导　　师： 陈年冰

学科专业： 0351

授予学位： 硕士

作　　者： ;

机构地区： 华南理工大学

摘　　要： 近年来，随着越来越多的医疗事故、证券市场财务包装案件的曝光，医生、律师、会计师等专业人士因执业过程中的疏忽而造成他人损失的问题成为法学界关注的对象。在法律领域内，律师作为专家，人们对其的信赖感和依赖感十分强烈，并有逐渐加深的趋势。司法实践中针对律师执业不当行为的诉讼也在急剧增加，我国的律师专家责任与民法其他领域相比，律师专家责任的研究过于零碎，欠缺理论深度，其状况不容乐观。本文着眼于律师的特殊身份，对我国律师专家责任制度的完善问题，运用多种方法进行分析阐述。本文第一部分提出问题，通过分析我国律师专家责任制度的立法现状，指出我国律师专家责任制度的不足。主要体现在缺乏律师对第三人责任的规定、律师专家责任性质不明晰、归责原则不统一、过错判断标准缺失、责任主体不清晰、责任范围不明确和抗辩事由不完善。第二部分对律师专家责任的来源及性质进行分析，律师专家责任来源于律师对其约定义务和法定义务的违反，指出律师专家责任具有责任竞合的性质。第三部分对律师专家责任的归责原则和过错的认定进行分析，笔者认为律师应对委托人和其可合理预见的第三人承担过错责任。在对过错的判定标准及影响过错的因素详细论证之后，笔者认为应让律师承担“中等偏上标准”的注意义务。第四部分结合律师执业过程中可能造成的损害的类型，依照公共政策的考量和责任范围上的因果关系的理论，笔者认为应当扩大律师专家责任的损害赔偿范围，将纯粹经济损失和精神损害赔偿纳入律师专家责任的损害赔偿范围。我国目前律师专家责任的抗辩事由并不完善，笔者认为委托人的过错、委托人自甘风险、第三人的过错和免责条款可以成为律师专家责任的抗辩事由。 In recent years, more and more financial packaging cases exposure to the public inmedical malpractice and stock market. Professionals such as doctors, lawyers and accountantsbrought losses to others due to the negligence in their practicing process. And this becomesthe object of legal science focus. In the legal field, lawyers were given a strong sense of trustand reliance by their people, and this will gradually deepen. Lawsuits against lawyersmalpractice in judicial practice also increased dramatically. Compared with other fields of thecivil law, the study of the lawyer expert liability is too fragmentary and lack of theoreticaldepth. So the situation is not optimistic. Based on the basic theory of civil law, focusing onthe lawyer's special identity, lawyer expert liability is elaborated in this paper by usingcomparative analysis and empirical analysis methods. This paper focuses on the lawyer'sspecial identity, and using a variety of methods to analyze the improvement of the lawyerexpert liability system. The first part of the paper puts forward the question. It points out theshortage of our lawyer expert liability system by analyzing China's legislative status quo oflawyer expert liability system. This mainly reflects in the following points: the lack ofprovisions of the third person responsibility, the ambiguous nature of lawyer expert liability,the non-uniform imputation principle, the lack of fault judgment standard, the unclear subjectand limitation of liability, and incomplete defenses. The second part analyzes the source andnature of the lawyer expert liability. Lawyer expert liability comes from the lawyer's violationof the promissory obligations and legal obligation, and it has the nature of liabilityconcurrence. The third part analyzes the imputation principle and the cognizance of fault ofthe lawyer expert liability. And the author thinks that the lawyer should be responsible forhis//her fault liability to the client and the third person that can be reasonably foreseen. Afterdetailed demonstration of the criteria to judge fault and the influencing factors of fault, theauthor thinks that we should let the lawyer to undertake the duty of care above the moderatestandard. Finally, combining with the type of damage a lawyer may cause in the process ofpractice, and according to the public policy considerations and the causality theory of itsliability scope, the author thinks that we should expanding the scope of damage compensationof lawyer expert liability. Pure economic loss and mental damage compensation should bebrought into the scope of damage compensation of lawyer expert liability. Lawyer expertliability defenses are incomplete at present in our country. The author thinks that the fault ofthe client, client at their own risk, the third person's fault and exceptions can become thedefenses of lawyer expert liability.

关 键 词： 律师 专家责任 信赖 过错 责任范围

分 类 号： [D926.5]

领　　域： [政治法律]