法律留學(xué)生dissertation：企業(yè)法律顧問的角色定位分析
Today corporate finance, litigation, mergers and acquisitions and other legal matters become increasingly frequent, but it is a lot of companies tend to hire outside counsel to solve the problem, does not value the role of corporate counsel.
現(xiàn)今企業(yè)融資、訴訟、并購等法律事務(wù)越加頻繁，但很多企業(yè)往往卻是聘請外部律師解決問題，并不看重企業(yè)法律顧問的作用。
How to change this situation, I think that deal with the role of corporate counsel for re-positioning, corporate counsel to clarify the relationship with the external lawyer on enterprise development, and to further strengthen corporate counsel their operational capacity and the overall quality of training.
如何改變這一狀況，筆者以為應(yīng)對企業(yè)法律顧問的角色進行從新定位，厘清企業(yè)法律顧問與外聘律師對企業(yè)發(fā)展的作用，進一步強化企業(yè)法律顧問自身的業(yè)務(wù)能力及綜合素質(zhì)的培養(yǎng)。
First, the new understanding of corporate counsel http://m.elviscollections.com/dissertation_writing/Law/
一、企業(yè)法律顧問的重新認(rèn)識
Corporate Counsel's job duties, corporate counsel must determine the legal framework ensure the development of enterprises, enterprise enterprises according to law. According to 2004 SASAC issued the "state-owned corporate counsel management approach" clearly states that "Corporate Counsel Corporate Counsel refers to obtain qualifications, appointment by the enterprise, specializing in corporate legal affairs professionals within the enterprise." , showing that corporate counsel for two basic characteristics: First, the internal staff, two are professionals. As internal staff, corporate and non-corporate legal counsel outside counsel internal staff there are significant differences, and as professionals, corporate counsel and corporate counsel While broadly consistent with the scope of practice areas, but in practice are clear differences between the rights but.
企業(yè)法律顧問的工作職責(zé)，決定了企業(yè)法律顧問必須在法律框架下保障企業(yè)的發(fā)展，實現(xiàn)企業(yè)依法治企。根據(jù)2004年國務(wù)院國資委下發(fā)的《國有企業(yè)法律顧問管理辦法》的明確規(guī)定，“企業(yè)法律顧問是指取得企業(yè)法律顧問執(zhí)業(yè)資格，由企業(yè)聘任，專門從事企業(yè)法律事務(wù)工作的企業(yè)內(nèi)部專業(yè)人員”，可見企業(yè)法律顧問的兩個基本特征：一是企業(yè)內(nèi)部人員，二是專業(yè)人員。作為企業(yè)內(nèi)部人員，企業(yè)法律顧問與非企業(yè)內(nèi)部人員的外聘律師存在明顯差別，而作為專業(yè)人員，企業(yè)法律顧問與公司律師雖然在執(zhí)業(yè)范圍方面大體一致，但在執(zhí)業(yè)權(quán)利方面卻又是差別明顯。
(A) corporate counsel and outside counsel
Corporate Counsel either internally by the enterprise as a professional legal staff, but also by external lawyers. Corporate counsel and outside counsel compared corporate lawyers, corporate counsel obviously in the service business has great advantages, but it should handle corporate counsel and outside counsel relationships. I think that should be particular emphasis on its complementary and interactive
1 complementary. In general the process of internal things should first highlight the role of corporate counsel, but even cases of litigation have strict requirements on professional transaction process, but also still have to pay full attention to the role of corporate counsel, for example, in collection of evidence, outside counsel only in accordance with existing evidence to judge cases, but for which the evidence submitted no way should be collected, and this is a good corporate legal adviser to complete aspects.
2 interactive. External lawyers and corporate counsel should also be an interactive relationship. Enterprises to set up house counsel from one of the starting point in terms of economic cost is often less please not to please outside counsel, but in fact it is not comprehensive. House counsel's role is to be played by the whole enterprise business system systematic, in dealing with legal disputes with outside counsel together again, so that we can achieve very good results. Corporate Counsel has the advantage of all aspects of the enterprise, and corporate affairs comprehensive initiative to provide legal guidance outside counsel is able to provide enterprises with more specialized services. In order to avoid confrontation, sometimes house counsel looking outside counsel to convince the leadership to do the work, reflecting the good interaction. [①]
(Two) Corporate Counsel and Corporate Law
According to the Ministry of Justice "issued by corporate lawyers to carry out experimental work on the advice" requirement, our company will be in-house lawyer system pilot work, which means that within the enterprise in China at present, there are two different legal career system simultaneously coexist: Corporate Counsel system and corporate lawyer system. Although both are full-time in the company's legal affairs officer, but there are still differences.
The biggest difference between the two is that the company lawyers were given lawyers and social rights of the same investigation, and corporate counsel in this regard is greatly reduced, mainly because corporate counsel responsibilities positioned to enterprise management personnel, qualification Identification of legal knowledge in terms of the professional requirements to be below the company's lawyer, and thus will not be given the same investigation with a lawyer right, of course, this is the system of corporate counsel for people concerned about a very important reason. From the perspective of the legal profession and on the role of enterprise development, the author believes that corporate counsel corporate lawyer should change, of course, this change was not reduce the company's lawyers asked the premise of change, but should be required to improve the corporate counsel changes in the premise.
Second, corporate counsel should be into the business daily management - corporate counsel roles repositioning
Unlike corporate counsel outside counsel, in the terms of positioning the author more agreeable with the view that "corporate counsel" is not just legal workers, can not be completely the same as "lawyer" or "legal workers" should be regarded as professional Manager Professional Executive more appropriate [②], belonging to professional business management specialist
Since the duties positioning fuzzy, resulting if the "lawyer" or "legal workers" requirements compared corporate counsel existed numerous defects, such as lack of recognition for new legal issues, the current domestic enterprises against unfair competition, environmental pollution compensation, intellectual property protection, real estate development and other professional capabilities are inadequate corporate lawyer, the other legal theory and practical experience are also inadequate.
In fact, in enterprise management need legal guidance in many places, corporate counsel's job duties is not the only contract review, develop and implement the business strategy, human resources management, project planning, which have a lot of room, the key is see how we can locate.
(A) the duties of Corporate Counsel Litigation should not only deal with the contract audit
As mentioned earlier, the positioning problem, many of our corporate counsel's duties are limited to a relatively narrow scope, a lot of work in the act as "contract specialist", "fireman" role [③]. I think that corporate counsel positioned managers, the role of professional managers to work, there will be a larger display space and create value for the enterprise.
Corporate counsel involved in the daily management of the enterprise, mainly around duties related to the operation and corporate legal affairs work, including major business decisions of the enterprise legal advice; contract review, formulate constitution, rules and regulations and other relevant corporate behavior normative documents or legal documents; processing of trademarks, patents and other intellectual property matters related enterprises; handling corporate litigation, non-litigation work; organize legal training and consulting and other activities should be and not just deal with lawsuits, contract review and other aspects of its responsibilities, specifically should actively carry out the following tasks:
1 business ownership management. Stake in the enterprise, establishment, restructuring and other work, the corporate counsel should provide timely advice and apply text.
2. Enterprise labor relations management. Corporate Counsel disputes should guide the completion of coordination and policy research, provide guidance.
3. Corporate intellectual property protection. Corporate Counsel for including business names, trademarks, patents, trade secrets and other management, the implementation of brand planning, trademark, patent licensing paid to seek to achieve business value of intangible assets found.
4. Foreign investment enterprises to control. Corporate counsel should conduct preliminary investigations, program planning, and participate in the negotiations, the text production.
5. Enterprise system management. Corporate Counsel shall be responsible for enterprise management system, and conduct implementation monitoring, training and guidance
(Two) Corporate Counsel shall serve as the angel of active communication
As a member of the firm, I think corporate counsel working mode needs to be redefined Chinese papers net. Waiting in active and passive communication between the two, our usual practice to choose the latter, but this is precisely the corporate counsel working model taboo, corporate counsel need to take the initiative to communicate.
On the one hand, corporate counsel and the business sector to maintain a positive communication and interaction, and expand their contact surfaces. Although the requirements of Corporate Counsel proficient in all the knowledge and business content is too harsh, but the understanding and familiarity with the industry is a must.
On the other hand, corporate counsel actively participate in the daily management, reduce business risks more effectively. Business Central Africa legal professionals generally do not have the appropriate legal awareness, not a great time to seek corporate counsel participation, timely disclosure of information habits, corporate counsel at this time take the initiative to understand the different aspects of ongoing operations or are brewing management decisions, will undoubtedly help corporate counsel early intervention affairs, you can discover defects early response measures. The simple fact is, just as there are perspectives said company lawyer, if only passively accept work arrangements, corporate counsel never see the truth, always be busy afterthought.
Third, corporate legal career system reconstruction - and combined corporate counsel and corporate counsel
Generally speaking, a country where the rule of law tend to have a mature legal professional classes, including lawyers, judges, prosecutors, notaries and legal researchers, etc., and the legal profession to become a class, go through a unified legal qualification examination. China currently has basically achieved a breakthrough at this stage, that was abolished in 2002 Solicitor examination, the implementation of a unified legal professionals judicial examination. But for the purposes of corporate legal staff, but still there is a difference, which is different from the main barriers to entry. I think that corporate legal staff is the law of the occupational hierarchy of the important part of the occupational hierarchy in our legal team to occupy an important proportion of the occupational hierarchy should meet legal requirements of the unified access threshold.
Corporate Counsel and Corporate Counsel biggest difference is that right to practice different, and this difference is rooted cause barriers to entry - Qualifying Examination requirements are different, as also in the legal affairs professionals, I think we should not make a distinction, establishment of a unified corporate legal career system is a necessary requirement of objective reality.
Currently the pilot model, while corporate lawyers to solve the enterprise engaged in legal affairs personnel practicing planning problems and faults practicing rights, but this is only the staff of the enterprise legal affairs practitioners how to arrange an institutional structure, how to make the company lawyer Practice in business management role in the operation to reduce risk remains to be more rational management and control model appears. [④] However, this defect is present as a business professional managers and corporate legal advisers can continue to play a prominent advantage. I think that, if fully integrate the advantages of both, should be the best meet the business needs of corporate legal professionals, this should be the future of a unified corporate legal career system where the direction is set
