Judicial assistance in Macao is mainly intended for people who need the settlement of legal disputes by courts, but who are financially incapable of engaging lawyers or paying expenses of proceedings. Judicial assistance in the region is extended mainly by the following two approaches – firstly, postponement of or full or partial exemption from the payment of a deposit for litigation or expenses of proceedings, and secondly, the designation by courts of lawyers to provide the service of legal representation.

There is a very broad range of proceedings in which judicial assistance can be applied for. Judicial assistance can be applied for in any proceedings at any level. Under most circumstances, any parties concerned in such proceedings as civil and labor dispute lawsuits can apply for judicial assistance. However, in criminal cases, only the accused suspects and the persons in private offenses capable of making accusations can apply for judicial assistance. The system of judicial assistance is different from the system that courts designate defenders for suspects who can not engage defense attorneys for themselves.

Once an application is approved, the judicial assistance concerned will not only be effective to the proceedings of the original claim, but also to all the relevant procedures, such as the preserving procedure attached to any declared lawsuit, the procedure for enforcing the relevant judgment, various types of extra procedures and even all the relevant procedures of appeal. And, no separate application is required for judicial assistance in all these procedures.

In applying for judicial assistance, the applicant can file an application directly or commission a lawyer to file an application. Moreover, the prosecution can also apply for judicial assistance on behalf of parties concerned. An application for judicial assistance is filed in accordance with the lawsuit instituted by the applicant and to the court that has the authority over it. If an applicant is not legally presumed to be financially incapable, he should declare his financial situation in the application to state his income, all the benefits, the expenses of himself and his family and the taxes payable by himself and his family. An application for judicial assistance will be reviewed and approved by the judge concerned after the procedures of collecting evidence and expressing disapproval are completed. If an applicant files an application for judicial assistance in a certain procedure of a lawsuit, the application will be processed as an appendage to the lawsuit.

The beneficiaries of any judicial assistance must be permanent or temporary residents of Macao, and those who are financially incapable of partially or fully assuming the costs of a whole judicial process. Besides, for corporations or other entities with the legal person status whose headquarters or main administrative frameworks are based in Macao, they can also receive judicial assistance if they are in a similar financial situation.

In applying for judicial assistance, the applicant should provide sufficient evidence to prove his financial incapability, and will be exempted from all the expenses arising from applying to public administrative authorities for identification documents, including various types of registration and notarial documents.

Macao law has defined a range of circumstances in which the applicants can be legally presumed to be financial incapable, and in which they do not need to provide evidence to prove their financial incapability of their own accord. These include the following circumstances: that the applicants are persons receiving support or allowances because of financial difficulty; that the applicants are under-aged children in proceedings for investigating or disputing the identity of father or mother or in other proceedings against their parents; that the applicants are persons applying for support; that the applicants are persons whose annual income does not exceed the minimum exempt from the occupation tax; and that the applicants are persons entitled for compensation arising from traffic accidents.

If an applicant is found to have transferred or mortgaged his property to falsely prove his financial incapability, he can not receive any judicial assistance and may even be prosecuted for criminal responsibilities.

If an applicant is afterwards found to have been financially capable of paying the attorney fees and other fees for judicial work that were exempted at the time of filing the application or in proceedings, the judge concerned may order him to pay back the fees exempted. If the applicant still fails to pay back the fees within a prescribed period of time of his own accord, the fees will be collected forcibly through an enforcement procedure.

When an applicant becomes financially capable of paying the expenses of proceedings, the judicial assistance extended to him will be withdrawn. Under such a circumstance, the beneficiary should declare his financial capability to the court concerned of his own accord. Otherwise, he will be regarded as a party in bad faith and be punished in accordance with the procedural law. Moreover, if a beneficiary is found to have not been qualified for judicial assistance at all, to have presented false documents to prove his financial situation, to have been declared as a party in bad faith, or to have obtained support funds sufficient enough for him to pay the expenses of proceedings, the judicial assistance extended to him will be withdrawn. Should one of the aforesaid circumstances occurs, the judge concerned may automatically withdraw the judicial assistance extended, or the prosecution, the opposite party concerned or the attorney designated may demand that it be withdrawn.

When a beneficiary dies or when a beneficiary corporation is canceled or disintegrated, the judicial assistance extended will also be terminated. However, under such a circumstance, the inheritor or successor may continue to apply for judicial assistance.

Although the procedure for applying for judicial assistance in Macao is not complicated, it is a real judicial procedure, which can be an independent one or part of ongoing proceedings. As far as the general civil proceedings are concerned, the procedure for applying for judicial assistance starts with the filing of an application. In filing an application, the applicant should first of all submit all relevant evidence to the judge concerned for his review. After the application is initially accepted by the judge, the opposite subject of procedure or the prosecution will be allowed to raise any objection. Meanwhile, the judge will also have the right to adopt appropriate measures of his own accord to investigate the real financial situation of the applicant. After studying the statements of all sides and all the evidence submitted, the judge will make a decision on whether to grant judicial assistance to the applicant. If an application is rejected, the applicant can appeal against the rejection. In the process of reviewing an application, if a party concerned raises an objection but the application is finally approved, the party concerned that has raised the objection will have to pay the expenses of proceedings arising from the process of application.

Thus it can be seen that the existing procedure for applying for judicial assistance in Macao is a complete judicial procedure, which covers such principles of civil procedure as disposal, investigation and debate, and which also provides that the application for judicial assistance is subject to approval by the judge concerned eventually. Meanwhile, the prosecution, out of the consideration of safeguarding public interests, can also play an active role in such aspects as raising objections, asking for evidence, applying for the withdrawal of judicial assistance extended and presenting a plea for the forcible collection of expenses of proceedings payable. Under special circumstances, the prosecution, in accordance with the lawsuits that the applicants concerned wish to file, can also take over relevant matters for their disposal in line with their jurisdiction.

Specialized legal agents play a key in the system of judicial assistance. In most of the individual cases involving the application for judicial assistance, the applicants concerned normally request the court to assign an attorney to act on their behalf, not only because the applicants lack the economic capability to engage a lawyer, but also because they partially lack the necessary knowledge about law.

As a matter of fact, the government cooperates with specialized organizations of lawyers in making joint efforts to enable people to understand law and to know how to settle their disputes through courts. In consideration of the independence of work of attorneys in the judicial field and their close relationship of trustworthiness with their clients, the government has not established a specialized agency for providing the legal protection service concerning judicial assistance. Rather, it provides the service of agency in judicial assistance through the Association of the Lawyers of Macao, which is carried out by attorneys registered with the association. Therefore, the association provides a new list of its members for courts by December 15 annually, with which judges, in approving judicial assistance, can assign attorneys to do the work. With prior consent from an attorney, applicants can request the court concerned to assign the attorney to act on their behalf.

According to the Lawyer’s Deontological Rules, the attorneys assigned by courts should all accept their assignments and act on behalf of the relevant beneficiaries in actions. Under special circumstances, attorneys assigned can apply to relevant courts for the exemption of their assignments, particularly when an action instituted by the beneficiary concerned is not feasible at all, when the beneficiary concerned does not actively cooperate with the attorney in his work, when the beneficiary concerned has failed to provide sufficient evidence, when the beneficiary concerned is not qualified for judicial assistance at all, and so on.

In principle, an assigned attorney, once he is assigned, can act on behalf of the beneficiary concerned in the whole process of an action, including all the procedures derived from this action. Within a period of 30 days counted from the date of receiving the notification of his assignment, the assigned attorney should proceed to formally apply for judicial assistance for the beneficiary concerned or institute an action as requested by him. Otherwise, he should explain the reason to the court concerned. If he refuses to explain the reason to the court or the reason explained is not acknowledged by the judge concerned, the court will report the matter to the Association of the Lawyers of Macao, which will then initiate an investigation and decide whether to apply disciplinary sanctions against him. Meanwhile, the court concerned will assign another attorney for the beneficiary.

The assigned attorneys, in accordance with the services they have provided, have the right to receive legal rewards and compensations for the expenses incurred. The government promulgated two sets of instructions respectively in 1996 and 1997 to define the maximum and minimum levels of rewards for assigned attorneys in all types of proceedings. The actual amount of rewards for an assigned attorney will be determined by the judge concerned in accordance with his workload and the type of action. The rewards for assigned attorneys are payable by the Treasury of Justice, Registration and Notarization. Except for such rewards, the assigned attorneys may not take any other money or remuneration.