A Number Of Issues, Of The Bar Liability System

The liability compensation system of the lawyers' practice is a very important component of the lawyers' system of a state. Almost all the nations in the world with a relative perfect legal system possess improved liability compensation system of the lawyers' practice. It has been 25 years since the lawyers' system in our country was resumed in 1970s, and the lawyers' system has become an indispensable component of the socialist legal system in our country. The "Lawyers Law" promulgated on May 15, 1996 is a milestone in the history of lawyers' system in China, which symbolizes the establishment of the liability compensation system of the lawyers' practice.The liability compensation system of the lawyers' practice refers to the legal responsibility to give the litigant a civil compensation for the damage that is abused by the lawyer's illegal practice or his own fault during the process of offering legal service to the litigant after the lawyer accepts the entrustment of the litigant. According to its nature, the compensation liability of the lawyers' practice belongs to the civil liability. But there are many different opinions about what kind of nature it belongs to in the academic circle. The writer agrees with the opinion of special liability that is a complex and special civil liability which possesses not only the nature of contract liability but also the nature of tortious liability, as well as the aggravated nature and characteristics of the specialist professional liability.There are also different opinions about the constitutive requirements of compensation liability of the lawyers' practice in the academic circle. By means of analysis, the writer approves the opinion of four constitutive requirements which includes the damage acts, damage facts, the relation between the damage acts and the damage facts, and the subjective misconduct of the actor. The compensation liability of the lawyers' practice shall be determined only as the four constitutive requirements areprovided altogether. The compensation liability of the lawyers' practice is an integration of the liability for breach of contracts and liability for tort, so the doctrine of liability fixation embodies not only the doctrine of liability for wrongs but also the principle of liability without fault. Under specific circumstance, the lawyer is able to exercise the counterplead right to exonerate from part or all of the compensation liability. During the action for compensation of lawyer's practice, the practicing lawyer is able to undertake the burden of proof to testify his innocence by means of converting the burden of proof.In the legal relation of lawyer's compensation, the lawyer is the main act body; 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. After paying the compensation to the victimized client, the law office has the right of exercising the right to recourse to the lawyer who has made deliberate or grievous faults. Meanwhile, the writer analyzes the concrete conditions that will cause compensation.At last, with the purpose of helping the improvement of the liability compensation system of the lawyers' practice in our country, the writer tries to point out the theoretical foundation of the present liability compensation system of the lawyers' practice in our country and to put forward the basic framework to ameliorate the liability compensation system of the lawyers' practice in our country by means of introducing the liability compensation system of the lawyers' practice out of our country and the liability compensation system of the lawyers' practice in Hong Kong and analyzing the several problems of the present liability compensation system of the lawyers' practice in our country.