Lawyer's witness refers to the lawyer's non-litigation business activities in which a law firm accepts the entrustment or application of the parties and assigns lawyers with lawyer qualification or legal professional qualification and lawyer's practice certificate to carefully examine and prove the authenticity of relevant legal acts or legal facts in the name of the law firm and witness lawyers. The following are the working rules of lawyer witness business compiled by me, 20 17, welcome to read!
Working rules of lawyer's witness business
Chapter I General Provisions
Article 1 In order to strengthen the standardized management of lawyers' witness work, these Detailed Rules are formulated in accordance with the provisions of the Lawyers Law of People's Republic of China (PRC) and the actual witness work.
Article 2 Lawyer's witness refers to the activities of lawyers to prove the authenticity and legality of specific legal facts or legal acts in the name of a law firm according to the client's application and the personal experience of witnessing lawyers.
Article 3 The time for a lawyer to witness shall be the time when the witnessed legal act occurs.
Article 4 The space for lawyers to witness should be the range that lawyers can see with their eyes when witnessing.
Article 5 A lawyer engaged in witness work must be qualified as a lawyer and hold a lawyer's practice certificate.
Chapter II Basic Principles of Witness Business
Article 6 The principle of voluntariness refers to witnessing the matters applied by customers according to their applications.
Article 7 The principle of directness means that only specific legal facts that occurred within the scope of the lawyer's own eyes can be proved.
Article 8 The principle of fairness means to truly reflect the wishes of customers and objectively confirm the legal acts that are taking place.
Article 9 The principle of recusal means that a lawyer may not handle witness business that has an interest in himself, his spouse or his close relatives.
Tenth adhere to the principle of taking facts as the basis and taking law as the criterion.
Article 11 A lawyer shall keep confidential the matters that a client applies for testimony.
Chapter III Witness Business Scope
Twelfth lawyers can undertake the following witness business:
(a) the signing and performance of various economic contracts;
(2) Articles of Association, resolutions of the board of directors, share conversion agreements and other legal documents;
(three) inheritance, gift, transfer, infringement and other civil acts;
(4) Various principal-agent relationships;
Thirteenth laws, regulations and administrative rules and regulations shall not be witnessed by lawyers.
Chapter IV Work Procedures for Witnesses
Article 14 A lawyer shall make a written record when talking with a party who applies to testify;
Fifteenth lawyers who agree to accept the case shall sign a witness entrustment contract with the client, and the major and difficult witness business must be approved by the director of the firm.
The contract shall clearly stipulate the rights and obligations of both the client and the witness lawyer.
Article 16 After accepting the entrustment of the client, the firm shall appoint two lawyers to witness the work;
Seventeenth lawyers to handle business fees:
(1) Witnesses involved in property shall be charged according to the charging standard for non-litigation business;
(2) Non-property witness fees shall be collected by both parties through consultation.
Eighteenth lawyers should review the following main contents before issuing a "lawyer's witness":
1, whether the customer has capacity for civil rights and capacity for civil conduct;
2. Whether the customer's intention is true;
3. Whether the matters witnessed by customers are legal;
4. Whether the certification materials and other documents provided by customers are true, lawful, complete and effective.
Article 19. The competent lawyer shall fill in the Examination and Approval Form for Lawyer's Witness, which shall be issued after the examination and approval by the business supervisor.
Twentieth "lawyer's testimony" mainly includes:
1. Witness the matters entrusted by customers;
2. The process of lawyer's witness;
3. The legal basis of lawyer's testimony;
4. The conclusion witnessed by the lawyer;
5. Witness the signature of the lawyer and affix the seal of the law firm;
6, lawyer witness time.
Article 21 The number of copies witnessed by lawyers may be made according to the needs of clients, or several more copies may be made.
Twenty-first "lawyer's testimony" is printed and sealed by the firm after unified numbering.
Twenty-third lawyers after the completion of the witness business, should be filed according to the requirements of file management, and sent to the office for unified custody.
Chapter V Job Responsibilities
Twenty-fourth found that the client has illegal motives or content, the competent lawyer shall stop it and refuse to witness.
Twenty-fifth major witnesses and difficult witnesses shall be submitted to the director's office for collective discussion and research.
3 terminology
3. 1 lawyer's witness: refers to the activities of lawyers to prove the authenticity and legality of legal events or legal acts in the name of law firms on the basis of their own personal experiences at the request of clients.
5 cite the law
People's Republic of China (PRC) Lawyers Law
6 legal characteristics of lawyer's testimony
6. 1 The subject of the witness is a lawyer.
Lawyer's witness is different from other ways of proof, that is, the subject of lawyer's witness is a lawyer, and it is proved in the name of a law firm, which is essentially different from private proof that anyone can carry out and notarization in the name of the country.
6.2 A witness is a confirmation of laws and facts.
The reason why the parties ask for witness is often because they are not detailed, detailed and worried about the contents stipulated in the current laws and administrative regulations in China. So he wants to ask a lawyer to witness it, in order to seek an extra layer of protection. The lawyer's testimony mainly confirms the authenticity and legality of legal facts according to the existing laws.
6.3 There are strict restrictions on the time and space of witnesses.
The so-called witness time refers to the occurrence of witness behavior; The so-called space refers to the scope that lawyers can see with their own eyes. The time and space for lawyers to witness cannot exceed this range.
6.4 Lawyers have an independent status.
Although lawyers handle witness business on the basis of the entrustment of the parties, they entrust witnesses, not agents. In the process of witnessing, lawyers, as witnesses, are neither agents nor mediators, but independent witnesses other than two or more parties, with the dual nature of proof and supervision.
7 The effectiveness and scope of lawyer's testimony
7. 1 Effectiveness of lawyer's testimony
7. 1. 1 binding effect
The lawyer's testimony is binding on both parties. Since both parties voluntarily apply for witness, and the legal acts between the two parties have been witnessed, which are true and legal, the parties shall not change, modify or abolish the witness items without authorization, but shall consciously perform them.
7. 1.2 Evidence effect
Lawyer's witness refers to a lawyer's objective and fair proof of a legal act done by a party in the name of a lawyer and a law firm and from the perspective of a third party with his special identity and rich legal professional knowledge, which objectively makes the witnessed object true and legal and has certain authority. Therefore, when a dispute between the two parties causes a lawsuit, it can usually be used as evidence to find out the facts and determine the rights and obligations of both parties.
7.2 Scope of lawyer's testimony
7.2. 1 Lawyers mainly witness legal acts, not legal events.
The so-called legal act refers to the act that causes the occurrence, change and elimination of civil legal relations and can produce certain legal effects. It includes unilateral legal acts, bilateral legal acts, joint legal acts and paid legal acts. Such as wills, statements, sales, gifts, etc. However, legal events such as birth, death, marriage, education and experience, which are not transferred by human will, also involve civil legal relations and are not within the scope of lawyers' testimony. The occurrence of these events is generally confirmed by the corresponding documents issued by the government or functional departments, and it is generally difficult for lawyers to see these legal events in person. Therefore, these legal facts and the resulting legal relationship belong to the business scope of notarization, not the business scope witnessed by lawyers.
7.2.2 A lawyer's witness shall be a legal act other than compulsory notarization as stipulated by law.
In order to adjust and standardize civil activities, many administrative regulations stipulate that some legal acts must be notarized before they have legal effect. For example, the State Council clearly stipulates that adopted children must be notarized by a notary office. China's notarization has also changed from the principle of voluntary notarization to the principle of combining voluntary notarization with compulsory notarization. These mandatory provisions make notarization one of the elements for the legal act to take effect, and the subject of the act must perform it. Within this scope, the assignment of lawyers is invalid, even if the parties require lawyers to witness, lawyers should also inform the parties to perform notarization procedures.
7.2.3 The focus of witness shall be the legal acts that take effect with the approval of the government.
In practice, contracts that come into effect with the approval of the government are often foreign-related economic contracts closely related to China's politics and economy. For example, Sino-foreign joint venture contracts, cooperative venture contracts, sole proprietorship contracts, property rights transfer contracts and supplementary amendments to these contracts have long term, large target and complicated contents. From the negotiation, drafting and examination of the contract text to the signing and witness, lawyers must be present.
8. Lawyer witness procedure
8. 1 Accept the entrustment of the parties and sign the power of attorney.
If a party entrusts a lawyer to witness, it shall first submit documents that can prove its identity, explain the matters entrusted to witness, and submit relevant documents, materials and evidence. When a lawyer receives a party who entrusts a witness, he shall make a record, and then examine whether the witness belongs to the scope of witness according to the requirements of the party and the materials provided. If the witness conditions are met, the firm shall sign a power of attorney with the parties. (See TY/GL02.03 "Measures for Receiving Cases") The business power of attorney includes: (1) witness matters; (2) the responsibilities of both parties to the contract; (3) the service fee and payment method paid by the applicant; (4) Both parties to the contract shall sign and seal, and indicate the date. (See Annex 1) If the witness does not meet the requirements of lawyer's witness or is not within the scope of lawyer's witness, and the witness is untrue and illegal, the firm will not testify, and it shall make a written statement of not testifying and send it to the client.
8.2 review
After accepting the entrustment, the lawyer shall examine and analyze the materials provided by the parties. The contents of the review include whether the materials provided by the parties are true and credible, and whether the contents of relevant documents are legal. If a lawyer thinks that it is not perfect or in doubt, he shall ask the parties to make necessary supplements, conduct necessary investigations according to the situation, and collect relevant evidence and materials. Lawyers should also examine the qualifications of the parties and their agents.
8.3 When witness acts occur, witness lawyers shall supervise the production and reproduction of legal documents to prove their authenticity and legality. When two or more parties commit a specific legal act, the witness lawyer must be present to witness the completion of the legal act. The lawyer's witness is only an objective proof of what he saw and heard in the process of personally experiencing an event, and does not need analysis, research, judgment and reasoning. Therefore, when a lawyer testifies, he must respect the objective facts and prevent individuals from making subjective assumptions.
8.4 Issue witness opinions
If the matters witnessed by a lawyer are true and legal, a lawyer's witness shall be issued within the time limit stipulated in the power of attorney, and the witness certificate shall be signed by the lawyer.
8.5 Company Seal
The letter of appointment submitted to the client shall be examined by at least two partners and signed with "consent" before the firm can affix its seal.
9 lawyer's witness statement
9. 1 Overview
Lawyer's witness book is a legal document used by lawyers to carry out witness business. Its content structure mainly consists of three parts: the first part, the text and the last part. (See Annex 2)
9.2 The first part includes the title, document number and the identity of the entrusted witness.
(1) title. It shall be indicated in the lawyer's witness book.
(2) Document number. The document number should be written in the lower right of the title, arranged in the order of year, abbreviation of law firm, abbreviation of document and number. Such as (2002) new cognate see word XX, refers to the certificate number. I saw XX in 2002.
(3) The identity of the entrusted witness. If the entrusted witness is a citizen, the name, gender, age, nationality, native place, occupation and address shall be stated; If the entrusted witness is an enterprise or institution, the full name and address of the institution shall be written, and the name and position of the legal representative shall be written on a new line.
9.3 The text is the main part of the witness certificate, and the witness matters, witness process, witness conclusion and legal basis can be clearly recorded in turn.
(1) Witness matters are equivalent to "causes" in administrative official documents, which refer to matters that entrusted witnesses require lawyers to witness, and should be written concisely. For example, "entrust a lawyer to witness the will."
(2) The witness process should outline the whole process from accepting the entrustment to how to deal with the witness, and what work has been done to confirm the authenticity and legality of the certificate, so as to make a logical transition to the witness conclusion.
(3) The witness conclusion is the core part of the proof, which refers to the conclusion made by the lawyer after reviewing all kinds of materials related to witness matters. The witness's conclusion can be written together with the witness's legal basis or separately. Such as: "This is to prove that XX was conscious, quick-thinking, capable of rights and behavior when writing Survivor's Book. The date of this will is in accordance with the provisions of paragraph 2 of Article 17 of the Law of Succession of People's Republic of China (PRC). The content of the will is based on the true meaning of XX himself, which conforms to the provisions of the second paragraph of Article 16 of the Inheritance Law and does not violate the provisions of other laws and policies and social public interests. "
(4) The legal basis is mainly to explain the legality of witnesses.
9.4 ending
The lower right branch writes the full name of the firm in sequence, which is signed and sealed by the witness lawyer and stamped with the official seal of the firm on the witness date.
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