论律师民事责任的承担及其制度建构

On the Civil Liability of Lawyer and Its System Construction in China

在律师与当事人之间并不总是存在一体性的事实。如果律师不能忠实履行职业义务,当事人会基于合同或者侵权事实等原因向律师提出民事赔偿之诉。这不仅因为律师刑事辩护而引起,而且还可基于律师民事代理而发生。当事人对律师提出民事赔偿之诉有不利律师职业利益的一面,但是从深层或者长远考虑,其还是能够起到实质性保护当事人利益以及有效调节法律服务市场从而达到通过经济赔偿实现对律师服务质量控制的目的。关键在于如何通过律师民事责任具体制度的调适以及相关配套制度的建构来真正发挥律师民事责任之功效。

The relationship between lawyers and the parties is undoubtedly the most important relationship in their professional activities, which is the basis for establishing the relationship between the lawyer and the judge or the prosecutor, and is the origin of the interaction between lawyers and other parties. However, interests between lawyers and the parties are not always the same. If the lawyer can not faithfully fulfill the professional obligations, the parties will bring a suit of civil compensation against the lawyers based on the contract or tort facts and other reasons, which is not only due to the lawyer＇ s criminal defense, but also based on the lawyer＇ s civil agent. The parties proposing civil compensation lawsuit has adverse professional interests side against the lawyers, however, from deep or long - term consideration, which is able to protect the interests of the parties and to effectively regulate the legal service market, so as to achieve to realize the purpose of lawyer service quality control through economic compensation, and the key lies in how to adjust the specific system through civil liability of the lawyers, as well as the relevant supporting system construction, so as to really olav the efficacy of the lawyer＇s civil liability.