浅析律师见证

发布时间：2018-11-13 20:24

【摘要】：我国自1988年律师见证被首次作为律师办理非诉讼法律事务的主要内容之一以来，律师见证的发展也才短短二十余年。目前我国的证明制度主要是由公证、律师见证和其他私证组成。律师见证是律师事务所接受当事人的委托，指派律师对当事人申请的法律事实或法律行为的真实性和合法性进行见证的一种法律活动。在许多英美法系国家，由于没有专门的公证机构和公证的立法，见证一般是由符合资格的律师来执行，经律师见证后的法律事实或法律行为的效力相当于公证，具有国家认可的法律效力，这和英美法国家的具体国情和律师在这些国家中的素质、社会地位息息相关。我国是成文法国家，国家设有公证机构来代表国家行使证明权，当事人为寻求法律行为的有效保护，往往会选择公证而忽略了律师见证。在现实中，由于没有相应的法律法规对律师见证作出明确的规定，导致当事人对律师见证缺乏必要的了解。同时，各地律师在见证中所依据的规定不统一，见证行为较为混乱，律师见证文书在诉讼中也多次出现被判无效的情形，这间接使得当事人对律师见证失去信任，也使得部分律师不愿意承揽律师见证业务，大大阻碍了律师见证业务的健康发展。随着近年来非诉讼业务的迅猛发展，越来越多的法律事实或法律行为需要得到法律认可的证明，而仅依靠公证明显满足不了经济发展的需求，在此情况下，律师见证开始被应用到各个领域并发挥了积极的作用。本文以律师见证制度为研究对象，通过与公证制度的联系和区别之间的比较，分析了律师见证制度在我国的应用以及可能存在的法律问题，重点探讨了建立和完善律师见证制度。本文拟从以下五部分进行探讨：第一部分是律师见证制度的起源与发展。本部分罗列了部分现阶段我国各级律师协会对律师见证制度的规定，归纳了律师见证的含义，同时根据见证和公证的不可分割性，介绍了律师见证制度与公证制度在西方国家和地区以及我国的起源与发展情况。第二部分主要介绍了我国公证制度和律师见证制度的异同点，，明确公证不能替代律师见证。第三部分从多角度分析了建立律师见证制度的优势，探讨该制度建立的必要性。第四部分通过介绍律师见证目前在传统和新型领域的应用发展情况，探讨建立律师见证制度的过程中所存在的法律问题。第五部分从法律风险防范、原则等角度重点探讨了律师见证制度，试图构建较为完善律师见证制度的程序。
[Abstract]:Since the lawyer's witness was first regarded as one of the main contents of lawyer's non-litigation legal affairs in 1988, the development of lawyer's witness has only been more than twenty years. At present, China's certification system is mainly composed of notarization, lawyer witness and other private testimony. Lawyer's testimony is a kind of legal activity that the law firm accepts the client's entrustment and assigns the lawyer to witness the truth and legality of the legal fact or legal act applied by the client. In many Anglo-American law countries, because there is no special notarization agency and notarization legislation, testimony is generally carried out by qualified lawyers, and the legal facts or legal acts witnessed by lawyers have the same effect as notarization. It is closely related to the specific conditions of Anglo-American countries and the quality and social status of lawyers in these countries. China is a statutory country, the country has a notarization agency to act on behalf of the state to exercise the right of proof, in order to seek effective protection of legal acts, the parties often choose notarization and ignore the testimony of lawyers. In reality, due to the lack of corresponding laws and regulations to make clear provisions on lawyer witness, the client lacks the necessary understanding of lawyer witness. At the same time, the provisions on which lawyers in various localities base their testimony are not uniform, and the witness acts are relatively confused. The lawyer's witness documents have also been rendered invalid many times in the proceedings, which indirectly makes the parties lose trust in the lawyer's testimony. It also makes some lawyers unwilling to undertake lawyer witness business, which greatly hinders the healthy development of lawyer witness business. With the rapid development of non-litigation business in recent years, more and more legal facts or acts need to be certified by law, but notarization alone can not obviously meet the needs of economic development. Lawyer's testimony began to be applied to various fields and played an active role. This article takes the lawyer witness system as the research object, through the comparison between the notarization system and the notarization system, analyzes the lawyer witness system's application in our country and the possible legal problems. Focus on the establishment and improvement of the lawyer witness system. This paper discusses the following five parts: the first part is the origin and development of lawyer witness system. This part lists the provisions of the lawyers' testimony system at all levels in our country at the present stage, summarizes the meaning of the lawyer's testimony, and at the same time, according to the indivisibility of witness and notarization, This paper introduces the origin and development of lawyer's witness system and notarization system in western countries and regions as well as our country. The second part mainly introduces the similarities and differences between the notarization system and the lawyer witness system in China. The third part analyzes the advantages of establishing lawyer witness system from various angles and discusses the necessity of establishing this system. The fourth part discusses the legal problems existing in the process of establishing the lawyer's witness system by introducing the current application and development of the lawyer's witness in the traditional and new fields. The fifth part mainly discusses the lawyer witness system from the angle of legal risk prevention and principle, and tries to construct the procedure of perfecting the lawyer witness system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5;D926.6

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