The Rule of Law in China and Taiwan – Toward “One China, Better System”

本篇出處 Issues & Studies 46:4 2010.12[民99.12] 頁217-247
篇名 The Rule of Law in China and Taiwan-Toward “One China, Better System”
作者 陳長文 ; 蘇詔勤 ; 林耀煌
英文摘要   This paper argues that Taiwan and China should sidestep the issue of what constitutes “one China” and instead improve the rule of lawin their respective areas, which could lead to a better system of government. One element of a better system is prosperity, which both sides are quite keen on. But the remaining two components— freedom and democracy— cannot be realized without rule of law. Sun Yat-sen’s Three Stages of NationalReconstruction offers a viable framework for the development of the rule of law on the two sides of the Taiwan Strait. The rule of lawinChina is,with a fewnotable differences, at a similar stage of development as it was in Taiwan under martial law. Such a difference in the two governments’ legal development could derail their efforts toward closer ties. China has to overcome many challenges before it can undertake legal reform; however, there is reason to believe and hope that the development and maturation of its legal system will continue. Discussions centered around “clean and efficient government and corporate governance” would help Taiwan and China take the first of many practical steps to accelerate cross-Strait exchange and relations.

 

 

The Rule of Law in China and Taiwan – Toward “One China, Better System” by cvchen1973 on Scribd

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〉】

 

My Ven Ven, a blessing in disguise

(C.V. CHEN 陳長文)

Dear Ven Ven,

You have taught us perseverance.

With this letter, I hope I can tell you how much you are our pride and joy. You are our special gift from God. You have brought us tears, pain, as well as laughter, which only bring us closer together as a family. We accept you as you are and embrace your difference with open arms. Your love and endearment in return give us strength and purpose. Because of you, we have truly been blessed.

From the minute you open your eyes each morning, you face challenges that we take for granted everyday. You struggle to accomplish tasks that others complete without effort. For every little “miracle” you achieve, you cheer and applaud yourself with such pure joy that we can’t help but feel your excitement and happiness as if they were our own. Your struggles have taught us there are no challenges too great to overcome and you have shown us perseverance that we thought only “super heroes” possessed.

Yet, you never seem to care if others look at you differently; you greet them with respect and sincerity before anyone greets you. I have seen how your sincerity and innocence have melted strangers’ hearts and helped them open up to you and learn to love like you. You have provided our family a new perspective — a perspective into the mission that God has given us. Without your inspiration, I would not have seized the opportunity to commit to work with the Red Cross, to do my part in helping those like you who need a little support. I shudder at the thought that had I missed this opportunity, I would have forever missed the chance to do something truly meaningful.

I hope that other families with angels like you could also appreciate that disabled children are not a shame or punishment. We must respect our children first before expecting anyone else to. And, we must believe that we are stronger than others and have been chosen to take on this important task of raising these special angels. They move us with their purity and sincerity, and patiently wait for us to discover the things that are truly meaningful.

I often think that those with power or wealth would benefit from having a child like you at home. This is not meant to be a curse; on the contrary, I sincerely mean for it to be a blessing. Only by having angels like you in their lives can they truly relate and sympathize with families of much lesser means and understand what they go through each day. And only then will they discover how much joy they can bring to those in dire need. Only in this way will they, with all their influence and resources, understand what a waste it was for them not to have used their power to do good.

Many people at the peak of their career or the top of their field often live under the illusion that they are invincible and, inevitably, feel that philanthropy can wait. But in reality, life is fragile; regardless of whether you are an average citizen, or the ruler of a sovereign state, life can come to an end very unexpectedly and abruptly. And when that time comes, one can only lament what one “could have done.”

I believe that if our politicians had children like you, they would be less likely to squander billions of dollars of public money on seemingly meaningless projects, such as military spending for national security or bribing lobbyists for buying foreign “friendships,” and more likely to devote more of our valuable resources to improving our social welfare systems and the lives of families with children with disabilities.

The opportunity to do good has no limit; there are the elderly, the mentally ill and many, many others who are in need. We have the ability to reach out to other countries and share our love with the whole world. I sincerely wish that the Commonwealth State as described in the Classic of Rites by Confucius could be achieved: “There is a means of support for the widows and the widowers; for all who find themselves alone in the world and for the disabled.”

You have taught us that suffering often stems from loving ourselves too much.

A quote that appears at the end of each of my e-mails by Kahlil Gibran says a person is no more than a drifting speck of dust if he can not love or be loved. I like it because it reminds me of you.

I believe that the pain people feel is often self-inflicted, caused by self-pity and selfishness. Those people are too self-absorbed and therefore incapable of giving or accepting love. They don’t realize that, to experience true happiness, you must be willing to embrace others and be embraced.

Because of you, Ven, our love has found its purpose. And because of you, we have the privilege of basking in your unending affection. I honestly believe that I am able to love others better because of the way you have loved me.

Let us pray that everyone will learn from you, and those like you, how to love and be loved. It is the only way that life will not whisk by like a speck of dust, but instead, blossom into an eternal spring of joy.

You are our dearest Ven Ven. Thank you for loving us with all your being. With all our affection,

Daddy, Mommy and your sister Theresa.
C.V. Chen is president of the Red Cross Society of the Republic of China and a former secretary-general of the Straits Exchange Foundation.

Friday, Aug 08, 2008, Page 8
Editor’s note: This is an open letter from C.V. Chen to his son, who is mentally and physically challenged. Taipei Times presents this to mark Father’s Day.

【2008/08/28 Taipei Times 970828】

中文版Chinese Ver. 〈陳長文給愛子文文的一封信〉

On ending ‘checkbook diplomacy’

 

The commotion over the Papua New Guinea diplomatic fund scandal has been increasing in intensity. Yet I feel that if it were not for the structural weaknesses present in Taiwan’s diplomatic relations, it would be difficult for politicians, greedy officials, corrupt businessmen and middlemen to cheat the public and steal from the nation’s coffers.

Any corruption or dereliction of duty in this particular case should be investigated and prosecuted to the fullest extent. However, it is even more important to face up to these structural weaknesses. How should we do so? Allow me to address this matter using two recent news stories.

The first: More than 60,000 deaths resulted from the cyclone in Myanmar, and the victims are still awaiting international aid. The second: In a television interview, premier-designate Liu Chao-shiuan (劉兆玄) said that it would not be easy to completely eliminate “checkbook diplomacy,” and that it would be too idealistic to do so.

How does one define “checkbook diplomacy,” I wonder? Which definition was Liu using when he said that talk of eliminating it was too idealistic?

The first possibility is “checkbook diplomacy” means that when Cyclone Nargis hit Myanmar, causing tens of thousands of deaths and wreaking havoc on hundreds of thousands of other Burmese,Taiwan without hesitation established a US$30 million relief fund and threw itself into humanitarian efforts for that country, which maintains no diplomatic relations with Taipei.

In this is what is meant by “checkbook diplomacy,” then I think there is an indisputable need for it. If Taiwan spent US$30 million on a diplomatic (or non-diplomatic) ally to build hospitals for disadvantaged people, send an agricultural team to help impoverished rural areas, provide educational development assistance to less developed nations or sponsor poor children, than I entirely agree with the argument that eliminating checkbook diplomacy is too idealistic.

The second possibility is that “checkbook diplomacy” refers to Taiwan giving money, without knowledge of how it will be used, to foreign politicians in exchange for diplomatic relations.

We should condemn any official who, for the sake of visible political accomplishment, still advocates these kinds of exchanges as necessary.

In 2004 I wrote an article about abandoning the myth of the importance of the number of diplomatic allies and seeking to fight the right diplomatic battles. As a result of this article, the Ministry of Foreign Affairs held a seminar on this topic. My views on the matter have not changed to this day.

The 23 diplomatic allies that we have do not even make up 13 percent of the countries of the world. If you look at their combined population, they hardly reach 1.5 percent of the world’s population. If you look at their total area, it is only 1.2 percent of the world’s total.

It is not hard to see from these numbers how incredibly silly it is that US$30 million was spent to buy diplomatic relations with Papua New Guinea, only to have it stolen by a middleman. Besides, when Taiwan gains or loses a diplomatic ally, people just think: “So what?”

When we spend a fortune in an attempt to add another “diplomatic ally” to the list, government officials should ask themselves whether there is any meaning in having these “allies.”

Once these countries go through changes in political power, we have no guarantee that the incoming leader will be friendlier than the incumbent whose favors we have bought. Does that mean we have to make “another purchase”?

Also, most cases of money-based “diplomatic shopping” involve under-the-table political donations. Not only does this violate the target country’s laws, it is also extremely unethical.

I believe that if the US$30 million that disappeared as part of the Papua New Guinea scandal were given to premier-designate Liu or foreign affairs minister-designate Francisco Ou (歐鴻鍊), they would use it for the first kind of checkbook diplomacy described above.

This is quite consistent with president-elect Ma Ying-jeou’s (馬英九) remarks at a Taiwan Fund for Children and Families event, where he said that Taiwan is ranked fifth in the world according to the number of needy children it sponsors, and that this is the best way for it to display its strength on the international stage.

Although Taiwan’s finances are in difficult straits, we continue to engage in this kind of self-emaciating, yet disgraceful diplomatic policy, all for meaningless numbers of diplomatic allies.

It would be better to employ a transparent method to work with local non-governmental organizations to expend diplomatic resources on charitable works in less developed nations.

Only in this way will Taiwan gain respect internationally as well as engage in meaningful diplomacy.

By C.V. Chen 陳長文, C.V. Chen is the president of The Red Cross Society, ROC.

TRANSLATED BY JAMES CHEN

The Taipei Times. Sunday, May 11, 2008, Page 8

【2008/05/11 Taipei Times 970511】

【專訪】國家法治願景2020:司法改革的急迫性 The Urgency of Tackling Judicial Reform

 

 

中國一直沒有西方的法治傳統-這個觀念在晚清隨著西方列強的「艦砲外交」才引進,當時各國紛紛在中國境內行使治外法權。列強想和中國從事貿易,卻發現中國連最原始的司法制度都沒有,更別提規範商業行為的法條了。於是,他們選擇在中國境內建立自己的司法制度。在中華民國成立、不平等條約廢止後,西方的司法體系及民商法架構在1920年代晚期到1930年代早期逐漸成形。但這些徒具形式的制度,在日本入侵及國共內戰的影響下,始終無法扎根。

國民政府撤退來台後,由於實施戒嚴,司法運作仍難以正常。戒嚴一直維持到1987年才被取消。解嚴之後的20年間,法治可有長足進步?答案是肯定的,但同時也很遺憾,台灣仍有許多力有未迨之處。理論上,解嚴應該去除了限制司法體系進步的所有障礙’;不幸的是,許多心理障礙仍然存在。鳥籠的門雖已打開,但法官、檢察官、法學、教授、律師、公務員這些籠中鳥的想法仍然沒變-戒嚴時期的心態讓他們無法放開心胸,依舊認定威權應該凌駕法治。更糟的是,他們骨子裡還是孔子那套「長幼尊卑」的概念。因此,法官、檢察官、法學、教授、資深律師及其他人長久以來忽視了身為「司法良心」的責任,坐視司法體制的缺失及濫權,卻未能仗義執言。

因此,雖然在司法獨立及審判公平上,台灣比20年前進步很多,但始終無法完全排除政治及其他不當勢力的干擾- 近期的部分案件正反映了這個問題,而且政治力介入的問題不限於單一執政黨而已。

在1970年代美國發生水門案期間,尼克森總統下令司法部長理察森撤換特別檢察官考克斯,理察森在拒絕總統的命令後主動辭職。台灣有人敢對總統說「不」嗎?又有多少人會對長官說「不」?他們有沒有那種智慧、膽識和動機呢?我企望在2020年之前,再也沒有任何政客敢不當介入司法;而就算真的發生這種情況,法官及檢察官也都能秉持職業尊嚴及操守斷然回絕。

與人民脫節

另一個需要注意的問題是,我國的司法制度,往往漠視人民的切身之痛。舉例來說,現行的《民法》「繼承篇」規定,如果繼承人沒有在三個月內宣告限定繼承,死者的財產及債務都會完全移轉給繼承人。此一繼承制度在傳統結構簡單、親戚彼此熟識的小型社群下並無問題。然而,現代人很可能根本不知道他們會是那個親戚的法定繼承人,搞不好連親戚過世了都不知道。此外,債務追討方式也非常沒有人性,銀行會將應收帳款賣給討債公司,然後討債公司就竭盡所能追討款項。這幾年已經有些人因為無法承擔償還繼承龐大債務的壓力而走上絕路,另也在報上讀到幼童被迫在成年之後就得扛起鉅額債務的報導。

為什麼法官承審類似案件、教授教到繼承法或是立委碰到類似情形時,不會察覺當中的不公、找出方法補救?我想,答案是他們根本離一般人的生活太遠。專業素養不只在拒絕賄賂或公平審判,同時也該展現社會責任。法官不該拘泥於法律的文義解釋,而忽略立法的精神,畢竟,法律原本是為了服務人民而制定。

該怎麼改善這種狀況?其中一種作法是為司法制度挹注更多資源。法官(及檢察官)不可能在案件超出負荷的情況下還做出明智判決。如果預算增加,法官人數自然能夠增加,也能以優渥的薪水吸引能力更強的法官,並聘請更多法官助理及提供其他後勤支援。最近針對前台北市長馬英九案檢訊筆錄正確性的爭議,即反映出相關制度的問題。在美國,應訊者就算只是點個頭,法庭速記員也能詳實紀錄。不可思議的是,在台灣應訊過程沒有精確的筆錄,全憑檢察官的自由裁量做成粗略的記錄。

另一起案件則點出我國司法透明度及可信度的問題。三位曾任職於公營行庫的職員,直到他們都已經70多歲,才等到最高法院的判決,洗刷29年前因貪污罪名遭羈押及革職的冤屈。在數十年的審理過程中,共有99位法官承審。在此類涉及非法羈押及判決的案件中,司法院必須重新閱卷,以釐清是否有任何法官或檢察官應負重大過失責任。但審閱小組卻僅由法官組成,結果他們當然從來沒有認定同僚有重大過失,甚至審閱的相關文件也不提供一般大眾檢視。

司法院現在正推動一系列改革措施以改善司法效能,但勢必面臨既得利益者的強烈反對。其中一項措施會改變法官選任方式。現在的法官都是從學校畢業後經考試直接上任,既沒有足夠的成熟度,亦無社會經驗來處理複雜案情,而司改方案則建議改採類似美國的制度,任命經驗豐富且具充份專業能力的律師。轉換到新制前或許需要一些研究,避免影響正在受訓的年輕法官。

司法教育改革

另外,可考慮從法學教育著手進行根本性的改革措施,目前主要針對大學課程。現在的學生都是高中畢業後直接進入大學法律系,然後報考律師、法官或檢察官;此一制度導致他們欠缺完整的法學教育養成,受限於相當侷限的範圍。如果能比照美國要求律師必須具有研究所學歷,會是比較積極的做法,但在實施前必須訂定落日條款,保障已經就讀法律系的學生,並就現有大學法律系進行升格。

同時,對於法律人包括法學教授在內亟需永續教育及再訓練,如此方能具備足夠的歷練處理專業領域的新發展,避免他們的法學知識很快就落伍過時。

如果要趕在2020年前有效落實司法改革,就必須現在開始推動。媒體、民眾、以及非政府組織等相關社團都應發揮其功能,但最關鍵的是國家領導人是否能展現決心。此次總統大選,在野兩黨的參選人都是經驗豐富的法律人,如果新任總統當選後能將司法改革當成首要任務,他對社會的寶貴貢獻,將被世世代代所感念。

— 本文由TOPICS雜誌總編輯沙蕩依據訪談內容整理成稿。

56 TAIWAN BUSINESS TOPICS • NOVEMBER 2007

NOVEMBER 2007 • TAIWAN BUSINESS TOPICS 55

陳長文現任理律法律事務所執行合夥人,並擔任政治大學法律系兼任教授,以及中國浙江大學光華法學院教授委員會主席。

 

Taiwan Business TOPICS

Vol.37 – No. 11

國家法治 VI S ION 2 0 2 0

VI S ION 2 0 2 0 RUL E OF LAW

台北市美國商會「2020願景」特輯,刊載於台北市美國商會「TOPICS」雜誌特刊。

Taiwan Business TOPICS

Vol.

37 – No. 11

Vision 2020 – Rule of Law

Rule of Law

C.V. Chen is managing partner and CEO of the Taipei law firm of Lee and Li, adjunct professor of law at National Chengchi University, and Chair of the Council of the Guanghua Law School of Zhejiang University in China.

The Urgency of Tackling Judicial Reform

China never had the long tradition of rule of law that existed in the West. That concept was introduced only in the late Qing Dynasty, through “gunboat diplomacy,” when the foreign powers set up extraterritorial jurisdictions withinChina. They had sought to trade with China, only to find that China lacked even a primitive court system, let alone written laws regulating commerce. As a result, they established their own court systems on Chinese soil.

Then after the Republic of China came into being and eventually the “unequal treaties” were abolished, a start was made in the late 1920s and early 1930s in introducing a Western-style court system and civil code. But those were just borrowed trappings, and with the Japanese invasion and then civil war, there was no chance for them to become deeply rooted.

After the government’s move to Taiwan in 1949, the situation was also abnormal because of the imposition of martial law. It was only 20 years ago, in 1987, that martial law was lifted. Has there been significant progress in developing the rule of law since then? Absolutely. But at the same time it is deeply disappointing that much more has not been done. The ending of martial law should have removed all the restraints that had held back the development of our legal system. Unfortunately, however, many psychological restraints still remained. The door of the bird cage was opened, but all those within the cage – the judges, prosecutors, law professors, lawyers, and civil servants – did not change their mentality. Instead of a breath of fresh air, there was continuation of a martial-law mindset of respecting authority over the primacy of the law. And that came on top of a Confucian mindset of emphasizing one’s relationship with others in terms of senior and junior, superior and subordinate, boss and employee. Given those psychological constraints, the judges, prosecutors, law professors, senior lawyers, and others who should be the conscience of the profession have all too rarely spoken out when they have witnessed shortcomings or abuses of the system.

As a result, although we are much better off than two decades ago with regard to the independence of the judiciary and the fairness of the proceedings, there has not been a complete end to political and other undue interference. A number of recent cases have raised concern about this point, and it is a problem that is not limited to any particular party.

During the Watergate crisis in the United States in the 1970s, Attorney-General Elliot Richardson refused President Nixon’s order to fire Archibald Cox, the special prosecutor, and then he himself resigned. Do we have anyone who would say “no” to the president? How many will say “no” to a superior? Do they have the wisdom, courage, and motivation? Before the year 2020 I would certainly hope we would be at the point where no political figures would dare to try to exercise any undue influence, and if it happened the judges and prosecutors would have the professional pride and self-discipline to resist.

Distance from the people

Another aspect that deserves attention is that our judiciary has tended to be very cold and indifferent to things that touch the heart of the people. To cite just one example, under our inheritance law, both the assets and the debts of the deceased are passed on to the heirs, unless the heirs declare within three months that the liability should not exceed the amount of money inherited. That was fine when we all lived in small communities and everyone knew everybody else, but now people may not know that they are heirs or even that their relative has died. And debts are handled in a much more impersonal way, with banks selling accounts receivable to collection agencies, who then do everything possible to collect the money. There have been cases of suicides because of pressures to repay the heavy inherited debt load, and reports of small children who will face crushing debts as soon as they reach adulthood.

Why didn’t the judges hearing these cases, the professors teaching inheritance law, or the legislators grasp the unfairness and try to find a remedy? I’m afraid the answer is that they were just too far removed from the people’s lives. Professional ethics should not just be a matter of refusing to take bribes or show favoritism; it is also a question of demonstrating social responsibility. Judges should not just stick strictly to the letter of the law while ignoring the spirit of the law. After all, the laws are supposed to be there to serve the people.

How to improve the situation? One way is to allocate much more resources for the judiciary. Judges (and prosecutors) cannot make wise decisions when they have to face impossible caseloads. With more budget, we can hire more judges, offer more pay to attract higher caliber judges, and provide more research assistants and other supporting infrastructure. The recent controversy over the accuracy of the prosecutor’s record of testimony in Ma Ying-jeou’s trial points up the sorry state of affairs. In the United States, even a nod of the head gets recorded by the court stenographer. Incredibly, here there is no accurate record, just the rough records based on the prosecutor’s discretion.

Another recent case points up problems with transparency and accountability. It involves three men now in their seventies – former employees at a government bank – who were finally found not guilty by the supreme court, 29 years after they were first detained on corruption charges and fired from their jobs. Over the decades their case was heard by a total of 99 different judges. In such instances of wrongful detention or judgment, the Judicial Yuan is required to review the files to see whether any judges or prosecutors should be held to account for gross negligence. But the review panel consists only of fellow judges, and they never find their colleagues guilty of gross negligence. The documents from the review process are not even readily available for public scrutiny. Currently the Judicial Yuan is promoting a set of reform measures that would help appreciably to improve judicial performance, but these will certainly face strong opposition from vested interests. One proposal would change the way judges are appointed. Now they come straight out of law school, taking the bench without the maturity or social experience to deal with complicated cases. The proposed change would adopt something akin to theU.S. practice of appointing seasoned lawyers with extensive professional expertise. Some study would be needed on how to phase in the new system, so that young people already being trained for judgeships would not be affected.

Reforming legal education

An even more basic reform being considered would revamp our legal education, which is currently mainly conducted at the undergraduate level. Students enter law school right out of high school, and then take the bar exam – or the exams for judges or prosecutors. That prevents them from acquiring a well-rounded education, leaving them with a rather narrow perspective. Requiring lawyers to have graduate-level education, as in the United States, would be a very positive step, but again sunset rules would be needed to take care of students already in the pipeline and also to upgrade the existing law colleges.

Also vitally needed is continuing education and retraining for legal professionals – including law professors – so that they are equipped to deal with sophisticated new developments. Otherwise their legal knowledge will quickly become obsolete. Instituting effective reforms in all these areas by 2020 means starting now. The media, the public, and relevant NGOs all have a role to play. But the key will be the existence or absence of strong leadership exerted from the top. In this presidential election, both candidates are veteran lawyers with wide experience. If the next president takes up judicial reform as a task of top priority, he will be remembered by generations to come for making an invaluable contribution to this society.

— Based on an interview with Taiwan Business TOPICS editor-in-chief Don Shapiro.

http://www.amcham.com.tw/publication_topics_view.php?volume=37&vol_num=11&topics_id=993

http://www.amcham.com.tw/dl/54-56_CVChen.pdf

【NEWS】EU at 50: Taipei European School celebrates Europe Day

(By Erika Wang The China Post)Diplomats and business leaders from different backgrounds and countries yesterday joined an equally diverse group of Taipei European School (TES,台北歐洲學校) community members to celebrate Europe Day.

This year marks the 50th anniversary of the European Economic Community, the forefather of the European Union, which was established in 1992 with the Treaty of  Maastricht.

“We feel that it’s a very important day and it’s the one unifying day where we can celebrate the EU and all of our European countries,” said John Nixon, CEO of TES.

On May 9, 1950, French Foreign Minister Robert Schuman proposed the first concrete foundation of a European federation in what is known as the “Schuman declaration,” which is considered to be the beginning of the creation of the EU.

“The EU as we all know is…a powerful group, which in my opinion is founded on a common core of peace and solidarity,” said C.V. Chen (陳長文博士), chair of the TES Board of Directors.

Students of different ages and sections put together an impressive entertainment program for this year’s event, including a first-ever performance of the Romanian national anthem to welcome one of the EU’s most recent additions.

Romania and Bulgaria joined the EU in January, increasing the EU to a total of 27 member states.

Nixon said that the students practiced the Romanian anthem for a couple of months, and they are learning the Bulgarian one for next year.

To mark the occasion in true TES style, a multilingual rendition by the school Choir and Ensemble was performed to Beethoven’s “Ode to Joy,” the anthem of the EU.

Nixon explained that for the Europe Day celebrations, the school always has students “doing something typically European,” such as a circus act with unicycles, a favorite among the crowd.

International representatives from France,England, Germany, Czech Republic, Denmark, Spain, Austria, the Netherlands, Switzerland,and Honduras, among others, were at hand for the momentous occasion.

Pit Kohler, deputy director-general of the German Institute, called TES the “perfect place” to experience a European environment in Taiwan.

Dirk Sanger, member of the TES Board of Governors, said that as a parent of a TES student himself, he could attest to the school’s quality of education and to the joy the children have when going to school, which he attributed to “the very dedicated and motivated staff and teachers.”

After having conquered “yesterday’s challenges” of open borders and one currency, “tomorrow’s challenges” for the EU include working with renewable energy, keeping the environment clean, and continuing to build lasting peace, said Guy Ledoux, head of the European Economic and Trade Office in his remarks.

Quoting Winston Churchill’s call for a European family over 60 years ago, Michael Reilly, director general of the British Trade and Cultural Office, said that today “we have that European family.”

Reilly added, “We have what we have today because of vision, hard work, and determination of those who have gone before us. And the Europe of tomorrow will depend on the vision, hard work, and imagination of today’s Europeans.”

Addressing the audience mostly in French, Jean-Claude Poimboeuf, director of the French Institute, said, “We can see that in only 50 years, Europe has achieved a lot: peace and stability, freedom and democracy, free flow of people and goods, and prosperity.”

“Taiwan attaches very great importance to our ties with the EU,” said for her part Chang Siao-yue, vice foreign minister. To illustrate, she cited last year’s bilateral trade of US$40 billion between Taiwan and the EU, as well as the 25,000 Taiwanese studying in the EU.

In her closing remarks, Chang said she wished the EU continued success and growth, and hoped for stronger ties between Europe and Taiwan.

TES Europe Day celebrations started more or less from the outset in 1992 when the three schools came together, explained the TES CEO.

Nixon, a Member of the Order of the British Empire (MBE), is already gearing up for next year’s Europe Day. “They want me to ride the unicycle!” he said with a smile. “The children bought me a unicycle for my 50th birthday, so maybe one year I will be able to do it,” he added.

http://www.chinapost.com.tw/news/archives/taiwan/2007510/109241.htm

【演講】Becoming A World-Class Business- A Lawyer’s Perspective 邁向世界一流企業─法律人觀點

  In today’s society, law is intertwined with business more than we may imagine. It is critical that managers possess at least the fundamental knowledge of legal issues relating to their business operations. With adequate awareness, a business can be properly managed and better safeguarded. On the contrary, ignorance of legal matters can seriously jeopardize a business. Therefore, a good manager should understand the impact of law in business. In addition, law is also vital in establishing a world-class business, which is a goal that the lagging local Chinese businesses are striving. I will present my recommendations on this subject matter in the later part of my speech.

  To begin, how is law related to business The ways of business on one level can be seen as governed by law. Due to the rules in place, a business entity, which is not a natural person, is accordingly granted the legal capacity to engage in activities and claim ownership. Thus, an enterprise can own land, open bank accounts, issue stocks, apply for patent, and so forth. It is by the operation of law that enterprises acquire legal rights as well as obligations.

  It is then fundamental that a business understands the impact of domestic and international laws on business management. A business has to abide by the domestic laws of the country that it resides in, and the impact of such laws is on all areas of business functions from production, finance, HR, MIS, R&D, and to marketing. For instance, laws are commonly in place for environmental and consumer protection, intellectual property, banking, labor rights and so forth, that would and should influence managers’ business decision-making. In all, an enterprise should have a sound knowledge of the domestic laws of the country in which it is doing business. In addition, businesses should also be familiar with international laws and treaties that may potentially affect business prospects, such as the Montreal Protocol, labor treaties, and WTO.

  Upon comprehensive awareness of legal aspects, I further propose a new model with three major points for Chinese enterprises to use as a reference, as to how to become a world-class business. The first is to promote the strengths of our traditions, such as the old saying, “Doing well by doing good.” However, many local Chinese enterprises tend to separate “utility” from “profit” in doing business; more specifically, neglecting public welfare in the sole pursuit of company interest. “Utility-concerns” and “profit-concerns” should converge when making business decisions as they shape the company’s value in the long run.

  An example of another Chinese tradition that should be encouraged is pointed out in the book, “Eastasia Edge,” of Holfheinz and Calder in that “Eastasians, deeply influenced by Confucianism, are diligent and frugal, value education and familism and respect their government and all these have formed a common source of economic drive.” These are some of the traditions that strengthen Chinese businesses. Second, to become a world-class business, a company needs to maintain a high level of self-discipline for the maximization of public welfare, as well as adherence to law for the demonstration of company’s goodwill, avoidance of risk from lawsuits, and early adaptation to today’s elevating ethical standards. And finally, a business should always take legal advice into account in its decision-making and establish such practice as a primary norm.

  In examining the norm of some of the world-class businesses in the international arena, Chinese enterprises have much room to improve. Businesses should understand that most investors are willing to pay higher premium to invest in, aside from profitable, a well governed, and socially and legally responsible enterprise.

  ( Dr.C.V.Chen, Lee and Li, Attorneys-at-Law)

  現代社會中,法律與商業的關係十分密切。企業經理人擁有財經法律的基本常識是非常重要的。藉由對企業財經法律適當的了解,企業可以得到法律的保護安全順利地運作。

  相反地,忽略法律將會大幅增加企業的違法風險,威脅到企業的生存。因此,優秀的企業經理人應該了解法律對企業的影響力。並且,法律在建立一個世界級企業的過程中,實扮演極為重要的角色,而這也是發展中的華人企業一直努力追求的目標。我將在接下來的演講後,對這個議題提出建議。

  首先,企業與法律的關係是什麼呢?企業在某種程度上可以說是被法律所支配的。因為,一個非自然人的企業體之所以被賦予法律上的能力,可以從事活動以及請求所有權,這完全是法律所擬制出來的。是以,一個企業可以擁有土地,開立銀行帳戶,發行股票,申請專利權等等。透過法律,企業於焉取得法律權利並負擔法律義務。

   熟悉法律運作 跨國營運加分

   企業必須認知到,國內法以及國際法對企業經營的影響是非常深遠的。每一個企業都必須遵守它所設立的國家的法律,而這些法律的影響力遍及公司的每一個部門,從生產、財務、人力資源、資訊管理、研發、以至於行銷都有。

  例如,環保相關法律會影響到企業生產,消費者保護法會影響到企業的行銷,其他諸智慧財產權,金融,勞工權利相關法律,在在都會對企業經理人的商業決策有所影響。此外,一方面企業必須對於它所從事商業活動的國家的國內法有充分的了解。另一方面,企業也應該熟悉可能影響企業活動的超國界法律、國際法以及條約,例如蒙特婁議定書,勞工條約,以及世界貿易組織的相關規範等。

  對法律的運作有基礎的了解之後,我再提出一個新的模式供中式企業參考,如何成為世界一流企業。這個模式有三個主要的觀點,第一個觀點是立基於傳統優良文化的經營哲學,例如有俗諺有云「以義為利」,即把公益視為己利。

   結合社會公益 勇於承擔責任

  然而,許多華人企業有時會將「最大多數人的最大幸福」與「企業利益」分開;更精確地說,在全力追求公司利益的過程中忽略掉公共福祉。企業經理人在做商業決策以創造公司長遠價值時,應該將「社會公益」以及「企業利益」結合在一起。

  另外,在Holfhein以及Calder所寫的《EastasiaEdge》一書中提及一個優良的華人傳統:「東方的亞洲人,深深受孔子思想的影響,非常勤奮而且節儉,很重視教育以及家庭,且尊重他們的政府,而這些都已經形成東亞經濟成長的共同來源」。這些傳統價值,是現代華人企業要保持與發揚的。

  要成為世界一流企業,第二個要點是,公司必須維持高度的自律,努力追求公共福祉的最大化,透過對法律的遵守,以求公司商譽的實踐,一方面避免法律風險,另一方面,亦可及早適應現代社會益趨嚴格的企業道德標準。最後,企業在做商業決策時,一定要重視專業法律人(不論是內部或外部)所提供的法律意見,把法律諮詢納入商業判斷的流程,並將法律視為企業經營的準則。

  以眾多世界級一流企業的標準來看,華人企業尚有很多進步的空間。多數的投資者願意投下更高的金錢(據調查願提供多出20%的投資金額)投資除了賺錢以外,同時也是治理健全,並願意承擔社會責任以及法律責任的真正的一流企業。

  (作者陳長文是理律法律事務所合夥人)

    【2005-01-30 經濟日報25版IMBA 940130】

20050402【CVCHEN@NTU/Harvard】-Becoming A World-Class Business- A Lawyer’s Perspective by cvchen1973