On Some Problems About The Civil Liability Of Lawyering

The ultimate aim of lawyering is to safeguard client's legal rights. In order to attain the object, the whole legislation of lawyering focuses its attention on the lawyer-client relationship, and lays down concerned act regulations and liability mechanisms. The civil liability of lawyering exactly embodies the value.In 1996,"lawyer's law" established the civil compensation responsibility for the first time, and it may be said to be a milestone in the history of the legislation of lawyering. However, comparing with other fields in civil law, the study on the civil liability of lawyering seems to be too fragmentary and lacking the depth of theory. Its status allows of no optimism. Therefore, this thesis systematically discusses some important problems about it based on the fundamental theory of civil law.The thesis is divided into six parts:Part I analyzes the contents of the civil liability of lawyering and the characters of it. After comparing different standpoints, we draw the following conclusions: first, the subject to bear is lawyers' office. Second, the claimer is the contractor in principle. Third, fault that includes the meaning of illegal act is a essential element. Forth, the way to bear liability does not be limited in compensation damages, still involving others. Besides those, the thesis also analyses some characters of it.Part II studies the nature of the civil liability of lawyering. This part introduces the legislation and theory of the domestic and other countries, analyses the fundamental relationship between lawyer and client, and deduces that in different condition the civil liability of lawyering maybe liability of culpa in contrahendo, liability of breach of contract or tortuous liability.Part3 deals with the doctrine of liability fixation and the burden of proof. After studying the basic theory of the doctrine of liability fixation and the burden of proof, we consider lawyer's civil liability should take in fault liability doctrine and shift the burden of proof.Part4 analyses the constitutive requirements of the civil liability of lawyering according different types of liability. The constitutive requirements of liability of culpa in contrahendo are that lawyer violating the contracting responsibility, the opposite part suffering damages and the causation between acts and the fact of damages. The essential element of liability of breach of contract is fault. And those of tortuous liability are fault, damages and causation.Part5 discusses the risk-transferring system of lawyering. This part analyses the meanings of the system, introduces the main methods in current practice, and suggests that we should apply the professional liability insurance.Part6 evaluates our current lawyer legislation ,and presents some suggestions, such as perfecting "lawyer's law", setting up the risk-transferring system of lawyering and applying non-litigant procedure in disputes of civil liability of lawyering.