Function and value of enterprise legal risk management system
Based on the market, modern enterprises will face risks from all aspects, such as contractual behavior.
Risks, capital operation risks, intellectual property risks, human resources and environmental risks.
Protection, tax planning, public relations and risks of litigation and arbitration.
Wait a minute. How to guard against these risks can fundamentally ensure the safe operation of enterprises.
In order to prevent potential risks from becoming real disasters and nip in the bud, it is necessary to establish enterprise law.
Legal risk management service institutions, improve the legal risk management system of enterprises.
Large enterprises often set up internal regulatory offices or legal departments to deal with enterprises.
Daily legal affairs of the industry. However, due to the limitation of the company's legal department, external laws are often needed.
Lawyers of division firms provide legal services for enterprises. In modern enterprise management structure, external law
Branch is an extremely important part, and some foreign lawyers of multinational companies can even directly participate in public affairs.
Major decisions of the company. In China, with the emergence of intermediaries such as law firms, you can
Providing professional services to the society at any time will make it easier for enterprises to establish a legal risk management system.
A scheme, that is, enterprises can submit the overall framework for establishing and improving the legal risk management system of enterprises.
For law firms with obvious professional and experience advantages, set up external lawyers (law
Consultant). This choice not only saves the manpower, material resources and money for enterprises to train internal legal affairs.
Force, compared with internal legal affairs, has many advantages.
The author believes that a comprehensive law with strong operability, low implementation cost and high work efficiency.
The risk management system should be composed of internal legal affairs (corporate legal affairs agency) and external laws.
Division (legal adviser) two-part service. And how to deal with the corporate legal department.
It is an important topic to cooperate with external lawyers to enhance the ability of enterprises to prevent risks.
First, the difference between external lawyers and internal legal affairs of enterprises
Legal persons within enterprises are employees within enterprises, and there is a labor relationship between them and enterprises.
The contractual relationship is directly led by the enterprise and is responsible for the enterprise. And consultants hired by enterprises,
Are full-time practicing lawyers, who provide legal services for enterprises as legal advisers, and their offices.
The relationship between law firms and enterprises is a consulting contract, and consulting lawyers and enterprises are just
The professional service cooperation relationship exercises the rights of practicing lawyers as stipulated in the consultant contract, and
Fulfill contract definitions such as legal consultation, legal advice, document review or agency, and case agency.
Service. Based on the different legal relationship and role orientation, external lawyers and internal legal affairs of enterprises serve separately.
Different division of labor, the focus of work is also different:
(A) the focus of work is different: the internal legal affairs of enterprises actually undertake more administrative affairs,
The role of secretary is greater than that of lawyer; External lawyers are full-time legal workers, based on consultants.
The contract provides professional legal services for enterprises.
(b) Different ways of thinking: the first choice for domestic legal consideration is
How to balance the relationship between departments, because one of his decisions or opinions is often directly related to one.
Whether the actions of various departments are appropriate or not, and whether there are problems, they are similar to government officials in their way of thinking; but
External lawyers are often more practical and are committed to helping enterprises solve various legal problems and ways of thinking.
It is similar to a businessman.
Second, the advantages and limitations of external lawyers and internal legal affairs of the company
(A) the advantages and limitations of internal legal affairs
The Ministry of Justice, as a functional department in large enterprises, is engaged in legal affairs.
The advantage of internal legal staff is that they are more familiar with the internal operation and business of the enterprise than external lawyers.
Service mode, better understand the thinking and intention of enterprise management, and be more responsible for the enterprise.
People communicate with other employees. Based on the above advantages, the internal legal staff can handle the whole process.
Participating in the daily legal risk monitoring of enterprises objectively plays a very good role in legal risk management.
Use. However, internal legal affairs also have obvious limitations, mainly in the following aspects:
1. Start-up enterprises can generally only provide lower salaries for internal legal affairs.
The legal personnel employed are often younger, so they are dealing with legal risk management.
The lack of experience and skills is inevitable.
2. In addition to engaging in internal legal affairs, internal legal affairs generally need to do a lot of work.
Administrative affairs, so it is impossible to further improve the breadth, accuracy and depth of the legal profession.
Therefore, it will inevitably affect the quality of legal affairs. It's just a matter of time allocation.
The problem also determines that it is extremely difficult for them to reach the professional level of external lawyers in terms of overall professional knowledge.
Ping.
3. Treating legal events, especially major events, requires the independence of legal workers.
, calm judgment and thinking, as well as internal legal affairs and enterprises are subordinate relations, in the performance tips.
In addition to the limitation of comprehensive knowledge and experience, the position must not be limited by identity and status.
System, sometimes easily influenced by the will of business leaders, thus losing independence and leadership.
The influence and help of decision-making is limited, thus increasing the risk in disguise.
4. Due to the lack of professional inquiry methods, internal legal affairs lack extensive legal compliance.
Opportunities and places for industry experience exchange, so the promotion of professional standards has been limited.
To sum up, simply relying on the establishment of legal institutions within the enterprise will not help the enterprise much.
Establish and improve a sound legal risk management system. In other words, only by configuring internal legal affairs,
It can't provide all-round legal risk management guarantee for enterprises, but external lawyers can fill it.
Limitations and shortcomings of internal legal affairs in enterprises in the above aspects.
(B) the advantages and limitations of external lawyers
The advantage of external lawyers is that they have more experience in legal practice and judicial practice. Because they keep a certain distance from the enterprise, they may have more objective views and opinions on all aspects of the enterprise, and they can provide comprehensive and professional legal services for the enterprise according to the actual needs of the enterprise and the collective wisdom of their law firm.
1, legal services are more professional, better quality and more comprehensive.
First of all, external lawyers can rely on the information and resource advantages of their law firms, give full play to their collective wisdom and teamwork advantages in handling legal affairs, have more practical experience and litigation experience, and provide more professional legal services, thus minimizing legal risks and maximizing corporate interests.
Secondly, law firms have responsibility system for handling cases, collective discussion system for cases and supervision and management mechanism, and lawyers are also supervised by trade associations and judicial administrative departments, which forces lawyers to provide more professional and better legal services.
Thirdly, the legal consulting services provided by lawyers all the year round involve enterprises, institutions and government departments in all walks of life, involving the production and operation, daily management and strategic development of enterprises. There are many kinds of cases contacted and handled, and the disputes are significant and complicated. Accordingly, lawyers can exercise their work skills and provide more comprehensive legal services in handling various cases.
2, the cost is lower, which is beneficial to mutual benefit.
To set up a better legal department or post, the annual expenditure should be at least 654.38+10,000 yuan (including monthly fixed salary, four funds and fixed office space and facilities provided for it). External lawyers, as perennial legal advisers, do not have to pay "five"
"One insurance and one gold" does not need to provide fixed office space and office facilities, and there is no need to worry that its "resignation" will increase the recruitment cost and affect the normal operation of the enterprise. Therefore, its cost is often lower than that of in-house legal specialists. In addition, external lawyers can use the office space, office facilities and information resources of the law firm to provide legal services for the consulting unit, which is conducive to mutual benefit and win-win between the consulting unit and the law firm.
3. It is conducive to enhancing corporate reputation and establishing corporate image.
An enterprise has its own external legal counsel, which embodies the legal consciousness, modern consciousness and forward-looking consciousness of enterprise leaders and decision makers, and is also a sign of maturity, stability and standardization of enterprises, which can greatly enhance the corporate image and enhance the business reputation of enterprises.
All well-known companies in the world, without exception, employ senior lawyers as chief legal officers. Chief law officer, as a senior core personnel, plays an important role in the company alongside the company's Chief Financial Officer (CFO). The subsidiary also employs lawyers as full-time legal advisers to provide advice for the company's operation. The employment of lawyers by enterprises is the first embodiment of the strength of enterprises. Lawyers are high-income groups all over the world, and an enterprise can hire its own lawyers to show its strength. From another point of view, it shows that enterprises have a large number of important businesses, and lawyers are needed to ensure the smooth development of the business from the legal aspect.
4, can play a deterrent role.
An enterprise has its own external legal counsel, which objectively makes its partners or opponents have scruples when cooperating or competing with themselves, and will not break the contract or use illegal means at will. In the event of a dispute, an external legal adviser can issue a lawyer's letter and other legal documents in the name of a lawyer, which can not only collect evidence in time, but also exert certain pressure on the other party.
Many problems that need to be solved by arbitration or litigation can be solved in time before litigation, which is conducive to saving costs.
5. It is conducive to imperceptibly cultivating the legal awareness and legal risk awareness of enterprise executives and employees.
In the process of providing legal services for enterprises, external lawyers identify and analyze the legal risks, evaluate the legal risks existing in enterprises according to the actual situation and legal environment of enterprises, put forward complete and operable solutions, eliminate legal loopholes in the company's operation and management as much as possible, minimize the legal risks of the company in market economy activities, and enable senior managers and related employees of enterprises to be instilled with legal risk knowledge and awareness while receiving legal services from lawyers. Conduct targeted legal risk management training regularly to help management and employees master the necessary legal knowledge and apply it to work and life.
6. It is conducive to giving full play to the advantages of the third party and achieving the best results.
In the process of enterprise cooperative investment, foreign negotiation is inevitable. When there is disagreement or even deadlock in the cooperation negotiation, external lawyers and consultants can intervene as a third party in time, which can often achieve unexpected results, promote the negotiation to continue and achieve a win-win situation.
As mentioned above, external lawyers have many advantages and values that internal legal affairs do not have. However, if external lawyers lack communication and cooperation with internal legal affairs, they may get twice the result with half the effort because they lack management experience and do not understand the actual business operation and real needs of enterprises, and it is difficult to achieve the expected results and goals. Only when external lawyers and internal legal affairs of enterprises give full play to their respective advantages and complement each other can they escort the development of enterprises.
Ensure that enterprises maximize profits with minimum risk.
Third, the cooperation between external lawyers and internal legal affairs of enterprises is a win-win situation.
In the process of external lawyers providing legal services for enterprises, the legal personnel of enterprises are the first and most frequent contacts with lawyers, and they are the bridge between lawyers and the upper level of enterprises. Therefore, whether in the business field or interpersonal communication, the cooperation between external lawyers and internal legal affairs is very important. In the process of providing legal services for enterprises, external lawyers and internal legal affairs of enterprises should be cooperative. Both internal lawyers and external lawyers can only realize and enhance their own value as a group.
(A) benign interaction, effective communication
External lawyers lack in-depth understanding of the enterprise, and often need to communicate with corporate legal personnel to understand the fundamental purpose and actual needs of the enterprise. In addition, the quality of legal services provided by external lawyers is evaluated by enterprises as customers, and lawyers should take the satisfaction and recognition of enterprises as their main goals. As a key department connecting external lawyers and enterprises, the satisfaction of enterprises with lawyers' evaluation often depends directly on the recognition degree of the legal department. It can be seen that the good cooperative relationship between lawyers and corporate legal departments is of great significance to the development and development of external lawyer business.
External lawyers should maintain good communication with the legal department of the enterprise, specify the person to strengthen the contact with the legal department of the enterprise, determine the specific contact time or keep unlimited contact open, and can agree on the duty system, visit system and emergency handling system according to the actual situation of the enterprise to ensure the efficiency and quality of lawyers' legal services for the enterprise. When dealing with specific affairs, lawyers should quickly, accurately and fully obtain background information on related issues and fully understand them.
Based on the relevant facts and materials, from the overall interests of the enterprise, choose the methods and ways to solve the problem, and put forward objective and fair legal opinions, so that the legal department of the enterprise can fully understand and understand the risks and solutions, and provide the basis for enterprise decision-making. Lawyers should avoid sloppy, perfunctory or protracted legal work when dealing with specific legal affairs.
When dealing with specific legal affairs of an enterprise, lawyers should communicate with the Legal Department on specific matters, clarify the work requirements, respect and understand the opinions and suggestions of the Legal Department, and at the same time, lawyers should put forward objective legal analysis opinions or solutions on specific facts and basis, and submit them to the enterprise in writing as much as possible. In the process of solving specific problems, lawyers should always feedback the relevant situation and progress to the Ministry of Justice, and communicate and deal with the problems that appear or may be faced in time. After handling specific affairs, lawyers should summarize the handling situation and make a work report and submit it to the legal department of the enterprise as a summary of lawyers' handling of legal affairs, and also provide basis and reference for the legal department to submit materials and the enterprise to identify lawyers' work. In short, lawyers should let enterprises, especially the legal department, feel good legal services.
(two) a clear division of labor, to avoid duplication of work.
Due to the overlapping of corporate legal affairs, hiring lawyers and the work of the Ministry of Justice, it is necessary to have a clear division of labor between external lawyers and the Ministry of Justice in legal affairs, so as to avoid the waste of human resources and costs caused by legal affairs that the Ministry of Justice cannot handle due to the limitation of legal knowledge and specialty, and even make enterprises face undue risks. It can also avoid the situation that lawyers deal with simple and tedious daily legal affairs that should be undertaken by the Ministry of Justice, which leads to the untimely work connection and transaction handling of the Ministry of Justice.
The legal department of an enterprise always has high requirements for hiring foreign lawyers.
Affairs, big or small, are always willing to rely on lawyers to handle them. If lawyers accept all legal affairs assigned by enterprises in principle, they may be overwhelmed, thus affecting work efficiency and service quality. In order to properly handle the division of work between lawyers and the legal department and avoid duplication or vacuum, lawyers should make clear the relevant work of lawyers providing legal services to enterprises through comprehensive communication with the legal department in advance, explain to the legal department and assist it to do its due work.
At the same time, in their daily work, lawyers can enhance the ability of legal department staff to deal with daily legal problems by training or assisting enterprises to establish and improve rules and regulations, which can not only improve the management level of enterprises and the professional level of the legal department, but also reduce the workload of lawyers in daily legal services.
The author thinks that the best mode of enterprise legal management should be to provide the most comprehensive and direct legal services for enterprises by combining the functions of internal legal departments and external law firms. In the process of providing legal services for enterprises, external lawyers and internal lawyers depend on each other, develop together, and realize and enhance their own value.
Four, the role and value of external lawyers in the enterprise legal risk management system
For enterprises, there is a gradual process from the emergence of basic factors of legal risk to the emergence of legal risk consequences, which is the main purpose of legal affairs management. The integration of legal affairs management and daily management of enterprises should also be the development trend of preventing legal risks and solving other legal affairs problems in the future.
As mentioned above, a comprehensive legal risk management system with strong operability, low implementation cost and high work efficiency should be composed of two service systems: internal legal affairs and external lawyers.
All right. Based on the limitation of internal legal affairs in role orientation and professional knowledge, external lawyers need to play a greater role in enterprise risk management and bear heavier responsibilities. The author believes that on the basis of fully understanding the enterprise organization, business type and operation mode, external lawyers can consider the actual needs of enterprises and put forward effective concrete measures and effective suggestions for enterprise legal risk management in the following aspects:
1, corporate legal risk management strategy
Legal risk management strategy is the core part of enterprise legal risk prevention system, and the implementation of this strategy will determine the enterprise's risk value concept, operation mode and enterprise risk management. Elements include how to identify risks, what risks to take, and how to manage the risks found. It determines how business owners and management consider risks when formulating and implementing strategies and business operations.
2. Legal argumentation system for major decisions of enterprises
The legal argumentation system of major decisions means that enterprises should demonstrate the legality and legal feasibility of decisions with the direct participation of lawyers and comprehensive existing conditions to ensure that decisions have a reliable legal basis. The legal argumentation system ensures that decisions are incorporated into the enterprise's legal risk prevention system, so that the legal risk prevention mechanism can operate effectively at a high level, and the rights given to enterprises by law are fully reflected.
3, legal risk early warning system
The legal risk early warning system refers to the risk assessment index system preset before the occurrence of legal accidents, which should comprehensively cover the important indicators and operating benefits involved in enterprise operation. By comparing the predicted value with the standard value, the enterprise can predict the specific risks.
The purpose of the police. Risk early warning generally includes three steps: finding risk symptoms, calculating risk degree and predicting risk.
4. Legal risk relief system
The quality of legal risk relief system is often related to the life and death of enterprises, and it is an essential system and procedure for enterprises to manage and deal with legal accidents. Legal risk relief refers not only to litigation, but also to litigation as the last remedy for enterprises to avoid or reduce losses. The legal risk relief system should include four contents: treatment plan, solution strategy, treatment procedure and afterwards summary and improvement.
5, legal knowledge publicity and training system
The legal publicity and training system includes publicity and training: in legal publicity, enterprises mainly organize manpower, make full use of publicity platforms such as corporate websites and internal publications, and publicize and popularize relevant legal knowledge of enterprises through multiple channels; On the other hand, the annual legal training of enterprises should establish relevant systems, and make clear the object, purpose, content, time, personnel, subject teachers and training cost budget of legal training.
6, enterprise management risk assessment report
Establishing legal risk prevention system is the long-term planning and goal of enterprise risk management. Legal risk is constantly changing with the adjustment of external legal risk environment and internal business strategy. Through a comprehensive investigation and sorting out of the legal matters involved in the business activities of enterprises, the object of legal risk prevention is drawn up and the pre-plan is put forward in the arrangement of the annual business activities of enterprises. The main contents of the legal risk assessment report include: due diligence, risk disclosure, scheme demonstration and scheme design.
To sum up, external lawyers are very important in the modern enterprise legal risk management system.
As an important part, it has incomparable advantages and value in domestic legal affairs. External lawyers can provide professional, high-quality, efficient and comprehensive legal services for enterprises to the maximum extent through benign cooperation with internal legal affairs. The role of lawyers in enterprise legal risk management is not only to deal with litigation caused by disputes afterwards, but more importantly, how to prevent risks in advance, reduce and avoid legal risks in enterprise operation and enterprise decision-making, so as to maximize interests and develop at a high speed within the scope permitted by law.