Agents ad litem

By Andrew Godwin
0
154

This column explores the concept of an agent ad litem as it is recognised and applied in mainland China and common law jurisdictions. The concept has a limited scope in common law jurisdictions compared with mainland China, where it is used to describe agents who are appointed by agreement, as well as agents who are appointed by law. This column explains the meaning of the term “agent ad litem”, and then examines its use in mainland China and common law jurisdictions.

Meaning of the term

In both Chinese and English, the term “agent ad litem” refers to an agent who represents the interests of a party in litigation or legal proceedings. As used in the English term, the words “ad litem” are derived from the Latin words “ad”, meaning “for”, and “litem”, meaning lawsuit. The literal meaning of the words “ad litem” is therefore “for the lawsuit” or “for the purposes of the lawsuit”.

The word “litem” is the accusative case of the word “lis”, which means a lawsuit or legal action. It is related to the Latin word “litigare”, which means to dispute or quarrel, and from which the word “litigation” in English is derived [for a discussion about the use of terminology in Chinese and English to describe disputes, see China Business Law Journal volume 2, issue 9: Mediation or conciliation?].

Use of the concept in mainland China

The law in mainland China recognises two categories of agent ad litem: (1) an agent that is appointed by law, or a “statutory litigation agent”; and (2) an agent that is appointed by agreement. An agent ad litem can be appointed by parties in civil proceedings and criminal proceedings.

Agents ad litemIn both civil and criminal proceedings, the concept refers to a person who is appointed to represent and protect the interests of a party in legal proceedings. The agent ad litem acts within the authorised scope. The authorised scope of the agency is determined either by the legal provisions, in the case of an agent that is appointed by law, or by the terms of the agreement, in the case of an agent that is appointed by agreement. The party that is represented by the agent ad litem bears the legal consequences for all actions undertaken by the agent ad litem within the authorised scope.

In the case of a statutory litigation agent – namely, an agent that is appointed by law – the agent is treated as having an equivalent litigation status to the party it represents. In other words, it is treated as acting directly in the name of the party that it represents. By comparison, in the case of an agent that is appointed by agreement, the agent is treated as an having an independent litigation status, even though it acts as an agent on behalf of the person it represents.

Part 1, chapter 5, section 2 of the Civil Procedure Law ‒ the latest amendments to which took effect on 24 December 2021 ‒ contains provisions concerning agents ad litem. For our purposes, articles 60 and 61 are relevant. Article 60 provides that the person’s guardian will act as the agent ad litem in circumstances where a party to litigation lacks civil capacity to engage in the litigation. Article 61 provides generally that a party (or a party’s statutory agent) may appoint an agent ad litem. Article 61 also lists the persons who may be appointed agents ad litem, including lawyers.

Section 2 Agents ad litem

Article 60

A person with no capacity to engage in litigation shall be represented in an action by his or her guardians, who shall act as statutory agents. If the statutory agents shift onto one another the responsibility to act as agents, the people’s court shall appoint one of them to represent the principal in the action.

Article 61

A party or statutory agent may appoint one or two persons to act as his or her agent ad litem.

The following persons may be appointed as agents ad litem:

1. Lawyers and basic legal service workers;

2. Close relatives or employees of the party to the case;

3. Citizens recommended by the community where the party resides, the employer of the party or any other social organisation concerned.

In most circumstances where a lawyer is appointed as an agent ad litem in civil proceedings, the lawyer undertakes the normal work of a lawyer.

In the context of criminal proceedings, article 108(5) of the Criminal Procedure Law provides as follows:

“Agent ad litem” means persons appointed by victims in cases of public prosecution and their legal representatives or close relatives, and by private prosecutors in cases of private prosecution and their legal representatives, to participate in legal proceedings on their behalf, and persons appointed by parties in incidental civil actions and their legal representatives to participate in legal proceedings on their behalf.

It is important to be aware of the distinction between an agent ad litem, who is appointed by the parties referred to in the above-mentioned provision, and a defence lawyer, who is appointed by the defendant. In criminal proceedings, the use of the term “agent ad litem” is limited to a person that acts on behalf of parties that are not defendants.

Use of the concept in common law jurisdictions

In common law jurisdictions, the term “agent ad litem” is generally limited to the first category outlined above; namely, an agent that is appointed by law in circumstances where an agent is appointed to represent the interests of a person that lacks legal capacity or is too vulnerable to represent themselves. In the case of a child, for example, a guardian ad litem is appointed by the court to represent the child in a legal proceeding. This situation can be distinguished from the concept of a “guardian” that is appointed to represent the interests of the child in all contexts.

In both mainland China and common law jurisdictions, the legal provisions concerning agents ad litem are consistent with various international law obligations, including those in the 2008 Convention on the Rights of Persons with Disabilities, article 13(1), which provides as follows:

States’ parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.

A similar provision is contained in article 9(2) of the Convention on the Rights of the Child.

葛安德 Andrew Godwin

Andrew Godwin previously practised as a foreign lawyer in Shanghai (1996-2006) before returning to his alma mater, Melbourne Law School in Australia, to teach and research law (2006-2021). Andrew is currently Principal Fellow (Honorary) at the Asian Law Centre, Melbourne Law School, and a consultant to various organisations, including Linklaters, the Australian Law Reform Commission and the World Bank.

Law.asia subscripton ad blue 2022