律师对委托人的信息披露义务探究

发布时间：2018-02-19 23:37

本文关键词： 委托人利益信息不对称适度管制　出处：《山东大学》2011年硕士论文　论文类型：学位论文

【摘要】：我国自1979年恢复现代律师制度以来,律师市场经过了三十多年的发展完善。律师的职业定位也向西方发达国家的律师制度逐步靠近：即将律师定位为自由职业者,律师以自己的专业知识、技能为委托人进行辩护,委托人也愿意让律师作为其权利的保护者。随着两者关系的拉近,如何有效维持这种契约关系?有一个基本问题需要注意,那就是存续期间的信息交流。由于信息不对称现象的存在,而律师又占据着相对的信息优势,因此,从法律角度对律师承担的信息披露义务进行适度规制,对于维持两者之间的信赖关系具有重要的意义。本文主要分析国家对律师披露义务进行适度管制的原因,并就管制的原则和程度进行介绍,最后,从主观和客观方面对我国的律师信息披露义务规则的完善提出了建议。本文包括引言、正文和结论,其中正文分为四章：第一章对本文的研究范围进行界定,将本文的研究范围限定在律师与委托人的契约关系上,首先,从历史角度介绍了律师在代理中的不同角色定位,并对现在律师维护委托人利益的首要义务进行了论述,接着分析律师在这种契约关系中的地位和作用,以及其对律师信息披露义务的影响。第二章从内外因上分析律师之所以要向委托人承担信息披露义务的原因。从外因上看,天然的信息不对称容易造成逆向选择和道德风险问题的出现；从内因上看,利益冲突是律师执业过程中必须面对的问题,也是律师有时不愿意进行信息披露的原因所在。因此,必须强调律师对信息披露义务的承担。第三章是本文论述的重点。律师与委托人之间的法律服务除了具有商品属性外,还具有公共属性,得出国家必须对律师的信息披露义务进行适度规制的结论。接下来,侧重介绍了律师进行信息披露应遵守的原则和程度,并结合代理过程中的具体情形提出了影响信息披露的综合因素。第四章是对我国相关制度的完善进行介绍,从实证的角度分析我国该制度的发展情况及现存问题,着重分析问题产生的原因,指出我国律师市场在职业道德教育、市场环境以及监管机制上的缺陷。前面三章的分析为我国律师对委托人信息披露制度的完善提供了思路,并结合美国在该方面的先进经验,提出我国律师向委托人信息披露制度完善过程中应当加强的三方面,并就具体制度的完善提出了建议。
[Abstract]:Since the restoration of the modern lawyer system in 1979, the lawyer market has been developed and perfected for more than 30 years, and the professional position of the lawyer is closer to that of the western developed country: that is to say, the lawyer is positioned as a freelance. Lawyers defend their clients with their own expertise and skills, and the client is willing to let them act as protectors of their rights. How can the contractual relationship be maintained effectively as the relationship between the two becomes closer? One basic problem that needs to be noted is the exchange of information over time. Because of the existence of information asymmetries and the fact that lawyers occupy a relative information advantage, From the angle of law, it is of great significance to regulate the information disclosure obligations of lawyers, which is of great significance to maintain the trust relationship between the two. This paper mainly analyzes the reasons why the state regulates the disclosure obligations of lawyers moderately. Finally, the author puts forward some suggestions on how to perfect the rules of lawyer's information disclosure obligation from subjective and objective aspects. This paper includes an introduction, a text and a conclusion, in which the text is divided into four chapters:. The first chapter defines the scope of this study, limits the scope of this study to the contractual relationship between lawyers and clients. First, it introduces the different roles of lawyers in the representation from the historical point of view. It also discusses the primary obligation of lawyers to protect the interests of clients, and then analyzes the position and role of lawyers in this contractual relationship, and its impact on lawyers' obligation to disclose information. The second chapter analyzes the reasons why lawyers should assume the obligation of information disclosure to their clients from both internal and external causes. From the external perspective, natural information asymmetry can easily lead to adverse selection and the emergence of moral hazard problems; from the perspective of internal reasons, Conflict of interest is a problem that lawyers must face in the process of practicing, and it is also the reason why lawyers are unwilling to disclose information sometimes. Therefore, it is necessary to emphasize the commitment of lawyers to the obligation of information disclosure. The third chapter is the focus of this paper. The legal service between lawyer and client has not only commodity attribute, but also public attribute. The conclusion is that the country must regulate the lawyer's information disclosure duty moderately. This paper mainly introduces the principle and degree that lawyers should abide by in information disclosure, and puts forward the comprehensive factors that affect information disclosure according to the concrete situation in the process of agency. Chapter 4th introduces the perfection of the relevant system in China, analyzes the development of the system and the existing problems from the perspective of empirical analysis, emphatically analyzes the causes of the problems, and points out that the professional ethics education in the lawyers' market in our country. The analysis of the preceding three chapters provides a way of thinking for our lawyers to perfect the client's information disclosure system, and combines the advanced experience of the United States in this field. This paper puts forward three aspects that should be strengthened in the process of perfecting the information disclosure system of lawyer to client in our country, and puts forward some suggestions on how to perfect the specific system.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D926.5

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