Article 26 of the Lawyers Law stipulates: "A lawyer who acts as a legal adviser shall give 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.
If an enterprise wants to operate reasonably and develop normally, it must have a series of sound operating mechanisms. The managers of the enterprise may be experts in business, so they are good at reward mechanisms, but they may not be so 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. Eventually, when employees are transferred or have conflicts with the company, once the previous work handover is not serious, there will be problems in contract performance, and even there will be cases of using company management loopholes to unite with third parties to harm the company's interests. Under the current legal mechanism, many companies have suffered losses.
Two, in the daily operation to participate in negotiations, trial contract, prompt the risk.
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 the rights and obligations of both parties to the transaction. In these rights and obligations, there are both development interests and sometimes traps and crises. With the development of the legal system, people in the legal profession increasingly agree with the principle of "autonomy of will" when signing the contract date. 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 "the contract you signed yourself" and "you should be fully aware of your rights and obligations". Therefore, it is more and more important to check and review the legal aspects of the contract during this transaction.
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 ask him to take out the contract, examine it one by one, and then point to one or several of them and ask him, he angrily says that "everyone had a good relationship when signing the contract, and they didn't read it carefully at all", but in black and white, it is too late to understand. Some people also attach importance to rights. A few days ago, a company brought a supply and marketing contract, and a foreign enterprise owed money, which has agreed to arbitrate in Beijing. When lawyers read the contract, they still used the version of 10 years ago, and it was indeed agreed to arbitrate in Beijing, but it was agreed to be arbitrated 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 this arbitration clause is invalid. If a lawsuit is filed, the contract will be performed in another place, so we can only sue in another place, which will waste a lot of manpower and material resources. The biggest regret is that I had a sense of law, but my rights could not be best safeguarded because my legal knowledge was not updated in time. 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 analysis of legal risks, legal operation.
When a company develops to a certain extent, it always reaches a new level of development through changes in corporate forms, 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 others' introductions, without professional evaluation of the current assets of the company. They only listen to the introductions and say that after signing the share transfer agreement, they find that the actual assets of the company are not so much, or although some evaluation and investigation have been made, the acquired company survives because of a kind of business, but the important customers are in the hands of someone. Once this person transfers the customers, the company will lose the opportunity for development or even survive.
4. Acting as an agent of the enterprise, participating in mediation, arbitration or litigation activities of legal disputes such as contract disputes, and safeguarding the legitimate rights and interests of the enterprise.
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 human fireworks. Moreover, the best legal adviser can't ensure that the enterprise will not be sued. It can only be said that if the enterprise and the lawyer cooperate properly at ordinary times, they can try their best to seek the maximum legal benefits for the company legally.
Litigation is a very professional business, not only to master enough legal knowledge, but also to use litigation experience. Judging from the development trend of litigation practice, judges are more and more inclined to protect their rights by the parties themselves in civil economic litigation, and try not to interfere. In litigation, especially in cross-examination, sometimes one more sentence or one less sentence 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, as well as the understanding of litigation habits in different regions. From the perspective of litigation experience, professional lawyers are the most appropriate candidates to represent litigation. If the preventive role of legal consultants can be completed to a certain extent by the enterprise's own specialized non-lawyer legal consultants, then litigation business, especially those with certain difficulties, is best done by professional lawyers.
To sum up, the role of enterprise legal counsel in participating in the decision-making, operation, management, prevention and handling of various legal disputes will become more and more important, and enterprises must attach importance to the role of legal counsel if they want to develop better. Many large-scale companies will set up special legal departments and include legal advisers in the decision-making level of enterprises. Of course, for many small and medium-sized enterprises, specialized legal departments are not needed for the time being, but the content of legal advisory services should still be taken seriously.