Research Of Lawyers' Professional Liability

Professional liability, as a kind of civil liability, always has been the hot focus in the western law since the 1980s. Especially lawyer regarding as a special function in legal affair, when its behavior give the litigant and the third party in interest a civil compensation for the damage that is abused by the lawyer's own fault, how to recognize and investigate lawyer's professional liability ,always is a quite thorny question. Almost all the nations in the world with a relative perfect legal system possess improved liability compensation system of the lawyers'practice. 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 lawyer. However, comparing with other fields in civil law, the study on the lawyers'professional liability 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 three parts:Part I: Definition of lawyer's professional liability. First analyzes the contents of the lawyers'professional liability, the nature of it and the status of it. This article tends to give the detailed analysis on the contents of lawyers'professional liability from the different theory. The lawyers'professional liability refers to the civil liability to give the litigant and the third party in interest a civil compensation for the damage that is abused by the lawyer's own fault during the process of offering legal service to the litigant and the third party in interest after the lawyer accepts the entrustment of the litigant. Besides those, the thesis also analyses some characters of it. In the lawyers'professional liability, the law office is the undertaking body of the liability; while the client and the third party in interest are the claimant for compensation from the lawyer; lawyers'professional liability can apply to only the principle of fault liability. According to its nature, it has different regulations in continent law and common law. This part introduces the legislation and theory of the domestic and other countries, and deduces that in different condition the lawyers'professional liability maybe liability of breach of contract or tortuous liability, an integration of the liability for breach of contracts and liability for tort, third liability. This article seeks the best applied choice for the nature of lawyers'professional liability in China contrasting with the different regulations in continent law and common law. The author thinks that the lawyers'professional liability is also the nature of tort liability regardless of the scientific theory or the judicial practice. Finally under tort liability, the lawyers'professional liability is both important and special legal status in the civil liability system.Part II: Recognize of lawyer's professional liability. Analyzing on the doctrine of liability fixation, the burden of proof, the constitutive requirements and the counter plead right to exonerate. In view of the doctrine of liability fixation changes multiplies and systems, during referring to relevant theory research and practice of jurisdiction, the author holds that only the principle of fault liability can be applied to the imputation of lawyers'professional liability. During the action for lawyer's professional liability, analyzing the characters of the lawyers'professional liability, the practicing lawyer is able to undertake the burden of proof to testify his innocence by means of converting the burden of proof. There are also different opinions about the constitutive requirements of the lawyers'professional liability in the academic circle. By means of analysis,the writer approves the opinion of four constitutive requirements which includes the damage acts,the subjective mistake of the actor, damage facts and causation. The lawyers'professional liability shall be determined only as the four constitutive requirements are provided altogether. First the author has lifted some example for the suitable concrete situation of the damage acts on the recognizing of the damage acts from two aspects, including the litigant and the third party in interest. Second the ultimate aim of lawyer is to safeguard client's legal rights. So it is more reasonable that the damage facts should include the property harm and the non- property harms, the direct harm and the indirect harm. Third the recognizing standard of mistake should take the objective standard as a principle and subjective standard as auxiliary in two kind of different theories of the function and value of subjectivism and objectivism. Under specific circumstance,the lawyer is able to exercise the counterplead right to exonerate from part or all of the compensation liability.Part III: Introducing conception,history and theoretic dispute. Then,using the scholar different opinions for reference,the author puts forward own views on the way of lawyers'professional liability. The lawyers'professional liability undertakes the mainly way for the compensation for damage. The nature of the compensation for damage is paying full compensate and punitive compensate. The author hold the view that punitive damage can replenish the traditional method of compensation to pay full compensation to the right holder,and punitive damages can do more effective deterrence on the infringement. There are two aspects on the compensation for damage, about principle matter of the compensation for damage and range of compensation for damage. In this part recommend on principle matter of the compensation for damage at first, the author thinks that the compensation for damage has most important principle includes3: All principles of compensation. The principle that the gains offset the losses. The principle is that the gains offset negligence. It can balance bilateral on assignment in the right and the duty and demonstrate the lawyers'professional liability on undertaking fairness. Then introduce range of compensation for damage. There are some different appoints in the legal science. Through to each viewpoint discussing and introducing, thinks that should include both the lawsuit service and disputes the service, include both the paid legal service and the free legal service, regardless in"the basic principle of right-duty uniformity"of angle or"because harms causes the compensation"of basic legal principle theory of law. The right holder's non-property damages and reasonable attorney's fees should be compensated.Along with the social profess and the enhancement of people'right consciousness, there will be certainly to expand extends in the disciple of lawyer practice and legal domain. So how to faces up to the question about the nature, status and recognize of lawyers'professional liability, will certainly play the giant impelling role. It must safeguard litigant's lawful right, enhance attorney's social credit and reveal legal the fair principle. This article has carried on the preliminary discussion from the scientific theory for the nature and correlated basic theory of the lawyers'professional liability. And proposes how to recognize the lawyers'professional liability in our country in profited from the domestic and foreign legislations the fundamental research. At last, with the purpose of helping the improvement of the liability system of the lawyers'professional liability in our country, hoped will be able to provide some valuable suggestions to the next fundamental research.