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At present, in all walks of life in China, no industry provides such a broad space for lawyers' legal services like the financial industry. Statistics from the National Bureau of Statistics show that by the beginning of 2002, only state-owned financial assets had reached 1.09 trillion yuan, while non-state-owned financial assets were much higher than state-owned financial assets. Such a huge capital entity and the amazing capital flow generated by the complex and changeable financial market have formed the main body of the whole social and economic structure. The commercial flow of monetary capital plays a key and leading role in the orderly integration of commodity trading ethics (such as integrity) in the whole society. In order to achieve the above two aspects of order, the law is very important. Although it can't provide the power worth pursuing like profit, it is indeed an indispensable "lubricating oil", which can reduce friction and promote heat dissipation. And financial lawyers are the "engineers" who carry these "lubricating oils".
The rational development of financial industry can not be separated from lawyer service. For a long time, people in the financial industry have the same misunderstanding about lawyers as other members of the public. Some people think that the role of lawyers is limited to collecting creditor's rights for financial enterprises, and some even think that the financial industry is professional and does not need lawyer services. Throughout the operation of the domestic financial industry, the trauma caused by illegal activities to the financial industry can not be recovered for several years, and even the policy of divesting non-performing assets implemented by the central government can not fundamentally bring state-owned financial enterprises into line with the international standards; Compared with world-class banks such as Citigroup, lawyers have long been indispensable professionals in the financial industry. Theoretically speaking, the utility of the financial industry and the irrationality of pursuing profits sometimes require financial lawyers who master the law to guide and demonstrate in a rational and standardized way.
The development of lawyer industry can't ignore the big market of financial industry.
It is worth emphasizing that it is generally believed that the expansion of the financial and insurance legal service market is only a matter for lawyers to provide legal services for financial and insurance enterprises, and the relative person-customers of financial and insurance enterprises are often ignored. In fact, providing relevant legal services to financial and insurance clients should also be the proper meaning of lawyers' financial and insurance legal services.
Second, the characteristics of the financial legal service market analysis
1. Diversification of legal service subjects.
At present, the main bodies providing legal services for the financial industry are: internal legal consultants, social lawyers, grassroots legal workers, court retirees, legal brokers and so on. China's legal service market can be said to be "a million experts crossing the river", and the financial legal service market is not dominated by lawyers' exclusive services.
Legal service business mainly includes litigation and non-litigation business. China's current civil procedure law has no special restrictions on the qualifications of litigation agents, and actually does not give lawyers the status of exclusive litigation agents. In addition, the "Regulations on Enterprise Legal Counsel" and the relevant provisions of the judicial administrative department on the business scope of grassroots legal workers have in fact stipulated that enterprise legal advisers and grassroots legal workers can not only serve as enterprise legal advisers, but also represent litigation business, especially legal workers, whose litigation business almost includes all lawyer business except criminal defense. However, a large number of court retirees and other legal brokers shuttled inside and outside the court, which inevitably picked fights and wooed judges, which not only corroded the body of the legal service market, but also seriously challenged lawyers' business development in the financial industry.
2, the lawyer service positioning is not allowed.
In the process of providing legal services for the financial industry, lawyers often play the role of "firefighters", and it seems to be a fixed trend for financial enterprises to ask lawyers to go to court when they are involved in litigation. This phenomenon is more prominent in economically backward areas. Financial enterprises only hire lawyers as agents to participate in litigation after a lawsuit, and rarely formally hire lawyers as perennial legal advisers. Even if financial enterprises hire lawyers as permanent legal advisers, they rarely invite lawyers to participate in major business activities, and there are more problems and disputes in inviting lawyers to participate.
The reasons for the above deviation in the positioning of lawyer services lie in two aspects: financial enterprises and lawyers. On the one hand, enterprises often don't know enough about the role of lawyers. Some business leaders think that lawyers don't understand financial business, and normal business activities inform lawyers to participate in unnecessary work; On the other hand, lawyers are not active enough, unfamiliar with financial business and even deliberately "foster strengths and avoid weaknesses". For the above reasons, there are few professional financial lawyers in some fields, and even if there are, they can only be regarded as "financial litigation lawyers" at most.
3. The lawyer's knowledge structure does not meet the requirements.
To provide adequate legal services for financial enterprises, it is necessary to require lawyers to be compound talents who are proficient in both law and finance, but the number of lawyers who meet this requirement is far from enough. Imagine how a financial lawyer can handle highly specialized financial legal affairs if he is confused about the unique balance sheet, numerous accounting subjects and actuarial rates in the financial industry. If there is a lack of necessary understanding and grasp of the country's financial policy and the operating rules of the financial industry, how can the legal advice provided have an irreplaceable impact on the business decisions of financial enterprises?
The financial industry is a relatively closed and conservative industry. For a long time, the state's special protection of finance has led to the blind optimism and arrogance of many people in the industry. For example, many people in the financial industry think they are financial experts, and many legal problems are just financial problems in their view. Lawyers provide legal services for clients, thus reflecting their own value. The inherent disadvantages of the financial industry are difficult to eradicate for a while, which is particularly obvious in the lack of lawyers' knowledge structure.
4, the rule of law environment is not optimistic.
On the one hand, it is mainly reflected in the fact that the court's work is difficult to reflect fairness and efficiency, while the lawyer's work is ruthlessly forgotten, which leads financial enterprises to lose confidence in lawyers.
Since the beginning of this year, it seems that in some places, under the deliberate arrangement of the party and government departments, the fake bankruptcy aimed at avoiding financial debts has revived. The courts in these places have become the courts of some local party and government (to be exact, some party and government bureaucrats), not the "people's courts". In this case, even if the financial creditor's rights are covered with a hundred "legal coats", it is difficult to get the protection of the court. At the same time, the efficiency of some courts is obvious to all. In many courts, half of the legal fees are paid by the finance, and the finance is already worried about the huge legal fees. In the process of executing a case, the court often prevaricates with extra-legal reasons such as "social stability", "employees' petition" and "no assets to enforce", which is protracted.
In the trial and execution of financial cases that deviate from justice and ignore efficiency, financial lawyers are in an awkward position, and their role in safeguarding financial creditor's rights is minimal. No wonder some financial enterprises "spend money to find a judge instead of a lawyer". It is by no means the lawyer's personal fault that the role of the lawyer is lost in the administrative and decadent judicial office.
5. Financial and insurance legal services are the buyer's market.
Only less than one-third of commercial banks, insurance companies and other financial institutions have external lawyers as perennial legal advisers, and lawyers are in an unequal position in dealing with these units. Due to the vicious competition between lawyers, not only lawyers can't charge according to normal standards, but also the financial and insurance industry can't establish the necessary recognition for lawyers.
Third, what kind of lawyers do financial enterprises need?
1, a lawyer who is proficient in law. No matter what business individual lawyers focus on, there is no doubt that they must be legal experts, and lawyers should have a comprehensive, profound and comprehensive understanding of the current laws in China. In developed areas, as a financial lawyer, you need to be familiar with the laws of international trade and investment.
2. Lawyers who are familiar with finance. Every financial lawyer cannot be required to be a financial expert, but at least he is a financial expert. Familiar with national economic and financial policies, understand the development trend of financial reform, and be familiar with specific financial operations (including credit, finance, settlement, etc.). ) to a certain extent. Financial lawyers in developed areas should also have the necessary knowledge of international financial business.
3. A lawyer of noble character. In finance, a typical industry that pursues profits with capital, it is even more necessary to embody the spiritual influence of justice and law through lawyers. Only when lawyers are unmoved by fame and fortune, or at least not by fame and fortune, can their inherent qualities penetrate into the financial industry and become real financial lawyers.
4. Lawyers with strong comprehensive ability. In the process of serving the financial industry, lawyers' language (written and oral) expression ability is very important. To reach a certain level of comprehensive judgment ability, they should also have sophisticated skills in cooperation with people in the financial industry. These are not built in a day, but they are necessary for a good financial lawyer.
Fourth, some ideas and suggestions
1. Cultivate and bring up financial lawyers.
It has become common sense that lawyers should be professional and "all-round" lawyers will be eliminated by the market. How to train and bring up a certain number of financial lawyers? This may be easier said than done. I think: (1) We should actively send lawyers with corresponding academic qualifications or titles to financial institutions for further study; (2) Actively introduce people with financial professional background and lawyer qualification to join the team. The above two measures need to be led by the Legal Management Department. "Selection and delivery" involves expenses and can sign a contract with the selected person. The key to "introduction" is whether it can provide new people with growth soil. At present, there is a widespread problem that lawyers are too lax in entering the profession, ignoring the large-scale training and professional training of talents, which is essentially tantamount to predatory management of lawyers' human resources, and this situation must be changed. (3) Cultivating and fostering law firms with specialized characteristics or specialization in a certain scale conflicts with the current lawyer distribution mechanism and requires the joint efforts of legal departments, law firms and lawyers.
2. Financial legal services should be repositioned.
When lawyers provide legal services for financial enterprises, they should participate in litigation afterwards to participate in argumentation beforehand and provide preventive legal advice. Of course, it is not easy to do this. On the one hand, lawyers need to change their ideas, from passive to active, and from passive to active. On the other hand, financial enterprises need to change their one-sided understanding of lawyers.
3. Purify the financial legal service market.
If the diversification of the current legal service market has not been solved, it is difficult for lawyers to expand the financial legal service market. In recent years, it has been suggested that it is very good to implement the enterprise lawyer system in China, which is essentially to bring the existing enterprise legal adviser into the overall framework of lawyers; In addition, it will take time for legal workers to withdraw from the lawsuit, but with the appearance of lawyer's dress and the increase of the number of lawyers, it will not be a problem to solve this problem; The key point is that the profit-oriented legal brokers in society need the judicial administrative department and the lawyers' association to save face and make sincere rectification.
4. The lawyer's pick-up and drop-off mechanism must be reformed.
At present, the state-owned firm recognized by the Lawyers Law has gradually died out, and the inherent weakness of cooperative firms also determines that it is impossible to develop greatly. The main body of law firm is partnership firm, but the present situation of partnership firm is full of problems, and the phenomena of "partnership system" and "separation system" abound. Many partnerships do not have necessary support policies for new lawyers, nor do they have long-term plans for lawyers' professional division of labor. Most lawyers are actually overdrawing their knowledge reserves. In this case, in order to expand the financial legal service market, it is necessary to carry out purposeful integration with law firms as the unit, reform the current distribution mechanism of "all-in-one, equal share", implement professional division of labor, actively promote their own service brands and professional lawyers to the financial field, and form a team effort.
5, the external environment constraints can not be ignored.
We can't sell ourselves short, we can't lose sight of the role and advantages of lawyers in the field of financial legal services, and we can't exaggerate their role. Confucius said that "going too far is not enough" is very reasonable. In the process of expanding the financial legal service market, although lawyers' own efforts are very important, both financial and judicial factors are crucial. Administrative and corrupt judicature fundamentally excludes the participation of lawyers, while the closed and conservative financial industry will also objectively limit the demand for lawyer services, which needs our study and attention.