The lawyer civil case risk

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  • / Author: Aaron Lewis

Common risk agency of civil cases

Time: 2009-07-16 22:33:00   Article categories: Network Abstract

Source: Tianjin lawyers time: 2007-1-17 13:45:31


Zhang Ying Ni Baotong law firm

Recent media reports: a Beijing law firm lawyers for two for the housing mortgage business, the bank issued legal opinions to false content, be procuratorate prosecution, shall be investigated for criminal liability for the two lawyers aroused extensive attention, especially the bar. Lawyers for the criminal cases, as non litigation risk issue legal opinion book also has a risk, as a civil case whether risk? A form of liability is different, just. Some people think that the civil cases by the court for a decision, risk is the parties undertake, actually otherwise, if the lawyer in the agency in civil proceedings is improper, signs of danger appearing everywhere, summed up in the following situations.
A lawyer, because of the risk of lack of professional skills and experience of
Western proverb says "don't let the justice due to a lack of legal knowledge and the skills and lost", visible, practicing skills essential for lawyers. Some lawyers failed to pay attention to learning and accumulation of professional skill, in the litigation agent may make the following error:
1, write the complaint is too casual. In the relevant circumstances and the evidence is not clear case, only the principal narrative pen written complaint and submitted to the court. Also called: improve work efficiency. Forget the run written complaint with potentially disastrous consequences for the case, do not appear to make up for the loopholes in the complaint, can not get rid of their negative self appointed. For example, the subject of litigation against improper selection, may be rejected by the court; does not consider their own interests, to the court after that miss an interest, shall be protected in litigation request to prosecution, the court may take the incident no longer principle is not accepted.
2, to provide the principal evidence, not required to provide the original and carefully read, only depend on the copy and the principal narrative. The original of the evidence in the trial that provides no later. In fact, whether a convincing evidence, including the following aspects: the content, form and source. The client presents evidence tends to focus on the content, other areas on the less, if the lawyer no comprehensive review evidence originals, probably on the facts of the case judgment, for future action caused by passive. There are two typical cases can fully explain the form of evidence (integrity) the importance of a loan to the defendant, the plaintiff, the defendant with a 16 opening (and not much difference between A4) paper, write an IOU, because the written content is not much, the written word only occupied half part of the paper, the second half part is blank, the plaintiff was folding up the IOU custody. The plaintiff to the defendant after many have an IOU for arrears, failed. The plaintiff a paper petition the court, when the plaintiff confidently to the court testimony, problem, because the plaintiff turned repeatedly use the IOUs, plus a paper is not good, the bond has been broken in the middle, and the lower half is lost, the final court evidence to the plaintiff is not enough judgment against the plaintiff. Another case is similar to the above case, the plaintiff will note in the lower right corner of a postage stamp sized blocks off, but untouched and ious content, the plaintiff was convicted for the losing. If only by the plaintiff's narration and the copy is not see evidence damage part, also cannot find the flaws in the evidence, and then collect other evidence to make up.
3, can not control the client expectations on the case, too much promise, jumping to conclusions.
The lawyer and client when you don't pay attention to strategy, see the evidence, then on, said: the case to win. But litigation is everywhere in "trap", the evidence is only a factor of success; aging, the time limit for adducing evidence and other factors also can decide the outcome of the case, even if the various factors mentioned above are impeccable, also cannot say "win", the one you might not think of things, let you the case The whole army was wiped out.: your failure, on the way to court. The traffic jam or vehicle in short, you do not appear to the court on time, had been each other "fix" judge highfalutin to tell you, the case law by withdrawing treatment. Then how do you face very high expectations of the client?
The 4 basic skills, lawyers lack of screening of evidence, the errors in the selection and use of evidence and evidence the time limit.
5, the lawyers "most probably it did not actually happen" thinking formulary, evidence material to some there seems to be no problem, no inquiry.
6, failed to timely remind the client of the preservation of property and evidence preservation, the client is unable to achieve the purpose of lawsuit.
7, the lawyer lost, damaged the principal original evidence.
Lawyers in the received client submit evidence should be carefully verified material name and number, and shall be properly kept, there cannot be the slightest careless. Had reported, a lawyer to court, the way items stolen, including all the original evidence together stolen, resulting in a lawsuit of producing evidence can not and lost.
8, the lawyer forensics method is undeserved, cause the loss of key evidence to prove valuable.
The lawyer evidence not according to law, but the law banning, the evidence is not court in cross examination, had lost their new evidence or apply to the court for investigation and evidence collection opportunity, when the evidence is the key evidence, one can imagine litigation outcomes.
In 9 cases, lawyers took over after, exceeded the limitation of action. There are mainly two kinds of situation, a lawyer, before the lawsuit and other representations and negotiations, being "Huyou" and forget the limitation of action, the other to the time dragged on past. Second, the client commissioned a lawyer to handle the legal issues, such as consultants commissioned by the prosecution, lawyer, not timely prosecution and miss time.
Two, due to lack of lawyer practicing risk the diligence and professionalism brings
1, citing laws and regulations have been failure. Usually do not pay attention to those laws has recently been repealed, modified or replaced by new provisions.
2, can not be diligent spirit throughout. Some lawyers received the court verdict and other legal documents, not timely transferred or notify the principal, has been caused by the passive. There lawyers received the court judgment, place the back of the head, to the client application execution, that has been the implementation of the application deadline.
Risk three, lawyers in the proceedings can not calmly deal with problems
A lawyer should have self-control and endurance quality, especially in low level and the arrogant attitude of judges, to maintain proper manners, be calm, resourcefully resolved the problem, rather than lose or lose your temper, always give oneself over to blind emotions, conflict with the judge, and in turn on one's heel. On the surface the lawyer righteousness, the client has to pay a painful price: the client is the judge may by withdrawing treatment; the principal is the accused, the judge may default judgment, and the judgment for the defendant is often extremely unfavorable.
Any of the above situations, the light will give commission made action passive, or case was dismissed, was sentenced to losing, and even win cases can not be executed, the principal losses. The losses suffered by the client will not leave the matter at that, often angry at the lawyer, or directly to the lawyer and the firm claims, such claims once often give money is not enough lawyers and law firms to be hit, even brings the crowning calamity, such cases often appear in newspapers, can be expected to client and lawyer claims will be more popular. The lawyer in the litigation to ensure safety, reduce the risk of handling this problem is imminent. The author thinks, from the big point, a lawyer working to diligence, to be the absolute attention to matters entrusted by from first to last; he Department said, in the procedure law and the rules of evidence, can not stay in the understanding and the understanding level, professional lawyers to emphasize the master, to fully grasp the litigation skills, or harm the client also hurt yourself.

 

 

Fictitious 257 property apartment Piandai 750000000 case prosecution
Http://www.sina.com.cn 2006 04 28 17:18Chinanews.com

In new network on 28 April, according to the "Beijing Evening News" reported , second branch of the Beijing municipal procuratorate recently to create a great sensation as Piandai apartment of the prosecution, the developers fictitious 257 houses, to China bank Beijing branch for a

Individual housing loans totalling 7.5 million yuan. The 10 defendants prosecuted, 5 is the developer of the boss and subordinate, two people's Bank of China Beijing branch work for lawyers, there are 3 Beijing branch of the bank staff.

　　Chaoyangmen super sale unfinished for 4 years

Near East West Road, Chaoyang Bridge more than 100 meters, a suspension has long apartment buildings, building exterior decoration half. The surrounding residents said, the building is covered on and off for 10 years, the last is due in 2002, and has been "rotten" long 4 years here. This project is China false mortgage amount biggest unfinished building -- up apartment, determined the amount according to the prosecution of the public prosecution, false mortgage Piandai apartment 640000000!

The 41 year old Zou Qing is the former owner of apartment, but today he has been in jail for 1 years. Zou Qing early to do foreign trade business, with the Hong Kong identity, in Hongkong, Beijing and other places cofounded the much home to "Hua Yunda" in the name of the enterprise. In 2000, Zou Qingren legal representative of China Real Estate Company restarted at that time has stopped up apartment project. Reported at the time of 34000 square meters apartment residential area, commercial construction area of 13000 square meters. Among them, the residential part of the opening price of $2500 / square meters, while the commercial part of the average price of $3500 / square meters.

No one would have thought that, in this "super" properties "behind the booming" opened, Zou Qingting is a gamble and take risks.

　　False mortgage fraud to bank set

The so-called personal housing loan "fake mortgage", the developers themselves a hoax. At that time Zou Qing fame, the "Karate" operation technique, has been widely used in the real estate circle: developers ancestors for raising prices, and then to the relationship between employees and other people posing as customers as a real person, through false sales, taking high bank loan. Developers to the high housing prices as the benchmark rate mortgage, the higher cash into his bag of real house prices, banks have stuck into real estate.

In the apartment as fraud, fraud is to Beijing China Economic and Trade Development Co. Ltd. office director, deputy director of administrative department, Beijing China Real Estate Development Co. satellite company snow and Beijing China Economic and Trade Development Co., Ltd., Beijing Secretary of China Real Estate Development Company Limited staff Wang Yuhong. The prosecution alleged, from 2000 December to 2002 June, at Zou Qing's instigation, snow satellite and Wang Yuhong forged hundreds of income certificates, the first proof of payment, the fictional apartment sales of commercial housing facts, methods using commercial housing sales contracts signed false, from the Beijing branch for personal mortgage loans 6.4 million yuan.

Analysis of the industry, the general use of personal housing mortgage loans Piandai developers, most of the weak financial strength, hope that through this kind of false mortgage from the bank Piandai, to supplement the construction funds. If the project sales, developers in the real funds advanced sales, can make those false mortgage with the bank mortgage contract, or to dispose of, the operation of the whole process is almost a seamless heavenly robe. However, real estate development once the sale is not good, because the mortgage is false, no one continuous monthly repayment, Piandai truth can not hide, high housing prices bubble burst, the bank risks are realised immediately, there maybe only an unfinished building.

　　Two flats Piandai 750000000

So far little is known about the apartment, in addition, a called Huaqing apartment projects also become Zou Qing Piandai billion tool. Prosecutors accuse Zou Qing as the Huaqing times Investment Group Limited and the actual control of the company during the period from 2001 September to 2002, June, in the absence of its mortgage secured loan contract ability, directs the company chairman of the board of directors, assistant Yu Jiansan Nie Ping, taken forged income certificates, the first proof of payment and other means, the fictional its development projects Hua Ching apartments commercial housing sales fact, methods using commercial housing sales contracts signed false, from the Beijing branch for personal mortgage loans 107000000 yuan.

Two flats, Zou Qing to cheat for personal mortgage loans amounted to 750000000. According to the indictment, Zou Qing, snow, Yu Jiansan Wang Yuhong, Nie Ping satellite, the commercial housing sales contracts signed false, mortgage secured loan contract defrauding the bank Beijing branch mortgage loans, and the amount is huge, if the circumstances are especially serious, Beijing China Real Estate Development Company Limited and 5 people's behavior has constituted the crime of contract fraud. If convicted, the defendant faces a maximum penalty of life imprisonment.

　　The first is the duty lawyer

In this Piandai cases, very attract sb.'s attention is, there are two provides legal services to the bank's lawyers accused person on the list. The criminal responsibility is the first Beijing procuratorial organs for lawyer Piandai case of dereliction of duty in the bank.

Two lawyers in Beijing city is a benefit law firms Kong Weidong and Beijing Huayi law firm warfare. According to the regulations, bank mortgage loans first through the credit review the two law firms. Hundreds of millions of dollars of Piandai to borrow hundreds of identity cards, counterfeit hundreds of contracts and documents, fraud so large, unexpectedly easily fooled the occupation lawyer's eyes.

The prosecution allegations, Kong Weidong and warfare as a lawyer in 2000, occupation, from December to 2001 July, credit situation in individual housing loan applicants no due diligence as apartment project under, present legal submissions to the bank, loan applicants have proven ability to repay the loan, eligible for loans. Two people were issued 161 copies of the content of the legal submissions inaccurate, successively to the false loan applicants to the issuance of individual housing loans totaling 5 million yuan.

Prosecutors believe Kong Weidong, Zhan Jun's behavior has constituted the crime of major issue false documents.

　　Bank officials were accused of dereliction of duty

Finally, the key bank lending is the gateway bank approval. In the process of Zou Qing has two successful Piandai, a bank of power must be mentioned, he is a former Beijing City branch retail business Chinese Bank Office Deputy Director Xu Weilian. Xu Weilian was well-known in Beijing real estate circles, he became deputy director of the hands of more than ten years, and personal mortgage power. It is Weilian Xu at the stroke of a pen, the Bank of China Beijing branch to the apartment, Hua Ching apartments in two projects of 257 fictitious purchase loans to individuals for housing a total of 7.5 million yuan, resulting in Beijing branch loan principal loss 6.6 million yuan. There are reports that Xu Weilian have hurdle the benefits of the company charges about 8000000 yuan. But from the prosecution charges, prosecutors are currently not identified Xu Weilian bribery or fraud facts, only for his dereliction of duty crime.

Xu Weilian and retail business loans business section Shang Jin, retail consumer loan business, credit officer Zhang Xiaofei, accused of state-owned enterprise personnel dereliction of duty crime. Prosecutors believe 3 bank seriously irresponsible staff, no strict implementation of the bank credit system, resulting in serious losses of state-owned enterprises.

According to the insiders, the bank Piandai is economic crimes collusion, through false mortgage lies in the strict accountability system. The as Piandai apartment developers, banks shall be investigated for criminal responsibility of lawyers and bank staff a series of links, help to curb this kind of crime. (Qiu Wei Wentan Wang Ping)