First, the concept of civil liability for damages in lawyer's practice
The liability for civil damages in lawyer's practice refers to the civil liability that a lawyer or law firm should bear if the lawyer's fault (including intentional and negligent) causes damage to the client (or party) in the process of handling criminal, civil, administrative litigation and other non-litigation business.
Second, the subject of liability for civil damages in lawyer's practice.
(1) The right subject of lawyer's civil liability for compensation.
The client and the law firm sign an entrustment agreement to establish the legal relationship of rights and obligations. There is no dispute that the client has the right to claim compensation because of the lawyer's illegal practice or fault, and he becomes a "compensation claimant".
In addition, in legal aid cases, the recipient who accepts the lawyer's free legal service and causes losses to the parties due to the lawyer's illegal practice can also be the right subject of the lawyer's civil liability for compensation.
(2) The obligatory subject of civil liability for compensation in lawyer's practice.
Article 54 of China's Lawyers Law clearly stipulates: "If a lawyer practices illegally or causes losses to the parties due to his fault, his law firm shall be liable for compensation. After compensation, the law firm can recover from the lawyer who has intentional or gross negligence. " It can be seen that the law firm is the main body of civil liability for compensation in lawyer practice. Lawyers practice illegally or are at fault; The party concerned suffers losses; There is a causal relationship between the lawyer's illegal practice or fault and the client's loss, and the client who has suffered losses may request compensation from the law firm where the lawyer is located.
Three, the elements of the lawyer's civil liability for damages
(1) A practicing lawyer himself practices illegally or is at fault or negligence.
The lawyer's normal practice, that is, after accepting the entrustment of the client, has neither violated the legal provisions, nor intentionally or negligently performed his duties and obligations. Just because of reasons other than will or force majeure or the client's reasons, even if there is damage, it cannot constitute the civil liability for compensation in the lawyer's practice. How to define whether a lawyer is at fault in his practice? "Generally speaking, this responsibility requires lawyers to conform to professional ethics when conducting business", that is, to take the duty of care and the professional standard that an ordinary lawyer should have under the local conditions at that time as the standard.
(2) There are objective loss facts.
The fault in the lawyer's practice itself does not constitute a reason for compensation. Even if the lawyer has illegal practice or wrong behavior, but it has not caused losses to the client, it does not constitute the civil liability for damages in the practice of the lawyer, unless the lawyer's illegal practice or wrong behavior has caused damage to the client. The fact of loss mainly refers to the loss of the client's property, which can be manifested as the impairment of the existing property or the loss of the property or interests to be obtained. For example, due to the fault of the lawyer, the case that the party should have won the case lost, and the property right that should have been obtained was not granted or not fully obtained. When a party requests compensation, it shall provide sufficient evidence to prove that the lawyer's professional fault caused him to suffer losses.
(three) the lawyer's illegal practice or his fault behavior has a direct causal relationship with the losses of the parties.
The loss of the parties must have sufficient evidence to prove that the loss is caused by the lawyer's illegal practice or because there is an inherent and inevitable causal relationship between the lawyer's wrong behavior and the objective loss. The loss of the parties is caused by their own reasons or other subjective and objective factors unrelated to lawyers, and cannot constitute the liability for civil damages in lawyers' practice.
Fourth, establish a mechanism to prevent the risk of lawyers' civil liability for compensation.
(a) the establishment of lawyers' associations and insurance companies to sign a lawyer's practice liability insurance agreement system.
Drawing lessons from the practice of Guangdong Lawyers Association, lawyers' professional liability insurance agreement is signed between lawyers' association and insurance company to cover the economic losses caused to clients by negligence or negligence when lawyers handle litigation or non-litigation business for clients in the Mainland according to law. Then, if the lawyer causes economic losses to the client due to his own fault in the practice process, the lawyer can claim compensation from the insurance company after compensating the client according to law. On the one hand, it can dispel the lawyer's fear of risks when practicing, so that lawyers can make legal decisions that are as beneficial to the parties as possible according to their own knowledge and experience. On the other hand, this kind of insurance also eliminates the worries of lawyers and law firms, and there is no longer too much concern when compensating the parties for losses.
(2) Establish a unified risk compensation reserve system for law firms.
Every year, a law firm draws a certain proportion of risk reserve from its total income to deal with various business and financial risks that may occur in the firm. The above is an introduction to the lawyer's civil liability for damages. If your situation is complicated, this website