Research on the Interaction between the Judicial Yuan and the Legal Aid Foundation
Date Issued
2006
Date
2006
Author(s)
Lai, Jing-Yu
DOI
zh-TW
Abstract
Theoretically or practically speaking, there will always be disputes about the interactive relation between the State and the foundation contributed by the State. These debates mainly focus on the degree to which the State should supervise the foundation and the autonomy of the foundation. In Taiwan, the newly established legal aid system took the form of Legal Aid Foundation contributed by the Judicial Yuan (the State). Similarly, as a private corporation which serves a public (judicial) goal, the relation between the Foundation and the state is not very clear. What’s the role of the government in this legal aid system? What’s the interactive relation between the Legal Aid Foundation and the Judicial Yuan?
The right of action is guaranteed by the constitution. In order to fulfill this right, the state should not only provide people with formally functional litigious proceedings, but also make sure that the persons involved would substantially be tried in a fair and just court. For that reason, the government established the Legal Aid Foundation to substantially help those who can’t afford legal service. This thesis reflects on the interactive relation between the Foundation and the Judicial Yuan from three dimensions. At first, this thesis examines the constitutional basis and foreign examples of legal aid system. It’s found that although the legal aid system helps safeguard the right of action and functions in many different countries, there is no apparent principle so far could be followed. In order to fill in this vagueness, this thesis proposes three interactive principles:
1. The state has the responsibility to supervise the foundation from the perspective of outcome, hindsight, expertise and legality.
2. The foundation should makes judgment case by case with flexibility.
3. There should be a dialogue forum to moderate the tension between them.
The second part of this thesis focuses on the dimension of legal norms. It begins with the founding history of the legal aid system. After that, this thesis analyzes related legal norms to display the interactive relation between the Foundation and the Judicial Yuan on six different levels including personnel system, business, legal norm, financial condition, case, and the prospective. This thesis argues that there are some loopholes in the related legal norms which should be made up or supplemented by the three interactive principles mentioned above.
This argument is further supported by the third part of this thesis. The author interviewed with persons in the Foundation and the Judicial Yuan, and asked for their opinions about the values and effects of the legal aid system, the problems of the interrelation between the Foundation and the Judicial Yuan, the reason resulting in these problems, and the possible solutions to these problems. By this way, this thesis displays the vagueness and problems we face after this system and related legal norms were put into practice.
This thesis concludes that it is important to continue the dialogue between the Judicial Yuan and the Legal Aid Foundation in the future. For this purpose, the legal aid system as a whole should provide a public forum for the Foundation and the Judicial Yuan to exchange experiences with each other. There should also be viable channels for the Foundation and the Judicial Yuan to listen to criticism and to make response to it. Besides, Legal Aid Foundation should take the responsibility of explaining their policy positively. This thesis also suggests establishing an external organization to evaluate the interaction between them and to issue reports on a regular time schedule.
Subjects
法律扶助
互動關係
行政法人
財團法人
司法改革
非營利組織
訴訟權
個案講求彈性原則
對話空間機制原則
基本人權
多元價值
Legal aid
legal service
legal assistance
the Judicial Yuan
the Legal Aid Foundation
legal person(s)
Judicial Reform
non-profit organization
right of action
law and society
social welfare system
fundamental human right
value of diversity
Type
thesis
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