Article 26 of the Lawyers Law stipulates: "As a legal adviser, a lawyer should provide advice to the client on relevant legal issues, draft and review legal documents, participate in litigation, mediation or arbitration activities as an agent, handle other legal affairs entrusted by the client, and safeguard the legitimate rights and interests of the client".
From a practical point of view, the work and role of lawyers as corporate legal advisers are reflected in the following aspects:
First, the improvement of the internal operating mechanism of enterprises.
In order to operate reasonably and develop normally, enterprises must have a series of sound operating mechanisms. Managers of enterprises may be experts in business, so they are good at reward mechanism, but they may not be good at internal risk prevention.
For example, the management mechanism of some companies' official seals and contracts is not perfect, many people have the opportunity to use them, and the contents of contracts signed by employees are not monitored. In the end, when employees are transferred or have conflicts with the company, once the previous work handover is not serious, there will be problems in the performance of the contract, and even the company's management loopholes will be used to unite with a third party to harm the company's interests. Under the current legal mechanism, many companies have suffered losses.
Second, participate in negotiations in daily operations, try out contracts, and prompt risks.
In order to survive and develop, the company will continue to have such or such transactions with the outside world, which are determined through negotiation and signing contracts. And this process is the process of rights and obligations of both parties to the transaction. Among these rights and obligations, there are both development benefits and sometimes pitfalls and crises. With the development of the legal system, people in the legal profession increasingly agree with the principle of "autonomy of will" on the date of contract signing. As long as the contract does not violate the law, sometimes even if it is unfair, the judge will not correct it, because it is "a contract signed by yourself" and "you should be fully aware of your rights and obligations". Therefore, in this transaction process, it is more and more important to check and review the legal aspects of the contract.
In reality, companies often come to consult, and they tell a lot of their own reasons, all of which are how the other party is wrong. When you asked him to take out the contract, check it one by one, and then pointed to one or several of them and asked him, he said angrily, "When signing the contract, everyone had a good relationship and didn't read it carefully at all", but it was too late to understand it in black and white. Some people also value rights. A few days ago, a company brought a supply and marketing contract, and a foreign company owed money and agreed to arbitrate in Beijing. When lawyers read the contract, they still use the version of 10 years ago, and they did agree to arbitrate in Beijing, but agreed to arbitrate by the Arbitration Commission of Chaoyang District Administration for Industry and Commerce. However, since 1995, the arbitration institution originally belonging to the Administration for Industry and Commerce has been revoked, and now such arbitration in Beijing should be accepted by the Beijing Arbitration Commission, so the arbitration clause is invalid. If you go to court, the contract will be performed in a different place, and you can only sue in a different place, which will waste a lot of manpower and material resources. The biggest regret is that I have a legal awareness, but because my legal knowledge has not been updated in time, my rights have not been best safeguarded. With the development of market economy, there are more and more laws, regulations and judicial interpretations, and the heavy responsibility of law is beyond the ability of a non-professional.
Three, the company joint venture, merger, division or investment of legal risk analysis, legal operation.
When a company develops to a certain extent, it will always reach a new level of development through the change of company form, which may include joint venture, merger, division or investment. Either way, it is different from a single transaction, which involves the company's next development direction and may also use a lot of company funds. Due to the lack of risk awareness, sometimes the interests of the company will be greatly damaged or even ruined.
Some companies buy shares of other companies through the introduction of others, without professional evaluation of the company's current assets. They only listened to the introduction, saying that after signing the share transfer agreement, they found that the actual assets of the company were not so much, or that although some assessments and investigations were made, the acquired company survived because of a business, but the important customers were in someone's hands. Once this person transfers customers, the company will lose the opportunity of development and even survive.
4. Acting as an agent for enterprises, participating in mediation, arbitration or litigation of legal disputes such as contract disputes, and safeguarding the legitimate rights and interests of enterprises.
In the current market environment, it is almost impossible for an enterprise to completely avoid being involved in litigation, just as it is impossible not to eat fireworks. Moreover, no matter how good the legal adviser is, there is no guarantee that the enterprise will not be sued. It can only be said that if enterprises and lawyers cooperate properly at ordinary times, they can seek the greatest legitimate interests for the company as legally as possible.
Litigation is a highly professional business, which requires not only sufficient legal knowledge, but also the application of litigation experience. Judging from the development trend of litigation practice, in civil economic litigation, judges are more and more inclined to protect their rights by the parties themselves and try not to interfere. In litigation, especially in cross-examination, sometimes one sentence more or one sentence less will also have an impact on the outcome of the case. Then it is more and more important for litigants to grasp the opportunity, which requires litigation experience.
The so-called litigation experience includes not only the application of litigation knowledge, but also the mastery and cross-examination of evidence in litigation procedures and the understanding of litigation habits in different regions. Judging from litigation experience, professional lawyers are the most suitable candidates to represent litigation. If the preventive role of legal counsel can be accomplished to a certain extent by the enterprise's own specialized non-lawyer legal counsel, then litigation business, especially those with certain difficulties, is best done by professional lawyers.
To sum up, it will be more and more important for enterprise legal counsel to participate in enterprise decision-making, operation, management, prevention and handling of various legal disputes. If enterprises want to develop better, they must attach importance to the role of legal counsel. Many large companies will set up special legal departments and bring legal advisers into the decision-making level of enterprises. Of course, for many small and medium-sized enterprises, there is no need for a special legal department for the time being, but the content of legal consulting services should still be taken seriously.