The Period of the Kuomintang Government (1928-1949)
When the country was nominally unified in 1928 by the Kuomintang (KMT), after the victorious Northern Expedition,[308] Chinese society entered the era of the KMT government (1928-1949).
Although Chinese society was still not entirely stable, the economic and business environÂment changed drastically because of the wide array of effective social reforms conducted by the KMT government (also called the Golden Decade).[309] This social progress gave the KMT government the opportuÂnity to establish a state-run legal aid project across the country. A number of KMT elite bureaucrats had studied law and politics overseas in such places as Japan, the United States, Britain, Germany, and France.[310] Hence, they had direct knowledge of Western concepts of the rule of law as well as how to implement it. This spurred the growth of interest and engageÂment in pro bono work, human rights, access to justice, and public interÂest law in the KMT bureaucracy.Legal aid thus underwent a profound transformation from sporadic activity to an elaborate institution supported by multiple levels of players. It became centralised and delivered through an organised structure with actors including the legislature, courts, state governments, professional bar associations, lawyers, law schools, and non-profit public interest groups. The scope of legal aid was extended from the poor to others as well. Many local bar associations created and expanded legal aid societies and enacted new legal aid guidelines to support lawyers engaging in legal aid. Legal aid work was also widely embedded into lawyers’ pro bono legal service as well as social-cause-oriented legal practice. To engage in legal aid and pro bono work was now widely recognised as lawyers’ inherent professional responsibilities that should be performed by every lawyer.
Following the Japanese legal system as well as the European civil law system (notably Germany and France), the Six Laws[311] were promulgated by the Chinese Legislative House as a cornerstone of the Chinese legal system. Since the legal aid project was broadly recognised as a symbol of Western ideas about the rule of law, both the rules of civil and criminal procedure were rewritten to focus on the provision of legal aid. In newly revised civil procedure rules, civil assistance was separated into an indepenÂdent chapter and the old law was rewritten using modern legal language. More importantly, how one applied for legal assistance was simplified. The scope of civil assistance was also expanded. For instance, assistance was now available for complaints that did not go to court.[312]
In the field of criminal procedure, in 1928, the institution of the public defender was adopted. The first public defenders’ office had been estabÂlished in California in 1914. Chinese legislation set forth the necessary qualifications of public defenders, the scope of the cases that it would handle, and the application process. This law was again revised in 1935. Chinese legal scholars believed that the establishment of the public defender was a keystone in establishing equal access to justice for the poor.[313] To further implement this system across the country and to supÂport the operation of the public defender system, the KMT government enacted the Public Defender Codes. Between 1940 and 1947, a total of 53 cities in China were selected by the KMT government as a test field for the public defender system.[314] This practice was stopped, however, as the CCP government replaced the KMT government in 1949.
Social developments created a boom in the Chinese legal services marÂket. This resulted in a high number of local qualified legal professionals trained in modern law. Likewise, legal education in these decades became highly professionalised.
As an autonomous profession, the bar and indiÂvidual lawyers sought to promote social change and equal access to justice for common people. The growing number of legal professionals also accelÂerated the establishment of organised bar associations across the country.[315] In the era of the KMT government, Chinese bar associations became autonomous and as elite social organisations had the power to influence state policy making for the well-being of society.[316] As a direct result of these developments, legal aid was not merely provided by individual lawyers. Rather, it was institutionalised through the organised bar across the country.[317]Bar associations believed that providing legal aid to everyone should be an inherent professional commitment. In 1933, the managing committee of the Bar Association of the Republic of China, the nationwide bar assoÂciation in China, submitted a proposal to the Ministry of Judicial Administration, a state bureaucratic department, suggesting the establishÂment of local legal aid societies affiliated with local bar associations. The scope of legal aid was expanded from the poor to anyone who needed legal assistance. Chinese lawyers’ pro bono work was also transformed from voluntary work to an inherent part of a lawyer’s professional obligaÂtion. The Ministry of Judicial Administration approved this initiative, and in 1934, promptly passed the Temporary Regulations on the Society of Legal Aid for the Poor, which stipulated that local bar associations could provide assistance to the building of societies for legal aid in order to provide pro bono legal services to the poor. The local bar associations would recruit lawyers to voluntarily participate in these societies for legal aid. These lawÂyers could give their billable hours to the poor as volunteers.[318]
In 1935, the Ministry of Judicial Administration initiated a draft of a lawyers’ law to replace the Lawyers' Interim Code, which was recognised as lagging behind the rapid development of Chinese lawyering.
Legal aid was written into the chapters of the bar associations’ regulations.[319] Legal aid projects were attached to local bar associations and became their responsiÂbility. The draft stipulated that local bar associations would have an obligaÂtion to provide legal aid for the broader public. When the lawyers’ law was promulgated in 1941, lawyers’ and bar associations’ duty of legal aid became regulated by state law.To further ensure that this obligation was met in practice and not just in theory, the Ministry requested that all local bar associations enact related pro bono guidelines that covered the lawyers’ designation, funding resources, the scope of legal aid, annual reports, evaluation systems, awards, and sanctions.[320] According to statistical data, 81 bar associations in 15 provinces promulgated legal aid guidelines between 1942 and 1947. This meant that providing pro bono legal services was unanimously seen as an inherent professional obligation. Furthermore, every lawyer was required to donate billable hours to those who needed legal aid. Chinese lawyers’ volunteer pro bono participation increased from 1935 onwards.[321] In 1941, lawyers’ pro bono legal services were extended to include the provision of legal aid in civil law suits, criminal law suits, non-lawsuit cases, and free legal consultations, as well.
Additionally, a remarkable feature in the transition of the organised bars was the integration of public interest lawyering into the daily work of Chinese lawyers. Public interest lawyering—which involved lawyers’ colÂlective action in advocating for political liberalism, social justice, and civil rights—had slowly become a critical part of the role of the organised bar. In this time period, many Chinese lawyers perceived part of their profesÂsional duties to be public interest-oriented. In addition to their paid pracÂtice, they were “judges out of office,” an independent political force promoting social change and the protection of human rights by using their legal skills.
Many professional lawyers wanted to provide legal aid to challenge arbitrary state actions and to contribute to the public good.[322]The KMT government was fiercely criticised for its repressive policies, especially towards left-wing Chinese democratic forces, including the CCP. Police and military forces were widely—and illegally—used. This resulted in social activists, and others who challenged the KMT’s power, being unlawfully arrested and jailed without trial. Because such behaviour was broadly understood as an arbitrary application of state power, public interest activists relied heavily on the volunteer legal services that had emerged. For example, lawyers who were politically liberal voluntarily proÂvided legal assistance in the trials in Shanghai of the first generation of CCP leaders, including that of Chen Duxiu and Chen Yannian.[323]
A milestone political event in China was the 1936 trial of left-wing social activists. Their arrest was widely seen as the state abusing its power. The Shanghai Bar Association and the Wuxian Bar Association called on over 20 volunteer lawyers associated with a public interest organisation, the National Salvation Association, to collectively provide free legal aid services.[324] As a result, the KMT government decided to drop the charges.
Many Chinese legal professionals who were politically liberal were embedded in political movements that pursued social justice. In this era, lawyers and legal scholars studied Western legal institutions and practices[325] that provided compensation for wrongful detention and conviction.[326] These lawyers recognised the importance of pursuing state compensation as a means to advance the protection of human rights. In 1931, the SBA launched the nationwide movement called “Compensation for Wrongful Detention and Conviction.” Lawyers who were members of the SBA volÂuntarily submitted a proposal three times to the National Conference callÂing for the establishment of a special compensation committee for the purpose of obtaining such compensation and as a method for advancing social justice.
The SBA attorneys argued that the primary reasons for wrongful detention and conviction in China involved corruption and the government abusing its power. The proposal would have required the KMT government to create codes and regulations to ensure that victims received compensation. The KMT government and the Legislative House never responded to these proposals.[327]In 1934, the Bar Association of the Republic of China established a special committee for compensation for those wrongfully detained and convicted. This committee was charged with creating an agenda for collecÂtive action, conducting events, and seeking support from donors including bar associations, public interest organisations, newspapers, and law schools. In the first committee meeting, 41 volunteer lawyers were elected to the committee, including 7 well-known lawyers as standing members. In 1935, the committee enacted the lawyers’ conduct code for compensation for wrongful detention and conviction. It declared 5th June as the Day of Wrongful Detention and Conviction and requested local bar associations to establish divisions for wrongful detention and conviction. Moreover, linking many social forces, including the left-wing media, public interest organisations, and foreign charitable institutions, the committee acquired support from the public. This resulted in the movement becoming a hot topic in mainstream newspapers, magazines, and radio stations. Through the public media, it became a social movement for human rights advocacy across the country.[328]
In 1942, courts were requested to provide legal aid services through the Civil and Criminal Litigation Inquiry Division. Because litigants conÂtinuously complained that Chinese procedures were too complex to be handled without a lawyer, the Ministry of Judicial Administration promulÂgated the General Regulations of Civil and Criminal Litigation Inquiry Division in Inferior Courts to request that Chinese local courts establish Civil and Criminal Litigation Inquiry Divisions in which courts would assign legal officers to provide legal consultations without any fee. Between 1942 and 1947, 380 stations were created in 18 provinces. This reform embodied the fact that the legal aid project had been implemented inside the court system.[329]
In the third era of Chinese legal aid history (1928-1949), legal aid was increasingly institutionalised and became well-established. It no longer depended on dispersed and sporadic work by a small group of individual players, but rather there were now networked advocates that consisted of professionals, professional associations, various departments of the state, courtrooms, law-making institutions, public interest organisations, and law schools. Moreover, Western legal institutions involving legal aid were introduced or transplanted to the Chinese legal system by the KMT govÂernment. Furthermore, individual lawyers, organised bars, as well as pubÂlic interest organisations expanded in China. This situation increased pressure to adopt Western ideas of the rule of law and political liberalism.
The Period of the People’s Republic of China (1949-2003)
When the Chinese Communist Party founded the People’s Republic of China (PRC) in 1949, the entire legal system of the KMT was repealed by the CCP government. Only a very limited number of professional lawyers licensed by the KMT government still took legal aid cases. Legal aid was now governed by a temporary provision which allowed for some free legal assistance in alimony, child support, or elderly support payments for those who were unable to afford a lawyer’s fee.[330]
After this, the anti-rightist movement and the Cultural Revolution creÂated social chaos throughout China from the late 1950s to the end of the 1970s. The legal system collapsed and professional lawyers were seen as the so-called class enemy. A majority of professional lawyers were put into “rehabilitation” camps. Law firms as well as law schools were closed. Legal aid work thus vanished for over 20 years (1956-1978).[331]
In 1978, when the Cultural Revolution ended, the Chinese central government along with the CCP central committee carried out the transÂformational “Reform and Open Up” campaign. The Chinese legal system, including the legal profession, entered a revival period. The PRC Code of Criminal Procedure promulgated on 1 July 1979 contained two clauses addressing legal aid for criminal defendants. In 1980, the Chinese government appointed lawyers to provide legal aid for the criminal defence of the “Gang of Four,” who were seen as responsible for the Cultural Revolution.[332] Moreover, in the 1980s, legal aid was sporadically provided in several large cities (e.g., Guangzhou, Beijing, and Wuhan).[333] Yet, it was not until the 1990s that the state-run legal aid system was fully reÂestablished. The primary reason for this was that the government did not build up related institutions to support the provision of legal aid. For example, there continued to be only a limited number of state-employed lawyers practicing law.
In the 1990s, responding to rapid global change, Chinese legal aid witnessed a sudden boom. To embrace the global economy, many transÂnational legal institutions (e.g., the WTO and the World Bank) worked to promote the value of the rule of law across countries and cultures.[334] Particularly international treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, were broadly recognised as a global rule for equal access to justice that should be followed by all signatory countries. If the provision of legal aid was well established and extensively implemented in a country, it served as a vital symbol for a legal system’s implementation of the rule of law.[335] For typical post-socialist countries (e.g., Russia and China), conÂducting legal reform movements to implant Western-style laws and proceÂdures to enforce the rule of law was a strategy to integrate into the global economy.[336]
No doubt, the Chinese government has made efforts to implement a legal aid system to meet the globalised standards of the rule of law. At the start of the 1990s, organised legal aid practices were performed by either governmental or non-governmental institutions. The first organised legal aid centre in China, the Center for the Protection of the Rights of Disadvantaged Citizens (CPRDC), was founded at Wuhan University in 1992, by Professor of Law, Wan E’xiang, who had studied at Yale Law School.[337] The centre focused on providing legal aid to any disadvantaged person (typically women, children, immigrant workers, elders, or the disÂabled) for all types of lawsuits (criminal, civil, and administrative). Moreover, the centre was responsible for law students’ clinical pro bono training.
Local justice bureaus in several large metropolitan cities such as Beijing, Guangzhou, and Shanghai initiated efforts to conduct legal aid. Their work included providing pro bono legal consultations to the poor and performing local courts’ legal aid appointments for litigants unable to pay litigation fees.[338]
In 1994, the Chinese government decided to establish a state-run legal aid system for the purpose of implementing the globalised principle of equal access to justice and human rights.[339] This resulted in the Chinese government signing many international treaties[340] involving legal aid in the following years.[341] In the same year, Xiao Yang, the Minister of Justice, officially declared efforts to build a legal aid system as compatible with socialism with Chinese characteristics. A nationwide effort on legal aid was thus launched in this period. In 1996, the Chinese National People’s Congress revised the code of criminal procedure. In this new version, the term “legal aid” was written into the criminal procedures of the PRC for the first time. Article 34 stipulates, “If a case is to be brought to court by a public prosecutor and the defendant involved has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People’s Court may designate a lawyer that is obligated to provide legal aid to serve as a defender. If the defendant is blind, deaf, or mute, or if he or she is a minor, and thus has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.”
The PRC Lawyers' Law took effect in 1997 to guide the conduct of Chinese lawyers. An entire chapter was devoted to legal aid. The chapter stipulates that Chinese lawyers have an obligation to fulfil their legal aid commitment based on state laws and regulations. When Chinese citizens need a lawyer’s assistance in a case involving criminal procedure, elders claiming alimony, work-related injuries, state compensation applications, or pension applications, but are unable to pay lawyers’ fees, they are qualiÂfied to receive legal aid.
Meanwhile, the Chinese government built a nationwide legal aid netÂwork along with a legal aid foundation to support state-run legal aid work.[342] In 2003, the PRC Code of Legal Aid took effect. It was the first administrative code to systematically regulate legal aid in the PRC. It stated that citizens are eligible to apply for legal aid through the state-run legal aid centre for cases involving state compensation, pension applicaÂtions, elder support fee applications, and wage claims.[343] Also, this was the first time that lawyers’ obligations to provide legal aid were written into the official code in the PRC. In tandem with this code, local justice bureaus run by the state enacted their own codes to regulate how they operated. Thus, state-run legal aid became prevalent in China.
In addition to their involvement in the state-run legal aid system, Chinese lawyers began to fulfil their pro bono commitment when the govÂernment undertook the reform of the legal profession. Local governments requested professional lawyers to routinely donate billable hours to stateÂrun legal aid cases. For example, the Shenzhen government requested that local lawyers take on at least two legal aid cases every year.[344]
In the 1990s, the Ford Foundation also played a key role in offering financial support to lawyers engaged in Chinese pro bono work, public interest law, as well as legal education. The American model of legal eduÂcation was transplanted to China around 2000, with the establishment of clinical training in Chinese law schools. Such clinical training programmes were first established at seven Chinese law schools all financially supported by the Ford Foundation.[345] Chinese law schools have since accepted it as a way to instil in their students the value of pro bono work.
Meanwhile, many transnational NGOs (including the Ford Foundation) began supporting public interest lawyering across the globe including in the PRC.[346] Well-known Chinese public interest lawyers, including Tong Lihua and Guo Jianmei, began to provide public interest-related legal services in China. Such lawyers engaged in delivering free legal aid to disadvantaged groups, including women (Guo Jianmei) and children (Tong Lihua). Guo and Tong both took on the mantle of also being human rights activists who addressed gender bias and helped raise awareÂness of children’s rights in China. In 1995, Guo founded the women’s rights centre affiliated with Beijing University which was sponsored by the Ford Foundation.[347] The legal aid centre for youth was established in 1999 by Tong Lihua.[348] In 2003, international public interest law institutions became involved in the development of Chinese legal aid. PILnet, a leadÂing institute for global public interest law, appointed two Chinese lawyers as PILnet Chinese Fellows, whose role was to advocate for public interest lawyering and promote lawyers’ involvement in legal aid.[349]
Discussion and Conclusion
This chapter has traced and mapped the historical development of Chinese legal aid from 1890 to 2003. It is a long history, during which China implanted legal institutions from the West in order to establish a legal system based upon the rule of law. The work has resulted in today’s highly globalised Chinese society and community. Followed by a historical analyÂsis at both the individual and the institutional level, my research suggests that transnational or so-called global diffusion does not merely occur in the present. Rather, the history of Chinese legal aid embodies the evoluÂtion of globalisation and its power to build or disrupt in the Chinese conÂtext for over a hundred years. From its birth to its revival, Chinese legal aid has been an ongoing project requiring the involvement of multiple playÂers, including the state, courts, bar associations, scholars, lawyers, public interest organisations, and law schools.
Building the legal aid project was seen by many actors as an inherent element of implanting concepts of the Western rule of law in China. Importantly, such people were embedded in various institutions and advoÂcated for the rule of law in a dynamic context. The history of legal aid in China gives us insights for future research into how a classical model of global diffusion may work in similar emerging economies (e.g., India, Brazil, and South Africa) around the world. In terms of China, its experiÂence with the globalisation of law shows that in developing countries, the efforts were not solely dependent on the state and that understanding this movement requires a focus on more than a one-dimensional account of the transplantation of Western laws and regulations. Rather, the current research shows a complex and collaborative work environment in which individuals and institutional actors in government, the judicial system, the legal market, law schools, and civil society worked closely together to proÂmote legal reforms that enabled access to social justice for the broader public.