Lawyers' practical documents refer to all kinds of documents that need to be made or written in the name of lawyers in various legal business activities. It is an important writing tool for lawyers to engage in various legal businesses. It is an indispensable means to better play and realize the functions of lawyers. According to the relevant laws and practices of lawyers in China, lawyers' business activities are varied. Can accept the employment of state organs, enterprises and institutions, social organizations and other units as legal advisers; Can accept the entrustment of the parties to a civil case to participate in the litigation as an agent; You can accept the entrustment of the defendant in a criminal case, or the people's court can appoint a defender; You can accept the entrustment of the private prosecutor in a private prosecution case, the victim in a public prosecution case and their close relatives to act as agents and participate in litigation; Can accept the entrustment of the parties to non-litigation events, provide legal aid, or participate in mediation and arbitration activities as agents; Also responsible for answering questions about the law and so on. When participating in the above activities, it is necessary to make corresponding documents or write litigation documents and other non-litigation legal documents for the parties. These all belong to the category of lawyer's practical documents. In the above-mentioned litigation or non-litigation activities, these documents are not only indispensable, but also can play an active role in various legal activities if they meet the requirements. such as
Lawyers' affairs documents refer to the documents with certain legal significance produced by lawyers in their business activities.
(B) the role of legal documents
A lawyer is a practitioner who obtains a lawyer's practice certificate according to law and provides legal services to the society. Lawyers play an active role in safeguarding the legitimate rights and interests of the parties, maintaining the correct implementation of the law and promoting the construction of social rule of law. In various specific legal services, it is necessary to make corresponding legal documents, or write them for the parties, or issue documents in the name of lawyers and law firms; Lawyers participate in all kinds of legal services by virtue of the legal documents they use, so as to ensure the implementation of the law and safeguard the legitimate rights and interests of the parties. Lawyers' participation in legal services, whether involving litigation or non-litigation activities, is of great legal significance. So there are strict requirements for the documents used by lawyers. At present, China's judicial organs have formulated a unified format for some lawyers' documents, and some lawyers' documents have also established writing norms, although there is no unified format formulated by relevant leading organs. All lawyer files need to be modeled as normative files.
The basic duty of a lawyer is to engage in legal services and provide legal help to the parties. Therefore, lawyers' documents are naturally made to realize this fundamental duty of lawyers. All lawyer's documents involved in litigation, whether written for the parties or issued in the name of lawyers and law firms, have an important role in promoting litigation activities and fair handling of litigation cases. For example, the complaint and defense written by lawyers are lawyer documents with this function. Legal proposals or legal opinions issued in the name of lawyers and law firms are of great guiding significance for solving legal problems faced by entrusting units or consulting units. In addition, lawyers' non-litigation documents also play an important role in helping law enforcement agencies and related parties solve legal disputes and handle legal affairs. For example, all kinds of non-litigation applications written on behalf of the parties are helpful to solve all kinds of non-litigation legal affairs (application for industrial and commercial registration of enterprise legal persons, application for trademark registration, etc.). ), and the dispute mediation written by lawyers participating in arbitration activities is more directly legally binding for solving disputes between the parties.
Lawyers' affairs documents are the means and true records of lawyers' business activities. Formulating normative legal documents is of great significance to better safeguard the legitimate rights and interests of the parties, publicize the legal system and ensure the correct implementation of the law.
(3) the scope of lawyer's business and the classification of lawyer's affairs documents.
According to the provisions of the People's Republic of China (PRC) Lawyers Law, the business scope of lawyers can be divided into the following seven aspects:
1, accepted by citizens, legal persons and other organizations as legal advisers.
2, accept the entrustment of the parties in civil cases and administrative cases, as agents, to participate in litigation.
3. Accept the employment of criminal suspects in criminal cases.
4. Acting as an agent for appeals in various litigation cases.
5. Accept the entrustment of the parties and participate in mediation and arbitration activities.
6. Accept the entrustment of non-litigation legal parties and provide legal services.
7. Answer legal advice and write litigation documents and other documents related to legal affairs.
Lawyer's business is usually divided into the following two different angles:
1, divided by nature. According to the different nature of legal business activities that lawyers participate in, they can be divided into litigation documents and non-litigation documents.
(1) Litigation documents: Litigation is commonly called "litigation", and litigation documents refer to documents involving litigation. As the entrusted agent of the parties in civil, administrative or criminal cases, lawyers represent all kinds of complaints and answers, including civil complaints, administrative complaints, criminal private complaints, appeals and answers of various cases, and complaints and applications of criminal cases. In this regard, the Style of Court Litigation Documents issued by the Supreme People's Court, as a separate document, has formulated a unified format. These formats are the basis of lawyers' representative books and complaints. In addition, there are some personal documents used by lawyers in litigation activities. Such as various transcripts.
(2) Non-litigation documents: Non-litigation documents refer to those documents that do not involve "litigation" but have certain legal significance. This is a document that needs to be produced in various non-litigation legal affairs. Such as applying for arbitration, trademark, patent and notarization. ; Documents reflecting some legal acts of the parties, such as wills, bills, account books, etc. , as well as various contracts and agreements drafted by lawyers.
2. From the production subject of literature, it can be divided into books-alternative literature and self-use literature.
3. From the perspective of lawyer affairs. Generally speaking, the documents of lawyer affairs can be divided into the following categories: documents of lawyers participating in litigation affairs, documents of lawyers handling non-litigation legal affairs, and documents of law firm affairs.
(1) The documents in which lawyers participate in litigation affairs include: criminal private prosecution, criminal incidental civil appeal, defense opinions and defense, criminal appeal, criminal appeal, civil appeal, civil defense, civil counterclaim, civil appeal, civil retrial application, civil appeal, civil withdrawal, administrative appeal, administrative defense, administrative appeal and so on.
(2) Documents for lawyers to handle non-litigation legal affairs: arbitration application, arbitration defense, arbitration counterclaim, arbitrator's appointment, arbitration agency agreement, arbitration power of attorney, arbitration preservation measure application, arbitration guarantee, dispute mediation, non-litigation power of attorney, patent agency power of attorney, trademark agency power of attorney, contract for hiring legal counsel, contract review opinions, legal consultation, legal proposal, legal opinion and lawyer's witness.
(3) Affairs documents of law firm: letter of introduction from law firm, letter of introduction dedicated to lawyer investigation, letter of introduction dedicated to law firm (for providing legal assistance to criminal suspects), letter of introduction from law firm (for acting as criminal litigation agent), letter of introduction dedicated to law firm (for acting as civil litigation agent), letter of accepting appointed defense, and letter of meeting with criminal suspects and defendants in custody.
In view of the extensive contents of lawyer affairs documents, this chapter intends to focus on the production of common types of litigation legal documents and non-litigation legal documents.
Second, the characteristics of lawyers' practical documents
Lawyer's practice documents not only have the characteristics of objectivity of materials, standardization of content, formality of form, singleness of explanation and legal binding force, but also have the characteristics of producer's agency, distinctiveness of theme and extensiveness of content. Correctly grasping the characteristics of lawyer's affairs documents is of guiding significance to the production of legal documents.
(a) the agent of the production subject
Although lawyer's document is an indispensable legal document in lawyer's practice, strictly speaking, the main body of the document itself is not entirely lawyer-oriented. In other words, most of the legal documents used by lawyers in various business activities are mainly related parties. Lawyers mainly draft certain legal documents for the parties according to the facts and laws and the wishes of the parties. The task of a lawyer is to represent books. Its nature belongs to the legal help and service provided by lawyers to the parties. Therefore, a considerable number of lawyers' documents should take the parties as the main body, including state organs, legal persons, other organizations and individual citizens. Of course, some lawyers' documents are made in the name of lawyers and law firms, which directly express the opinions and opinions of lawyers and law firms. It should be noted that ghostwriting by lawyers is not a simple ghostwriting. The document reflects the meaning of the client, not what the client wants to write, so the lawyer will write it. If the lawyer is just a simple mouthpiece for the client, it will not help the client legally. Lawyers should also embody the principle of "taking facts as the basis and law as the criterion" when writing relevant legal documents for clients. Only in this way can we truly achieve the purpose of ensuring the effective implementation of national laws and safeguarding the legitimate rights and interests of the parties.
(2) The distinctiveness of the theme is the main intention of the document. Including the purpose of making documents and the central idea of documents. This is very important for a lawyer's document. Any kind of lawyer's document has a very clear purpose of making, and at the same time it must have a distinct and prominent central idea. Because only with a clear and prominent central idea can we better achieve the expected goal. For example, lawyers often represent the parties in civil complaints, with a clear purpose, that is, to bring a lawsuit to the people's court, accuse the defendant of some illegal act, or request to break away from some legal relationship with the defendant. In order to achieve the above objectives, the central content of the document must explain its own ideas and reasons with solid basic facts and relevant legal provisions. In litigation, it is mainly reflected in litigation requests, such as legal opinions issued by lawyers and law firms. It must also give clear legal opinions on some expectations of the parties, or help the relevant units and individuals to handle an incident according to law, or help them guard against possible legal consequences and try to avoid some losses for the parties. As for all kinds of applications involving or not involving litigation for lawyers to represent clients, they are generally a book, which must have a clear purpose, a single content, a prominent center and a clear theme. Therefore, the distinctiveness of the theme is the primary requirement of lawyer's writing content.
The breadth of production content
The scope of legal affairs documents is very wide. As far as litigation agency is concerned, it includes both criminal litigation agency and court documents, as well as civil litigation and administrative litigation agency and court documents. As far as non-litigation legal documents are concerned, it covers a wider range, including non-litigation legal documents produced by lawyers acting as agents for arbitration and administrative reconsideration, as well as various legal documents and special legal documents written by lawyers in many activities such as economy, commerce, family, marriage, property, finance, securities, real estate transactions, enterprise management, tax payment, consumer complaints, trademark registration, patent application and so on. Its function is to cause the start and change of legal procedures and seek fair treatment by law enforcement agencies through litigation, so it has certain legal significance, but it is not mandatory, binding and legally effective. This refers to the result of making a document, not the document itself.
Third, the basic requirements for lawyers to write practical documents
Based on the writing requirements of legal documents (Chapter 4, Section 2), it is enough to consider the above characteristics of lawyer's documents.
Four, the content and production method of important lawyer's practice documents
(1) Complaint 1. Civil complaint: a written complaint against the defendant submitted by the plaintiff in a civil case to the people's court in order to safeguard his legitimate rights and interests. The legal basis of a civil complaint is Article 108 of the Civil Procedure Law: the plaintiff is a citizen, legal person and other organization that has a direct interest in the case; There is a clear defendant; There are specific requests, facts and reasons; It belongs to the scope of civil litigation accepted by the people's court and the jurisdiction of the people's court under appeal.
2. Format, content and writing method
(1) Header: It mainly indicates the basic information of both parties in a civil case, including the name, gender, age, nationality, occupation, work unit and domicile of the parties, the name and domicile of the legal person or other organization, and the name and position of the legal representative or principal responsible person; If the plaintiff entrusts an agent ad litem, it shall also specify the relevant information of the agent ad litem.
(2) Text: It is the core part of the civil complaint, including the following basic contents:
The case of 1 illustrates the nature of the right dispute between the defendant and the plaintiff;
2. Litigation request, specifically stating the specific issues related to civil rights disputes that the plaintiff requests the people's court to solve according to law, that is, the object of litigation;
(3) Facts and reasons, focusing on the facts of the civil legal relationship between the plaintiff and the defendant and the basic situation of the dispute over rights and interests, and expounding and demonstrating the nature of the disputed rights and interests, the nature, harm and consequences of the defendant's infringement, and the civil liability that the defendant should bear, so as to illustrate the authenticity, rationality and legality of the plaintiff's claim;
Evidence and its sources, names and addresses of witnesses mainly list evidence and witnesses to illustrate the credibility of evidence for the people's court to verify. At the end of the article, "according to the relevant provisions of the law, I hereby file a lawsuit with your hospital, please make a fair judgment according to law".
(3) Tail: mainly indicate the full name of the people's court, the name of the prosecutor, the time of prosecution and the attached contents in turn.
3. Precautions: A civil complaint is a legal document submitted by the plaintiff to the people's court to request the people's court to make a fair judgment against the defendant. When a lawyer represents or helps the plaintiff to file a civil complaint, he shall pay attention to the following issues according to the conditions for prosecution stipulated in Article 108 of the Civil Procedure Law:
(1) There must be a clear request object, that is, write the defendant clearly. If there are more than two defendants, arrangements shall be made according to the size and priority of the responsibilities.
(2) there should be a clear proposition, that is, write clearly the problems that are required to be solved by litigation. The requirements of the litigation request are specific, clear and practical. For the lawsuit of payment, the object of payment (such as currency, securities, articles, etc.). ) and the amount of compensation, especially the amount of compensation, should be accurately estimated and moderately reasonable. For the litigation of confirming the right, it is necessary to clarify the ownership of the subject matter and the validity and invalidity of the act, such as the confirmation of the ownership of the house and the invalidity of the civil act. The litigation request must be specific and clear, that is, the requested items can be realized, and the figures are clear, avoiding generality and abstraction, such as "asking the defendant to compensate all the economic losses caused to the plaintiff". If there is no clear figure and the request is not clear, the people's court will not accept it.
(3) The facts and reasons on which the litigation request is based must be fully expounded, that is, the factual and legal basis for asking the defendant to bear civil liability and resolve disputes. In the fact part, the specific process of the defendant's infringement and the specific content of the dispute between the parties should be clearly stated, and the time, place, personnel, reasons and results of the defendant's infringement or the dispute between the parties should be clearly stated to truthfully reflect the process of the dispute. The reason part includes the following contents: confirming the nature of the legal relationship between the plaintiff and the defendant; Confirm the causal relationship between the plaintiff's damage and the defendant's illegal behavior; Provide legal basis for claiming rights; Determine the legal liability between the plaintiff and the defendant.
(4) Evidence to prove facts and responsibilities must be listed, that is, materials used to identify facts and responsibilities should be provided to the people's court for verification. Legal facts are facts with evidence and proof. The plaintiff bears the burden of proof for his own prosecution. Therefore, the plaintiff should fully list the evidence to prove the truth and the responsibility that the defendant should bear in the complaint. Evidence mainly includes documentary evidence, physical evidence, audio-visual materials, witness testimony, expert conclusion and inspection record.
(II) Counterclaim A civil counterclaim is a legal document submitted by the defendant to the people's court on the same fact sued by the plaintiff in a civil lawsuit, which should be tried together with the plaintiff's lawsuit in the same procedure, and the plaintiff should be investigated for corresponding civil liability. In civil proceedings, the defendant has the right to file a counterclaim against the plaintiff. The purpose is to explain the corresponding responsibilities that the plaintiff should bear for the same fact that the plaintiff sued, and request the people's court to apply the same litigation procedure, merge it with the plaintiff's lawsuit into the same litigation case, and investigate the civil liability that the plaintiff should bear. Therefore, civil counterclaim is the written basis for the defendant to accuse the plaintiff, and it is also the basis for the people's court to apply the same procedure to the plaintiff's claim and the defendant's counterclaim. The format and writing content of civil counterclaim are the same as those of civil indictment.
(3) criminal private prosecution 1. Criminal private prosecution is a document submitted by the victims of criminal cases and their legal representatives when they directly file a lawsuit with the people's court in order to investigate the criminal responsibility of the defendant. Article 170 of China's criminal procedure law stipulates three cases of criminal private prosecution: (1) cases that are handled after being informed; (2) Minor criminal cases proved by the victim; (3) Cases in which the victim has evidence to prove that the defendant has infringed upon his personal and property rights and should be investigated for criminal responsibility according to law, but the public security organ or the people's procuratorate will not investigate the criminal responsibility of the defendant. After this happens, the criminal private prosecution submitted directly by the victim and his legal representative to the people's court is the main basis for the people's court to accept the criminal private prosecution case and investigate the criminal responsibility of the defendant.
2. Format, content and writing method
(1) Header: It mainly states the basic information of the parties to a private prosecution case, including the names, ages, nationalities, places of origin, education level, occupation, work unit, address, telephone number and postal code of the private prosecutor and the defendant. If the private prosecutor entrusts an agent ad litem, it shall also specify the relevant information of the agent ad litem.
(2) Text: 1 Litigation request, specifically stating the nature of the defendant's infringement on the legitimate rights and interests of the private prosecutor and the charges constituted according to law, and making a specific request to the people's court to investigate the criminal responsibility of the defendant;
Facts and reasons, focusing on the specific content of the defendant's criminal behavior, including the time, place, means, plot and harmful consequences of the crime, as well as evidence that can prove the defendant's criminal facts, and citing the relevant provisions of the criminal law to demonstrate the defendant's criminal nature and criminal responsibility, and explain the legitimacy of the private prosecutor's private prosecution;
In the part of evidence, the list of evidence and the list of witnesses should be clearly written one by one by enumerating, which is convenient for the people's court to verify.
(3) Tail: mainly indicate the full name of the people's court, the name of the prosecutor, the time of prosecution and the attached contents in turn.
(4) Civil defense A civil defense is a legal document in which the defendant or the appellee answers the plaintiff's claim or the appellant's appeal according to the unilateral content of the civil complaint or civil appeal, and refutes it according to the facts and reasons.
According to the provisions of the Civil Procedure Law, the people's court shall send a copy of the complaint to the defendant within five days from the date of filing the case, and the defendant shall submit a reply within fifteen days from the date of receipt. If the defendant submits a defense, the people's court shall send a copy of the defense to the plaintiff within five days from the date of receipt. If the defendant fails to submit the defense, it will not affect the trial of the people's court. It is an important litigation right of the defendant in the first instance or the appellee in the second instance to file a reply, which aims to fully clarify the views and opinions of the respondent, so that the people's court can fully understand the real situation of the case and facilitate the handling of the case. According to the different trial levels submitted, civil pleadings can be divided into pleadings of first instance and second instance.
Civil defense consists of three parts:
(1) Title: First, state the basic information of the respondent, which is the same as the civil complaint; Secondly, it is necessary to state the reasons for reply.
(2) Text: It is mainly to clarify the opinions and reasons of the defense, reveal the inappropriateness of the other party's request and the facts and reasons on which it is based, present the contrary facts and evidence, explain the correctness of the legality of one's actions, and enumerate the provisions of relevant laws, so as to achieve the effect of the people's court safeguarding the legitimate rights and interests of the respondent. In addition, for the matters involved in proof, the evidence and its source, the name and address of the witness should be stated in detail.
(3) Tail: indicate the people's court that sent it, with the signature or seal of the respondent, indicate the date of reply, and indicate the number of copies of relevant evidence materials in the appendix.
(v) Appeal 1. Civil appeal: The appeal of the original defendant and the defendant in a civil case to the court at the next higher level of the court of first instance within the statutory appeal period is called civil appeal.
2. Criminal appeal: it is a letter that the parties to criminal proceedings or other persons who have the right to appeal according to the law refuse to accept the criminal judgment or ruling of the people's court of first instance, and appeal to the people's court at the next higher level within the statutory time limit, requesting to cancel or change the criminal judgment or ruling of first instance.
3. Administrative appeal: it is a legal document that the parties to an administrative lawsuit refuse to accept the administrative judgment or ruling made by the people's court that is invalid in the first instance, and make a retrial request to the people's court at the next higher level within the statutory time limit to revoke or change the original judgment. The administrative appeal is a litigation document in which the parties in administrative litigation declare their appeals, and it is also the basis for the people's court of second instance to apply the second-instance procedure stipulated in the Administrative Procedure Law to administrative cases.
(6) A proxy is a statement made by a party in a civil or administrative case, a victim in a criminal case, an agent ad litem entrusted by a plaintiff or defendant in a criminal incidental civil case, in order to safeguard the legitimate rights and interests of the party represented.
Its core content is the reason part, because it is the key to fully clarify the reasons for prosecution or refute the opposing party's prosecution opinion.