Generally speaking, risk prevention is the basic motivation for enterprises to hire legal counsel, and it is also the basic point for lawyers to provide legal advisory services. So how can corporate counsel guard against corporate risks? Let's take a look at the following article!
First of all, risk assessment is the premise and foundation of effective risk prevention.
When a lawyer serves as an enterprise legal adviser, it is generally necessary to make a risk assessment of the enterprise. This evaluation of lawyers is based on legal rules and practical experience. Enterprise legal risk assessment can't simply go through the motions, so it is necessary to design the corresponding risk assessment form, and evaluate it through lawyer talk, data analysis and even due diligence. The risk assessment report needs to cover all aspects of the legal risks of the above companies. On the basis of risk assessment, the legal risk assessment report issued by lawyers should basically reflect the risk status of enterprises and the corresponding mechanism to deal with risks.
Second, the risk warning needs to present the professional characteristics of lawyers.
I have to admit that many lawyers have relatively limited knowledge of risks while serving as corporate legal advisers. On the other hand, the way of risk warning is also very casual. On the basis of the risk assessment report, lawyers need to give a relatively clear answer to whether there are risks in the daily operation of enterprises and what risks exist.
The risk warning put forward by lawyers should first be based on the aforementioned legal risk assessment report. What risks exist and what risks exist need to be clarified. For example, some enterprises may be confused in contract management, so lawyers' risk warnings should mainly focus on contract legal risks; If there is a big risk of infringement of intellectual property rights, the risk early warning should mainly focus on the field of intellectual property rights.
Secondly, the lawyer's risk warning should be based on laws, regulations and other normative documents? Legitimacy? And then what? Compliance? Review. The existence of risk is basic knowledge, but lawyers' understanding of risk is different from others'. Lawyers should consult and master relevant laws and regulations, judicial interpretations and even guiding cases, and form professional risk warning reports through analysis, identification and comparison.
Third, should we provide lawyers with risk warnings? Solution? . For entrepreneurs, they need lawyers as consultants, not only because they lack legal knowledge, but also because they want to get professional advice from lawyers in some unclear matters and fields. Therefore, in the process of serving as legal adviser, lawyers should not only be satisfied with? Find a problem and ask a question? And what should we pay more attention to? Solve the problem? .
Third, resolving risks is the core of risk prevention.
Although we advocate enterprise risk management? Prevention first, combining prevention with treatment? But as far as the actual needs of enterprises are concerned, it is more urgent to resolve risks. Therefore, in our view, resolving risks is the core function of corporate legal counsel. From the lawyer's point of view, to resolve the risks existing in the business process, mainly based on the following ways:
(1) Correct the matters that do not meet the statutory requirements in time. This is mainly aimed at the legal risks within the enterprise. For example, the employment of enterprises is not standardized, labor contracts are not signed on time, and the signed labor contracts are not issued to workers in time; The legal representative, domicile and shareholders of the enterprise have changed, and other matters that should be changed in time according to law have not been registered in time; The specific operation of the enterprise is not implemented one by one in accordance with the provisions of the articles of association, and so on. Can these matters be carried out in time on the basis of legal risk assessment? Internal error correction? Meet the statutory requirements.
(2) Complement and improve related matters. It is also a way to resolve risks by supplementing and perfecting the matters that have been implemented by enterprises but are not standardized and perfect. For example, in many enterprises, the shareholders' meeting and the board of directors never have meeting minutes; Staff management only depends on labor contracts, without entry and exit procedures, as well as confidentiality agreements and non-competition agreements? Only the agreement? No? Compensation standard? Wait a minute. For these matters, some enterprises may take certain measures based on incomplete understanding, but these measures are either biased in understanding laws and regulations, or? Only half done? Supplementing and perfecting these matters can better show the professional knowledge and level of lawyers, and also better improve the level of corporate rule of law, thus effectively avoiding all kinds of legal risks.
(3) Correcting and amending relevant legal texts. Legal text is the most widely used working method for lawyers as legal advisers. In terms of risk prevention and control, the revision and modification of the text is undoubtedly an important aspect. Lawyers need to carefully analyze and check all kinds of contracts and documents adopted by enterprises. Taking contracts as an example, all kinds of contracts adopted by enterprises need to be reviewed and revised by lawyers. In many enterprises' contracts, there is either a lack of statutory necessary clauses, or the relevant clauses violate the relevant provisions of laws and regulations, or there are major loopholes in the relevant clauses. For contract review, this is also the most common way for lawyers to work. It should be pointed out that when serving as an enterprise legal adviser, the review of texts involves not only contracts, but also the formulation of internal rules and regulations, various internal and external texts among shareholders and in the process of corporate governance, and even various texts within the company. Have you noticed? 、? Punishment? And other matters.
(4) Resolving risks through mediation, arbitration and litigation. Undoubtedly, lawyers have many advantages in resolving risks through mediation, arbitration and litigation. For many enterprises, the reason why lawyers are hired as consultants is that they want lawyers to participate in mediation, arbitration or litigation, so as to solve various disputes existing in enterprises. Safeguarding the legitimate rights and interests of enterprises through dispute resolution mode is also the routine content of lawyers as legal advisers of enterprises, which will not be carried out here.
Fourth, risk reflection.
In the business process of an enterprise, risks are everywhere. So, in the control of enterprise risk, organize it regularly? Risk reflection? , should also be very important content. On the one hand, we can't guarantee that the risks that have happened will not happen again; On the other hand, the emergence of new risks may also be caused by the evolution of the original risks. Therefore, by organizing seminars and case studies, risk reflection at all levels of the enterprise can not only effectively enhance the risk awareness of all employees, but also gradually improve on the basis of reflection, so as to better avoid and overcome risks.
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