With the laws and regulations increasingly perfect and natural persons, legal persons and other organizations in accordance with the law, rights consciousness gradually increase, more and more civil disputes between the parties, which involves case time span, complex legal relationship, procedure time consuming, high professional level, the case the parties to safeguard their own interests, often hire social intermediary organizations - Law Firm lawyer litigation agent, but the agent action, between the principal and agent agent behavior is not agreed or agreed unknown disputes. Recently, office of legal affairs in the review of some cases, found that some lines due to outside counsel properly, not only solve the old dispute, and the lawyer produced a new agency contract dispute. This paper combined with part of the branch in outside counsel Acting civil (hereinafter referred to as the litigation agent) exposure process, proposed risk mitigation measures, so as to standardize our external agency litigation lawyer.

A,The basic requirements of the civil litigation agent

Agent, is the agent in the agent within the scope of authority, in the name of the agent is a civil legal act certain legal consequences, the directly attributable to the agent. An agent ad litem is accept party entrusts agency engaged in civil litigation activities. According to the civil procedure law and other relevant regulations, entrust a lawyer to act as an agent ad litem must comply with the following provisions:

1, the parties (including the plaintiff, the defendant, the common litigants, third people), legal representative or legal representative may entrust a lawyer to act as agent, entrust a lawyer should sign the entrustment contract.

2, the individual parties, as well as the legal representative and the legal representative, most can only entrust two lawyers (including attorney assistant) to act as agent;

3, foreign lawyers, including Hong Kong and Macao's lawyer, not as a lawyer acting as an agent ad litem.

4, entrust lawyers as agents ad litem, must submit a signed or sealed by the principal's power of attorney to the people's court, the power of attorney must specify the matters entrusted and permissions. Delegated authority must specify is the general agent or special agent, if it is a special agent, must also be specific to include those permissions, such as recognition, waive or modify claims, reconciliation, mediation agreement, filed a counterclaim, appeal.

5, entrust two lawyers (including lawyer's assistant) serves as an agent ad litem, shall be granted the authorization, entrust a lawyer agent, besides must submit a signed or sealed by the principal of the "power of attorney" to the people's court, should also be submitted by the lawyer's law firms and their clients to sign or seal the agency contract to the people's court.

6, agent of the rights, obligations. The agent has the right to get informed, turn right, the right to claim compensation for the interests of the agent; the agent behavior, the obligation, obligation to reporting obligations, the obligation of confidentiality.

7, the termination of the principal-agent relationship. The agency expires or its agent to cancel the transaction; or the agent quits; either the principal or the agent dies; loss of capacity for civil acts as agent; by the legal agent or agents of the termination.

The main risk has exposed two, agent in civil procedure

1,Running the cases to lawyers as agents. According to the Three Gorges Branch delegation management system, the examination and approval authority for the Three Gorges Branch belongs to one or two class management unit has no economic disputes, whether the prosecution, litigation, regardless of the amount, should be examined and approved by the branch of economic dispute cases review group, each branch branch handled according to approved. From the management situation, individual cases, without approval, directly decide to counsel litigation; individual units even have the right to approve the reply, but not approved by explicitly run by its employees in case (that is, no counsel) random entrusted to the lawyer agency.

2,The principal-agent contract and accredit a power of attorney is not rigorous. The principal-agent contract is a written agreement the rights and obligations of both parties clear litigation activities of the party; the power of attorney is the agent authorized agent for what at what time and how much authority. But the lawyer agent from a few lines outside the case, the principal-agent contract mainly has the following problems:

(1) the bank unified format the text of the model contract without the use of. The text of the contract the use of agents to provide arbitrarily large, resulting in the parties' rights, obligations, the agreement is not clear, no specific provisions, rough, or part of the rights and interests of unequal terms significantly. Once a dispute, the responsibility is.

(2) the term of the agreement is not clear. Lead bank and agent between the rights and obligations of long-term in a state of uncertainty, the potential risks exist for a long time.

(3) the cost of project, cost risk proxy mode who bears the burden of an unknown. The cost of the project, the costs is the core of the contract, the main reason is also generated controversy. The two should be clearly agreed, in particular, can not use "all", "like", "and so on", "all" fuzzy language.

(4) not agreed termination conditions within the term of agency contract (head office system model contract is terminated after the termination of the contract) and agency fee burden. At the risk of agent, agent burden certain fee and usually according to recover the funds obtained for the proportion of agency fees, the agricultural bank bad loans, facing two peeling, self entity decoupling policy reform, agent matters can be terminated with the bank creditor's rights transfer, if not the termination of the contract and after the termination of the contract agent fee burden content clearly agreed in the contract, the dispute.

(5) not agreed agency fee remission cases. Principal agent, the Agricultural Bank in the proceedings, execution may be reached with the debtor relief part of the debt or make other arrangements for price and achieve debt or bank by coordinating with the court to recover the funds or to withdraw the funds through their own programs, this part of the claims shall not be regarded as an agent's performance, the bank should not allow the agency fee to the agent. If the contract is not relief conditions, on agency fees range, amount, on the basis of a clear agreement, causing even outside counsel not to do the work, also be unwarranted payment risk agency fees to lawyers; some of the agent has been approved by the court attachment of property should be the other party requirements for mediation and reduce the amount of the execution of a case to give up part of creditor's rights, agent according to the requirements of litigation subject to honour the agency fee.

(6) authorization is not clear, not specific. Some power of attorney did not specify is the general agent or special agent, misleading to judge that agents ad litem shall have the right to give up the mortgage repayment priority and give up part of the claims, the apparent agency behavior.

3,Foreign lawyer agent lawsuit generation, lax management. In some cases when it is once the case out of commission, litigation, litigation agent scheme ideas, the litigation process, the outcome of the proceedings, indifferent, will not allow someone to continue; relevant evidence of the case to an agent ad litem, nor the recovery of loans, to have in the past loans dropped the creditor's right and by loan the book balance in full entrusted to agents, resulting in losing caused the agency fee dispute; some parties also arranged for the bank staff as a special person authorized to participate in litigation, but without notice to participate in the proceedings of the employee familiar with the case, to participate in the trial; according to the Agricultural Bank, through litigation to recover the loan must first sterilization case litigation fees again, the excess loan principal, the remaining loan interest. But some acts to reduce loan responsibility or profit plan, without offsetting advance litigation costs, the formation of long-term credit agency fees; some does not recover in time for the end of the case, the relevant legal instruments and data files, long-term retention in the hands of agents.

Three, outside counsel litigation risk proxy measures

With the perfection and management institutions in the standardization of Agricultural Bank, the Agricultural Bank of legal workers legal affairs shall generally Agricultural Bank of their own to bear, to minimize the external agent litigation lawyer. Because the case is needed outside counsel, can resolve the litigation risks from the following aspects.

1, outside counsel in litigation activities, must be right for approval.The incidence of cases need to outside counsel litigation agent, possibility of complexity, from winning cases to determine, from the right bank related professionals to analyze and decide. Outside counsel only shortlisted from law firms hiring experienced, honest and trustworthy, the interpersonal relationship is good, qualified lawyer lawyer litigation, and the lawyer in recent years no irregularities, become each other's litigation agent in the Agricultural Bank of China and other litigation.

2To examine and approve, agent action plan.The real situation in the case to make a detailed introduction to the agent, the case all the evidence materials. The agent should make litigation detailed scheme, analysis of the newspaper when did related professionals, clear litigation request, to the lawyer agency fees as recourse cost the defendant in the prosecution of cases, revised action plan, fully prepared to win.

3The contents of the contract, standard risk agency.To increase the responsibility of the agent, to mobilize the enthusiasm of the agent, outside counsel by signing risk agency contract to define the rights and obligations of the contract, shall be by the head office of the standard contract, but the contract should specify the following:

(1), the term of agency. Prohibition sign the entrustment contract without a fixed term; principal agent contract fixed duration of the longest cannot exceed 2 years. Among them, agency execution of not more than 1 years; in special circumstances, the examination and approval by the original copyright agreement, may be appropriate to extend the period of agent.

(2), the risk agency interpretation into the agency contract terms:General risk agency: refers to the client undertakes to pay the fees for accepting the case, the court property preservation fees, appraisal fees, assessment fees, fees, execution notice such charges, agent responsible handling transportation, accommodation, living expenses, communication expenses and other non fee, a certain percentage of the principal to agent to recover monetary funds (or the fixed amount) agents pay agency fees.The entire risk agency:An agent shall bear all expenses (including handling fees for accepting the case, the property preservation fee, appraisal fees, assessment fees, fees, execution notice such charges and the cost of transportation, accommodation, living expenses, communication expenses and other non fees), the principal agent to recover the money according to certain ratio (or fixed amount) agent pay agency fees. Choose to use risk agency.

(3), a clear case handling fees and the costs of the project. The contract shall be based on clear risk agency handling fee: the fee for accepting the case of specific projects, property preservation fee, appraisal fees, assessment fees, fees, execution notice such charges and the cost of transportation, accommodation, living expenses, communication expenses and other non fee. The cost burden should be clearly subject.

(4) agreed to the termination of the contract, within the term of agency and agency fee burden after the termination of the contract. Within the term of agency, in practice, the prosecution case of termination of contract cases are: transfer of agricultural policy reform and the object of litigation, such as bad assets peeling off, running the economy transfer, debt assets disposal to bank debt transfer; litigation loss; the principal unilaterally terminate the agency contract; and the relationship between the parties of litigation. Litigation contract termination conditions are: a party to the withdrawal of the suit; settlement of litigation between the parties. After the termination of the contract, the agent unrealized gains or income to make up for its lack of litigation fee has been paid, the cost burden for the fair and reasonable principle: negotiation. If the general risk agency, bank fees paid to the agent undertakes not return or pay any expenses, if the total risk, agency, returns to the agent bank does not return or pay any expenses.

(5), the contract shall agent fee waiver conditions, amplitude, amount, on the basis of clear agreement. Credit conditions: agency, the Agricultural Bank in the proceedings, execution may be reached with the debtor relief part of the debt or make other arrangements for price and achieve debt or bank by coordinating with the court to recover the funds or to withdraw the funds through their own programs, this part of the claims shall not be regarded as an agent's performance, the bank should not allow the agency fee to the agent. The reduction rate, amount: total risk proxy mode, such as agent under the agency contract gains make up the deficiency of their paid fees, relief, agents obtain agency fees should not be less than it has paid fees (court fees, the same), and can be used in conventional charge based on the appropriate surface (20% - 40% this part considers the travel expenses and the remuneration borne agents). If the agent to agent contract earning enough to make up for the paid fees, the bank has the right to appropriate the fees based on the appropriate surface by 20% - 40%. On the basis of the bank and the debtor relief: a new protocol, and court mediation agreement, negotiation, meeting minutes record.

(6), the agency fee per annum: according to recover the funds rate below the agency fee. Unable to accept physical assets ratio per annum, physical assets accepted becomes available funds.

(7), principal agent contract according to the branch approved the request of branch office of legal affairs and report or report.

4, clearly defined rights agent.The parties outside counsel authorized agent, is dealt with according to law cases related to transaction basis. If the authorized agent is improper, will be the direct economic losses caused by or apparent consequences. Taking the general authorization to entrust lawyers authorized generally only, at the same time when done to arrange familiar with the case, there is a certain sense of responsibility and law knowledge employees involved in the case, to authorize the parties, in order to understand the development of the case, accurately reflect the bank claims, to prevent the ultra vires agency behavior, at the same time exercise of AgBank's own employees.

5Participate in litigation activities.Litigation is a time consuming and not spend long in civil activities, leaders at all levels may not experience the dear, both to achieve the purpose, but can not go, the case when thing line shall be arranged to be involved in the case investigation, case analysis, and the court, court litigation, communication in the implementation of such action the whole process.

6In the end, the activities of agents.There were cases of litigation or termination or expiry or termination of the agency, according to the agency contract, accurately and comprehensively fulfill the contract obligations, the against the modern fees according to the relevant contract or agreement, according to a certain ratio into account money timely payment to the agent's law firm to recover; according to the existing provisions of the loan of bank accounting treatment (take legal fees, and then received the loan principal, finally receiving loan interest); the agent on the case all filing after rolling over to the case when things for archiving and preservation; agent beyond the competence of the losses caused to the Agricultural Bank of China, Agricultural Bank of China in accordance with the law responsibility.

Two 00 eight years in May 19th

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