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2016/08/17 18:50
Constitutional review: Role of lawyers and Bar Associations in Taiwan

Constitutional review: Role of lawyers and Bar Associations in Taiwan

Eric, Chang (張啟祥律師)

 

Role of Lawyers in Taiwan

Chapter 2 of Taiwan Constitution, from Article 7 to 24, marks the rights and duties of Taiwan people. Article 8 states, personal freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted. Section II of Article 8 also points out people have right to access court for trial after his arrest or detention. 

 

Furthermore, beyond the imagination of the members of the National Assembly could consider on December 25, 1946, civil war in China already started, Article 23 of Constitution gave the broadest range of freedoms in regards of all the freedoms and rights enumerated in the preceding Articles shall not be restricted by law except by such as may be necessary to prevent infringement upon the freedoms of other persons, to avert an imminent crisis, to maintain social order or to advance public welfare.    Therefore, all proceed of human right protection and the practice of rule of law need lawyers in Taiwan with highest ethical and legal professional standards. 

Under the above Constitution requires, Article 1 of the Taiwan Attorney Regulations Act reads: "Attorneys take upon themselves the goals of protecting human rights, promoting social justice, and contributing to democratic government and the rule of law" …"Guided by these professional goals, with the spirit of self-regulation and self-governance, attorneys should strive to faithfully execute their professional responsibilities, contribute to the preservation of social order, and work towards the improvement of the legal system." According to the stated regulations, the role of lawyers in Taiwan should be includes, but not limited to, 

1. Protect human rights,

2. Promote social justice,

3. Contribute to democratic government, and

4. Contribute the rule of law   

 

Role of Bar Associations in Taiwan

With such mission, philosophy, the requirements of self-regulation and self-governance, article 11 (i) of Attorney Regulations Act reads, an attorney at law is not entitled to practice until he/she has become a member of a Bar Association. Membership in the Bar Association is a right for all duly licensed attorneys. Article 11 (iii), on the motion of at least seven Bar Associations, and as concurred in by a majority of votes in all Bar Associations a National Bar Association maybe formed. Only one Bar Association maybe formed for each organizational level or jurisdiction. The Taiwan Bar Association (TWBA), as the National Bar Association in Taiwan and its members as 16 local bar associations have worked in accordance with the principle above, not only promote lawyers' continuing education in order to enhance their professional skills and legal service quality, but also ethics and discipline issues in order to qualify the requirements of self-regulation and self-governance.

 

Taiwan Bar Association and 16 local Bar Associations are also pay attention to promote human right protection by holding various forums on human rights issues and forming alliances with various domestic organization to participate in Taiwan's political, social and judicial reforms, as well as legislation amendments in order to foster democracy and the rule of law. In order to answer the variety demands from ethical request, different fields of law reform, social reform, and government and international correspondence, Taiwan Bar Association has 29 committees and:

 

1. Committees in regards of ethical and discipline issue: Attorneys' Ethics Committee, Legal Practice Development Committee, Law Journal Editing Committee, Attorneys' Benefits and Complaints Handling Committee.   

2. Committees in regards of law and regulations: Public Construction Committee, Commercial Law Committee, Civil Law Committee, Criminal Law Committee, Administrative Law Committee, Civil Procedural Law Committee, Criminal Procedural Law Committee, Financial and Economic Law Committee, Environmental Law Committee, Intellectual Property Rights Committee, and Social Law Committee. 

3. Committees in regards of social reform: Consumer Debt Clearance Committee, Human Rights Protection Committee, Judicial Reform Committee, Constitutional Reform Research Committee, Consumer Protection Committee, Labor Relationship Committee, Women and Children Problems Research Committee, and 228 Judicial Justice Fund Management Committee.   

4. Committees in regards of government and international communities correspondence: International Affairs Committee, Mainland China Affairs Committee, Parliament Coordination Committee, Regulation Arrangement Committee, Adjudication Practice Committee, and Non-Litigation Procedure Committee.   

5. The Attorneys' Study Center: The Attorneys’ Study Center is in charge of the attorney's pre-admission training.    The heads and members of each committee and executives of the Center are nominated by the President upon the approval of the Board of Directors.   

The local bar associations, divided by county/direct court boundary,    have involved in local area public legal aid programs and public interest activities, and looks after underprivileged communities to pursue social justice as well as TWBA.   

 

Challenge of legal practice reform in Taiwan

Established in 1948, it was the time when civil war rowed high in mainland China, Taiwan Bar Association walks a long and hard way to make the purpose and spirit of “promoting social justice, protecting human rights, and contributing to democracy and the rule of law" comes true. Marked on TWBA website, the three main aims of TWBA are as stated below, 

1. Furthering reform of the Judiciary and the legal system, 

2. Encouraging compliance with the Code of Ethics for Lawyers and enhancing the status of lawyers, and 

3. Promoting the laws of Taiwan and establishing a connection with global legal ideas.

 

However, the challenge TWBA is facing right now might be the definition and role of association itself: The legal market became drastically competitive due to the economic downturn and legal service market is inevitably shrinking. More law department of universities makes more graduates, and Taiwan government policy for the passing rate of the bar exam is fixed about 10% comparing to only 3-4% previously. It makes the number of newly-admitted lawyers has more than doubled since 2011, and nearly one thousand lawyers are squeezing to the over-crowd market every year. 

 

Due to the current requirement of Attorney Regulation Act 11 (i) in Taiwan demands an attorney at law has to join a local bar association in order to practice in the said district court/county, which means the annual fee for a lawyer to attend several local bar associations becomes an burden for young lawyers. Therefore, the reform for “one bar, one nation practice”(單一入會,全國執業) is going to become a challenge to the meaning of Taiwan Bar Association and the rest 16 local bar associations themselves. 

If the movement success, it will inevitable “destroy” some local bar associations with few members, especially the agricultural and weak economic performed counties in Taiwan, and the local legal service in the county might face difficulty at that time due to lawyers might attend the metropolitan bar association to search for better service. It is a dilemma for lawyers in Taiwan, and constitutional review and fulfill the requirement of Attorney Regulations Act will be the guideline to balance the demand from different parties.   


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