律师执业责任保险法律制度构建研究

发布时间：2018-03-04 15:28

本文选题：律师执业责任保险　切入点：法律制度　出处：《中国海洋大学》2013年硕士论文　论文类型：学位论文

【摘要】：在西方国家，律师执业责任保险是较为通行的做法，被看做是转移分散律师民事责任的最优路径，也是判断一国律师制度是否健全先进的重要标志。由于目前我国尚未确立律师执业责任保险法律制度，导致律师执业责任保险在我国缺乏最有力支持，对保险相对人未起到应有的法律保障作用。因此有必要深入研究如何构建律师执业责任保险法律制度，以期理论更好地服务于实践。律师执业责任保险在西方发达国家起步较早，发展也极为迅速，大多数国家都建立了与本国国情相适应的律师执业责任保险法律制度。反观我国的律师执业责任保险的推行情况，从上世纪九十年起我国引进律师执业责任保险，至今已有近二十年的发展历史。尽管如此，律师执业责任保险在我国的实施效果并不理想，遭遇发展瓶颈，集中表现为保险模式地区性差异显著，保险市场培育不足，要保人执业风险意识不强等方面。导致上述局面的原因主要有以下几点：缺乏律师执业责任保险法律制度最强有力的支持；保险条款设计不合理，欠缺法律服务功能，因而满足不了被保险人希望通过律师执业责任保险解决执业纠纷的需求。律师执业责任保险法律制度的建立具有正当性。首先，律师执业责任保险法律制度符合法的正义价值，通过权利义务明确实现分配正义；其次，律师执业责任保险法律制度的建立符合法的秩序价值，一方面可以弥补律师执业责任保险法律制度的缺失，另一方面可有效避免保险市场失灵现象的出现，有利于律师执业责任保险市场的有序运行；第三，律师执业责任保险法律制度的建立与法的效率价值一致。通过律师执业责任保险相关主体的权利义务的明确分配，可有效避免保险相关主体推卸责任的情况出现，有利于被保险人执业风险的转移化解，同时也有利于受害第三人利益得到及时周全的保障。新《保险法》是保险法律体系中的最高准则，但律师执业责任保险法律制度作为其下位法更具有可操作性，因而一方面可以促进保险法等相关法律的统一适用，另一方面有了可直接引用的法律法规的保障，，有利于保障包括律师执业责任保险在内的职业责任保险的健康发展和市场培育。这也符合国际发展趋势和保险各方利益需求。另外，国内外实践经验的积累、我国日趋完善的立法技术、被保险人投保态度积极以及日益改善的保险业执业环境使得在我国建立律师执业责任保险法律制度也具备可行性。权利义务是一项法律制度最核心的内容。而目前我国律师执业责任保险相关人的权利义务则散见于律师执业责任保险条款中，缺乏系统性和概括性。本文以律师执业责任保险法律制度构建为最终目标，拟从律师执业责任保险相关人的范围、权利、义务三个维度，提出具体立法构想，以期对在我国建立律师执业责任保险法律制度的构建有所裨益。
[Abstract]:In western countries, the practice of liability insurance for lawyers is a common practice, which is regarded as the best way to transfer the civil liability of lawyers. It is also an important symbol to judge whether a country's lawyer system is sound or not. Because the legal system of lawyer's practicing liability insurance has not been established in our country at present, the lawyer's practice liability insurance lacks the most powerful support in our country. Therefore, it is necessary to deeply study how to construct the legal system of liability insurance for lawyers in order to serve the practice better in theory. The legal practice liability insurance started early in the western developed countries and developed very quickly. Most countries have established a legal system of liability insurance for lawyers in accordance with their national conditions. Looking back at the implementation of liability insurance for lawyers in China, China has introduced the practice liability insurance of lawyers since 0th century. It has been nearly 20 years of development so far. However, the implementation effect of lawyer's practice liability insurance in China is not ideal, and it has encountered the bottleneck of development, which mainly shows that the regional difference of insurance mode is remarkable, and the insurance market is not well cultivated. The reasons for the above situation are as follows: lack of the most powerful support of the legal system of lawyer's practicing liability insurance, the unreasonable design of insurance clauses and the lack of legal service function, Thus can not satisfy the insurant hope through the lawyer practice liability insurance solves the practice dispute the demand. The establishment of legal system of lawyer's practicing liability insurance has legitimacy. Firstly, the legal system of lawyer's practice liability insurance conforms to the just value of law, and realizes distribution justice through right and obligation. The establishment of legal system of legal system of lawyer's practicing liability insurance accords with the order value of law, on the one hand, it can make up for the lack of legal system of lawyer's legal system of practicing liability insurance, on the other hand, it can effectively avoid the phenomenon of insurance market failure. It is beneficial to the orderly operation of lawyer's practice liability insurance market. Thirdly, the establishment of legal system of lawyer's practice liability insurance is consistent with the efficiency value of law. It can effectively avoid the occurrence of shirking the responsibility of the relevant subject of insurance, which is conducive to the transfer and resolution of the risk of the insured's practice, and also to the timely and comprehensive protection of the interests of the injured third party. The new Insurance Law is the highest standard in the insurance legal system, but the legal system of lawyer's practicing liability insurance is more operable as its lower law, so on the one hand, it can promote the unified application of relevant laws such as insurance law. On the other hand, with the protection of laws and regulations that can be directly cited, It is beneficial to safeguard the healthy development and market cultivation of professional liability insurance, including lawyer's professional liability insurance. This is also in line with the international development trend and the interests of all parties concerned. In addition, the accumulation of practical experience at home and abroad, It is also feasible to establish the legal system of liability insurance for lawyers in China due to our country's increasingly perfect legislative technology, the positive attitude of insured insured and the increasingly improved environment of insurance practice. The rights and obligations are the core contents of a legal system. At present, the rights and obligations of the persons related to the legal practice liability insurance in our country are scattered in the legal practice liability insurance clauses. Lack of systematicness and generality. This paper aims at the construction of legal system of lawyer's liability insurance in practice, and puts forward the concrete legislative conception from the three dimensions of the scope, right and obligation of the related person of lawyer's practice liability insurance. In order to establish the legal system of legal system of liability insurance for lawyers in China.
【学位授予单位】：中国海洋大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.284;D926.5

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