Holding that the case involved is flawed, it shall take appropriate corrective and remedial measures according to the law. 对经审查认为申诉不能成立的,依法向申诉人出具法律文书,同时送达代理律师。认为案件确有错误的,依法予以纠正。认为案件存在瑕疵的,依法采取相应补正、补救措施。
IX. Protecting the right to consult case files and the meeting right of lawyers of petitioners: Rooms for consultation of case files and meeting by lawyers shall be set up in the litigation service halls or public complaint reception sites, to ensure convenient consultation, excerption and copying of case materials by lawyers. Charges for copying relevant materials by lawyers designated by legal aid agencies shall be waived. Where conditions permit, online case file consultation services may be provided.   九、依法保障代理申诉律师的阅卷权、会见权。在诉讼服务大厅或者信访接待场所建立律师阅卷室、会见室。为律师查阅、摘抄、复制案卷材料等提供方便和保障。对法律援助机构指派的律师复制相关材料的费用予以免收。有条件的地区,可以提供网上阅卷服务。
X. Protecting the personal safety of lawyers of petitioners according to the law: A people's court or a people's procuratorate shall halt in a timely manner according to the law any illegal acts occurring at the stations or in the process of representation of petitioners that may endanger lawyers' personal safety, fix evidence, and appropriately deal with the illegal acts.   十、依法保障代理申诉律师人身安全。对在驻点或者代理申诉过程中出现可能危害律师人身安全的违法行为,人民法院或人民检察院要依法及时制止,固定证据,并做好相关处置工作。
XI. Improving the public disclosure mechanism for petitions conducted by lawyers on behalf of petitioners: A people's court or a people's procuratorate may publicly disclose the procedures for opening and examining a case where the petitioner is represented by a lawyer, unless the public disclosure is prohibited by the law, the parties disagree to the public disclosure, or the public disclosure is otherwise inappropriate, and notify the petitioner and the lawyer of the petitioner of the examination results. For a difficult or complex case, the petitioner and the lawyer of the petitioner may apply for a public hearing, and the people's court or the people's procuratorate may hold a public hearing upon application or in its own capacity, and invite experts in relevant fields, deputies to the people's congress, CPPCC members, representatives of the public, and other third parties in the society to attend the hearing. 老婆觉得我剪头发浪费钱  十一、完善律师代理申诉公开机制。对律师代理的申诉案件,除法律规定不能公开、当事人不同意公开或者其他不适宜公开的情形,人民法院、人民检察院可以公开立案、审查程序,并告知申诉人及其代理律师审查结果。案件疑难、复杂的,申诉人及其代理律师可以申请举行公开听证,人民法院、人民检察院可以依申请或者依职权进行公开听证,并邀请相关领域专家、人大代表、政协委员及群众代表等社会第三方参加。
XII. Exploring the establishment of an online working platform for petitions conducted by lawyers on behalf of petitioners: By utilizing information technology, exploration shall be made for establishing a video petition system between law firms and legal aid agencies and the people's courts and people's procuratorates, and lawyers are encouraged to carry out work through video; and a reception platform for petitions lodged by lawyers on behalf of petitioners shall be developed to achieve the interconnection and sharing of open petition information of the people's courts and the people's procuratorates.   十二、探索建立律师代理申诉网上工作平台。运用信息技术,探索建立律师事务所、法律援助机构与人民法院、人民检察院之间视频申诉系统,鼓励律师通过视频形式开展工作;开发律师申诉接待平台,实现与人民法院、人民检察院可公开申诉信息的互联互通、共享共用。
XIII. Establishing a multilevel funding guarantee mechanism: Petitioners meeting the legal aid conditions shall be included in legal aid. If a petition is lodged by a lawyer on behalf of the petitioner for the public good, coordination shall be conducted with relevant departments in seeking funding and purchasing services, under the support of the party committees and politics and law committees. Expenses incurred by lawyers for providing such services shall be fully covered by the funding, and appropriate subsidies and incentives shall be provided to them.   十三、建立多层次经费保障机制。对符合法律援助条件的申诉人,纳入法律援助范围。律师代理申诉属于公益性质的,依靠党委政法委,协调有关部门争取经费,购买服务。全额支付律师在提供服务过程中产生的费用,并给予适当补助及奖励。
Where a petitioner retains a lawyer of its own accord, they may negotiate the lawyer's representation fees at their free will according to the Measures for the Administration of Lawyer's Fees爱法律,有未来. 对申诉人自行聘请律师代理的,可以按照《律师服务收费管理办法》,由双方自愿协商代理费用。
The funding guarantee for legal aid shall be strengthened, and the subsidization standards for petition legal aid cases shall be specified, to ensure that the funding guarantee level satisfies the needs of providing legal aid for representation by lawyers in petition cases. 加强法律援助经费保障,明确申诉法律援助案件补贴标准,确保经费保障水平适应开展法律援助参与申诉案件代理工作需要。
XIV. Establishing a quality supervision mechanism for representation in petition cases: The justice administrative department shall direct local bar associations to regard the performance of lawyers in representing petitioners as an important indicator for the inspection and assessment of law firms and the annual practicing assessment of lawyers.   十四、建立申诉案件代理质量监管机制。司法行政部门指导当地律师协会将律师代理申诉业绩作为律师事务所检查考核和律师执业年度考核的重要指标。
XV. Strengthening the practicing management of lawyers in representing petitioners: Where, in representing a petitioner, a lawyer, in violation of the Lawyers Law of the People's Republic of China, the Measures for the Administration of the Practice of Law by Lawyers, and other provisions, instigates, abets, or arranges for a petitioner to express claims by illegal means; makes distorted or misleading publicity or comment to maliciously cause media attention to the case by using case information obtained during his or her representation of the petitioner; enters into a contingent fee retainer with a petitioner; or when providing legal services as a lawyer stationed at the people's court or the people's procuratorate, receives any other party or induces any other party to enter into a retainer by making false promises, claiming explicitly or implicitly any special relationship with the judicial authorities, or other means, the justice administrative department shall impose administrative punishment on or the bar association shall take disciplinary action against the lawyer. If the lawyer is suspected of a crime, the lawyer shall be held criminally liable according to the law.   十五、强化律师代理申诉执业管理。对律师在代理申诉过程中,违反《中华人民共和国律师法》《律师执业管理办法》等规定,具有煽动、教唆和组织申诉人以违法方式表达诉求;利用代理申诉案件过程中获得的案件信息进行歪曲、有误导性的宣传和评论,恶意炒作案件;与申诉人签订风险代理协议;在人民法院或者人民检察院驻点提供法律服务时接待其他当事人,或者通过虚假承诺、明示或暗示与司法机关的特殊关系等方式诱使其他当事人签订委托代理协议等行为的,司法行政部门或者律师协会应当相应给予行业处分和行政处罚。构成犯罪的,依法追究刑事责任。
A people's court or a people's procuratorate shall, when discovering any violations of laws and regulations by lawyers, provide recommendations on punishment or disciplinary action to the justice administrative department or the bar association. The justice administrative department or the bar association shall, after verification, notify the recommending authority of the results in a timely manner. 人民法院、人民检察院发现律师存在违法违规行为的,应当向司法行政部门、律师协会提出处罚、处分建议。司法行政部门、律师协会核查后,应当将结果及时通报建议机关。
XVI. Establishing and improving the incentive mechanism for representation of petitioners by lawyers. The people's courts, the people's procuratorates and the justice administrative departments shall create a favorable atmosphere for supporting lawyers' representation of petitioners. More training and guidance on lawyers' representation of petitioners shall be provided, and lawyers shall be motivated to represent petitioners by considering the performance of their representation of petitioners as an important factor in the competition for the titles of excellent law firms and outstanding lawyers, conferring special awards on a regular basis, offering preferences in the cultivation of a talent pool, project distribution, development support, and case-handling subsidization, among others, giving priority to recruiting outstanding lawyers in this regard as judges and prosecutors under same conditions, and other measures.   十六、建立健全律师代理申诉激励机制。人民法院、人民检察院、司法行政部门要营造支持律师开展代理申诉工作的良好氛围。全面加强律师代理申诉业务培训和指导,通过将代理申诉业绩作为评选优秀律师事务所、优秀律师等重要条件,定期开展专项表彰,在人才培养、项目分配、扶持发展、办案补贴等方面给予倾斜,同等条件下优先招录表现优异的律师作为法官、检察官等措施,调动律师代理申诉的积极性。
XVII. Strengthening coordination and cooperation of relevant departments: The relevant departments across the country shall, under the leadership of the party committees, form joint forces. Based on the actual local circumstances, they shall further specify relevant rules, impel the comprehensive implementation of the work, promote rational expression of claims and rights protection according to the law, and effectively protect the lawful rights and interests of the people.   十七、加强有关部门协调配合。各地区有关部门要依靠党委领导,形成工作合力。根据地区实际,进一步细化相关制度,推动工作全面开展,促进形成理性表达、依法维权的导向,切实维护人民群众合法权益。
The people's courts, the people's procuratorates, the justice administrative departments, and the bar associations shall establish a joint meeting system to communicate on work with each other on a regular basis, jointly study and solve the major issues existing in lawyers' representation of petitioners, vigorously promote legislation on lawyers' representation of petitioners based on the actual local circumstances, and raise the level of rule of law. 人民法院、人民检察院、司法行政部门、律师协会建立联席会议制度,定期沟通工作情况,共同研究解决律师代理申诉工作中的重大问题,根据各地实际,积极推进律师代理申诉立法工作,提高法治化水平。
     
     
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