Taiwan Business TOPICS

Vol.

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。

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。 

司法改革的急迫性

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

Taiwan Business TOPICS

Vol.

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 within China. 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 the U.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