Basic introduction
legal representation generally applicable to the mentally ill, minors and other administrative proceedings the plaintiff and the third party without the ability to conduct the proceedings, the defendant does not apply to the executive, only the ability of people without legal action guardianship talent as its legal representative. Can serve as guardians of minors by their parents, grandparents, brother, sister and other close family members, friends, the unit where the parents of minors or underage domicile of the neighborhood committee, villagers' committee or the civil affairs department. Mentally ill custodial staff by the spouses, parents, adult children, other close relatives, close relatives, friends, mentally ill person belongs or domicile of the neighborhood committee, villagers' committee or the civil affairs department shall act. Statute of agents to participate in the proceedings to obtain the right under the law is based on guardianship.
agency independent of the legal representative of the will of the parties. It is mainly people without civil capacity limit civil capacity established. Article 14 of China's "Civil Law" stipulates that a person without capacity for civil conduct, limiting the capacity for civil conduct guardian is his legal representative. So he was prescribed by law and based on blood relationship exists between the agent and the agent's marriage, organizational relations, relations of trust. In addition, Chinese labor legislation, trade unions can represent their members sign a collective labor contract, to participate in the proceedings related to labor disputes, which can become a member of the union's legal representative. When acquisition or recovery capacity for civil conduct, or kinship, guardianship relationship between the principal and the principal and other does not exist, the legal representative power of attorney shall cease.
Basic Features
First, according to legal representation arises directly stipulated by law. Agency, the agency is the principal agent produced by delegation of authority, to produce the legal power of attorney is not the personal will of the parties to the conditions, but directly from the law.
Second, the legal representative is authorized powers prescribed by law, and generally are ordinarily agent or sole agent, the agent is not specifically limited purview. Acting Attorney's authority depends on the power of attorney of the provisions of either sole agent, it can be Special Agent, the agent only legal act within the scope of the principal authorized agent of the principal.
Third, there is often a particular blood or kinship between the legal representatives and the principal basis of this particular blood or kinship is the statutory agency created.
In practice, the most common legal representation are the following situations:
(1) parents as legal representatives of their minor children;
(2) one of the spouses as their legal incapacity or restricted legal capacity of the other party's legal representative;
(3) adult brother, sister as a minor younger brother, sister's legal representative ;
(4) positions the agent in the agent.
Fourth, statutory agency's aim is to ensure that incapacitated and limited capacity to participate through a proxy smooth conduct civil activities, enjoy civil rights and civil obligations. It is the main agent for the way minors and the mentally ill established.
Fifth, legal representation is free.
legal representation of the characteristics of
1, the generated proxy special foundations;
2, the special proxy object. (Incapable of action)
3, a special agent of the range. That is limited to the principal enjoys parental rights and guardianship of the people.
range of legal representative:
legal definition
Article 108 of the "Criminal Procedure Law" stipulates that the scope of the legal representative of the agency, including the parents, adoptive parents, guardians and bear the responsibility to protect organs, deputations. Guardians of minors are their parents, or whose parents died without supervision capacity, its grandparents, brother, sister and other close relatives, friends willing to bear the responsibility of guardianship, the unit where the parents of a minor or not adult domicile of the residents' committee, the village committee agreed, also can be used as a guardian. Since the mentally ill or incapacitated limited capacity of the people, which is the guardian of their spouses, parents, adult children and other close relatives. Other close relatives, friends, willing to bear the responsibility of guardianship, the mentally ill by their work units or neighborhood committees of domicile, the village committee agreed, also can be used as a guardian. Authorities bear the responsibility to protect, on behalf of groups of people is the ability of the unit where the domicile residents and villagers committees, or civil affairs departments, trade unions, women's federations, the Communist Youth League, Federation of incapacity or behavior and limitations for certain people with disabilities unit personnel with the responsibility to protect, on behalf of the organization. Criminal proceedings the parties or some participants in the proceedings is incapacitated or when people with limited capacity, the need to participate in criminal proceedings on behalf of legal representatives. Legal representation in criminal proceedings systems of the relevant provisions of the applicable civil law, in accordance with the provisions of China's General Civil Code, less than 8 years of age is incapacitated persons, people with limited capacity for more than 18 years less than 8 years of age, over 16 years of age under 18 years of age citizens to their labor income as the main source of livelihood, it is of full capacity; not for his own conduct of the mentally ill person is incapacitated, unable to fully account for his own conduct mental patients is limited capacity.
legal representatives involved in criminal proceedings duty is to protect legally minors, incapacitated person or personal rights, property rights and litigation rights limited capacity, and all other legal rights. At the same time legal representative has the responsibility to monitor the behavior of the agents. When there are multiple legal representatives, only one of which participate in the criminal proceedings.
legal representatives enjoy extensive procedural rights and the same agent is, but is not a substitute for legal representatives to make presentations (such as rights of the accused final statement) agent, can not replace the principal bear obligations associated with personal freedom, such as prison and so on. Right of action legal representative there:
1, as legal representatives of the parties have the right to apply for withdrawal.
2, the defendant, private prosecutor's legal representative, refused to accept the judgment of the District People's Court of first instance at all levels, ruled that the right to higher people's court of appeal. Incidental civil action legal representatives of the parties, have the right ruling on local people's courts at all levels, civil litigation section comes ruling, appeal.
3, the right to be notified of a minor be present when the principal for questioning, questioning.
Note:
1, the above-mentioned agents range, not tied select the relationship, but in order of priority relations;
2, not all cases are there are legal representative, only the incapacity or limited capacity, only need an agent statutory agent;
3, the legal representative to participate in criminal proceedings is based on the law, rather than based on trust relationships. In criminal proceedings, legal representative has the status of an independent litigation, legal representatives are not bound by the will of the principal, without going through the principal's consent in the exercise of agency authority, acting independently of the principal proceedings in accordance with their own will right, bear the legal obligations of the agent. We can not replace the obligation to be borne by the agent associated with personal freedom.
Permissions position
As the legal parental authority or guardianship agency is based, and thus legal representative of the agent
authority is very wide. Any right of action is enjoyed by an agent, he has the right to exercise on his behalf, who owe a duty litigation agent, he should perform on behalf of all the legal action is the legal representative are deemed to be the agent himself is the legal action, and litigation conduct of the parties has the same effect. Legal representative in litigation with the agent to be living in the same litigation position, and its unlimited power of attorney, the agent being an agent he is entitled to implement all legal action, both the right to dispose of the litigation rights of the parties, and the right to dispose of the parties substantive rights. Such waiver or recognition lawsuit, reconciliation, mediation agreement is reached, and so on.
However, the legal representative after all, not a party, he was not directly enjoys substantive rights of persons and entities who directly bear the obligations. Thus, all the legal consequences for the legal representative of the legal action arising directly borne by the agent of the parties. When the legal representative died or is unable to exercise the power of attorney but no other legal proceedings continue in his litigation, the proceedings shall be suspended.
Basic range
"People's Republic of China Civil Law" Article XIV: "no civil capacity or with limited capacity for civil conduct guardian is his legal representative. "statutory agency has two characteristics: First, the power of attorney is generated in accordance with the law; the second is the legal representative of the principal agent, it must be the inability of people to engage in litigation. No litigation capacity in civil law is incapacitated people and people with limited ability, if not adults, mental patients, when they need action, by their legal representative on behalf of the lawsuit, according to the provisions of Civil Law and the Civil Procedure Law, legal representative of the agency is based on parental rights and guardianship generated, civil litigation and legal representation in civil legal representation is compatible, civil legal representative is the legal representative of the civil action, but civil statutory acts of civil law, civil procedure and the implementation of legal representation is conduct civil litigation; civil activity is regulated by legal representatives of civil substantive law, civil litigation and legal representative of the activity is regulated by the civil procedure law.
relevant basis
Article XVI minor's parents are guardians of minors.
parents of a minor are dead or lack the ability to care, as guardian of the person who has the care of the following capabilities:
(a) grandparents;
(b) brother, sister;
(c) other closely connected relative or friend willing to bear the responsibility of guardianship of minors by the father, the mother of their units or domicile of minors the residents and villagers committees agreed.
to act as guardian controversial, the village committee designated by the minor's parent, the mother of their units or minors domicile of the neighborhood committee in the near relatives. Designated refuses to accept a lawsuit, the people's court ruling.
not the first paragraphs of this article guardian of a minor by a parent, the mother of their units or minors domicile of the neighborhood committee, villagers' committee or the civil affairs department shall act as guardian.
mental patients without civil capacity or with limited civil capacity Article 17 The following persons served by the Guardian:
(a) spouse;
( 2) parent;
(c) of adult children;
(D) other close relatives;
(e) other closely connected relative or friend willing to bear responsibility of guardianship, residents and villagers committees or domicile of the unit by a mental patient consent.
to act as guardian controversial, the village committee designated by the mentally ill person belongs or domicile of the neighborhood committee in the near relatives. Designated refuses to accept a lawsuit, the people's court ruling.
no guardian specified in the first paragraph, as guardian of the mentally ill person belongs or domicile of the neighborhood committee, villagers' committee or the civil affairs department.
Article 29 party or legal representative may appoint lawyers or other agents arbitration. Lawyer and other attorneys arbitration shall submit a power of attorney to the arbitration commission.