With the development of market economy, the corresponding legal system is also becoming more and more perfect. Just open a newspaper or turn on the TV and you can see the concepts of "law", "litigation" and "contract". People's legal awareness is also constantly increasing, but many people also understand the law as "a remedy when rights are violated" and ignore the preventive function of the law. In fact, for an enterprise, the preventive function of the law is the most important. In fact, there are few real winners in litigation. If a company does not pay attention to the law in its operations, it is likely to cause a lot of trouble in the end. If it does not litigate, many rights will not be protected. If it goes to litigation, it may be due to insufficient prevention at the beginning. Rights cannot be safeguarded. Even if they are safeguarded, they still have to go through a process. After all, the main focus of an enterprise should be on operations. Too many chores will affect the normal development of the enterprise. In reality, many companies only consider the need for lawyer services after encountering legal disputes. Although this method of making up for the situation can reduce losses to a certain extent, it has already resulted in a waste of manpower and material resources, and has damaged the corporate image and reputation. The losses are even more immeasurable. The preventive function of law is mainly reflected in the work performed by lawyers as corporate legal advisors.
Article 26 of the "Lawyers Law" stipulates: "Lawyers serving as legal advisors shall provide opinions to the retainer on relevant legal issues, draft and review legal documents, participate in litigation, mediation or arbitration activities as an agent, and handle Other legal matters entrusted by the employer and safeguard the legitimate rights and interests of the employer."
From a practical perspective, the work and role of lawyers as corporate legal advisors are reflected in the following aspects:
1. Improve the internal operating mechanism of the enterprise.
For an enterprise to operate reasonably and develop normally, it must have a series of sound operating mechanisms. The managers of the enterprise may be experts in operations, so they are very good at reward mechanisms, etc., but for Internal risk prevention may not be so good.
For example, the management mechanism of some companies' official seals and contracts is not sound, many people have the opportunity to use it, and the content of contracts signed by employees is not monitored. In the end, when employees are transferred or have conflicts with the company, once the previous If the work handover is not serious, there will be problems in the performance of the contract, and there may even be cases of using company management loopholes to unite with third parties to harm the company's interests. Such cases are already numerous. Under the current legal mechanism, many companies have suffered losses.
2. Participate in negotiations, review contracts, and warn of risks in daily operations.
If a company wants to survive and develop, it must continue to have transactions of one kind or another with the outside world. These transactions are determined through negotiation and signing of contracts. And this process is a process in which the rights and obligations of both parties to the transaction are waxing and waning. These rights and obligations include the interests of development, but sometimes there are also traps and crises of this kind. With the development of the legal system, people in the legal profession increasingly agree with the principle of "autonomy of will" regarding the date a contract is signed. As long as the contract does not violate the law, sometimes even if it is unfair, the judge will not correct it because "you signed it yourself." contract" and "you should have a sufficient understanding of your rights and obligations." Therefore, in this transaction process, it is increasingly important to check and review the legal aspects of the contract.
In reality, companies often come to consult. They will explain a lot of their own reasons and explain why the other party is wrong. When you ask them to take out the contract, go through it one by one, and then point to one or more of them. When I asked him about it, he angrily said, "We were on very good terms when we signed the contract, and we didn't read it carefully at all." But it was written in black and white, and it was too late to understand. There are also people who attach great importance to rights. A few days ago, a company brought a supply and sales contract. A foreign company owed money for goods and had agreed to arbitrate in Beijing. When the lawyer looked at the contract, he found that it was still the version from 10 years ago. It indeed agreed to arbitrate in Beijing, but it stipulated that it would be arbitrated by the "Arbitration Committee of the Chaoyang District Industrial and Commercial Bureau." However, since 1995, it was originally an arbitration institution belonging to the Industrial and Commercial Bureau. It has been revoked, and now this type of arbitration in Beijing should be handled by the "Beijing Arbitration Commission", so this arbitration clause will be invalid. If you file a lawsuit, the contract will be performed in another place, so you can only file a lawsuit in another place, which will waste a lot of manpower and material resources. The biggest regret is that I originally had legal awareness, but my rights were not best protected because my legal knowledge was not updated in a timely manner. With the development of the market economy, there are more and more laws, regulations, and judicial interpretations. The heavy legal responsibilities are not something that a non-professional can afford.
3. Analyze legal risks and legal operations in company alliances, mergers, spin-offs or investments.
When a company develops to a certain level, it will always reach a new level of development through changes in company form. Possible forms include joint ventures, mergers, spin-offs or investments. No matter which way, it is different. A single transaction involves the company's next development direction and may also use a large amount of the company's funds. Due to the lack of risk awareness, sometimes the company's interests will be seriously damaged, and it may even fail to recover.
Some companies acquire shares of other companies through the introduction of others, without professional evaluation of the company’s current assets. They only listen to the introduction’s words and sign a share transfer agreement, only to later discover that the company’s actual assets are not that high. Or, although certain evaluations and inspections have been carried out, the acquired company survives because of one business, but important customers are in the hands of a certain person. Once this person transfers the customers, the company will lose the opportunity for development. , can't even survive.
4. Serve as an agent of the enterprise, participate in mediation, arbitration or litigation activities of contract disputes and other legal disputes, and safeguard the legitimate rights and interests of the enterprise.
In the current market environment, it is as impossible for a company to completely avoid being involved in litigation as it is to avoid eating fireworks in the world. Moreover, the best legal advisor cannot guarantee that a company will not be subject to litigation. It can only be said that if the company and its lawyers cooperate properly, they can legally seek maximum legal benefits for the company.
Litigation is a very professional business, which requires not only sufficient legal knowledge, but also the application of litigation experience. Judging from the current development trend of litigation practice, in civil economic litigation, judges are increasingly inclined to let the parties themselves protect their rights and try not to interfere. In litigation, especially cross-examination, sometimes saying one more word or one less word can have an impact on the outcome of the case. Then the ability of litigation participants to seize opportunities becomes increasingly important, which requires litigation experience.
The so-called litigation experience includes not only the application of litigation knowledge, but also the mastery of evidence and cross-examination 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 for litigation. If the preventive role of legal advisors can be completed to a certain extent by the company's own professional non-lawyer legal advisors, then it is best for litigation business, especially litigation business with a certain degree of difficulty. It is done by a professional lawyer.
To sum up, the role of corporate legal advisors in participating in corporate decision-making, operation, management, prevention and handling of various legal disputes will become increasingly important. Enterprises must pay attention to it if they want to develop better. The role of legal counsel. Many larger companies will establish specialized legal departments and include legal advisors in the decision-making level of the company. Of course, for many small and medium-sized enterprises, a dedicated legal department is not needed yet, but this content of legal advisory services still needs to be taken seriously.