The "Decision" of the Third Plenary Session of the 18th Central Committee of the Communist Party of China pointed out that "a legal advisory system should be universally established. Normative documents and legality review mechanisms for major decisions should be improved." The Decision of the Fourth Plenary Session of the 18th CPC Central Committee pointed out that it is necessary to establish a lifelong accountability system for major decisions and incorporate the effectiveness of rule of law construction into political performance assessment. It also listed "deeply promoting administration according to law and accelerating the construction of a government governed by law" as one of the six major tasks for comprehensively advancing the rule of law. This is an inevitable requirement for our country to administer according to law, govern according to law, and build a China ruled by law. This requires the establishment and improvement of the government advisory system, fully protecting the rights and status of legal advisors, and ensuring the efficient operation and legal implementation of the legal advisor system.
1. The concept and role of government legal advisors
Government legal advisors refer to natural persons or organizations that provide legal advisory services to the government. The government legal advisor system is a general term for the systems and rules on how government legal advisors are generated, operated and improved. At present, our country's government legal advisors refer to organizations that sign legal advisory service contracts with the government. The most important organization is the law firm, followed by the work unit where the legal experts work. With the growth of our country's lawyer team and the standardized development of the lawyer industry, the role of lawyers in social affairs has become more and more obvious. Lawyers not only have professional legal knowledge, but also have rich practical experience. Therefore, as consultant lawyers hired by the government, they can view government actions with a social supervision role and mentality. Moreover, consultant lawyers are not restricted by internal personnel of administrative agencies and can stand relatively objectively. , judge government actions from a fair perspective.
The government legal advisory system plays an important role in ensuring the three stages of legislation, law enforcement and supervision of administrative agencies. During the legislative stage or before making major decisions, the government invites government legal advisers to issue legal advice, etc., allowing government legal advisers to fully intervene in government decision-making and policy formulation to ensure the legitimacy of government policies and decisions, which can effectively improve the government's compliance with the law. Administrative abilities. In the government law enforcement stage, the government, as an administrative subject and a civil subject, participates in economic activities and civil activities at multiple levels, resulting in a large number of legal affairs. When the government conducts investment and procurement activities in accordance with the law, it can hire legal advisors to participate in contract negotiation, drafting, review and other non-litigation matters; when the government has disputes or conflicts with other legal persons, organizations, etc., it can hire legal advisors to appear in court on behalf of the government to participate in litigation. The government legal advisory system is also an important guarantee for preventing legal risks and supervising government decision-making. The legal advisory recommendations, legality certificates for major decisions, and legal review documents issued by legal advisors can conduct research and assessment of legal risks and propose risk prevention measures. At the same time, The filing system of these legal documents can effectively supervise whether relevant government officials carry out risk prevention and make decisions in accordance with the recommendations made in the legal documents, and can play a certain preventive role in preventing relevant government staff from taking advantage of their positions to seek personal gain with power.
2. Introduction to the government legal advisory system in developed countries and regions governed by the rule of law
(1) The evolution and development of the U.S. government legal advisory system
The establishment of the U.S. federal government There was no Department of Justice at the beginning, but the president created a position specifically for work needs: "Attorney General", whose responsibility is to provide opinions and suggestions on legal issues at the request of the President of the United States. Although the "chief attorney" is not a member of the president's cabinet, he can attend cabinet meetings and can be said to be the president's personal legal adviser. Over the next hundred years, General Counsel "chief consultants" appeared in various federal government departments one after another, participating in the daily work of various federal government departments.
After the Civil War, the United States established the Department of Justice, and the president’s “chief agent” directly served as the U.S. government’s attorney general. The attorney general is the chief legal adviser to the U.S. president and government, and his responsibility is to handle matters for the U.S. president and government Legal Affairs, the Department of Justice employs a large number of attorneys to handle legal matters for the federal government. Each department has also successively established its own departmental legal counsel office. The office has a general counsel. This position is appointed by the president. Its basic responsibilities are to provide legal advice to department heads and provide legal guidance to business officers. The work also includes reviewing all work. Program and Administrative Rules. Employees in the legal advisory offices of various departments are lawyers, and their size and number account for the vast majority of lawyers hired by the government. Among them, the legal advisory office of the Ministry of Agriculture has four regional and 13 branch offices, and the Ministry of Health has The Office of Legal Counsel has 10 regional offices, each ranging in size from 6 to 29 attorneys. State governments also adopt a system similar to that of the federal government and hire a large number of lawyers to handle government legal affairs. It can be said that the United States is a country governed by lawyers.
(2) Introduction to the Hong Kong Government Legal Advisor System
The Hong Kong government inherited the British system during the British rule and established the Department of Justice in 1855 (then known as the Department of Justice in 1997 After the handover, it was renamed the Department of Justice. The functions and government status of the two are the same, but the name has been changed). Its chief is the chief legal officer of the Hong Kong government and is directly responsible to the Governor of Hong Kong. After Hong Kong's return to the motherland, the Secretary for Justice is one of the only three secretary-level officials in the Hong Kong Special Administrative Region. He is not only the chief legal adviser to the chief executive, the government, and government bureaux, departments and agencies, but also a member of the Executive Council.
The Department of Justice has five important departments, the main members of which are composed of government lawyers. The entire Department of Justice is actually a big law firm. In addition to having prosecutorial powers and assuming the responsibility for prosecuting criminal offences, the Department of Justice is also responsible for drafting all laws of the Hong Kong government, providing legal advice to government bureaux and departments, providing legal advice on land planning, infrastructure and environmental protection, and representing it as a lawyer or barrister The government participates in civil disputes involving the government, attends multilateral agreement meetings as a member of the Hong Kong delegation, etc. It is precisely because of the all-round work model of the Department of Justice that the daily work of the Hong Kong government can basically be carried out under the full legal guidance. This is also one of the reasons why Hong Kong society has a high degree of rule of law.
3. Analysis of the current situation of our country’s government’s rule of law construction and government legal advisor system
(1) The country lacks a tradition of rule of law
Our country has experienced more than two thousand years of Feudal autocratic rule, feudal thinking has not been fundamentally eliminated from people's minds. The idea of ??the rule of man is deeply rooted. The mature bureaucracy of the rule of man ensures the ubiquitous operation of administrative power, and the law is in an extremely secondary position. Thirty years of reform and opening up, the country's rule of law construction has achieved certain results, but we must clearly see that we are building the rule of law on the basis of a serious lack of tradition of the rule of law. When most people encounter problems, the first thing they think of is how to entrust them with legal support. People seek relationships and even spend money to settle relationships. The phenomenon of power being greater than the law, emotion being greater than the law, and money being greater than the law still occurs constantly. For this reason, the 18th National Congress of the Communist Party of China proposed that we must comprehensively promote the rule of law. No organization or individual may have privileges beyond the Constitution and the law. We must not allow words to represent the law, use power to suppress the law, or bend the law for personal gain.
(2) Leading cadres generally lack legal thinking
Leading cadres play a leading role in national governance and social management. Current leading cadres should be said to have strong political and economic thinking abilities. However, there is a general lack of legal thinking. This is highlighted by the fact that many cadres do not seek the law when they encounter problems, do not act according to the law, and do not use the law to solve problems. They rarely think of the law in their daily work. Some cadres even have extreme ideas of being above the law. For example, the former A famous saying of a local leader that came to light in the past few years: "What is the law? I usually take care of it, but when something goes wrong, it takes care of me." This has led to many cases where the government operates illegally. For example, many places use the illegal method of "getting on the bus first and buying the ticket later" to resolve the conflict between project construction land and cultivated land protection.
(3) The legal advisory system lacks rigid institutional guarantees
Currently, the working mechanism for legal advisors to participate in the operation of government power is in a state of "it is important to talk about it, it is secondary to doing it, and it is unnecessary when it is busy" The embarrassing situation is that there is no rigid institutional guarantee for whether a local government establishes a legal advisory system, whether lawyers can participate in government services after establishment, and the scope of lawyers' participation in government services. The work is very arbitrary. It completely depends on the subjective will of the main leaders of the government, and most of our leaders lack legal thinking and do not pay attention to the work of legal advisors at all. Therefore, the overall level of the construction of our government's legal advisor system is currently low. The working mechanism for legal advisers to participate in the operation of government power and the guarantee system for government administration according to law need to be further improved.
(4) The government legal advisory system is generally established, but it plays a smaller role
my country’s government legal advisory system began to be established in the 1980s. At present, the government in most regions Legal consultants have been hired by governments and departments, and some useful explorations have been carried out in many places. However, in general, the role of consultant lawyers is generally small, and they generally play some role in peripheral work of the government, such as accompanying leaders on visits, Participate in resolving legal-related petitions, participate in handling major emergencies or mass incidents as a fire-fighting team, and rarely participate in central work, key tasks, and daily work.
The legal advisory system in many places is completely a formality. The government will issue a document to establish a legal advisory panel. For many years, lawyers will not be consulted on any matters. Consulting lawyers are only listed in the ledger or promotional materials. appeared, and never had the chance to participate in government service.
(5) The overall enthusiasm of government consultant lawyers is not high
The government legal consultant system not only lacks rigid institutional guarantees, but also lacks financial guarantees. When the government hires practicing lawyers as consultants, they rarely pay fees. Even if they do, they are very limited and it is difficult to form a "consideration." In addition, the matters that lawyers are exposed to are mostly peripheral matters, and the working enthusiasm of consulting lawyers is generally low.
4. Countermeasures and suggestions for strengthening the government legal advisory system
(1) Governments at all levels must establish a legal advisory system
It is impossible for a society governed by the rule of law, including a government governed by the rule of law, to It is the conclusion of many well-known scholars that the legal advisory system should be built in one area alone. The legal advisory system should also be implemented nationwide and comprehensively promoted as a whole. Government departments at all levels in our country have different decision-making and administrative enforcement powers, and governments at all levels should be equipped with legal advisors. At the same time, to build a government under the rule of law, the administrative heads at all levels are the first responsible persons. If the top leaders can administer in accordance with the law, half of the government will be built under the rule of law. It is necessary to equip the top leaders of the government with full-time legal advisors, so that they can comprehensively and timely provide professional legal opinions and suggestions to the top leaders, and evaluate the legality of the top leaders' actions in performing their duties.
(2) Establish and improve supporting systems for legal advisors
It is necessary to establish a legal advisory consultation and argumentation system before the issuance of major decisions and normative documents to promote the standardization and legalization of government decision-making; it is necessary to establish Establish a pre-decision legal risk assessment system for major government projects, major economic projects, major investments, etc., and organize government legal advisors to conduct legality and feasibility demonstrations to prevent and reduce decision-making risks; it is necessary to establish legal advisory proposals, major decision-making legality demonstrations, A filing system for legal documents such as legal review documents should be established to prevent relevant leading cadres from using excuses such as "not understanding the law" to shirk responsibility; it is necessary to establish a review mechanism for the legality of major decisions of administrative agencies, establish a lifelong accountability system for major decisions, and a mechanism for reversing responsibility. . The effectiveness of the rule of law should be regarded as an important part of measuring the work performance of leadership groups and leading cadres at all levels and included in the performance evaluation indicator system, and whether they can abide by the law and act in accordance with the law should be an important part of the inspection of cadres.
(3) Actively guide legal consultants to participate in government work
Organize legal consultants to assist the government in handling daily legal affairs, actively participate in administrative litigation and non-litigation legal affairs such as government investment and procurement, and effectively Resolve disputes and resolve legal matters. Organize government legal advisors and professional lawyers to assist the government in handling petition issues in accordance with the law, promote relevant departments to standardize law enforcement, administer justice fairly, and guide the masses to report their demands in accordance with the law. Organize legal consultants to assist the government in carrying out legal publicity and education, and provide basic public legal services such as legal consultation in streets (townships) and communities. Give full play to the role of government legal advisors in participating in the handling of major, emergencies, and sensitive incidents, assist the government in formulating and implementing disposal plans in accordance with the law, and properly handle conflicts and disputes and follow-up work.
(4) Strengthen the construction of the government legal advisory team
There are currently five teams related to the work of government legal advisors, namely judicial administrative staff, government legal affairs office staff, and government department staff. Staff of the regulatory office, public lawyers, and social practicing lawyers. According to the current actual development situation, the government legal advisory team is basically composed of practicing lawyers.
The Fourth Plenary Session of the Central Committee of the Communist Party of China proposed to build a team of lawyers with complementary advantages and reasonable structure such as social lawyers, public lawyers, and corporate lawyers. Strengthen the construction of the legal service team, enhance the consciousness and determination of lawyers to follow the path of socialist rule of law with Chinese characteristics, and build a team of lawyers with complementary advantages and a reasonable structure such as social lawyers, public lawyers, and corporate lawyers. At the same time, it is necessary to establish a system for recruiting legislators, judges, and prosecutors from qualified lawyers and legal experts, improve a standardized and convenient mechanism for recruiting talents from political and legal graduates, and improve the career security system for government legal advisors.
(5) Establish and improve the guarantee mechanism of the government legal advisory system
Promote the government's purchase of legal services, include the government's purchase of legal services into the annual special fiscal budgets of governments at all levels, and ensure that they are fully and promptly Pay legal counsel fees. Strengthen the funding guarantee for lawyers to participate in legal and litigation-related petitions and public legal services, explore the formation of a funding guarantee mechanism that determines compensation based on cases and determine compensation based on matters, and gradually improve the level of guarantees.