Introduction: Compared with individual legal counsel, the number of lawyers providing legal services for enterprises is much larger. Because business management activities often involve a large number of legal relationships, general enterprises pay more attention to the role of lawyers.
The concept of legal counsel
Legal counsel can be divided into broad sense and narrow sense. Broadly speaking, lawyers who have legal expertise and accept legal services from citizens, legal persons or other organizations, as well as legal affairs institutions established within legal persons or other organizations, are legal advisers; In a narrow sense, legal adviser refers to a practicing lawyer who is engaged by citizens, legal persons or other organizations to provide legal services, and is a legal adviser in the traditional sense. This paper adopts the narrow concept of legal adviser.
Legal basis for lawyers to serve as corporate legal advisers
Article 28 of the Lawyers Law of the People's Republic of China stipulates that lawyers may be entrusted by natural persons, legal persons or other organizations to serve as legal advisers. This provides a legal basis for 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 the client on legal affairs, draft and review legal documents, participate in litigation, mediation or arbitration activities as an agent, handle other legal affairs and safeguard the legitimate rights and interests of the client.
the necessity of hiring legal counsel
the relationship between enterprise and law
The relationship between enterprise and law is very close. First, the enterprise itself is established according to law, it is an institutional arrangement, it is carried out within the framework of law, and it is a profit-making tool created by law. Law is a tool for making profits. Without law, enterprises cannot talk about it. Secondly, 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 enterprise transactions and its 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, but also to be a sharp weapon to investigate their own illegal responsibilities.
legal risks faced by enterprises in their business activities
from the perspective of enterprises as independent subjects, 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 the business process of an enterprise. As an enterprise or enterprise manager, it can be satisfied and controlled to a certain extent through its grasp of the market. Legal risk exists in all stages and fields of the enterprise and is usually in an extremely hidden state. As an enterprise or enterprise manager, it is impossible to meet and control the business risks in the enterprise, which is also impossible in reality.
Legal risks refer to the risks that an enterprise violates national laws, regulations or other rules and regulations due to ignorance of laws, neglect of legal review, or evasion of legal supervision, resulting in legal liabilities or legal sanctions, as well as the risks that it subjectively does not know how to take legal measures to remedy its own rights and interests or will suffer 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 and face economic losses or even criminal penalties, and their disadvantages to enterprises are often rigid and ruthless; The other is that enterprises don't know how to take legal measures to protect themselves after legal risks occur. The other kind is that after the legal risk occurs, enterprises do not know how to take legal measures to safeguard their rights, and they do not know that there are legal remedies for the economic losses they will suffer, which makes them suffer greater economic losses. No matter what kind of risk, once the legal risk becomes a real danger, it can be as light as property loss and as heavy as jail.
Legal risk is more destructive than commercial risk, and the result is not only commercial, but also fatal. When legal risk becomes a real legal obstacle and legal crisis, enterprises and entrepreneurs often pay a heavy price that is difficult to estimate and control. Therefore, enterprises should make good use of the law? A double-edged sword?
The basic strategy of governing the country according to law
Governing the country according to law means that the broad masses of people, under the leadership of the Party and in accordance with the provisions of 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. And make these systems and laws independent of individual will. To fully implement the basic strategy of governing the country according to law requires that all basic aspects of national and social life be brought into the orbit of law and regulated and handled by law.
market economy is economy ruled by law
market economy is economy ruled by law? With the continuous popularization of this concept, the demand for the rule of law in economic society is more urgent, and the establishment of a society ruled by law has become inevitable. "Rule of law" has been incorporated into the fundamental law of the country. Has been written into the fundamental law of our country-Constitution < P > With the further development of China's market economy and the improvement of laws, the relationship between enterprises and laws will become increasingly close. A large number of facts show that the better the legal affairs of enterprises are done, the higher the legal awareness of managers, operators and employees of enterprises, the more normal and healthy the enterprises can develop, and the more legal disputes and economic losses can be avoided. On the contrary, the more an enterprise ignores legal affairs, the lower the legal awareness of its management and managers, the more legal disputes there will be, the greater the economic losses will be, and even it will fall into the legal trap set by some lawless people. In the process of establishing a modern enterprise system, it is also an important part to establish a sound legal prevention mechanism.
the role of legal counsel in enterprise management
legal counsel can comprehensively use the legal knowledge and economic practice ability he has mastered and accumulated, and thoroughly analyze and prevent legal risks in combination with the specific conditions of the enterprise's operation mode, financial situation, market influence, industry characteristics, etc., weigh the advantages and disadvantages of various legal solutions, and consider the interests of the enterprise. Weighing the advantages and disadvantages of various legal solutions, taking the maximization of enterprise interests as the starting point, effectively identifying, avoiding and resolving legal risks before they appear or in their infancy, greatly reducing the legal risks and dispute handling costs, effectively ensuring the steady and rapid development of the company's enterprises, and being conducive to the establishment of the company's internal supervision and risk control mechanism.
enterprise legal counsel has truly integrated the role of enterprise legal counsel into enterprise operation and management by undertaking legal affairs such as restructuring, bidding, business negotiation, contract management, intellectual property protection, industrial and commercial registration, litigation and arbitration, thus putting an end to some phenomena that violate national laws and regulations and financial discipline, and promoting enterprises to make decisions, manage and safeguard their legitimate rights and interests according to law. Management, safeguard the legitimate rights and interests of enterprises according to law, and effectively avoid economic losses caused by weak legal awareness.
To sum up, the role of legal counsel in enterprises is mainly reflected in the following aspects:
(1) Preventive function: nip in the bud
For the benign operation and coordinated development of enterprises, the work of legal counsel in enterprises should be done as far as possible. The contents and key points of prevention here are: mainly combining contract management, intellectual property management, trade secret protection, labor protection, establishment and perfection of rules and regulations, legal knowledge training and legal publicity in the daily business activities of enterprises.
Legal consultants are like health care doctors in enterprises, who comprehensively apply multidisciplinary knowledge such as law, economy and management to provide comprehensive health care for enterprises and diagnose diseases in the early stage. And often carry out health education for enterprises; Legal advisers, like the police, often supervise and educate enterprises to prevent them from breaking the law and committing crimes, and more importantly, to prevent them from being criminally punished? Shoot? Legal adviser, like on the battlefield? Engineer? Legal advisers are like engineers on the battlefield, putting enterprises on the way forward? Mines? A legal adviser is like an engineer on the battlefield. Bomb? The company's legal system aims to provide legal advice for company leaders to make major decisions.
by providing legal advice for enterprise leaders to make major decisions, providing legal advice on legal issues related to enterprise management activities, participating in and assisting enterprise leaders and employees to do relevant work, drafting and reviewing enterprise economic contracts and documents related to legal affairs, and answering legal advice of enterprise employees, enterprises can conduct business management activities according to law, put an end to illegal acts and various legal loopholes, prevent legal disputes and avoid economic losses of enterprises. The purpose of enterprise legal adviser is to enable enterprises to carry out various business management activities according to law, put an end to 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 work of legal adviser is effective depends on how many lawsuits it has avoided for the enterprise, not how many lawsuits it has fought for the enterprise.
the important role of legal counsel in enterprise decision-making
Article 9 of the Measures for the Administration of Enterprise Legal Counsel stipulates the responsibilities of enterprise legal affairs institutions and legal counsel, which avoids the unclear responsibilities of legal counsel before the promulgation of the Measures and the chaotic situation without rules. However, with the provisions of Article 3 of the Measures, enterprise legal counsel has really played the role of legal counsel in enterprise management, and also played a role in the management of enterprise legal counsel. What is the real role of legal counsel in enterprises? Business leaders' legal advisers and assistants?
In 24, the Measures for the Administration of Legal Advisers of State-owned Enterprises promulgated and implemented by the State-owned Assets Supervision and Administration Commission gave more rights and obligations to corporate legal advisers, and no longer defined corporate legal advisers as? Legal adviser is no longer defined as staff officer and assistant, and the role of corporate legal adviser is emphasized? This paper emphasizes the working principles of enterprise legal counsel, focusing on legal risk prevention in advance and legal control in the process, supplemented by legal relief afterwards. Therefore, the position of enterprise legal counsel in the company's business decision-making has been significantly improved, and the participation of enterprise legal counsel has put more emphasis on the prevention stage before and during the event.
(2) Relief function: Relief after the event
When a legal dispute occurs or the legitimate rights and interests of the enterprise are infringed, the legitimate rights and interests of the enterprise are safeguarded according to law through activities such as negotiation, mediation, arbitration and litigation, so as to avoid recovering the economic losses of the enterprise.
here is a case to illustrate the remedial function of legal counsel in enterprise management.
A prison building in Jilin Province, which was built by a construction company in Jilin Province, started construction in May 26 and was completed in December of the same year. It was accepted and put into use by the construction unit, supervision unit and construction unit. After four years and six months of use, on July 5, 211, the construction unit 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 moisture phenomenon was very serious, and the external wall tiles bulged in many places, and the prison carried out many repairs, but the wall moisture problem was the fundamental problem, which seriously affected daily life. Due to humidity and erosion, prison buildings are in serious danger of collapse. The letter is also accompanied by the inspection and appraisal report of Jilin Province Construction Engineering Quality Inspection Center.
According to the test report, the prison requires the construction unit to ask the qualified architectural design department to come up with the maintenance and reinforcement plan as soon as possible and carry out the construction according to the design requirements, so as to completely solve the problem. If you refuse to perform your obligations, you will be resolved through legal procedures.
after receiving the letter, the construction company forwarded 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 side is based on the test report. As long as the test report is overturned, the requirements of the prison side will become rootless and passive. The conclusion of the inspection and appraisal report is that the safety level of the building is Dsu level, which is caused by the fact that the safety level of the main structure is Du level; The reason why the sub-unit safety level of the main structure is du level is that the number of Du-level members on the axis of the building exceeds 1/3 of the total, which seriously affects the bearing capacity. The bearing capacity is calculated according to the field test data. The field test data of some wall masonry mortar strength and concrete compressive strength 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 pointed out: both mortar strength detection and concrete compressive strength detection adopt rebound method. Rebound method is required for mortar strength detection and concrete compressive strength detection. Rebound detection method is not suitable for mortar strength detection that has been soaked in water for a long time, and the main building in the example is very wet, so it is not suitable for rebound detection method. Similarly, the rebound detection method is only applicable to the concrete with the age of 14-1d, but not to the concrete soaked in wet or water. In the example, the concrete with the age of 4 years and 6 months is over, wet and soaked in water, and the rebound detection method is not applicable. The whole test appraisal report is based on the field test data, and the inaccurate field test data leads to the overthrow of the whole test appraisal conclusion.
It was a lot of serious work and rigorous analysis by legal counsel that overturned the testing and appraisal conclusions issued by authoritative organizations.
The whole test report was overturned, and the prison's request became? Rootless wood, passive water?
looking at the test report, what is the core and crux of all the problems? Moisture?
1. Design reasons; (1) The construction drawings have not been reviewed, which may be due to the design department's mistake or the design is not in place. (2) Design defects: PVC； was used for the sewer pipe without considering the special purpose of the building; Only the bathroom and pool are waterproof in some places, and they are rigid waterproof; There is geothermal energy in the room, but it is not waterproof.
2. reasons for use; The building is not an ordinary house, but the use of the building by prisons and prisoners is completely profiteering and destructive. About three or four months after the project was put into use, the prison informed the construction unit that the toilet was leaking and asked for maintenance. At that time, I found a professional dredging team to dredge from the sewer in the bathroom. I didn't even think about slippers, socks, pants and other things.
In order to really find out the reasons for the damp corridor, the legal adviser took the company's legal representative to the prison for on-the-spot investigation.
Because the building belongs to the prison, it is in the prison. You have to get the permission of the prison leader before you can say hello to each other. Judging from the investigation of the prisoners in the prison on the day of the inspection, the prisoners in the prison have all done it. Full? The preparation work.
According to the prison, it means: sit down and talk first, and then visit the prison site.
The legal adviser made a decisive decision: visit the site first, and then sit down and talk, because without practice, there is no right to speak.
Through on-the-spot investigation, we obtained a lot of powerful evidence, and fixed these favorable evidence through corresponding forms, which enriched rich first-hand information for our next legal opinion. For example, first, the tiles on the exterior wall fall off, only the tiles in front of the building fall off.