【演讲】建构政府律师体系 翻转政府治理

20160408【陈长文@新北市法制局】建构政府律师体系 翻转政府治理 by cvchen1973

 

标  题: 建构政府律师体系,翻转政府治理-陈长文教授专题演讲
发布日期: 2016-03-31
截止日期: 2016-04-08
发布单位: 新北市政府法制局
类  别: 机关新闻
内  容: 【新北市讯】新北市政府法制局订于105年4月8日星期五下午2时举办专题演讲,邀请知名法学专家陈长文教授莅府讲授“建构政府律师体系,翻转政府治理”,引领本府同仁了解政府律师制度之概念。
按行政机关对于法制的理解诠释能力、控管品质,几乎决定一国法治发展程度,倘机关政策合法化能力不足,将加剧人民政府间信任代沟;相较于美国,其下辖逾12万名政府律师,身兼公务员及律师双重身分,其独立性之特质,可谓系“人民托付在政府的律师”。两相比较,我国法制单位资源配备,明显无法承担起政府律师的繁重任务,盖因人力不足,又欠缺跨领域、国界的实务历练,少有机会直接 参与重大决策形成过程。
陈长文教授以法律人之角度,长期关心公众议题,不吝对国家发展政策提出具体建议,尤其呼吁政府机关应重视法制单位之建制与运作,以保障推行政策之品质与效能。本次专题演讲除邀请各级机关、区公所法制人员共同参与,以了解法制单位将可转型、改造之新方向,亦希望本府法律扶助顾问、青年律师服务团律师及各区公所之调解委员,一同共襄盛举,交流意见,为国家法制度提供新思维。
联络人:法制局采购申诉审议科 张翠怡
联络电话:本市境内1999或(02)29603456转4246
联络人: 张翠怡
联络单位: 新北市政府法制局采购申诉审议科
联络电话: 02-29603456转4246
电子信箱: AA4339@ntpc.gov.tw

 

案例延伸阅读文章:

(2007台北市错课房屋税案,2009修法)

2009-04-15 为公务员的体贴拍拍手 (陈长文)

2009-03-03 行政法院 该当老百姓的包青天  (陈长文)

2009-01-05 (课税权,不再无限上纲)公务员依法行政 更要有担当!  (陈长文)

2008-08-08 【专访】修法退溢收》陈长文:没有欣喜 只有气馁

(土地量测错误案)

2011-05-23 政府有错不赔,小民有苦难伸 (陈长文)

【索引】【专访】陈长文:比消费券更重要的议题(谈政府律师)

(刊载于:天下杂志 414期作者:吴韵仪、彭昱融。)

政府也是个大企业,也应该像企业有法务部门,才不用时时担心是否“图利”他人。罗益强与林全的案例,突显了政府与企业界皆迫切需要适格的法律专才。

我常讲个故事。据说成吉思汗时代有本《雅萨法典》,其中一条是:“传回不祥情报的探子,斩。”许多企业经营者把法务或律师的专业意见,视为传达噩耗的讨厌探子,一概加以屏除,这是很危险的心态。成吉思汗统帅骠悍游牧军队横冲直撞的方式,早已不适用现代紧致规范的社会环境。

管理者不了解法律在企业经营的角色,不够资格担任管理者。企业的重大决定,不能没有法务长的咨询意见。在先进国家,法务长担任企业董事,司空见惯。

(……全文未完,请参照天下杂志。)

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

C.V. Chen: Overhaul Government Mindset【天下杂志:比消费券更重要的议题 】

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.

原文连结。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:〈陈长文:比消费券更重要的议题〉】