First, how to terminate the lawyer's power of attorney
According to the relevant provisions of China's Civil Code, the client can revoke the entrustment at any time. If the entrustment is revoked, the trustee and the relative person with legal relationship shall be notified. When the notice reaches the trustee, the authorization is revoked. In any of the following circumstances, the principal-agent shall be terminated:
(1) The agency term expires or the agency affairs are completed;
(2) The principal cancels the entrustment or the agent abandons the entrustment;
2. What are the precautions for signing the power of attorney to cancel?
Power of attorney refers to the legal documents made by the parties in order to grant the entrusted agent the power of attorney. It is the symbol of the authorized behavior of the client and the direct basis of the agency right. There are two kinds of power of attorney: one is the power of attorney for civil agency; The other is the power of attorney of the agent ad litem. The basic contents of the power of attorney shall include:
(1) The names, gender, date of birth, occupation and current address of the trustor and the trustee. If the client is a legal person, the full name, address and name of the legal representative of the legal person shall be stated.
(two) the entrusted matters must be written clearly and specifically. It should be noted that in civil agency, the matters entrusted by the agent must be civil acts with legal significance and certain legal consequences. China's law clearly stipulates: "In accordance with the law or in accordance with the agreement between the two parties, civil legal acts that should be carried out by myself shall not be represented." Such as personal will, adoption of children, marriage registration and other legal acts.
(three) the scope of authority entrusted is an effective basis for the agent to implement the agency behavior, and the lawyer must write clearly when writing the power of attorney. In civil agency, there are three situations in which the principal authorizes the agent: 1, one-time entrustment, that is, the agent can only handle civil legal acts on a certain entrusted matter; 2. Special entrustment, that is, entrusting an agent to handle the same civil legal act repeatedly within a certain period of time; 3. General entrustment means that the agent is entrusted to handle all kinds of civil legal acts related to a certain kind of affairs or a certain subject matter within a certain period of time.
In civil litigation agency, there are two kinds of entrusted agency: (1) general entrustment, that is, entrusted agents can only represent the parties in general litigation, such as giving evidence, arguing and applying for property preservation. (2) Special entrustment, that is, entrusting an agent to carry out some major litigation acts on his behalf, such as having the right to admit, modify or abandon the litigation request on behalf of the parties; Have the right to appeal or counterclaim; Have the right to settle accounts with the other party. It should be noted that in view of the particularity of marriage cases, China has made restrictive provisions on the agency authority granted by the parties when entrusting agents, that is, "if there is an agent ad litem in a divorce case, he should still appear in court unless he cannot express his will; If it is indeed impossible to appear in court due to special circumstances, a written opinion must be submitted to the people's court. " When signing the power of attorney, you should pay attention to the following matters:
1. There are three ways of authorization: express authorization, implied authority and ratification.
2. The starting and ending time of the entrustment period must be clearly written, and it is easy to cause controversy if it is not written.
3. The special power of attorney between citizens shall be notarized to ensure the authenticity and legality of the entrusted behavior.
3. Who can be the agent?
(1) lawyer
A lawyer refers to a professional who has obtained a lawyer's professional certificate according to law, accepted entrustment or assignment, and can provide legal services to clients as a lawyer. In China, lawyers can be divided into full-time lawyers and part-time lawyers, and can also be divided into ordinary lawyers and chartered lawyers according to their professional qualifications. China's civil procedure law stipulates that lawyers can be entrusted as litigation agents. Are they allowed to represent all cases and other legal affairs stipulated by law without restrictions? The answer is no, China lawyers (mainland lawyers) only practice in Chinese mainland and have no right to represent lawyers in Hong Kong and Macao. In addition, residents of China Hong Kong Special Administrative Region and Macao Special Administrative Region can practice in mainland law firms only after they have obtained the professional qualification certificates of mainland lawyers, but their business scope is also strictly limited, that is, they are engaged in non-litigation legal affairs and agency activities in marriage inheritance cases involving Hong Kong and Macao in the Mainland. It can be seen that it is conditional for lawyers to engage in legal affairs or litigation agency business.
(2) Grassroots legal service workers
The so-called grass-roots legal service workers refer to those who meet the practice conditions stipulated in the Measures for the Administration of Grass-roots Legal Service Workers issued by the Ministry of Justice (Order No.60 of the Ministry of Justice on March 3 1 2000), have been approved for practice registration, obtained the practice certificate of legal service workers, practiced in grass-roots legal service offices, and provided legal services to the society. After receiving the Practice Certificate of Legal Service Workers, you can engage in grassroots legal services. The main business of grassroots legal service workers includes participating in civil, economic and administrative litigation activities as agents. However, the professional services of grassroots legal service workers are subject to more restrictions. The Ministry of Justice (No.200212) stipulates that grassroots legal service workers cannot represent civil economic and administrative litigation cases where any party is not in their jurisdiction. According to the fourth provision of Article 24 of the Detailed Rules for the Work of Township Legal Service Offices, it is one of the conditions that grassroots legal service workers should have to represent civil, economic and administrative cases. It can be seen that grassroots legal service workers cannot represent civil, economic and administrative litigation cases in which any party is not in their jurisdiction. This is the main difference between grassroots legal service workers and lawyers representing litigation business. In addition, Article 13 of the Lawyers Law stipulates that a person who has not obtained a lawyer's practice certificate may not engage in legal services in the name of a lawyer; Unless otherwise provided by law, they shall not engage in litigation agency or defense business. It can be seen that grassroots legal service workers cannot act as defenders of criminal suspects and defendants. However, when the grassroots legal service workers meet the provisions of Article 32 of the Criminal Procedure Law, that is, the grassroots legal service workers are guardians, relatives and friends of criminal suspects and defendants, they can be entrusted to act as defenders in criminal proceedings, except in the investigation stage, because lawyers can only act as defenders in the investigation stage. Therefore, one of the essential conditions for grassroots legal service workers to represent civil, economic and administrative cases is whether there are parties in the jurisdiction they serve, otherwise they have no right to accept the entrustment of the parties and participate in the litigation activities of the cases. In criminal cases, according to the provisions of the Criminal Procedure Law, grassroots legal service workers can only be entrusted as defenders if they are guardians, relatives and friends of criminal suspects and defendants, except in the investigation stage.
(3) Close relatives or staff members of the parties concerned.
1, the so-called close relatives of the parties refer to people who have specific close kinship with natural persons.
China's "Civil Procedure Law" stipulates that close relatives or staff members of the parties may be entrusted as litigation agents. However, different laws in China have different provisions on the scope of close relatives. 1. Article 12 of the Opinions on General Principles of Civil Law stipulates that close relatives stipulated in the General Principles of Civil Law include spouses, parents, children, brothers and sisters, grandparents, grandchildren and grandchildren. Second, the close relatives stipulated in Article 24 of the Administrative Procedure Law include spouses, parents, children, brothers and sisters, grandparents, grandchildren, grandchildren and other relatives who have the relationship of support and maintenance. Third, Article 106 (6) of the Criminal Procedure Law stipulates that "near relatives" refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. As can be seen from the above provisions, the provisions of the three laws in China on close relatives are not the same, the provisions of the Criminal Procedure Law are the narrowest and the provisions of the Administrative Procedure Law are the widest. Then, in the specific application, what should be the scope of determining close relatives? The author believes that although the legal relationship among the three laws is different in nature, as laws, the new law should be superior to the old law and use the same legal concepts. In addition, the scope of close relatives in the General Principles of Civil Law is determined by the judicial interpretation of the Supreme People's Court. Where its scope is inconsistent with the law, the provisions of the law shall apply. In addition, Article 32 of the Criminal Procedure Law stipulates that relatives and friends of the defendant may be entrusted as defenders in criminal proceedings. Generally speaking, relatives and friends include relatives and friends, which are much wider than close relatives. However, the revision of the Civil Procedure Law did not adopt the concept of relatives and friends, but still adopted the concept of close relatives. In the author's opinion, when applying the provisions of the Civil Procedure Law that the close relatives of the parties can be entrusted as litigation agents, it is necessary to adopt the concept of big close relatives, so as to further expand the number of people who can act as litigation agents and further meet the actual needs of the parties in litigation.
2, the staff of the parties
The staff of one party refers to one party as a unit, and its staff can be entrusted as agents ad litem. Because of the different nature of the employing units, different standards should be adopted when judging the staff of the parties concerned. If an enterprise is a legal person, its employees refer to people who have labor relations with the enterprise. The staff of public institutions include those who have business relations with public institutions and those who have labor relations with public institutions. Therefore, in practice, we should pay attention to using different standards to judge it.
(four) citizens recommended by the community, units and relevant social groups where the parties are located.
1, the person recommended by the party's community and unit. Community refers to a certain area where people live together. Members of society in a fixed geographical area take the living environment as the main body, exercise social functions and create social norms, and are at the same level as administrative villages. It can be seen from this provision that the community can recommend agents ad litem for the parties living in the community, that is, residents or community workers in the community can be recommended as agents ad litem, and others can also be recommended as agents ad litem. The unit to which the party belongs may also recommend the staff of the unit or citizens outside the unit as litigation agents. That is to say, the community and unit where the parties are located can recommend people from their own communities and units as agents ad litem, or citizens outside their own communities and units as agents ad litem. This is a problem that should be paid attention to.
2. People recommended by relevant institutions. Social organizations refer to non-profit organizations registered and established according to law, with articles of association, name, a certain number of members, sources of funds, offices and offices. Such as: literary and art work groups, academic research groups, social welfare groups, etc. It can be seen that relevant social organizations can recommend litigation agents for specific parties, but they cannot act as litigation agents in the name of groups.
A lawyer's power of attorney can be automatically dissolved at the expiration of the authorization period, or revoked by the client or resigned by the agent.
Legal objectivity:
Article 25 of the Lawyers Law: When a lawyer undertakes business, the law firm shall uniformly accept the entrustment, sign a written entrustment contract with the client, uniformly collect fees according to the provisions of the state, and truthfully record them. Law firms and lawyers shall pay taxes according to law. Article 26 Law firms and lawyers shall not engage in business by slandering other law firms and lawyers or paying referral fees.