【演講】建構政府律師體系 翻轉政府治理

20160408【陳長文@新北市法制局】建構政府律師體系 翻轉政府治理 by cvchen1973

 

標  題: 建構政府律師體系,翻轉政府治理-陳長文教授專題演講
發布日期: 2016-03-31
截止日期: 2016-04-08
發布單位: 新北市政府法制局
類  別: 機關新聞
內  容: 【新北市訊】新北市政府法制局訂於105年4月8日星期五下午2時舉辦專題演講,邀請知名法學專家陳長文教授蒞府講授「建構政府律師體系,翻轉政府治理」,引領本府同仁了解政府律師制度之概念。
按行政機關對於法制的理解詮釋能力、控管品質,幾乎決定一國法治發展程度,倘機關政策合法化能力不足,將加劇人民政府間信任代溝;相較於美國,其下轄逾12萬名政府律師,身兼公務員及律師雙重身分,其獨立性之特質,可謂係「人民託付在政府的律師」。兩相比較,我國法制單位資源配備,明顯無法承擔起政府律師的繁重任務,蓋因人力不足,又欠缺跨領域、國界的實務歷練,少有機會直接 參與重大決策形成過程。
陳長文教授以法律人之角度,長期關心公眾議題,不吝對國家發展政策提出具體建議,尤其呼籲政府機關應重視法制單位之建制與運作,以保障推行政策之品質與效能。本次專題演講除邀請各級機關、區公所法制人員共同參與,以了解法制單位將可轉型、改造之新方向,亦希望本府法律扶助顧問、青年律師服務團律師及各區公所之調解委員,一同共襄盛舉,交流意見,為國家法制度提供新思維。
聯絡人:法制局採購申訴審議科 張翠怡
聯絡電話:本市境內1999或(02)29603456轉4246
聯絡人: 張翠怡
聯絡單位: 新北市政府法制局採購申訴審議科
聯絡電話: 02-29603456轉4246
電子信箱: AA4339@ntpc.gov.tw

 

案例延伸閱讀文章:

(2007台北市錯課房屋稅案,2009修法)

2009-04-15 為公務員的體貼拍拍手 (陳長文)

2009-03-03 行政法院 該當老百姓的包青天  (陳長文)

2009-01-05 (課稅權,不再無限上綱)公務員依法行政 更要有擔當!  (陳長文)

2008-08-08 【專訪】修法退溢收》陳長文:沒有欣喜 只有氣餒

(土地量測錯誤案)

2011-05-23 政府有錯不賠,小民有苦難伸 (陳長文)

【索引】【專訪】陳長文:比消費券更重要的議題(談政府律師)

(刊載於:天下雜誌 414期作者:吳韻儀、彭昱融。)

政府也是個大企業,也應該像企業有法務部門,才不用時時擔心是否「圖利」他人。羅益強與林全的案例,突顯了政府與企業界皆迫切需要適格的法律專才。

我常講個故事。據說成吉思汗時代有本《雅薩法典》,其中一條是:「傳回不祥情報的探子,斬。」許多企業經營者把法務或律師的專業意見,視為傳達噩耗的討厭探子,一概加以屏除,這是很危險的心態。成吉思汗統帥驃悍游牧軍隊橫衝直撞的方式,早已不適用現代緊緻規範的社會環境。

管理者不了解法律在企業經營的角色,不夠資格擔任管理者。企業的重大決定,不能沒有法務長的諮詢意見。在先進國家,法務長擔任企業董事,司空見慣。

(……全文未完,請參照天下雜誌。)

【全文英文版:〈C.V. Chen: Overhaul Government Mindset〉】

C.V. Chen: Overhaul Government Mindset【天下雜誌:比消費券更重要的議題 】

ArticleImage
C.V. Chen, the managing partner of prominent Taiwanese law firm Lee and Li, says the government needs stronger in-house legal counsel to guide public officials in making decisions, and Taiwan’s legal culture needs an overhaul.

原文連結。Insight/ Judicial Reform)

There’s a story I often tell. According to legend, Ghenghis Khan laid out a framework of regulations and instructions for his Mongol Empire in a book called the “Great Yasa,” literally the “Great Law.” One of its rules was that spies who reported ominous intelligence should be beheaded. Many entrepreneurs feel the same way when they get legal advice from lawyers or legal affairs people, treating them as annoying messengers of bad news and dismissing their advice. This is an extremely dangerous mentality. Ghenghis Khan’s style of leading his forces on rampages of unconquered lands no longer applies in today’s tightly and finely regulated social environment.Managers who do not understand the law’s role in a company’s operations are not qualified to be managers. Major corporate decisions cannot be made without seeking the advice of the enterprise’s general counsel, and it is quite common in advanced countries for general counsels to sit on their companies’ boards.

Twenty years ago, when Sony’s general counsel was invited to become a board director, he told me that Sony was the only company in Japan not to make the legal affairs department part of its general administration division.

The importance of general administration cannot be denied, but its role differs from that of the legal affairs department. The general administration division handles tasks such as construction projects and purchasing and must simply plan and execute its responsibilities in an above-board manner. The legal affairs department, on the other hand, must provide specialized advice to management and insist that it adhere to the law.

In the cases of former Philips Electronics Taiwan CEO Y.C. Luo and former finance minister Lin Chuan, the two would probably not be facing legal issues if they had sought advice from qualified legal counsel or government lawyers during the decision-making process.

The Need for Government Lawyers

The government is also a big corporation, and like big companies, it should have a legal affairs department staffed with “government lawyers.”

In terms of its organizational system and mentality, however, our government clearly has ignored the potential role of government lawyers. When public agencies go through major decision-making processes, they do not view legal counsel as an indispensable link in the chain, nor do they ask government lawyers to sign off on major projects.

By law, the Ministry of Justice should act as the government’s counsel, but funding is insufficient to cultivate lawyers who can provide executive agencies with expert legal advice.

That government agencies must adhere to the law when they perform their duties is an irrefutable truth. But agency heads often tremble at the fine line in Taiwan between graft and safeguarding the people’s rights, and they find themselves hamstrung when trying to act according to the law. Government lawyers can play critical roles in those situations by developing a firm command of the matter under consideration and providing accurate legal advice. If the plan is illegal, they should oppose it or express their reservations. If the plan is consistent with the law, then the agency will be free to help those in distress when a problem arises and protect the interests of the people.

Government lawyers provide legal advice to administrative chiefs, allowing them to fulfill their duties with confidence. They also serve as a “check and balance” to executive agencies by reminding policymakers that there are boundaries they cannot cross.

Aside from cultivating its own legal team, the government must also establish standard procedures for the provision of legal advice. Even more importantly, its lawyers must not only be professionally capable, but also have a broad perspective on what it means to adhere to the rule of law in administrative matters. Establishing a team of lawyers and developing standard procedures will not be effective if you do not have high-caliber legal professionals.

Government lawyers are not legal technocrats. They must have an accurate understanding of their professional responsibilities and a strong grounding in the legal humanities.

The goal of the law is to maintain order and help people forge an even better future. If laws that have been enacted are not good, they can be amended. But in many cases, it is not laws themselves that are inherently bad. Instead, civil servants, including the heads of government agencies, don’t adhere to the law in doing their jobs, causing people to suffer and wasting public resources. The prevention of such abuses depends on cultivating a law-abiding mindset.

A Big Tree’s Fallen Promises

At the most fundamental level, the cultivation and education of Taiwan’s legal community is fraught with problems that we must genuinely confront. When people in the legal profession in Taiwan study law at the university level, do professors teach them legal ethics? Do the professors serve as models of conduct for the students, or do they simply cram them with knowledge?

The initial stages of legal education should really challenge students. The legal profession is not a simple profession, and its influence is extremely widespread.

Another problem is that many in the legal profession protect one another. For instance, based on my understanding, when the Judicial Yuan has requested that the courts under its jurisdiction seek compensation from judges guilty of gross negligence in wrongfully convicting defendants, the courts have sometimes refused. This shows how serious the problem is. In such a legal environment, hypocrisy and covering up the truth are common.

As the philosopher Kahlil Gibran wrote, “As a single leaf turns not yellow but with the silent knowledge of the whole tree, so the wrongdoer cannot do wrong without the hidden will of you all.”

Only because Taiwan’s legal system has made large strides forward in the past 20 years, have people’s expectations (and disappointment) grown. The people’s confidence in and concern for the law are closely related. In today’s world, the interest people have in governance based on the rule of law far exceeds their fear of war.

From this perspective, wouldn’t it make sense for the government to re-allocate its budget? Our defense budget accounts for 20 percent of government spending (which means we can waste money to purchase 30 Apache helicopters we don’t need at NT$2.5 billion per helicopter, and that’s just the tip of the iceberg). Nevertheless, our Ministry of Justice has more than 1,000 prosecutors, and the court system, under the Judicial Yuan, has more than 2,000 judges, yet the budget for both groups is scarcely over NT$20 billion (only about 2 percent of government spending).

The legal reforms discussed above would have wide-ranging implications, involving the government, judges and lawyers. They would impact legal education, the design of the testing and training system, and the allocation of resources, and they would necessitate revisions of existing laws by the Legislature. No one agency could undertake the reforms on its own. Only President Ma Ying-jeou, who has asserted that he expects himself to serve as a “man of the

law who brings credit to the field,” possesses the status and resources to pull the five branches of government together under the Constitution and initiate reforms.

In a democratic society, democracy and the law are like a car’s wheels. They rotate together, and one cannot do without the others. In the long run, an upswing in public confidence indicators brought about by the consumption voucher program will definitely be far less beneficial than would a jump in the public’s confidence in Taiwan’s judicial system.

Translated from the Chinese by Luke Sabatier

By Interview and compiled by Isabella Wu and Yu-jung Peng
From CommonWealth Magazine
Published: January 21, 2009 (No.414)

【中文版:〈陳長文:比消費券更重要的議題〉】