Legal adviser can be divided into broad sense and narrow sense. Broadly speaking, people who have professional knowledge in law and are engaged by citizens, legal persons or other organizations to provide legal services for them, as well as people in legal affairs institutions established within legal persons or other organizations, are legal advisers; Legal adviser in a narrow sense refers to a practicing lawyer who accepts the employment of citizens, legal persons or other organizations and provides legal services for them, and is a legal adviser in a traditional sense. This paper adopts the narrow concept of legal adviser.
The legal basis for lawyers to act as corporate legal advisers.
Article 28 of the Lawyers Law of People's Republic of China (PRC) stipulates that lawyers may be entrusted by natural persons, legal persons or other organizations to act as legal advisers. This provides a legal basis for practicing lawyers to act as legal advisers. Article 29 stipulates that a lawyer, as a legal adviser, shall, in accordance with the agreement, provide advice to clients on relevant legal entrustment, draft and review legal documents, participate in litigation, mediation or arbitration activities as an agent, handle other legal affairs entrusted, and safeguard the legitimate rights and interests of clients.
The necessity of employing legal counsel in enterprises.
The relationship between enterprise and law
The relationship between enterprise and law is very close. First, the enterprise itself is established according to law, is an institutional arrangement, is produced under the framework of law, and is a profit-making tool created by law. Without laws, there would be no enterprises to find. Two, the law not only regulates the business behavior of enterprises, but also escorts the survival and development of enterprises. Without legal norms and guarantees, the safety and freedom of enterprises' transactions and their own survival and development are unimaginable. Law is a double-edged sword, which can be used not only to safeguard the legitimate rights and interests of enterprises themselves, but also to be a sharp weapon to investigate their illegal responsibilities.
Enterprises face legal risks in their business activities.
From the perspective of enterprises as independent entities, we believe that enterprise risks mainly include commercial risks and legal risks. Commercial risk is characterized by market factors, and legal risk is characterized by inevitable legal responsibility. Commercial risk exists in a certain stage of enterprise management process. As an enterprise or enterprise manager, through grasping the market, it can be satisfied and controlled to a certain extent. Legal risks exist in all stages and fields of enterprises, and they are extremely hidden at ordinary times. As an enterprise or enterprise manager, it is impossible to meet and control business risks, which is unrealistic and impossible.
The legal risk of an enterprise refers to the risk that an enterprise will bear legal responsibility or be punished by law because it doesn't understand the law, neglects legal review, or evades legal supervision, and the risk of economic loss caused by subjectively not knowing how to take legal measures to remedy its own rights or economic losses.
According to the above concepts, the legal risks of enterprises can be divided into two categories: one is the possibility that the behaviors implemented by enterprises-including actions and omissions-are negatively evaluated by law, facing economic losses and even criminal penalties, which are often rigid and ruthless when they are unfavorable to enterprises; The other category refers to the risk that after legal risks occur, enterprises do not know how to take legal measures to protect their rights, and do not know that they will suffer economic losses and have legal remedies, thus causing them to suffer greater economic losses. No matter what kind of risk, once the legal risk becomes a real danger, the property will be damaged and the prison will be added.
Legal risk is more destructive than commercial risk, and the result is not only commercial, but also fatal. When legal risks turn into real legal obstacles and legal crises, enterprises and entrepreneurs often pay a heavy price that is incalculable and uncontrollable. Therefore, enterprises should make good use of the "double-edged sword" of the law to protect their legitimate rights and interests to the maximum extent, and at the same time avoid their actions breaking the law and getting negative comments or even fatal blows from the law.
The basic strategy of governing the country according to law
Governing the country according to law means that the broad masses of the people, under the leadership of the Party and in accordance with the Constitution and laws, manage state affairs, economic and cultural undertakings and social affairs through various channels and forms, ensure that all state work is carried out according to law, and gradually realize the institutionalization and legalization of socialist democracy, so that this system and law will not be changed by individual will. To fully implement the basic strategy of governing the country according to law means to bring all basic aspects of national life and social life into the legal track and accept the norms and treatment of the law.
Market economy is an economy ruled by law.
The concept of "market economy is the economy ruled by law" has been deeply rooted in people's hearts, and the demand for the rule of law in economic society is more urgent. It has become inevitable to establish a society ruled by law, and "ruling the country according to law" has been written into the constitution, the fundamental law of China.
With the further development of China's market economy and the improvement of laws, the relationship between enterprises and laws will become closer and closer. A large number of facts show that the better the legal affairs of enterprises are done, the higher the legal awareness of enterprise managers and employees, the more likely the enterprises are to develop normally and healthily, and the more they can avoid legal disputes and economic losses. On the contrary, the more an enterprise ignores legal affairs, the lower the legal awareness of its operators and managers, the more legal disputes, the greater the economic losses, and even fall into the legal trap set by some lawless people. In the process of establishing modern enterprise system, it is also an important part to establish a complete legal prevention mechanism.
The role of legal adviser in enterprise management
Enterprise legal counsel can comprehensively use the legal knowledge, economic and practical skills he has mastered and accumulated, and combine the specific conditions of the enterprise, such as business model, financial situation, market influence, industry characteristics, etc., deeply analyze and prevent legal risks, weigh the advantages and disadvantages of various legal solutions, and effectively identify, avoid and resolve legal risks in the bud with the aim of maximizing the interests of enterprises, which greatly reduces the cost of legal risks and dispute handling and effectively guarantees the stability of the company.
By undertaking legal affairs such as restructuring, bidding, business negotiation, contract management, intellectual property protection, industrial and commercial registration, litigation and arbitration, enterprise legal counsel truly integrates the role of enterprise legal counsel into enterprise management, thus putting an end to some phenomena that violate national laws and regulations and financial discipline, promoting enterprise decision-making and management according to law, safeguarding legitimate rights and interests according to law, and effectively avoiding economic losses caused by weak legal awareness.
To sum up, the role of legal counsel in enterprises is mainly reflected in the following aspects:
(a) Preventive function: prevention in advance.
For the benign operation and coordinated development of the enterprise, the work of the company's legal adviser should be done as well as possible. The content and emphasis of prevention here are mainly contract management, intellectual property management, trade secret protection, labor security, establishment and improvement of rules and regulations, legal knowledge training and legal publicity related to the daily operation of enterprises.
Legal advisers, like health care doctors in enterprises, often comprehensively apply knowledge of law, economy, management and other disciplines to provide comprehensive health care and pre-diagnosis for enterprises, prevent enterprises from getting sick, and often provide health education for enterprises; A legal adviser, just like a policeman, often supervises and educates enterprises to prevent them from breaking the law and committing crimes, and even prevents them from being "shot" for committing crimes; Legal advisers are like "engineers" on the battlefield, clearing "mines" and "bombs" on the way for enterprises to move forward safely.
By providing legal advice for enterprise leaders' decision-making, providing legal advice for relevant legal issues in enterprise management activities, participating in and assisting the relevant work of enterprise leaders and employees, drafting and reviewing enterprise economic contracts and related legal affairs documents, and answering the legal advice of enterprise employees, enterprises can carry out various business management activities according to law, prevent illegal acts and various legal loopholes, prevent legal disputes and avoid economic losses of enterprises.
The most important role of legal counsel is to prevent the occurrence of business risks. Whether the legal adviser's work is fruitful depends on how many lawsuits he has avoided for the enterprise, not how many lawsuits he has fought for the enterprise.
The important role of legal adviser in enterprise management decision-making
Article 9 of the Measures for the Administration of Enterprise Legal Advisers stipulates the responsibilities of enterprise legal affairs institutions and legal advisers, which avoids the chaotic situation that the responsibilities of legal advisers are unclear and there is no rule to follow before the promulgation of the Measures. However, Article 3 of the Measures stipulates that the real role of enterprise legal counsel in enterprises is only "the legal staff and assistant of enterprise leaders".
In 2004, the State-owned Assets Supervision and Administration Commission promulgated and implemented the Measures for the Administration of Legal Advisers in State-owned Enterprises, giving legal advisers more rights and obligations, no longer defining legal advisers as "staff officers and assistants", and emphasizing the working principle that legal advisers should "take precautions against legal risks in advance, control them in the process, and supplement them with legal relief afterwards". As a result, the position of enterprise legal adviser in the company's business decision-making has been obviously improved, and the intervention of enterprise legal adviser also emphasizes the preventive stage before and during the event.
(b) Rescue function: remedy after the event.
When there is a legal dispute or the legitimate rights and interests of the enterprise are infringed, the legitimate rights and interests of the enterprise shall be safeguarded according to law through negotiation, mediation, arbitration, litigation and other activities to avoid recovering the economic losses of the enterprise.
Here is a case to illustrate the ex post facto remedial function of legal counsel in enterprise management.
A construction company in Jilin undertook the construction of a prison dormitory in Jilin Province. Construction of the dormitory began in May 2006 and was completed in February 65438 of the same year. It has been accepted and put into use by the construction unit, supervision unit and construction unit. Four years and six months after it was put into use, that is, on July 5, 20 1 1, the construction company suddenly received a letter from the prison. In the letter, the prison said: After the prison building built by the construction unit was put into use, the wall was seriously damp, the tiles on the outer wall fell off and many places were hollowed out. The prison has been repaired many times, but the problem of damp walls has been cured, which seriously affects daily life. The battery is seriously eroded by moisture and is in danger of collapse. Enclosed is the test report of Jilin Province Construction Engineering Quality Testing Center.
According to the inspection and appraisal report, the prison requires the construction company to ask the qualified architectural design department to come up with the maintenance and reinforcement plan as soon as possible, and construct according to the design requirements to completely solve the problem. If you refuse to fulfill your obligations, you will solve them through legal procedures.
After receiving the letter, the construction company will forward it to the company's legal adviser. After receiving the letter and the test report, the legal adviser carefully studied the test report, because the letter from the prison was based on the test report. As long as the test report is overturned, the prison's request will become a rootless tree and passive water. The conclusion of the inspection and appraisal report is that the safety level of the building is Dsu, which is caused by the safety level of the main structure subunit being Du; The safety grade of the main structure subunit is du grade because the number of Du grade members on the building axis exceeds 1/3 of the total, which seriously affects the bearing capacity. But the bearing capacity is calculated according to the field test data. The test data of mortar strength and concrete compressive strength of some walls in the field test do not meet the design requirements, resulting in insufficient bearing capacity. The key lies in the data obtained from mortar strength test and concrete compressive strength test. The legal adviser noted that the rebound detection method is used to detect the strength of mortar and the compressive strength of concrete. It is necessary to test mortar strength and concrete compressive strength by rebound method. Rebound detection method is not suitable for mortar strength detection after long-term immersion, and the damp phenomenon of the building in this example is very serious, so rebound detection method is not suitable at all. Similarly, the rebound detection method is only applicable to 14- 1000d age concrete, not to wet or soaked concrete. In this case, the concrete of 4 years and 6 months is over-aged, wet and soaked, so the rebound detection method is not applicable at all. The whole inspection and appraisal report is based on the data obtained from on-site inspection, and the inaccurate on-site inspection data leads to the overthrow of the whole inspection and appraisal conclusion.
It is a lot of serious and meticulous work and rigorous analysis by legal consultants that overthrew the testing and appraisal conclusions issued by authoritative departments.
The entire inspection and appraisal report was overturned, and the requirements of the prison authorities became "rootless wood, passive water".
Throughout the test report, the core and crux of all problems are "humidity".
1, design reason; (1) The construction drawings have not been reviewed, and there may be errors or the design department is not in place. (2) Design defects: the special purpose of the building is not considered in the sewer pipe, and PVC is used; Only toilets and pools are partially waterproof, and they are rigid waterproof; Indoor geothermal has no waterproof design.
2. Reasons for use; The building is not an ordinary house, but a prison. The use of the building by prisoners is completely profiteering and destructive. About three or four months after the project was put into use, the prison informed the construction company that the toilet was leaking and asked for maintenance. At that time, a professional dredging team was found to dredge up unexpected things such as slippers, socks and pants from the sewage management in the bathroom.
In order to find out the reason why the building is damp, the legal adviser and the legal representative of the company came to the prison to conduct on-the-spot investigation.
Because the building is a prison, it is in the prison. If you want to go to prison, you must get the approval of the prison leader and say hello to each other before you go. Judging from the lineup of prisoners who received the construction company on the day of the inspection, the prisoners made "full" preparations.
According to the prison, it means: sit down and talk first, and then go to the prison for a field trip.
The legal adviser made a decisive decision: do the on-site investigation first and then sit down and talk, because there is no practice and no right to speak.
Through on-the-spot investigation, we obtained a lot of powerful evidence, and fixed these favorable evidence in corresponding forms, which enriched rich first-hand information for our subsequent legal opinions. For example, first, the tiles on the exterior wall fall off, only in front of the building, and there are special phenomena to explain the problem. Only the tiles under the windowsill of the prisoner's room fell off, and none of the tiles under the windowsill of the prison police room fell off. Prove that the legal adviser's analysis is correct, and it is precisely because of the use of prisons that the building is wet. Second, the prison removed the exhaust duct between each floor, but the position vacated by the removal of the exhaust duct was not handled accordingly; Third, the prison removed the downspout on the sunny side of the building, which caused the water on the roof not to drain to the ground and caused the building to be wet. Fourth, during the inspection, the accompanying police said that some prisons' toilets and pools were later waterproof, but they did not solve the problem and continued to leak water. Waterproofing twice didn't solve the problem. Isn't it because of improper use of prisons that the buildings are damp? It is no exaggeration to say that the floor of the corridor of the prison building is a river, watery. Because the building is only partially waterproof, the water in the corridor will seep down, so the building is so wet.
After the prison gave us our fixed evidence, the legal adviser began to talk to each other. Show our point of view: the prison has no evidence to prove that the current situation of the building is caused by the construction party, so it has no right to ask us to be responsible for the reinforcement of the building.
On hearing this, the prison authorities took such an attitude and said to the legal representative of the construction company, since you don't approve the inspection report, let's entrust a company to conduct another appraisal.
The legal adviser played a role in the whole case.
1, comprehensively analyzes the inspection and appraisal report, and finds out the key points of the problem;
2. It is suggested that the company conduct on-site investigation, grasp the first-hand information that is very beneficial to us, and fix it in an appropriate way;
3. Decisively conduct a realistic investigation on the spot and make a decision to negotiate, because if we negotiate now, the other party may no longer let us enter the scene, because the other party is a prison, and we can't get in without an excuse and reason;
Only after the evidence is given to us can we talk about substantive issues with the prison authorities, so as to express our views. Because after the evidence is fixed, the prison will have to check it. If there is an image of the prisoner in it, it can't be given to us.
5. Stop the legal representative from entrusting the other party with the appraisal in time, because no one can guarantee what the appraisal conclusion is.
(C) publicity and education functions
While dealing with corporate legal affairs, through extensive contact with corporate personnel, we should publicize relevant legal knowledge, answer inquiries, improve corporate personnel's legal awareness, make corporate personnel consciously abide by and safeguard the law, and use legal weapons to safeguard the legitimate rights and interests of enterprises in combination with their own work practice.
Legal advisers should regularly conduct legal training for employees of enterprises to improve their legal awareness; At the same time, there are also targeted trainings for employees in different positions, such as training business personnel in enterprise contracts, so that business personnel can understand that their actions represent the behavior of enterprises, and enterprises should be responsible for their actions, and at the same time, enterprises can recover from themselves under what circumstances.
With the development of China's economy and the continuous improvement of the legal system, legal advisers are playing an increasingly important role in enterprises.