As the first to "rule of law" as the theme of the plenary session of the Central Committee, the party's Fourth Plenary Session of the eighth considered and adopted the "CPC Central Committee on promoting the rule of law certain major issue decision" (hereinafter referred to as the "decision") the "rule of law" upgrade edition "program, the comprehensively promote the rule of law and the rule of law the total target, marking our country in the strategy of" governing the country by law "of 17 years after, the Communist Party of China led the people of the whole country into a new era of" rule of law in China.
Plenary session of the six major tasks to promote the comprehensive promotion of the rule of law:
To improve the socialist legal system with the constitution as the core, to strengthen the implementation of the constitution, to further promote the administration according to law, to speed up the construction of the government under the rule of law, to ensure the justice, improve the judicial credibility, strengthen the rule of law, promote the construction of the rule of law, strengthen and improve the party's leadership to comprehensively promote the rule of law. Which further promote administration according to law, accelerate the construction of rule of law in government, but also answer the people's expectations of laws and the laws are observed and strictly enforced. To establish and improve the legal system of the government is an important guarantee for the implementation of the law, to accelerate the construction of the government under the rule of law, but also to the government's legal adviser to put forward higher requirements.
Our country government legal adviser system started relatively late, but the development is very fast, especially the Party Central Committee of the CPC Central Committee on deepening reform of the comprehensive deepening reform of some major issues in the decision to promote the development of the legal system, the government has played a great role in the improvement of the legal system. Jilin provincial government fourth legal advisory group was formally established, the vast majority of advisory group composed of lawyers. As a typical representative of the social free occupation, with its distinct professional spirit and professional spirit, the lawyer provides legal services for the whole society, but also bears the mission of providing legal services for the government to provide legal services. As the leading role of the government legal adviser system, the lawyer is the necessity of promoting the rule of law. In order to be able to do this work, the author combined with many years of practice experience, from the completion of the law, to speed up the construction of the rule of law, the main task of the rule of law, the government's legal adviser system model for the following.
One, the system of the government's legal counsel to further promote the administration according to law, and to accelerate the construction of the government's role in the rule of law
The government hired a legal adviser, is the government in accordance with the rules of the market to hire a government management sequence outside the legal profession and professional people to provide legal services to the government a measure. In the process of carrying out the management function of the government, the government can provide the support of legal services, which can ensure the legitimacy of government behavior. In the Third Plenary Session of the eighteen Central Committee of the CPC Central Committee on deepening reform of a number of major issues clearly put forward, deepen reform, the allocation of social resources is mainly determined by the market, the establishment of the market in the allocation of resources to play a decisive role. How the government plays an appropriate role in the allocation of social resources, which involves the government how to adapt to this change and how to change the initiative. "Economic system reform is the focus of comprehensive deepening reform, the core issue is to deal with the relationship between the government and the market, so that the market plays a decisive role in the allocation of resources and better play the role of government." This is not only a clear focus on deepening reform, but also on the market this invisible hand position and role to give a scientific position, is a major theoretical breakthrough in the concept of market and government relations. Made by the party's fourth plenary session "decision", is in the process of advancing the rule of law, highlighting the administrative and construction of government ruled by law in accordance with the task. This is an urgent requirement for the government with the legal thinking, according to law administrative behavior accurate positioning and processing and market relations, which is to deepening the reform of the security.
(a) the government's legal counsel system is an indispensable mechanism in the administration of law
China's social resources allocation in different historical period before the Third Plenary Session of the party has played a different role, the role of the market in the allocation of social resources has experienced from the "auxiliary" role, to the "basic" role, and then to "the main role of the market play a role in" evolution. Although the law has been proposed for many years, but before the Third Plenary Session of the eighteen, the allocation of social resources or administrative means played a major role, according to the law of administrative allocation of social resources is more complete.
Although the construction of market economy in our country has made great achievements, but the social resources allocation has been mainly from the government. That is to say by the government to develop the national economic development plan, through the layers of administrative examination and approval and even administrative orders to control resources and distribution of resources. This allocation of resources, in a certain condition, it is possible to coordinate economic development from the whole, to focus on major issues. However, the examination and approval of the selection of the main market, the unified management of the market competition, and thus prone to irrational allocation of resources.
In recent years, the emergence of the market access threshold to bring the industry monopoly and social resources, especially financial resources to state-owned enterprises tilt, etc., are irrational allocation of resources. Take the way of market allocation, the meaning of the law and the past compared with the past has been a qualitative change, is to let the market play a decisive role in the process of harmonious and orderly process. Therefore, the premise of further promoting the administration according to law is more stringent requirements of all activities of the government must be completely under the constitution, laws, administrative regulations and rules and regulations. Government staff, especially the leadership of the relevant departments of the government, although they also have a strong legal awareness, but after all, is not a legal professional, so let lawyers as legal counsel to participate in the government's decision-making and performance of specific administrative behavior, participation in government legislation and law enforcement, interpretation of the law, found the risk, avoid risks, solve the problem, is conducive to active and effective solution to the problem in the process of administration by law.
(two) the government's legal counsel system is the objective requirement to deal with the relationship between public power and private rights.
Deal with the relationship between public power and private rights, the need to avoid the government's behavior of the blind and arbitrary, in particular, to reduce the possibility of illegal government behavior, to avoid the loss of social and civil rights. This must require the government to make policy decisions, the government acts legally. One of the important contents of the rule of law is to protect the private rights of citizens. The relationship between public power and private rights is the ultimate purpose of the exercise of public power in order to protect the private rights. The government in the process of carrying out the duties of the government contains a dialogue on the exercise of public power and the protection of private rights. Although the perfect property right system is in a very important position in the eighteen Third Plenary Session of the party, although our country has promulgated the "property law", our country still lacks the perfect legal system of property right protection, including the implementation of the law, and also includes the objective reality of the abuse of the right of government public power. For a long time, the infringement is easy, rights, and the cost is too high, the cost is too high. It has paid a heavy price, even the performance of personal property is violated, personal protection is to pay the price of life; there is also the existence of consumer rights can not be fully protected, huge loss of state-owned assets, etc.. Reason why there is a hatred of the rich phenomena the society, because a part of wealth is obtained through illegal means, or is obtained through the privilege of. Property rights are the starting point and end point of market behavior, only through the perfection of law, can we make the "private property rights equally sacred and non infringement", otherwise, in the absence of rules and regulations, that is, the lack of legal protection, the property rights of any person is not safe. Therefore, the legal protection of property rights is the premise of the reasonable allocation of social resources.
I believe that in our country, the government is the people's most trusted right protector, according to the rule of law is the system construction, but also cultural construction. When the law becomes the people's faith, when the social justice becomes the people without a doubt, the rule of law culture will become the core culture of our socialist country. According to the law, first of all, according to the constitution, but also should be reflected in the government to implement and comply with the law, and therefore, should continue to expand the rights and protection of private rights, according to the law of public power, public property rights are sacred, private property is also sacred, legal rights and interests must be equal protection. The protection of intellectual property rights is about the sustainable development of the whole nation. China's innovation capability is poor (the 2012 data statistics, the world's most innovative companies in the top 100, no Chinese enterprises) one of the main reasons is the lack of intellectual property protection. Therefore, the existence of legal counsel system, is conducive to the protection of the government through the strict law, accurate and impartial law enforcement, protection of innovation, to encourage innovation, to combat the cottage, high imitation and other violations.
(three) the government's legal counsel system is the objective requirement of accelerating the construction of the rule of law.
Comprehensively promoting the rule of law is a broad and profound revolution in the field of national governance, which is related to the modernization of national governance system and governance capacity. To rule the country by law is also the request of the government. Comprehensively promoting the rule of law requires the government to improve the level of administration according to law, in strict accordance with the Constitution and laws governing the country.
Resources allocation is the basic law of market economy. The essential connotation of this law is to establish market rules, to complete the adjustment of the market with the market rules. Market rule is the legal system, therefore, the market economy is also called the rule economy. The government should follow this rule to establish the government's honesty and trust, to realize the harmony and justice of the society. Therefore, in the process of carrying out government functions, the government must make decisions and make legal decisions. To achieve this goal, the government should take the initiative to participate in the lawyer's participation, to provide legal services for the specific decision makers and practitioners to solve the economic and social problems, resolve and prevent possible social conflicts. Obviously, the government legal adviser is the objective request of the government to fulfill the function of the process of the risk, avoid the risk and solve the problem.
Premier Li Keqiang has proposed that our country has entered the second quarter of economic development, but also the golden period of social democracy and the rule of law. Although the past development has made great achievements, but also the expense of a lot, including the excessive consumption of energy, the destruction of the environment, as well as the relative lag in the rule of law, but also accumulated some social contradictions. In 2014, China's bond market is now the first event of default, namely st super day (March 4, 2014) announcement: 2011 corporate bonds in the second period interest schedule can not be paid in full. So as to officially default, becoming the first domestic bond default event, which also marks the continuation of China's bond market rigid payment on this end. Rigid payment is non legal means to resolve the problem, the existence of this way, reducing the investment and risk awareness of the majority of retail investors, especially, think anyway, the country cannot afford to let me to lose, really no government can reveal all the details to keep the society stable. This incident marks the time when our country, to comply with market rules, to deal with social and market relations with the law, with the law to resolve social contradictions, the advent of the era of the allocation of resources by the market.
(four) the government's legal counsel system is conducive to promoting the government's own construction and transformation of functions
Government function is changing with the development of market economy. At present, China's government is changing from limited government, responsible government, service government and government ruled by law, which is reflected in economic adjustment, market supervision, social management and public service. Premier Li Keqiang in the government work report again clear the establishment of the rule of law, clean government and the target of innovation, clear the government's own construction and functions of the direction of change. In particular, the innovation of social management, according to the law will become a necessary condition.
The government's own construction and transformation of functions will not be smooth sailing, will inevitably involve to maintain the transparency and stability of government policies, involving the strengthening of legislation and improving the supervision to strengthen the government's behavior to avoid the subjectivity and randomness of government behavior. This requires that the government legal adviser with professional knowledge as the government's legislative behavior and specific administrative acts of the professional advice, and have practical value, to participate in the specific administrative acts of the government, to complete the specific legal affairs of the deal.
(five) the government's legal counsel system has a certain role in promoting social justice and justice.
Social justice and justice and government power of the exercise and the degree of market monopoly is closely related. Premier Li Keqiang put forward the concept of government power list, that is, the legitimacy of government behavior with the constraint of government power to achieve legitimacy. Among them, the release of market access will also be a negative list of the form, the industry will not be required to release, but the problem is due to the monopoly of state-owned enterprises, resulting in unfair competition. I believe that the monopoly of state-owned enterprises is the public power, which is the direct damage to the main market is now not good at the orderly competition.
And the market allocation of social resources, the lower the threshold of market access, will be conducive to the solution of the problem. For example, in Hongkong, wireless communications services are fully competitive market, the mainland is to take the market access system of monopoly industries, mobile Hongkong launched the 68 Hong Kong dollar packages containing 1600 minutes, the mainland with the package only contains 350 minutes, the price is 4-5 times Hongkong.
Since the majority of the legal counsel of the government, and the lawyer is a typical free professional, non governmental public servants, legal counsel in the provision of professional services, but also from the private supervision of the 1 government acts of justice and fairness.
Two, to further promote the law of administration, accelerate the construction of the rule of law under the situation of the government
According to incomplete statistics, about twenty thousand lawyers are employed as the legal adviser of the government departments at all levels, and the three levels of government legal advisory work system of the provincial, municipal and county levels are set up. They provide legal advice to all levels of government, issue legal opinion, participate in major projects, participate in the litigation petition disposal for government scientific decision-making, according to law, promote regional economic development, strengthen social management, maintain social stability, promote the rule of law has made a positive contribution, but there are many problems. Such as some government officials lack the proper attention to government legal advisers; some of the government's legal advisers are not high, the sense of responsibility is not strong, can not adapt to the needs of the construction of the rule of law; government legal advisory work is lack of the independence and so on. These problems are directly reflected in the work mode, so that the role of the government's legal adviser has not played to the extreme. In this regard, the author from the perspective of improving the legal system of the government, the government's legal adviser to the work of the model as the following.
(a) to increase government involvement in the work of the government
Legal adviser to the government on the work of the government participation in problem later to deal with the problem, but should be the legal adviser as government decision-making and social management in the process of the rigid demand, legal adviser to the government not to a person, but a body and the agency should become law under the framework of the administrative government decision-making and social management insurmountable link. Concrete should be reflected in: first, to participate in the decision-making process of the government to provide legal interpretation and legal risk analysis, the legitimacy of government behavior to make a judgment. The establishment of a mechanism for the formation of the final decision not to have a legal argument. Two is involved in the administration of the government and the functional departments of the law of the administrative process, the specific administrative acts of government to provide legal services. Through the government, the functional government agencies to hire legal counsel, so that the government's legal counsel to cover the government's social management and service behavior, and through the work of legal consultants and information feedback to obtain the government's management behavior in accordance with the law and legal assessment and judgment, in order to find the problem, timely feedback to the government decision-making departments to help solve the problem. Three is the government's legal counsel should be close to the government at all levels, the leadership of the Department, to provide legal advisory services. Provide legal support for the government at all levels through the mechanism of regular communication. Such as the establishment of a consultant and the leadership of a service mechanism, or to provide special services for a specific job. This will not only help to improve the legal awareness of the leadership, but also to reduce the leadership of the work and decision-making risk, but more importantly, can ensure that all levels of leadership of the legal compliance, do not violate the law.
(two) the establishment of a government full-time lawyer and a part-time legal adviser to the combination of the advisory team of lawyers
In accordance with the national policy of universal legal adviser system, it should be clear that governments at all levels must establish a legal advisory system. In order to make the government legal advisory work full coverage of the main acts of the government, and effectively ensure that the operation is effective, to prevent the government's legal counsel system in the form, should establish a full-time and part-time government legal advisory team.
First, the establishment of a stable full-time consultant posts. Full-time consultants should belong to a public office, the professional lawyers qualified professional lawyers, the number should be 1/3 of all the staff of the government advisory group. Each full-time consultant can correspond to a number of part-time consultants to ensure professional counterparts, a clear division of labor. Full-time counsel to complete the emergency treatment and daily affairs liaison, coordination, and a part-time consultant lawyer complement each other and make good omissions and deficiencies.
Second, to the lawyer, the absorption of legal theory research experts, scholars, the composition of the legal advisory team. The government legal consultant should be in accordance with the professional division of labor, the corresponding government behavior, to share the government's daily legal services. Within the Advisory Group, the collective discussion system should be implemented, especially for government decision-making problems and major government acts, or related to the difficult legal issues, should take collective discussion, summary conclusions, the formation of legal opinion submitted to the government.
(three) the establishment of a mechanism for the work of the government's legal advisory system, which is based on the discovery and prevention of risk
To complete the task of promoting the administration and speeding up the construction of the government by law, the government should change the concept of the government. The simple meaning of the rule of law government is that all government power comes from the law, the process of exercising power is subject to the law and accept the supervision of the whole society. The establishment and improvement of legal counsel system is the government's role in the work of the government, so that the government can not only provide a simple legal advice, and should be more comprehensive, full range, full intervention in the government's daily work, to complete the government's legal thinking training and the formation of habits, and ultimately, according to the constitution, according to regulations become government behavior culture. 这样，就能保证在事前去发现问题，发现风险，随之解决问题，规避风险，而不是出现问题后让法律顾问成为“消防队员”.因此笔者认为，为实现以发现和预防风险为主的法律顾问工作目的， 政府法律顾问的具体工作应该包括： 一是让法律顾问充分了解政府某项决策或具体行为的动因和目的， 以使法律顾问在充分知情的情况下作出合理性判断；二是根据法律、行政法规和规章， 对政府机关作出的重大具体行政行为的法律依据、合理性进行审查，提供法律意见；三是参与对政府机关在法律规定的范围内制定的规范性文件作出的政策性创新进行合法性审查或法律论证； 四是为政府机关的重大行政决策提供法律风险评估， 并提供咨询、论证意见；五是参与对政府举行的重大活动进行研究、论证、评估并出具书面意见；六是协助政府参与协调政府各部门之间因职责不 The administrative law enforcement disputes triggered by the Qing government, seven are involved in the government's major investment and financing projects, business negotiations and major foreign business contract negotiations; eight is for government agencies to regularly conduct legal training, so that the specific staff and leadership has the legal dimension of the work.
Three, the government's legal counsel work
(a) accurate positioning of the relationship between the lawyer and the government to ensure the independence of the consultant's solicitor
To the administrative management, the need for professional and professional requirements is the premise of the government's legal counsel to fully play a role. As a social liberal, lawyers should be independent of the judicial authority, independent of the parties, and independent of the executive. Only in this way can we ensure that lawyers participate in all levels of society as an independent third party, fully understand the interests of the parties, to provide the basis of the facts, the law as the criterion of professional advice or counsel.
In the process of providing legal counsel to the government, we should strictly establish the relationship between the lawyer and the government. The government has commissioned the third party (government legal adviser) to participate in the government decision-making process and the legitimacy review mechanism, and entrust the third party to deal with the relevant legal affairs and the drafting of the bill. As a lawyer is a representative of the public in a certain extent, it also broadens the way of public participation in legislation. In this way, the lawyers and the administrative staff should be strictly distinguished, which can ensure the legal reasoning and legal opinion from the professional point of view. This is a lawyer involved in government work: the advantages of independent professional opinions and opinionated, is not affected by the factors of non legal professional.
(two) optimize the soft environment, establish a lawyer to study the green channel
To play the role of government legal adviser in the work of the government, it is necessary to make the right and the status of government affairs to be fully protected. As a social application professionals, lawyers can not be separated from the fact that the knowledge of the facts, and therefore, in the work of a large number of social surveys, to complete the research, special affairs and government behavior survey results. In this way, the relevant departments of the government should be given to cooperate, so that the lawyer to fully understand the actual situation in the process of government management, to grasp the real first-hand information, to protect the government's legal adviser to work efficiently and smoothly.
(three) the establishment of a regular training mechanism for the regular training of consultants to improve the service capacity of the consultant
With the full advance of the rule of law, and further promote the establishment of the task of building a government ruled by law and speeding up the construction of the government, the government will face increasingly complex legal affairs, which requires lawyers to provide a large number of professional legal services. Lawyers in to participate in the work of government legal advisers, to better play its professional advantages, assist the government's handling of the related legal affairs administration and civil and commercial activities, lawyers play in promoting the functions of the government under the rule of law. Therefore, the outstanding legal services should be included in the focus of the development of high-end talent project, there is a focus, there is a plan to strengthen the urgent need for the compound, high level of lawyers training and introduction. Establish a regular or irregular rolling training mechanism, in particular, to improve the ability to improve the comprehensive ability of the consultant. At the same time, the consultant to understand the contents and characteristics of the functions of various departments of the government, but also to provide accurate services to provide a prerequisite for lawyers.
(four) the establishment of a financial security system and an advisory lawyer's incentive system, and fully mobilize the enthusiasm of the consultant lawyer
The funds here refers to the government should set up a special fund of legal adviser, such as government procurement services and the daily government legal advisory group (Research) required to be funded, etc.. In fact, this is the government's purchase of service mechanism to promote and reflect. The government purchase service mechanism fully shows the relationship between the government and legal counsel is a kind of employment relationship, which is conducive to the prevention of the intervention and influence of the administrative power to the advisory work. At the same time, in order to encourage and recognize the outstanding performance of the consultant lawyer, but also should establish incentive mechanism, the appropriate time to give appropriate honors and awards.
In short, to comprehensively promote the rule of law, to complete the task of building a government ruled by law and speeding up the construction of the government under the new situation, we must ensure its healthy development, and make the government's decision-making and administrative acts in the legal framework, and ultimately complete the construction of the rule of law, clean government, innovation government.
[References]
[1] the decision of the CPC Central Committee on major issues concerning comprehensively promoting the rule of law in accordance with law [Z].
[2] decision of the CPC Central Committee on major issues concerning comprehensively deepen reform [Z].
[3] people's daily [N], 2014-01-15 (18).
[4] two session of the Twelfth National People's Congress, the government work report [Z].