我国律师专家责任制度研究

发布时间：2019-05-20 09:32

【摘要】：律师作为专家的一种，在我国司法进程中起到的作用日趋明显，是实现法律的自由、公民、秩序的推动力量。近年来，，当事人在遇到纠纷时首先会求助于律师，利用其特定的专业知识为其答疑解惑，排解纠纷，赢得了一致好评。然而，律师也有犯错误的时候，当律师因为自己的执业过错给当事人的利益造成损失时，律师应承担什么样的民事责任？能否通过寻求社会分担机制既减少律师执业风险，又在一定程度上赔偿当事人的损失？本文就是通过以律师专家责任为切入点，探求解决上诉问题的途径。此篇论文分为五章来研究我国的律师专家责任。第一章介绍了律师专家责任的含义、界定以及法律基础，同时概括了我国律师专家责任的立法现状与缺陷。第二章是从比较法的角度来探索律师专家责任的性质，最后提出自己的观点：律师专家责任是合同责任和侵权责任的责任竞合。第三章研究律师专家责任的归责原则，指出其应属于过错责任原则，同时结合律师执业中常见的过错行为探讨过错的判定标准、故意与过失以及重大过失与一般过失的区分标准。第四章探讨律师专家责任的行为主体、责任主体以及损害赔偿范围。在该章的末尾引出我国律师专家责任的社会分担机制，从比较法的角度进行研究并指出它存在的不足之处。第五章提出了完善我国律师专家责任的立法建议。在建立健全我国律师专家责任的社会分担体系上提出了自己的创新点。
[Abstract]:As a kind of expert, lawyer plays an increasingly obvious role in the judicial process of our country, and it is the driving force to realize the freedom of law, citizen and order. In recent years, when parties encounter disputes, they will first turn to lawyers, use their specific professional knowledge to answer questions and resolve disputes, which has won unanimous praise. However, when lawyers also make mistakes, what kind of civil liability should lawyers bear when lawyers cause losses to the interests of clients because of their own mistakes in practice? Can we not only reduce the risk of lawyers' practice by seeking a social sharing mechanism, but also compensate the parties for their losses to a certain extent? This paper explores the way to solve the appeal problem by taking the responsibility of lawyers and experts as the starting point. This paper is divided into five chapters to study the responsibility of lawyers and experts in our country. The first chapter introduces the meaning, definition and legal basis of lawyer expert responsibility, and summarizes the legislative status and defects of lawyer expert responsibility in our country. The second chapter explores the nature of lawyer expert liability from the perspective of comparative law, and finally puts forward his own point of view: lawyer expert liability is the concurrence of contract liability and tort liability. The third chapter studies the imputation principle of lawyer's expert liability, points out that it should belong to the principle of fault liability, and discusses the judgment standard of fault in combination with the common fault behavior in lawyer's practice. The standard of distinction between intent and negligence and gross negligence and general negligence. The fourth chapter discusses the subject of lawyer expert liability, the subject of liability and the scope of damages. At the end of this chapter, the social sharing mechanism of lawyer expert responsibility in our country is introduced, and the shortcomings are pointed out from the perspective of comparative law. The fifth chapter puts forward some legislative suggestions to improve the responsibility of lawyers and experts in our country. This paper puts forward its own innovation on the establishment and improvement of the social sharing system of the responsibility of lawyers and experts in our country.
【学位授予单位】：华中科技大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D926.5

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