Research On The Identification And Remedy Of The Defects In The Performance Of The Lawyer’s Legal Service Contract

With the gradual improvement of our country’s governance system and capacity,the construction of lawyer system has made some achievements.The construction of lawyer’s practice standard has changed from judicial administration and industry autonomy to the adjustment of legal service contract relationship between lawyer and client in the field of private law,and has become one of the basic points to implement the construction of lawyer’s system.According to the theory of contract law,the legal service contracts concluded between lawyers and parties are non typical contracts,and the specific provisions of contract law do not set specific norms for them.The content of service contract relationship is very complex,which is usually composed of multiple cross rights and obligations.Moreover,because legal service is highly professional,procedural,asymmetric information and difficult to identify,and because of the particularity and independence of lawyers’ profession,they often have a certain degree of independent judgment power,so they only use the contract jurisprudence,according to the parties Consciousness autonomy and contract terms are difficult to constrain lawyers to fulfill their full and effective payment obligations.On the other hand,due to the lack of necessary normative guidance in legal service contract disputes,there are often difficulties in judicial trials.In this regard,the author believes that the defect in the performance of the lawyer’s legal service contract is the difficulty and pain point in solving the litigation dispute between the lawyer and the party,but the difficulty is just the key link in solving the problem.Due to the particularity and complexity of the law service performance rules,the legal service contract obligations based on the autonomy of will and contract ethics can not cover all aspects of the lawyer’s practice norms,so it is necessary to have some normative correction rules for the lawyer’s legal service contracts.The defects in the performance of lawyer’s legal service contract are different from the breach of traditional contract and the tort in general sense.The breach of contract does not necessarily constitute the defective performance,and the defective performance does not necessarily constitute the tort.Based on the fact that the defect in the performance of the lawyer’s legal service contract is the prerequisite for the parties’ right relief and the lawyer’s civil liability,the identification method is very important.This paper focuses on the study of the flaws in the performance of the lawyer’s legal service contract,summarizes the relevant basic theories,such as the nature,characteristics and theoretical connotation of the flaws in the performance of the legal service contract,and then classifies the flaws in the performance of the legal service contract into the flaws in the performance of the breach of contractual obligations and the flaws in the performance of the breach of legal obligations.Among them,the contractual obligation is based on the necessary provisions of the establishment of a legal service contract,such as the lawyer’s ultra vires agency,etc.;while the legal obligation refers to the professional requirements that a lawyer should abide by based on the lawyer’s practice norms,practice disciplines and practice ethics,etc.,which is the main source of his contractual obligations.The contractual obligation of lawyer’s legal service contract is not absolutely opposite to the legal obligation.After the contractual obligation is determined according to the contract terms,the legal obligation will be corrected and supplemented.The systematic construction of the two has an important impact on judging the actual performance defects.Therefore,it is the focus of this paper to study the performance defects of violating legal obligations.In order to guide the practical application,the author further combines the relevant research results of the service contract,and constructs three kinds of methods to identify the defects in the performance of the legal service contract: obligation group construction analysis method,industry standard comparison method,behavior effect deviation from the purpose of the contract.The comprehensive application of the above three methods puts forward a comprehensive solution to determine the defects in the performance of the legal service contract for lawyers A resolution.Finally,in order to solve the defects in the lawyer’s performance of the legal service contract,the parties put forward several remedies to protect their legitimate rights and interests,such as making up for the performance,reducing the lawyer’s fees,requiring to bear the liability for breach of contract or tort,or terminating the legal service contract,etc.