律师民事责任与风险防范研究
发布时间：2019-05-07 15:40
【摘要】：随着中国法治进程的不断加快,律师行业的专业化要求越来越高,律师行业所面临的执业风险也逐渐加大。律师在提供各类法律服务的过程中如果因执业过错而给客户造成了损失,就极有可能面临着承担民事责任的风险。民事责任风险问题在我国律师执业实践中日益突出,这也引起广大律师同仁以及相关管理部门的充分重视。加强对律师民事责任概念、性质、风险成因及防范措施的研究,不仅具有理论上的重要意义,更是律师行业执业安全的迫切需求。 所谓律师民事责任应理解为律师事务所在接受委托或指定后,在为当事人提供法律服务过程中,其指派的律师因执业过错给当事人造成了损失,从而应当由该律师事务所承担的给予当事人民事赔偿的法律责任。 律师民事责任的承担主体是律师所属的律师事务所；律师民事责任的请求权人不仅包括委托人,还包括虽然与律师事务所之间并无委托关系,但却与委托事项存在利害关系,并因律师的执业过错行为而受到损害的第三人；律师民事责任仅因过错而产生；律师因执业过错所而导致的后果是多种多样的,其责任形式也应是多样化的。 关于律师民事责任的性质,学界观点不同。本文赞同律师民事责任应当属于专家责任,其性质是“合同责任为主,侵权责任为辅”的责任竞合体系。在具体形态上,律师民事责任可能具体表现为缔约过失责任、违约责任或侵权责任。 律师民事责任应当实行过错责任原则,律师在执业过程中需要承担的主要义务有：律师作为法律专家所要负担的注意义务、基于第三人信赖而产生的义务和对委托人的忠实义务。律师民事责任的构成要件包括损害行为、损害事实、损害行为和损害事实之间的因果关系、及行为人的过错。 产生律师民事责任风险的影响因素主要包括律师工作的非精确化、非程序化；社会环境的复杂多变；律师执业保障的不完善；律师工作特性的影响等。现阶段业界应充分重视律师民事责任风险防范,这是增强律师事务所抵御风险能力,促进律师行业的健康发展的需要；是维护当事人合法权益,使当事人所受损害得到及时的补偿的需要；是律师业务的推广的需要；是发挥律师在法制建设中作用的需要。 应当合理构建律师民事责任风险防范制度,通过律师执业责任保险、执业律师公共赔偿基金、律师民事责任的限制和律师行业自律等合法、合理的措施对律师民事责任风险加以防范,从而达到在制度设计上律师利益和当事人利益的平衡。
[Abstract]:With the acceleration of the process of rule of law in China, the professional requirements of the lawyer industry are becoming higher and higher, and the professional risks faced by the lawyer industry are also gradually increasing. In the process of providing all kinds of legal services, lawyers may face the risk of bearing civil liability if they have caused losses to their clients due to their practice faults. The problem of civil liability risk is becoming more and more prominent in the practice of lawyer practice in our country, which has been paid more and more attention by lawyers' colleagues and relevant administrative departments. Strengthening the research on the concept, nature, causes of risk and preventive measures of lawyers' civil liability is not only of great significance in theory, but also an urgent demand for the safety of lawyers' practice. The so-called lawyer's civil liability should be understood to mean that the lawyer assigned by the law firm has caused losses to the client due to the practice fault in the process of providing legal services to the client after accepting the appointment or appointment. Therefore, the law firm shall bear the legal liability to give civil compensation to the parties. The main body of the lawyer's civil liability is the law firm to which the lawyer belongs; The petitioner of the lawyer's civil liability includes not only the client, but also the third party, which has no entrustment relationship with the law firm, but has an interest in the entrustment, and is damaged by the lawyer's practice fault. Lawyers' civil liability is caused only by fault; the consequences caused by lawyer's practice fault are varied, and their forms of liability should also be diversified. There are different views on the nature of lawyers' civil liability. This paper agrees that the civil liability of lawyers should belong to expert liability, and its nature is "contractual liability as the main, tort liability as the auxiliary" liability concurrence system. In specific form, the lawyer's civil liability may be manifested as fault liability, breach of contract liability or tort liability. The principle of fault liability should be applied to the civil liability of lawyers. The main obligations that lawyers should bear in the process of practicing are: the duty of care to be borne by lawyers as legal experts; Obligations arising out of the trust of the third party and duty of loyalty to the principal. The elements of lawyer's civil liability include the act of damage, the fact of damage, the causal relationship between the act of damage and the fact of damage, and the fault of the actor. The influencing factors of lawyer's civil liability risk mainly include the inexact and non-procedural of lawyer's work, the complex and changeable social environment, the imperfection of lawyer's practice guarantee, the influence of lawyer's work characteristic and so on. At the present stage, the industry should pay full attention to the prevention of the civil liability risk of lawyers, which is the need to enhance the ability of law firms to resist risks and promote the healthy development of the law profession. It is the need to safeguard the legal rights and interests of the parties and to make the parties get timely compensation for the damage suffered. It is the need of the promotion of the lawyer's business and the need to play the role of the lawyer in the construction of the legal system. We should set up a reasonable system to prevent the risk of lawyers' civil liability, and adopt legal measures such as legal liability insurance in practice, public compensation fund for practising lawyers, restrictions on lawyers' civil liability and self-discipline of the lawyer profession, and so on. Reasonable measures should be taken to prevent the civil liability risk of lawyers, so as to achieve the balance between the interests of lawyers and the interests of the parties in the system design.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5
本文编号：2471199
[Abstract]:With the acceleration of the process of rule of law in China, the professional requirements of the lawyer industry are becoming higher and higher, and the professional risks faced by the lawyer industry are also gradually increasing. In the process of providing all kinds of legal services, lawyers may face the risk of bearing civil liability if they have caused losses to their clients due to their practice faults. The problem of civil liability risk is becoming more and more prominent in the practice of lawyer practice in our country, which has been paid more and more attention by lawyers' colleagues and relevant administrative departments. Strengthening the research on the concept, nature, causes of risk and preventive measures of lawyers' civil liability is not only of great significance in theory, but also an urgent demand for the safety of lawyers' practice. The so-called lawyer's civil liability should be understood to mean that the lawyer assigned by the law firm has caused losses to the client due to the practice fault in the process of providing legal services to the client after accepting the appointment or appointment. Therefore, the law firm shall bear the legal liability to give civil compensation to the parties. The main body of the lawyer's civil liability is the law firm to which the lawyer belongs; The petitioner of the lawyer's civil liability includes not only the client, but also the third party, which has no entrustment relationship with the law firm, but has an interest in the entrustment, and is damaged by the lawyer's practice fault. Lawyers' civil liability is caused only by fault; the consequences caused by lawyer's practice fault are varied, and their forms of liability should also be diversified. There are different views on the nature of lawyers' civil liability. This paper agrees that the civil liability of lawyers should belong to expert liability, and its nature is "contractual liability as the main, tort liability as the auxiliary" liability concurrence system. In specific form, the lawyer's civil liability may be manifested as fault liability, breach of contract liability or tort liability. The principle of fault liability should be applied to the civil liability of lawyers. The main obligations that lawyers should bear in the process of practicing are: the duty of care to be borne by lawyers as legal experts; Obligations arising out of the trust of the third party and duty of loyalty to the principal. The elements of lawyer's civil liability include the act of damage, the fact of damage, the causal relationship between the act of damage and the fact of damage, and the fault of the actor. The influencing factors of lawyer's civil liability risk mainly include the inexact and non-procedural of lawyer's work, the complex and changeable social environment, the imperfection of lawyer's practice guarantee, the influence of lawyer's work characteristic and so on. At the present stage, the industry should pay full attention to the prevention of the civil liability risk of lawyers, which is the need to enhance the ability of law firms to resist risks and promote the healthy development of the law profession. It is the need to safeguard the legal rights and interests of the parties and to make the parties get timely compensation for the damage suffered. It is the need of the promotion of the lawyer's business and the need to play the role of the lawyer in the construction of the legal system. We should set up a reasonable system to prevent the risk of lawyers' civil liability, and adopt legal measures such as legal liability insurance in practice, public compensation fund for practising lawyers, restrictions on lawyers' civil liability and self-discipline of the lawyer profession, and so on. Reasonable measures should be taken to prevent the civil liability risk of lawyers, so as to achieve the balance between the interests of lawyers and the interests of the parties in the system design.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5
【参考文献】
相关期刊论文 前10条
1 王美丽;胡经辉;;律师权益保障的困境与对策[J];安阳师范学院学报;2010年03期
2 屈茂辉;律师职务损害赔偿责任探讨[J];法律科学.西北政法学院学报;1999年03期
3 王利明;违约责任和侵权责任的区分标准[J];法学;2002年05期
4 朱峰;;律师执业风险及防范措施的思考[J];法制与经济(下旬刊);2009年04期
5 陈瑶;;律师赔偿责任若干问题研究[J];法制与社会;2006年20期
6 杨利斌;;质疑律师执业责任强制商业保险[J];法治研究;2007年08期
7 韦忠语;略论我国律师执业赔偿责任的性质[J];河北法学;2001年06期
8 孙文胜;;论我国律师的执业赔偿责任[J];河北法学;2006年02期
9 袁仕祥;;律师执业损害赔偿责任若干问题初探[J];学理论;2009年23期
10 刘海,廖玉霞,黄明;对建立我国律师执业责任赔偿制度的几点思考[J];理论与改革;2001年04期
相关博士学位论文 前1条
1 鲁哈达;律师民事责任研究[D];吉林大学;2006年
相关硕士学位论文 前5条
1 张颖;中美律师制度比较研究[D];中国政法大学;2004年
2 郭海洋;我国律师行业的困境与对策[D];兰州大学;2008年
3 邹莹;律师民事责任制度研究[D];贵州大学;2009年
4 孙芳芳;律师职业责任保险制度研究[D];中国政法大学;2010年
5 李媚;律师专家责任的范围[D];中国政法大学;2010年
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