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Study On Lawyer's Civil Liability

Posted on:2009-08-15Degree:MasterType:Thesis
Country:ChinaCandidate:Q X WangFull Text:PDF
GTID:2166360242987575Subject:Law
Abstract/Summary:PDF Full Text Request
Lawyer's civil liability is one of the basic content of lawyer's system. During the process of providing legal service, the practicing lawyer, if causing any loss of or damage to the parties concerned, should take the corresponding civil liability. The upbuilding and perfecting of the lawyer's civil liability system will not only promote the safeguarding the rights of the parties concerned,implementing lawyers'function and spreading the legal spirit, but also plays an significant role in the perfecting of the law's legal system and improving the prosperity and development of the legal profession.The Lawyers Law issued 1996 firstly stipulated on the lawyer'civil liability, but compared the research on the other fields of civil code, the research on the lawyer's civil liability deserves no optimism for it is full of bits and pieces research and deficiency in theoretical depth. With specific principal part, the lawyer's civil liability, bearing the general characters of the common civil liability, at the same time, is of its own feature. Therefore, we need make all-sided research based on our country stipulation, at the same time, combining the basic theory on the civil liability and referring the advanced legislation and theory of others countries. Whereas, based on the basic civil law theory, considering the special lawyer identity, this paper discusses some basic problems on the lawyer's civil liability system.This paper mainly discusses the following five aspects: Chapter one gives an outline of the lawyer's civil liability. Through analyzing of definition and character of"expert", this paper comes to the conclusion that lawyer's civil liability is one kind of expert liability.The lawyers'civil liability refers to the civil liability to give the litigant or the third party in interest a civil compensation for the damage caused by the lawyer's own fault during the course of offering legal service to the litigant or the third party after the lawyer possesses professional knowledge and obtains lawyers qualification.Where after, this paper makes a brief introduction of the lawyer's civil liability system of several countries'and points out some defects of our country's lawyer's civil liability system.Chapter two is mainly about the characteristics and nature of lawyer's civil liability. Compared the lawyer's civil liability with the general civil liability in the characteristics, there are five aspects differences. As for the nature, the author prefers to treat the lawyer's civil liability as the overlap of the liability for breach of the contract and the liability for tort which offers the victims the right to choose a favorable way to protect themselves. Whereas, the lawyer's civil liability toward the third party is a kind of tort liability. During the course of legal aiding, the relationship between the lawyer and the aid receiver is based on the"mandatory contract obligation"principle, so if any liability occurs, we can take it as the overlap of the liability for breach of the contract and the liability for tort.Chapter three is mainly about cognizance of the lawyer's civil liability. First of all, the principal part can be divided into three groups: (1) the principal part who has right to claim for compensation.(2) the principal part who takes the prejudicial acts . (3) the principal part who takes the liability. It is pointed out that the lawyer's office is the principal part which should takes the lawyer's civil liability.Then the paper discusses the liability doctrine and holds the view that the constitutive requirements are the following four aspects:(1)unlawful act;(2) facts of damage;(3)causation between the unlawful act and the facts of damage;(4)fault of the feasor. Fault is the core concept of the lawyer's civil liability. To master the lawyer's civil liability completely and correctly, thorough and painstaking research on the lawyer's fault , that is why this paper spare no efforts in analyzing the fault of the lawyer and judge criteria. For the imbalance of information between the victim and the lawyer during the litigation, this paper advocates the inversion of the burden of proof to balance the two parties power.Chapter four is mainly about the limitation of the lawyer's civil liability and defense plea. To ensure the healthy development of the lawyer industry and protect the victim interest as well, the author holds the view that it is necessary to limit lawyer's civil liability and define the defense plea.Chapter five is mainly about the implementing mechanism and society responsibility. The author favors setting up an independent and professional"arbitration board of lawyer's civil liability"as a pro-litigation procedure, taking a check on the lawyer's civil liability.No matter for the development of the lawyer industry or for the compensation to the victim, even for the building and advocating the idea of building a society under the rule of law, it is quite necessary to distribute part of the lawyer's civil liability to the society, which takes two ways: the compensation found for lawyer's civil liability and lawyer's civil liability insurance.
Keywords/Search Tags:lawyer's civil liability, expert liability, inversion of the burden of proof, compensation found for lawyer's civil liability, lawyer's civil liability insurance
PDF Full Text Request
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