A Study On The Nature Of Lawyers' Civil Liability

The construction and perfection of lawyers' civil liability system is of great importance for guaranteeing parties' rights, improving lawyers' quality and realizing social fairness and justice. Currently, scholars in our country have not done much research on it. And it seems that the s tudy on lawyers' civil liability system is relatively sporadic and lack of theoretic depth. Up to now, there is still no systematic, thorough and unified understanding. Especially with respect of the nature of lawyers' civil liability, there still exist much ambiguous understanding and dispute in the theoretical field. And this thesis concerns itself mainly adopts such research methods as the empirical survey, comparative analysis, legal economics and induction -deduction and so on.The first part proposes a definition of the concept and legal characteristics of lawyers' civil liability, pointing out that it is a kind of private law liability, professional liability, fault liability and self liability. And also in this part the essence of the nature of lawyers' civil liability is defined so that the object and content of the study of this thesis is clear. The second part, from the perspective of comparative analysis, offers a survey of the attestation of the nature of lawyers' civil liability in the common law system and continental law system. As for the civil liability of the lawyer to the client, it is believed that it includes the liability for breach of contract and infringement of rights, with the infringement of rights as its main forming the common law system. However countries belonging to the continental law system practice differently. Germany admits the dual nature of breach of contract and infringement of right, while France denies completely the liability for infringement of rights and proposes the concept of "professional liability". As for the civil liability for the third person, both law systems admit its nature of liability for infringement. The third part offers the analysis of the main current opinions of scholars in our country with regard of the nature of lawyers' civil liability , on the basis of which the author believes that lawyers' liability is not one that is either the one or the other, or one that is of single property, but instead it is a kind of mixed duty with the liability for breach of contract as the main one and the contracting fault liability as an assisting one. The forth part analyzes the complex and mixed nature of lawyers' liability from the perspective of the legal basis on which lawyers' civil liability is generated. This article explores the nature of lawyers' civil liability from the relationship between the lawyer, the client and the third person, the one between the lawyer, the criminal suspect and the defendant, and the one between the lawyer and the aided individual citizens in legal aid cases respectively. The fifth part, from the perspective of legal economics, puts forward an analysis on the nature of lawyers' civil liability and concludes that it should be a mixed liability with the liability for breach of contract as the main one and the liability for infringement of rights as an assisting one.