[Legal Life] Ch22 Short on Cash or Clueless About Litigation? The Legal Aid System Comes to the Rescue!

As the case is transferred to the juvenile court, Tu P'ing gradually feels the crushing weight of guilt, remorse, and overwhelming pressure regarding the potential sanctions he may face. Having spent his days hanging out with gang leader T'ai-sheng, only smoking, drinking, collecting debts, and getting into fights, he never had time to calm down and ponder his life. Consequently, when confronted with such a predicament, he has absolutely no idea what to do, let alone how to handle legal defense and litigation strategies. With no clue what lies ahead or how to respond in juvenile proceedings, his head is spinning...

The Origin of Legal Aid

Most people view the law as profound, abstract, and difficult to comprehend. Even law school graduates, having studied relevant subjects for four to five years, cannot possibly master every legal issue. Therefore, in an era where laws are constantly revised and litigation systems become increasingly complex, legal services have developed into a specialized form of professional supply; accompanied by this is the generation of considerable costs for legal consultation and court fees. Consequently, apart from a handful of people and corporations at the very top of the economic pyramid, such expenses and talent selection pose significant burdens and confusion for ordinary individuals. Because of this, citizens often abandon the idea of asserting their rights in court or finding appropriate legal counsel out of fear that these expenses will crowd out other living expenses or simply because the process is too cumbersome. Unwittingly, they lose many opportunities to protect their own interests (either suffering harms without taking legal action or appearing in court on their own, where their offense and defense capabilities clearly cannot match the opposing counsel), reducing statutory rights to mere dead letters.

To break through this dilemma in rights protection, the government sought to effect change through institutional design. On January 7, 2004, the Legislative Yuan passed the third reading, and the President promulgated the Legal Aid Act. The hope was to establish the Legal Aid Foundation—a nonprofit legal entity composed of civic representatives with a strong public-interest character—responsible for hiring or appointing attorneys to provide legal aid, and commissioning appropriate professionals or institutions to provide consultation services (see Article 23 of the same Act). The government provides remuneration to deliver legal services to people in need (contributing both personnel and funds), thereby fulfilling the protections for various civil rights, particularly the right to litigation, mandated by the Constitution and subsequent laws.

The Concept of Legal Aid

According to Article 4 of the Legal Aid Act, the scope of legal aid generally includes the following:

1. Representation, defense, or assistance in litigation, non-contentious, arbitration, and other matters.
2. Representation in mediation and settlement.
3. Drafting of legal documents.
4. Legal consultation.
5. Other necessary services, expenses, or matters resolved by the Foundation in legal affairs.

As can be seen from the above, the scope of aid is all-encompassing. Whether entering a court or not, any legal services and related expense expenditures needed by the people can fall within the scope of legal aid. Thus, such measures are expected to significantly reduce public aversion to utilizing legal services and enhance their motivation to safeguard their own rights and interests.

Furthermore, because such a system is urgently in need of both personnel and funds, the state established the Legal Aid Foundation pursuant to Article 5 of the Legal Aid Act, with an endowment of NT$10 billion to administer related legal aid operations. The Judicial Yuan, designated as the competent authority under Paragraph 2, Article 3 of the same Act, appropriates budgets annually for its donation. In addition, pursuant to Paragraph 3, Article 8 of the same Act, the Foundation receives subsidies from the following sources: 1. Subsidies from special municipalities, counties, or cities; 2. Fines for deferred prosecution or negotiated sentencing paid to the public treasury; 3. Donations from national and local bar associations; 4. Interest generated from the fund; 5. Remuneration and necessary expenses shared or borne by assisted persons in accordance with this Act; 6. Donations from other groups or individuals, etc.

Introduction to the Legal Aid System

1. Eligible Recipients

According to Article 5 of the Legal Aid Act, to ensure resources are spent where they are most needed, two categories of assistance recipients are established:

(1) Individuals Facing Financial Hardship (see Paragraph 1 of the same Article)

Simply put, if a person's disposable assets and monthly disposable income fall below a certain standard (standards vary depending on the place of residence; see the Legal Aid Foundation webpage announcement), they are eligible to apply for legal aid assistance. Other categories include statutory low-income households and middle-low-income households under the Public Assistance Act, as well as statutory families in special circumstances under the Act Governing Assistance for Families in Special Circumstances (such as victims of domestic violence, unmarried pregnant individuals, those facing divorce or bereavement, or multi-generational raising with living difficulties falling below a certain standard)—considering that the living conditions of the first two types of families are truly difficult, they are all eligible recipients under this Article to help them effectively assert their rights.

(2) Individuals Who, Aside from Financial Hardship, Cannot Access Appropriate Legal Services (see Paragraph 4 of the same Article)

This paragraph is designed for the following individuals facing criminal proceedings (whether involving serious crimes, intellectual disabilities, or rash and inexperienced juveniles). Due to their physical and mental conditions or lack of professional knowledge and experience, they are unable to freely and adequately assert their rights before prosecutors, police, or judges during high-pressure prosecution processes, often suffering disadvantages without realizing it. Therefore, it is necessary to provide them with legal assistance:

1. Suspects or defendants involved in offenses carrying a minimum sentence of three years or more of imprisonment, or cases under the jurisdiction of the High Court as a court of first instance, who have not appointed defense counsel during initial police/prosecutorial questioning in the investigation stage or during trial.
2. Defendants or criminal suspects possessing indigenous status who have not appointed defense counsel during investigation or trial.
3. Individuals who cannot make complete statements due to injury or impairment of the nervous system and mental or cognitive functions, and have not appointed defense counsel during investigation or trial; or have not appointed legal representatives during trial, where the presiding judge deems the appointment necessary.
4. Individuals in the preceding three situations who have not appointed an assistant during juvenile investigation or trial proceedings.
5. Other trial or juvenile proceedings where no defense counsel, legal representative, or assistant has been appointed, and the presiding judge deems such an appointment necessary.
6. Major public interest, socially prominent, highly complex, or similar cases resolved by the Foundation.

As a side note, since realizing rights through litigation is a universal human right, Article 14 of the Legal Aid Act additionally stipulates that foreigners have the opportunity to apply for legal aid under this Act subject to certain conditions (though they must still meet the aforementioned requirements of financial hardship or other circumstances—Trump, don't bother applying). This Article includes the following persons:

1. Persons lawfully residing within the territory of the Republic of China (Taiwan).
2. Persons who have lost their residency status due to causes not attributable to themselves.
3. Victims or suspected victims of human trafficking offenses.
4. Persons not residing within the territory of the Republic of China who have previously received aid from the Foundation regarding the same facts.
5. Persons not residing within the territory of the Republic of China who may exercise rights under the laws of the Republic of China regarding the death of another person who previously received aid from the Foundation for the same facts.
6. Persons not residing within the territory of the Republic of China who may exercise rights under the laws of the Republic of China regarding the death of another person due to occupational accidents.
7. Other persons resolved by the Foundation.

Furthermore, considering that foreign nationals engaged in physical factory work or domestic labor mostly experience difficult living conditions, pursuant to Paragraph 3 of Article 13 and Paragraph 46 of the Employment Service Act, upon submitting a written affidavit, they are directly presumed to be financially destitute. Their financial status will not be audited, and they can directly enjoy legal aid.

2. Rights and Obligations of Assisted Persons

In addition to enjoying the legal aid referred to in Article 4 of the Legal Aid Act, pursuant to Article 67 of the same Act, when a legal aid branch determines that a party's case has a high probability of winning and there is a genuine necessity to apply for provisional seizure, provisional injunction, provisional status quo disposition, or a stay of compulsory execution (to ensure that the benefits of the judgment on the merits are not destroyed), the legal aid branch may issue a letter of guarantee allowing the assisted person to temporarily be exempted from paying the security bond arising from the aforementioned preservation or stay of compulsory execution procedures, thereby facilitating the realization of the assisted person's rights.

Regarding obligations, while enjoying legal aid—except for the aforementioned statutory low-income households, middle-low-income households, and statutory families in special circumstances who enjoy full expense subsidies for aid-related expenditures (known as full aid)—assisted persons of other types must still bear a certain proportion of the attorney or professional remuneration and necessary expenses according to the circumstances (known as partial aid; see the endnote of this section for the scope of necessary expenses) (see Articles 31 and 32 of the same Act).

Persons enjoying partial aid who are truly unable to pay the relevant necessary expenses during litigation proceedings may further apply to the court for "litigation relief" pursuant to various procedural laws to temporarily exempt them from paying the aforementioned expenses. However, they may encounter situations where the court rejects the application, frustrating the benevolent legislative intent of granting aid. To fully ensure that assisted persons can go through complete litigation proceedings, Article 63 of the Act stipulates that for destitute individuals whose legal aid has been approved by a legal aid branch, when they apply to the court for litigation relief in litigation or non-contentious proceedings, the court shall grant litigation relief unless the application is manifestly groundless.

(Note: So-called necessary expenses can be further subdivided into: court fees and necessary litigation expenses. The former refers to fees required for the court to initiate litigation proceedings; depending on whether it is a civil, criminal, or administrative litigation procedure and according to the provisions of each procedural law, the court determines court fees based on the plaintiff's grounds for filing the lawsuit. The latter refers to application fees, enforcement fees, witness daily allowances and travel expenses, appraisal fees, government statutory fees, prisoner transfer fees, and other expenses determined by the court to be necessary.)

How to Apply, and What to Do If Rejected?

According to Article 17 of the Legal Aid Act, applicants may apply orally or in writing to the legal aid branch established within the jurisdiction of each district court, indicating the following matters (if the application procedure does not comply with the following contents, the branch shall notify the applicant to make corrections within a time limit; applications not corrected within the time limit shall be rejected):

1. The applicant's name, gender, date of birth, identity document number, and domicile or residence. If there is a statutory representative or application agent, their name, gender, date of birth, identity document number, domicile or residence, and relationship with the applicant.
2. Explanatory or documentary evidence of application eligibility.
3. Statement of the legal event and related evidence.
4. Type of legal aid.

Where there is approval, there will be rejection. Or, if one is quite dissatisfied with the relevant subsidies, how should the legal aid branch's "review decision" be handled?

Pursuant to Article 36 of the same Act, applicants or assisted persons who are dissatisfied with the decision of the branch review committee may, within thirty days after receiving the decision document, apply orally or in writing with statement of reasons to the Foundation for reconsideration, indicating the following items (if the application procedure fails to comply with the following contents, the Reconsideration Committee shall notify the applicant to make corrections within a time limit; applications not corrected within the time limit shall be rejected):

1. The applicant's name, gender, date of birth, identity document number, and domicile or residence. If there is a statutory representative or application agent, their name, gender, date of birth, identity document number, domicile or residence, and relationship with the applicant.
2. The degree of dissatisfaction with the original decision and the statement of how it should be revoked or modified.
3. The facts and reasons for reconsideration.
4. Explanatory or documentary evidence.
5. The facts and reasons for reconsideration.
6. Explanatory or documentary evidence.

Thus, after completing this round of relief, no further appeals may be lodged against the reconsideration decision pursuant to the intent of the same Article (there are no three tiers and three instances for this).

References

• Ch'en Chih-yang, Fundamental Issues of the Legal Aid Act You Cannot Afford Not to Know
• Yang Kuei-chih, Can't Afford a Lawyer? The "Legal Aid Act" Can Give You a Hand

Related Legal Articles

• Article 4 of the Legal Aid Act

Legal aid as referred to in this Act includes the following matters:
1. Representation, defense, or assistance in litigation, non-contentious, arbitration, and other matters.
2. Representation in mediation and settlement.
3. Drafting of legal documents.
4. Legal consultation.
5. Other necessary services and expenses in legal affairs.
6. Other matters resolved by the Foundation.

• Article 5 of the Legal Aid Act

Persons without financial resources as referred to in this Act mean any of the following circumstances:
1. Low-income households and middle-low-income households complying with the provisions of the Public Assistance Act.
2. Families in special circumstances complying with Paragraph 1, Article 4 of the Act Governing Assistance for Families in Special Circumstances.
3. Disposable assets and monthly disposable income below a certain standard.
Where the applicant is a spouse or relative not living together from bed and board, their property under name shall not be included in the disposable assets of Subparagraph 3 of the preceding paragraph. The assets and income under Subparagraph 3 of the preceding paragraph may be excluded if there is no fact of support between the applicant and their parents, children, spouse, or relatives living together from bed and board; the same applies if the applicant and their spouse live apart for a long term.
Standards for disposable assets, income, and identification methods for Subparagraph 3 of the first paragraph shall be determined by the Foundation.
Persons unable to receive appropriate legal protection due to other causes as referred to in this Act mean any of the following circumstances:
1. Suspects or defendants involved in offenses carrying a minimum sentence of three years or more of imprisonment, or cases under the jurisdiction of the High Court as a court of first instance, who have not appointed defense counsel during initial police/prosecutorial questioning in the investigation stage or during trial.
2. Defendants or criminal suspects possessing indigenous status who have not appointed defense counsel during investigation or trial.
3. Individuals who cannot make complete statements due to injury or impairment of the nervous system and mental or cognitive functions, and have not appointed defense counsel during investigation or trial; or have not appointed legal representatives during trial, where the presiding judge deems the appointment necessary.
4. Individuals in the preceding three situations who have not appointed an assistant during juvenile investigation or trial proceedings.
5. Other trial or juvenile proceedings where no defense counsel, legal representative, or assistant has been appointed, and the presiding judge deems such an appointment necessary.
6. Major public interest, socially prominent, highly complex, or similar cases resolved by the Foundation.

• Article 13 of the Legal Aid Act

Persons without financial resources or unable to receive appropriate legal protection due to other causes may apply for legal aid. Financial status need not be audited when applying for legal aid under any of the following circumstances:
1. Subparagraphs 1 and 2, Paragraph 1, Article 5.
2. Subparagraphs 1 to 5, Paragraph 4, Article 5.
3. Debtors who may clean up debts pursuant to the Consumer Debt Clearance Act.
4. Oral legal consultation.
Where any of the following circumstances obtains, upon submitting a written affidavit, financial status shall be directly presumed to be lacking and need not be audited:
1. Foreigners imported pursuant to Subparagraphs 8 to 10, Paragraph 1, Article 46 of the Employment Service Act.
2. Economically disadvantaged spouses of ROC nationals who have not yet been naturalized or have been naturalized but have not yet established household registration.
The identification methods of the preceding paragraph shall be determined by the Foundation.
Whether financial status should be audited for cases under Subparagraph 6, Paragraph 4, Article 5 shall be resolved by the Foundation.
Where circumstances under Subparagraph 2, Paragraph 2 obtain and legal aid has not been applied for, the presiding judge or prosecutor may notify the Foundation to assign an aid attorney to provide defense or assistance.

• Article 14 of the Legal Aid Act

Where non-ROC nationals meet any of the following circumstances, the aid provisions of this Act shall also apply:
1. Persons lawfully residing within the territory of the Republic of China.
2. Persons who have lost residency status due to causes not attributable to themselves.
3. Victims or suspected victims of human trafficking offenses.
4. Persons not residing within the territory of the Republic of China who have previously received aid from the Foundation regarding the same facts.
5. Persons not residing within the territory of the Republic of China who may exercise rights under the laws of the Republic of China regarding the death of another person who previously received aid from the Foundation for the same facts.
6. Persons not residing within the territory of the Republic of China who may exercise rights under the laws of the Republic of China regarding the death of another person due to occupational accidents.
7. Other matters resolved by the Foundation.
The review methods of the preceding paragraph shall be determined by the Foundation.

• Article 31 of the Legal Aid Act

When approving legal aid, a branch shall decide whether to grant full or partial aid based on the financial status of the assisted person. However, for circumstances under Subparagraphs 1 and 2, Paragraph 1, Article 5, full aid shall be granted.
When approving partial aid, the branch shall determine the proportion of remuneration and necessary expenses the assisted person shall bear.
Assisted persons who fail to promptly pay the remuneration and necessary expenses they should bear may apply to the branch for advance payment.
The review methods for full or partial aid and the remuneration and necessary expenses to be borne by assisted persons shall be determined by the Foundation.

• Article 32 of the Legal Aid Act

Where the subject matter obtained through legal aid possesses property value and such property value reaches a certain standard, the branch may, after review, request the assisted person to bear all or part of the remuneration and necessary expenses as a payback fee.
The standards and review methods of the preceding paragraph shall be determined by the Foundation.

• Article 63 of the Legal Aid Act

For destitute persons whose legal aid has been approved by a branch, when they apply to the court for litigation relief in litigation or non-contentious proceedings, litigation relief shall be granted unless the application is manifestly groundless, and they shall not be restricted by the provisions of Article 108 of the Code of Civil Procedure.

• Article 67 of the Legal Aid Act

Where a legal aid branch considers that a legal aid case manifestly has a prospect of winning and there is a necessity to apply for preservation or stay of compulsory execution procedures, letters of guarantee issued by the branch may substitute for the security bond for provisional seizure, provisional injunction, provisional status quo disposition, temporary disposition, or stay of compulsory execution that the assisted person should pay to the court.
When the causes for issuing the letter of guarantee in the preceding paragraph cease to exist, the branch may apply to the court for return in its own name.

• Article 46 of the Employment Service Act

The work that employers may employ foreigners to engage in within the territory of the Republic of China shall be limited to the following items, unless otherwise provided by this Act:
1. Specialized or technical work.
2. Directors or managers of businesses invested in or established by overseas Chinese or foreigners with government approval.
3. Teachers at the following schools:
(a) Teachers at public or legally established private junior colleges or higher or foreign resident schools.
(b) Qualified foreign language curriculum teachers at public or legally established private senior high schools or below.
(c) Subject teachers in bilingual departments or bilingual schools of public or legally established private experimental senior high schools.
4. Full-time foreign language teachers at short-term cram schools established pursuant to the Supplementary Education Act.
5. Athletic coaches and athletes.
6. Religious, artistic, and performing arts work.
7. Crew members of merchant ships, work ships, and other ships chartered by the Ministry of Transportation and Communications.
8. Marine fishing work.
9. Domestic helper and caregiving work.
10. Work designated by the central competent authority to meet the needs of major national construction projects or economic and social development.
11. Other work where, due to the special nature of the work, there is a domestic shortage of such talent and a definite operational necessity to employ foreigners, specially approved by the central competent authority.
Work qualifications and review standards for foreigners engaging in the work of the preceding paragraph shall be determined by the central competent authority in consultation with central target-事業 competent authorities.
Employers employing foreigners pursuant to Subparagraphs 8 to 10 of the first paragraph must enter into written labor contracts and be limited to fixed-term contracts; for those without fixed terms, the period of the employment permit shall be the term of the labor contract. The same applies upon contract renewal.