A lawyer refers to a practitioner who has obtained a lawyer's practice certificate according to law, accepts entrustment or assignment, and provides legal services to the parties. The following is the writing method of the lawyer's due diligence report I compiled. Welcome to read!

I. Due diligence of lawyers

(A) the concept of lawyer due diligence

Lawyer's due diligence refers to the prudent and appropriate investigation and analysis of trading objects and legal matters such as stock issuance and listing, mergers and acquisitions, and major asset transfer. The client entrusts a lawyer to act according to his professional standards. Including the lawyer's review and legal evaluation of relevant materials, mainly to inquire about the establishment, living conditions and legal responsibilities of the target company. It consists of a series of continuous activities, involving not only the collection of company information, but also how lawyers use professional knowledge to verify, analyze and evaluate relevant information.

With the development of China's market economy, opening to the outside world and the gradual establishment and development of the capital market, due diligence of lawyers has been widely used in lawyers' practice activities and has become one of the most important responsibilities of lawyers in capital operation activities. Lawyer due diligence is widely used in practice, including large-scale mergers and acquisitions, public offering and listing of stocks and bonds, major asset transfer, venture capital and ordinary large and medium-sized project investment. In addition to the above capital operation, customers and lawyers have gradually begun to conduct due diligence on corporate financing activities such as corporate guarantee services and bank loans.

Lawyer's due diligence was applied earlier in practice, but as a formal legal concept, it appeared in the Rules for Compilation of Information Disclosure of Public Offering Securities CompaniesNo. 12-Lawyers' Legal Opinions and Lawyers' Work Reports (hereinafter referred to as the Rules) issued by China Securities Regulatory Commission on March 6, 2006. Article 5 of the Rules stipulates that in a lawyer's work report, a lawyer shall explain in detail and completely the due diligence performed, the basis of opinions or conclusions expressed in legal opinions, the process of verification and the necessary information or documents involved? . This is the first time that China appeared in a legal normative document? Lawyer due diligence? This concept. However, the Rules do not give specific or basic work guidelines and norms for lawyers' due diligence, and there is also a lack of adequate research and basic work norms for due diligence within the lawyer industry.

(B) the "purpose" of the lawyer's due diligence

The purpose of lawyer's due diligence is mainly to examine and determine the authenticity, accuracy and completeness of the relevant information provided by the respondent; Assist the entrusting party to fully understand the organizational structure, property rights and legal status of the assets and business of the investigation object; Discover and analyze the legal risks and problems of the investigated object, as well as the nature and risk degree of the problems; So that the client can know all the information of the investigated object and transaction matters as much as possible, so that the client can effectively make judgments, avoid relevant risks and make decisions. For example, in M&A activities, the purpose of due diligence by buyers' lawyers is to make buyers know as much as possible about the shares or assets they want to buy. From the buyer's perspective, due diligence is risk management. For buyers and their financiers, M&A itself has various risks, such as the accuracy of the past financial books of the target company; Whether the main employees, suppliers and customers of the target company will stay after the merger; Whether there are any obligations that may lead to the disintegration of the operation or financial operation of the target company. Therefore, it is necessary for the buyer to make up for the imbalance of information acquisition between buyers and sellers by implementing due diligence. Once the risks and legal issues are clarified through due diligence, the buyer and the seller can negotiate who will bear the relevant risks and obligations, and the buyer can decide under what conditions to continue the acquisition activities.

(3) Lawyers' due diligence procedures

The scope of due diligence of lawyers is very wide, and the scale of the respondents is also very different. From private enterprises to multinational enterprises, each due diligence project is unique. However, for each activity, the basic working procedures that lawyers entrusted by them should follow are the same, as follows:

1. The entrusting party signed an entrustment contract with the law firm and entrusted the law firm to conduct due diligence. 2. The lawyer signed a confidentiality agreement on due diligence with the target enterprise. 3. Lawyers draft due diligence list and questionnaire according to the entrusted business. Due diligence checklist and questionnaire are designed by lawyers according to their needs. The main contents of the due diligence list are all kinds of documents that the target enterprise needs to provide, which generally include: organizational structure documents of the enterprise; Documents certifying the assets of the enterprise; Various loan and financing documents of the enterprise; Major contracts and agreements of the enterprise; The operation of the enterprise and the government approval or permission involved; Various tax documents of the enterprise; Various insurance documents of the enterprise; Labor certificates of enterprise employees; Documents of various lawsuits, arbitrations or disputes involved by enterprises, etc. 4. After confirmation by the entrusting party, the lawyer will send the prepared due diligence list and questionnaire to the target enterprise. 5. After receiving the information provided by the target enterprise, check the copy with the original, list the information, compile the information index, and be signed by the representatives of both parties. 6. The lawyer shall study the information received according to the entrustment contract and report to the entrusting party. 7. The lawyer studies the information received and reports to the client. 8. The lawyer studies and judges the information received and decides whether to redraft the due diligence list or questionnaire until the situation is ascertained. 9. Lawyers repeatedly study and judge all the information obtained through due diligence, conduct corresponding verification and verification, and make work records in the process of verification and verification. 10. If the information is incomplete and the situation is unknown, the lawyer should ask the target enterprise to make a statement and guarantee. 1 1. Organize and archive all documents and materials, and make working papers. The contents of the working paper include: the basic situation of the project, including the name of the entrusting unit, the name of the project, the time and cycle of doing the project, workload statistics, etc.; Records of work plans, schemes and their operating procedures; Copies of all documents provided by the customer, including but not limited to copies of the customer's approval letter for establishment, business license, contract, articles of association, agreement, abstract or other important documents, and meeting minutes; Records of mutual communication with customers and related personnel, review of information provided by customers, investigation and visit records, correspondence, on-site investigation records, access to file lists and other related materials and detailed instructions; A copy of the written guarantee or statement issued by the customer; Explanation of reservations and difficult problems; Other relevant important documents or materials. The above information should indicate the source. 12. The lawyer drafts and submits an accurate, complete and detailed due diligence report to the client.

Second, draft a due diligence report

The lawyer's due diligence report is an important basis for the client to make a decision. Therefore, the due diligence report drafted by lawyers should objectively and comprehensively reflect the situation of the target enterprise, and every judgment should have a clear and reliable basis. At the same time, the due diligence report should also focus on legal issues and legal risks, especially the tips on legal risks, and give legal rectification suggestions for legal defects that can be solved.

In general, lawyers conduct due diligence in the following five ways: 1. Send a survey list to the target enterprise and ask the target enterprise to provide relevant documents according to the survey list; 2. Attend relevant meetings; 3. Conduct field visits; 4. Visit relevant departments and form a visit record; 5, ask the relevant personnel, and form an inquiry record. After the above due diligence activities, the lawyer drafted a due diligence report on the entrusted matters, mainly including the following aspects:

(a) the beginning part

At the beginning of the due diligence report, the lawyer shall explain in detail the authorization of the entrusted matters and the scope of due diligence.

(2) A lawyer shall state the documents provided by the client.

The lawyer's statement, including the documents provided by the client, is true, and the copy of the submitted documents is consistent with the original; All documents submitted are legally authorized, signed and submitted by relevant parties; The signature and seal are authentic; All the statements, statements and guarantees of the entrusting party on relevant facts are true, accurate and reliable; Wait a minute.

(iii) Text

Lawyers shall, on the basis of full verification and verification, make a detailed and clear due diligence report on the entrusted matters. Its contents mainly include:

1, the establishment and existence of the target enterprise

This paper mainly expounds the equity structure, capital contribution and equity evolution, and makes legal evaluation on these matters, and puts forward rectification suggestions for existing violations and risks.

2. Organizational structure and corporate governance structure

This paper mainly expounds the articles of association, organizational structure and corporate governance structure (including shareholders' meeting, board of directors and board of supervisors), evaluates whether there are legal problems and risks in these matters, and puts forward normative suggestions on the existing irregularities and risks.

3. Business

This paper mainly expounds the business scope and mode, business change and main business of the target enterprise, and makes legal evaluation and suggestions on whether there are legal obstacles or potential legal risks in the continuous operation of the target enterprise.

4. Main attributes

This paper mainly expounds the main assets owned or used by the target enterprise. Evaluate whether there are legal obstacles in major assets, and propose solutions to the existing legal obstacles.

5. Main creditor's rights, debts and guarantees

Check the creditor's rights, debts and mortgage guarantees of the target enterprise, and make corresponding legal evaluation and legal suggestions on its legality and relevance.

6. Relationship

This paper mainly focuses on the existence of related party transactions and the investigation of controlling shareholders and other companies controlled by them, expounds the situation that related parties hold more than 5% shares, analyzes the situation of related parties or other legal risks and puts forward rectification suggestions.

Step 7 tax

Mainly aimed at the tax types and tax rates of the target enterprises, as well as whether there are tax reduction and exemption items and tax payment. Conduct inspection and legal evaluation.

8. Litigation, arbitration and administrative punishment

Including litigation, arbitration and administrative punishment of the target enterprise and its senior management personnel (chairman, general manager, etc.). ) or affiliated enterprises have not yet settled or are about to face, and conduct legal analysis and suggestions.

(4) the scope of use of the due diligence report

It should be noted that the entrusting party and the authorized relevant units should use the lawyer's due diligence report within a limited scope. If it is used beyond the limited scope, the lawyer will not be responsible.

With the rapid development of China's economy, the capital operation of enterprises is also developing rapidly, and lawyers participate in capital operation to conduct due diligence more and more frequently. Therefore, lawyers must conduct prudent and appropriate investigation and analysis, make an objective and comprehensive due diligence report, and provide powerful legal reference for enterprises to make correct decisions.

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