律师专家责任研究
发布时间：2018-11-28 20:45
【摘要】：律师专家责任是律师制度中的基本内容之一。在以律师和委托人或相对人为核心建立起来的法律意义上的权利义务关系中,律师专家责任起着举足轻重的作用,直接调整双方不断变化的关系。 执业律师在处理法律事务的过程中,造成了当事人的损失的后果,就要追究该律师相应的责任。我国的法学界尽管对这种责任的称谓不尽相同,但“律师专家责任”是最能为大家所接受、最合适的名称。本文通过概念辨析,得出律师专家责任的概念是指,具有合格资质的律师,在执业过程中,违背了一个律师所起码应具有的注意义务,过失给当事人造成损失时,所应承担的一种特别的过失责任。 对律师专家责任的性质的探讨要结合实际来具体分析,从有利于责任的确认、当事人权益的保障出发。律师和签有委托合同的委托人之间的律师专家责任一般宜视为合同责任;而律师和无合同关系的相对人(一般情况下是指社会公众)之间的律师专家责任则宜视为侵权责任。 过错是律师专家责任的核心概念,想要完整、正确的把握律师专家责任,就必须对律师的过错问题进行深入、细致的探研。律师专家责任的过错的本质是一种过失的主观心态,只有牢牢把握这一点,才能准确区分律师的律师专家责任和律师所要承担的其它责任的差别。责任的确认和承担是以义务的先行存在为前提条件的,要准确把握律师专家责任中的责任和判断律师过有无错,就要探究律师作为法律专家所应承担的义务。律师在执业过程中需要承担的主要义务有:律师作为法律方面的专家所要负担的注意义务、基于相对人信赖而产生的义务、对委托人的忠实义务。 关于律师因其专家责任而要承担赔偿责任的范围,笔者主张摒弃一些不顾实际情况,片面的要求律师承担过重的赔偿责任的思路,而认为应该结合我国实际情况,将律师的赔偿责任范围限制在某个合理的限度内。 律师专家责任的免除和减轻的最常见,也是最重要的方式就是免责协议或免责条款的形式。除此之外,还有委托人自身的故意或过失、第三人的过错、委托人自甘风险以及不可抗力或意外事件几种情形。在法治社会中,律师为当事人提供法律服务,社会也是间接的受益者。无论是从律师行业本身的发展,还是受损当事人赔偿的获得,甚至是法治社会理念的建立和深入,将律师的专家责任适当的由社会分担,都是有其必要性的。而律师专家责任的社会分担的二种主要方式:律师责任保险和律师专家责任的赔偿基金。
[Abstract]:Lawyer expert responsibility is one of the basic contents of lawyer system. In the legal sense of rights and obligations, which is established by lawyers, clients or relative parties as the core, the professional responsibility of lawyers plays an important role and directly adjusts the constantly changing relationship between the two sides. In the course of dealing with legal affairs, the practicing lawyer will be held responsible for the loss of the client. Although the legal circles of our country have different appellations of this kind of responsibility, "lawyer's expert responsibility" is the most acceptable and appropriate name. Based on the analysis of the concept, this paper concludes that the concept of lawyer's expert responsibility means that a lawyer with qualified qualifications, in the course of his practice, violates the minimum duty of care of a lawyer and causes loss to the litigant. A particular liability for negligence. The discussion of the nature of the lawyer's expert responsibility should be analyzed concretely in combination with the practice, starting from the confirmation of the beneficial responsibility and the protection of the litigant's rights and interests. The lawyer's expert liability between lawyer and client who signed the contract should be regarded as contract liability, and the lawyer's expert liability between lawyer and the relative person without contract (in general, the public) should be regarded as tort liability. Fault is the core concept of lawyer's expert responsibility. In order to complete and correctly grasp lawyer's expert responsibility, it is necessary to probe deeply and meticulously into the problem of lawyer's fault. The nature of the fault of the lawyer's expert liability is a subjective attitude of negligence. Only by firmly grasping this point can the lawyer's expert responsibility be accurately distinguished from the other responsibilities to be borne by the lawyer. The recognition and undertaking of the responsibility is based on the existence of the obligation in advance. In order to accurately grasp the responsibility of the lawyer and judge whether the lawyer has been wrong, it is necessary to explore the obligation that the lawyer should undertake as a legal expert. The main obligations that lawyers have to undertake in the course of practice are: the duty of care that lawyers bear as experts in law, the obligation of loyalty to clients based on the obligations arising from the trust of relative parties. On the scope of lawyers' liability for compensation due to their expert responsibilities, the author proposes to abandon some ideas of one-sided asking lawyers to bear excessive liability for compensation without regard to the actual situation, and thinks that it should be combined with the actual situation in our country. Limit a lawyer's liability to a reasonable limit. The most common and important way of absolving and abatement of lawyer's expert liability is the form of exemption agreement or exemption clause. In addition, there are the intentional or negligent of the client, the fault of the third party, the risk of the trustor's willingness and the force majeure or accident. In a society governed by law, lawyers provide legal services to clients, and society is also an indirect beneficiary. It is necessary to share the professional responsibility of lawyers by society, whether it is from the development of the lawyer profession itself, or from the acquisition of compensation by the injured parties, or even from the establishment and deepening of the social concept of the rule of law. The two main ways of social sharing of lawyer's professional liability are lawyer's liability insurance and lawyer's liability compensation fund.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D916.5
本文编号：2364213
[Abstract]:Lawyer expert responsibility is one of the basic contents of lawyer system. In the legal sense of rights and obligations, which is established by lawyers, clients or relative parties as the core, the professional responsibility of lawyers plays an important role and directly adjusts the constantly changing relationship between the two sides. In the course of dealing with legal affairs, the practicing lawyer will be held responsible for the loss of the client. Although the legal circles of our country have different appellations of this kind of responsibility, "lawyer's expert responsibility" is the most acceptable and appropriate name. Based on the analysis of the concept, this paper concludes that the concept of lawyer's expert responsibility means that a lawyer with qualified qualifications, in the course of his practice, violates the minimum duty of care of a lawyer and causes loss to the litigant. A particular liability for negligence. The discussion of the nature of the lawyer's expert responsibility should be analyzed concretely in combination with the practice, starting from the confirmation of the beneficial responsibility and the protection of the litigant's rights and interests. The lawyer's expert liability between lawyer and client who signed the contract should be regarded as contract liability, and the lawyer's expert liability between lawyer and the relative person without contract (in general, the public) should be regarded as tort liability. Fault is the core concept of lawyer's expert responsibility. In order to complete and correctly grasp lawyer's expert responsibility, it is necessary to probe deeply and meticulously into the problem of lawyer's fault. The nature of the fault of the lawyer's expert liability is a subjective attitude of negligence. Only by firmly grasping this point can the lawyer's expert responsibility be accurately distinguished from the other responsibilities to be borne by the lawyer. The recognition and undertaking of the responsibility is based on the existence of the obligation in advance. In order to accurately grasp the responsibility of the lawyer and judge whether the lawyer has been wrong, it is necessary to explore the obligation that the lawyer should undertake as a legal expert. The main obligations that lawyers have to undertake in the course of practice are: the duty of care that lawyers bear as experts in law, the obligation of loyalty to clients based on the obligations arising from the trust of relative parties. On the scope of lawyers' liability for compensation due to their expert responsibilities, the author proposes to abandon some ideas of one-sided asking lawyers to bear excessive liability for compensation without regard to the actual situation, and thinks that it should be combined with the actual situation in our country. Limit a lawyer's liability to a reasonable limit. The most common and important way of absolving and abatement of lawyer's expert liability is the form of exemption agreement or exemption clause. In addition, there are the intentional or negligent of the client, the fault of the third party, the risk of the trustor's willingness and the force majeure or accident. In a society governed by law, lawyers provide legal services to clients, and society is also an indirect beneficiary. It is necessary to share the professional responsibility of lawyers by society, whether it is from the development of the lawyer profession itself, or from the acquisition of compensation by the injured parties, or even from the establishment and deepening of the social concept of the rule of law. The two main ways of social sharing of lawyer's professional liability are lawyer's liability insurance and lawyer's liability compensation fund.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2005
【分类号】：D916.5
【引证文献】
相关硕士学位论文 前4条
1 全健;专家侵权救济法律制度研究[D];中南大学;2007年
2 侯鹏;中国律师执业责任保险制度研究[D];华中科技大学;2008年
3 姜惠南;论律师的专家民事责任[D];天津商业大学;2011年
4 方帅;律师专家责任判解研究[D];华东政法大学;2011年
，本文编号：2364213
本文链接：https://www.wllwen.com/falvlunwen/gongjianfalunwen/2364213.html
