律师侵权民事责任研究

发布时间：2018-05-21 21:03

本文选题：律师 + 侵权民事责任　；参考：《北方工业大学》2011年硕士论文

【摘要】：律师民事责任是一个实践性较强的问题,目前在我国的法学研究中尚未引起足够的重视。律师的民事责任就是指执业律师在提供法律服务的过程中,因违法执业给当事人或第三人造成了损失,并应承担相应民事后果的制度。我国律师制度起步较晚,我国《律师法》对律师民事责任制度的规定过于原则,缺乏可操作性,甚至还存在立法上的漏洞和矛盾。《律师法》无法全面调整和规范律师的行为以及相应的权利、义务、责任关系,这不仅不利于维护受害人权益,也不利于监督和约束律师行为。基于上述缺憾,本文以民事基本理论为依托,借鉴外国的相关理论对律师民事责任问题进行系统的研究。本文分为五部分：第一部分主要分析了三个问题。分析律师的民事责任当然要首先了解律师的内涵,第一问题主要解决的是律师的概念。第二个问题分析了律师的社会地位和三十年来立法上对律师定位的的变化.然后结合专家制度,认定律师应为律师专家的地位。第三个问题主要讲一下律师民事责任的概念和特征。第二部分主要分析了国内外在律师民事责任方面的相关立法状况。美国在律师损害当事人或第三人民事权益的情况下,主要用侵权责任解决。现在英国也主要用侵权法分析律师的民事责任。德国主要以合同责任解决,但是侵权说在还在德国狭窄的侵权法世界占一席之地。法国另辟蹊径,以一个特别的概念“职业责任”作为委托人追究律师民事责任的依据。由于日本关于民事方面的法律大部分是借鉴德国的,这方面的解决方法也和德国方面相同。最后分析了我国的相关立法并从中提出了一些问题。第三部分主要探讨的是律师民事责任的性质是属于合同责任还是侵权责任。在这个问题上,主要介绍和分析了两种学说后,最终选择了侵权责任。在选择侵权责任后主要论述了对律师侵权责任的认定。第四部分主要分析了律师侵权责任的类型,包括对合同当事人的侵权责任和对第三人的侵权责任。另外还分析了律师侵权责任的责任承担的主体,范围和抗辩事由责任承担方面的三个问题。第五部分主要论述了完善我国律师侵权民事责任的建议。建议我国建立分散律师执业风险的律师职业保险和律师赔偿基金制度。
[Abstract]:The civil liability of lawyers is a practical problem, which has not been paid enough attention to in the legal research of our country. The civil liability of a lawyer is a system in which a practicing lawyer, in the course of providing legal services, causes losses to the parties or the third party because of illegal practice, and should bear the corresponding civil consequences. The lawyer system of our country starts relatively late, the stipulation of lawyer's civil liability system in our country's "lawyer Law" is too principle, lack of maneuverability, There are even loopholes and contradictions in legislation. The lawyer's Law cannot comprehensively adjust and regulate the lawyer's behavior and the corresponding rights, obligations, and responsibilities, which is not conducive to safeguarding the rights and interests of the victims, but also to the supervision and restraint of the lawyer's behavior. Based on the above deficiencies, this paper makes a systematic study on the civil liability of lawyers based on the basic theory of civil law and the relevant theories of foreign countries. This paper is divided into five parts: The first part mainly analyzes three problems. To analyze the civil liability of lawyers, we must first understand the connotation of lawyers, the first problem is to solve the concept of lawyers. The second question analyzes the social status of lawyers and the legislative changes in the position of lawyers in the past 30 years. Then combined with the expert system, the lawyer should be the position of the lawyer expert. The third question mainly talks about the concept and characteristics of lawyer's civil liability. The second part mainly analyzes the domestic and foreign civil liability of lawyers in the relevant legislative situation. In the case of lawyers harming the civil rights and interests of the litigants or third parties, the United States mainly uses tort liability to solve the problem. Now Britain also mainly uses the tort law to analyze the lawyer's civil liability. Germany is mainly settled by contractual liability, but tort theory occupies a place in the narrow tort law world in Germany. France takes a special concept of "professional liability" as the basis for investigating the civil liability of lawyers. Since most of Japan's civil law is based on Germany, the solution is the same as Germany's. Finally, it analyzes the relevant legislation of our country and puts forward some problems. The third part mainly discusses whether the nature of lawyer's civil liability belongs to contract liability or tort liability. On this issue, mainly introduced and analyzed two theories, finally chose tort liability. After choosing tort liability, the author mainly discusses the confirmation of lawyer's tort liability. The fourth part mainly analyzes the types of the lawyer's tort liability, including the tort liability to the parties to the contract and the tort liability to the third party. In addition, the author analyzes the main body, scope and defense responsibility of the lawyer's tort liability. The fifth part mainly discusses the suggestion of perfecting our country lawyer tort civil liability. It is suggested that our country should establish the lawyer's professional insurance and lawyer's compensation fund system which distributes the lawyer's practice risk.
【学位授予单位】：北方工业大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5

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