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Wang Baofu v. Sanxin Law Firm (Case on Dispute over Compensation for Property Damage)
王保富诉三信律师所财产损害赔偿纠纷案
【法宝引证码】
  • Type of Dispute: Civil-->Property
  • Legal document: Judgment
  • Judgment date: 12-01-2004
  • Procedural status: Trial at Second Instance
  • Source: SPC Gazette,Issue 10,2005

Wang Baofu v. Sanxin Law Firm (Case on Dispute over Compensation for Property Damage)
(Case on Dispute over Compensation for Property Damage)
王保富诉三信律师所财产损害赔偿纠纷案

Wang Baofu v. Sanxin Law Firm

 

王保富诉三信律师所财产损害赔偿纠纷案@#

(Case on Dispute over Compensation for Property Damage)@# 【裁判摘要】@#
[Judgment Abstract]@# 根据律师法四十九条第一款的规定,经律师见证的遗嘱因不符合法律规定的形式要件被确认无效,致使遗嘱受益人蒙受经济损失的,律师所在的律师事务所应当承担过错赔偿责任。@#
Under Paragraph 1 of Article 49 of the Lawyers Law, where a will witnessed by a lawyer is held invalid due to inconsistency with statutory formal requirements and as the result the beneficiary of the will suffered economic losses, the law firm with which the lawyeris affiliated shall assume the compensation liability for its fault.@# @#
BASIC FACTS@# 原告:王保富,男,56岁,住北京市海淀区马甸西村。@#
Plaintiff: Wang Baofu, male, 56 years old, dwelling in Madian Xichun, Haidian district, Beijing Municipality@# 被告:北京市三信律师事务所,住所地:北京市朝阳区农展馆南里。@#
Defendant: Beijing Sanxin Law Firm, domiciled at the Nongzhanguan Nanli, Chaoyang district, Beijing Municipality@# 负责人:刘成,该事务所主任。@#
Legal representative: Liu Cheng, director of Beijing Sanxin Law Firm@# 原告王保富因与被告北京市三信律师事务所(以下简称三信律师所)发生财产损害赔偿纠纷,向北京市朝阳区人民法院提起诉讼。@#
Wang Baofu brought a lawsuit with the People's Court of Chaoyang District, Beijing Municipality against Beijing Sanxin Law Firm (hereinafter referred to as Sanxin Law Firm) concerning the dispute over compensation for property damage.@# 原告诉称:经被告见证的原告父亲王守智生前所立的遗嘱,由于缺少两个以上见证人这一法定形式要件,在继承诉讼中被法院认定无效。原告作为继承诉讼中的败诉方,不仅不能按遗嘱继承得到父亲的遗产,还得按法定继承向其他继承人付出继承房屋的折价款。被告在见证原告父亲立遗嘱的过程中有过错,侵害了原告的遗嘱继承权利,给原告造成了财产损失,应当赔偿。请求判令被告赔偿房屋折价款、遗嘱见证代理费、两审继承诉讼的代理费、诉讼费等损失共计134893.75元。@#
The plaintiff claimed that: The will made by Wang Shouzhi, father of the plaintiff, which had been witnessed by the defendant, was ruled as invalid by the court in an action for inheritance due to its failure to meet the legal formal essential elements of two or more witnesses. The plaintiff, as the defeating party in the action for inheritance, could not inherit his father's bequests according to the will but had to pay monetary compensation at the market price to other inheritors so as to inherit the house according to statutory inheritance. The plaintiff had faults when witnessing the process of Wang Shouzhi making a will, injured the plaintiff's right to the bequests under the will and incurred property losses to the plaintiff and thus should be subject to compensation. The plaintiff pleaded the court to adjudicate that the defendant should compensate for such losses as monetary compensation at the market price, agency fees for will witness, agency fees for the first and second instances of the action for inheritance and court hearing charges, which come to a total sum of 134, 893. 75 yuan.@# 被告辩称:王守智委托被告代理的事项是见证签字,不是见证代书遗嘱。被告是根据王守智的委托,才指派了一名律师去见证王守智签字,已经履行了自己的义务,且在见证过程中没有过错。至于经被告见证签字的遗嘱,其内容和形式是否符合法律规定,被告没有提示义务。王守智所立的遗嘱,是因代书人未签字而被认定无效。被告不是该遗嘱的代书人,不应该承担代书人的法律责任。综上,不同意原告的诉讼请求。@#
The defendant argued that: The matter as entrusted by Wang Shouzhi was to witness signature instead of witnessing any allograph testament. The defendant designated a lawyer to witness Wang Shouzhi's signature according to his entrustment and thus fulfilled its obligation and had no fault in the process of witness. As to the will, the signing of which was witnessed by the defendant, whether or not its content and form comply with the relevant statutory provisions, the defendant wasn't obliged to make any instruction on conformity. The will made by Wang Shouzhi was held as invalid for the absence of the scrivener's signature. The defendant wasn't the scrivener and thus might not be subject to any legal obligation borne by a scrivener. To sum up, the defendant disagreed with the plaintiff's claim.@# 北京市朝阳区人民法院经审理查明:@#
The People's Court of Chaoyang District, Beijing Municipality found after hearing that:@# 2001年,原告王保富之父王守智与被告三信律师所签订了《非诉讼委托代理协议》书一份,约定:三信律师所接受王守智的委托,指派张合律师作为王守智的代理人;代理事项及权限为:代为见证;律师代理费用为6000元;支付方式为现金;支付时间为2001年8月28日;协议上还有双方约定的其他权利义务。王守智在该协议书上签字,三信律师所在该协议书上加盖了公章,但该协议书未标注日期。同年9月10日,王守智又与三信律师所指派的律师张合签订了一份《代理非诉讼委托书》,内容为:因见证事由,需经律师协助办理,特委托三信律师所律师张合为代理人,代理权限为:代为见证。9月17日,三信律师所出具一份《见证书》,附王守智的遗嘱和三信律师所的见证各一份。王守智遗嘱的第一项为:将位于北京市海淀区北太平庄钟表眼镜公司宿舍11门1141号单元楼房中我的个人部分和我继承我妻遗产部分给我大儿子王保富继承。见证的内容为:兹有北京市海淀区北太平庄钟表眼镜公司宿舍3楼4门2号的王守智老人于我们面前在前面的遗嘱上亲自签字,该签字系其真实意思表示,根据《中华人民共和国民法通则》第五十五条的规定其签字行为真实有效。落款处有见证律师张合的签字和三信律师所的盖章。王守智于9月19日收到该《见证书》。@#
In 2001, Wang Shouzhi concluded a Representative Agreement on Nonlitigious Entrustment with the defendant, stipulating that Sanxin Law Firm accepted Wang Shouzhi's entrustment and designated a lawyer named Zhanghe as Wang Shouzhi's attorney. The entrusted matter and the authority were: agent-based witness; the agency fees of the lawyer should be 6, 000 yuan; the means of payment should be in cash; the date of payment should be August 28, 2001. There were other rights and obligations as stipulated by both parties in the Agreement. Wang Shouzhi signed the Agreement, and Sanxin Law Firm affixed its seal to the Agreement, whereas no date was indicated in the Agreement. On September 10 the same year, Wang Shouzhi concluded with Zhanghe another Representative Agreement on Nonlitigious Entrustment, indicating that, as the matter of witness should be handled with the assistance of a lawyer, he specially entrusted Zhanghe to act as an attorney with the authority of “agent-based witness”. On September 17, Sanxi Law Firm produced a Witness Document, attached with Wang Shouzhi's will as well as the Witness Document of Sanxi Law Firm, each in a single copy. The first item of Wang Shouzhi's will was that Wang Shouzhi would pass his individual property as well as the property he had inherited from his wife in the apartment of room 1141, gate 11, which was a dorm of Beitaipingzhuang Timepiece and Spectacles Company in the Haidian District, Beijing Municipality to my eldest son Wang Baofu. The witness particulars were that Wang Shouzhi who lived in the apartment of room 1141, gate 11, which was a dorm of Beitaipingzhuang Timepiece and Spectacles Company in the Haidian District, Beijing Municipality signed a will by himself in our witness so that the signature rendered his true intended expression and thus was authentic and valid according to the provisions of Article 55 of the General Principles of the Civil Law of the People's Republic of China. The signature of Zhanghe was inscribed therein and the seal of Sanxin Law Firm was affixed thereto. Wang Shouzhi received the Witness Document on September 19.@# 2002年12月9日,王守智去世。原告王保富于2003年1月起诉至北京市海淀区人民法院,要求按照王守智的遗嘱继承遗产。2003年6月30日,北京市第一中级人民法院的终审判决认定:王守智所立遗嘱虽有本人、张合律师签字且加盖北京市三信律师事务所单位印章,但该遗嘱的形式与继承法律规定的自书、代书遗嘱必备条件不符,确认王守智所立遗嘱不符合遗嘱继承法定形式要件,判决王守智的遗产按法定继承处理。王保富因此提起本案诉讼,要求三信律师所赔偿经济损失。@#
On December 9, 2002, Wang Shouzhi died. In January 2003, Wang Baofu filed a lawsuit with the People's Court of Haidian District, Beijing Municipality to claim the bequests under Wang Shouzhi's will. On June 30, 2003, the No. 1 Intermediate People's Court of Beijing Municipality ruled in the final instance that, although the will made by Wang Shouzhi bore the signatures of Wang Shouzhi and Zhanghe and was affixed with the seal of Sanxin Law Firm, its form failed to comply with the essential requirements of autographic testament or allograph testament as prescribed in the Inheritance Law, and thus the court held that the will made by Wang Shouzhi failed to comply with the statutory formal essential elements of inheritance under a will and adjudicated that Wang Shouzhi's inheritance should be disposed of according to statutory succession. Wang Baofu, therefore, filed a lawsuit and claimed that Sanxin Law Firm should make a compensation for the economic loss as incurred.@# 经核实确认,按法定继承,原告王保富所得遗产比按遗嘱继承少114318.45元。@#
Upon verification and affirmation, the bequest as inherited by Wang Baofu according to the procedures for statutory succession was 114, 318. 45 yuan less than that subject to the procedures for inheritance under a will.@# 上述事实,有双方当事人陈述、《非诉讼委托代理协议》、《代理非诉讼委托书》、《见证书》、三信律师所接待笔录、(2003)海民初字第3229号民事判决书、(2003)一中民终字第5122号民事判决书等证据证实。@#
The above-given facts could be sufficiently confirmed by such evidences as the statements of both parities concerned, the Representative Agreement on Nonlitigious Entrustment, the Power of Attorney of Nonlitigious Entrustment, Witness Document, reception records of Sanxin Law Firm, the Civil Judgment No. 3229 [2003] of the People's Court of Haidian District, Beijing Municipality, Final Civil Judgment No. 5122 [2003] of the No. 1 Intermediate People's Court of Beijing Municipality.@# 北京市朝阳区人民法院认为:@#
The People's Court of Chaoyang District, Beijing Municipality held that:@# 律师事务所是依靠聘请律师去为委托人提供服务,从而获取相应对价的机构。继承法律规定,代书遗嘱应当有两个以上见证人在场见证,由其中一人代书,注明年、月、日,并由代书人、其他见证人和遗嘱人签名。律师与普通公民都有权利作代书遗嘱的见证人,但与普通公民相比,由律师作为见证人,律师就能以自己掌握的法律知识为立遗嘱人服务,使所立遗嘱符合法律要求,这正是立遗嘱人付出对价委托律师作为见证人的愿望所在。原告王保富的父亲王守智与被告三信律师所签订代理协议,其目的是通过律师提供法律服务,使自己所立的遗嘱产生法律效力。三信律师所明知王守智这一委托目的,应当指派两名以上的律师作为王守智立遗嘱时的见证人,或者向王守智告知仍需他人作为见证人,其所立遗嘱方能生效。但在双方签订的《非诉讼委托代理协议》书上,三信律师所仅注明委托事项及权限是“代为见证”。三信律师所不能以证据证明在签订协议时其已向王守智告知,代为见证的含义是指仅对王守智的签字行为负责,故应认定本案的代为见证含义是见证王守智所立的遗嘱。三信律师所称其只是为王守智的签字进行见证的抗辩理由,因证据不足,不能采纳。《非诉讼委托代理协议》的签约主体,是王守智和三信律师所,只有三信律师所才有权决定该所应当如何履行其与王守智签订的协议。张合只是三信律师所指派的律师,只能根据该所的指令办事,无权决定该所如何行动。三信律师所辩解,关于指派张合一人去作见证人的决定,是根据王守智对张合的委托作出的,这一抗辩理由不能成立。@#
A law firm is an organization that provides services for its entrusting parities by employing lawyers to obtain the relevant payment. As is provided for in the Inheritance Law, there shall be two or more witnesses on the site of allograph testament, one of whom shall scribe the legal documents therefor. The legal document as scribed shall indicate the specific year/month/date and shall be signed by the scrivener, other witnesses as well as the testator. A lawyer or a common citizen is entitled to act as a witness of allograph testament. However, as compared with a common citizen, a lawyer may, where acting as a witness, apply his legal knowledge to serve the testator so as to guarantee that the will as made complies with the statutory requirements, which is also the purpose for a person who makes a will to pay to entrust a lawyer to act as his witness. Wang shouzhi entered into the Representative Agreement with Sanxin Law Firm in order to enforce his will with the assistance of legal services as provided by a lawyer. Where Sanxin Law Firm was clearly aware of Wang Shouzhi's purpose on entrustment, it should designate two or more lawyers as witnesses for Wang Shouzhi's will or should inform Wang Shouzhi that another witness was required for the enforcement of his will. However, Sanxin Law Firm indicated in the Representative Agreement on Nonlitigious Entrustment as concluded by both parties that the entrusted matter as well as authority was “agent-based witness”. Sanxin Law Firm could not provide any evidence to testify that, it had, when concluding the Agreement with Wang Shouzhi, notified Wang Shouzhi that the meaning of agent-based witness was that Sanxin Law Firm was only responsible for Wang Shouzhi's act of signing a will. So it should be deemed that the meaning of agent-based witness in this case should refer to the witness of Wang Shouzhi making a will. The plea as claimed by Sanxin Law Firm that it only witnessed Wang Shouzhi's signature should not be accepted, as it failed to provide sufficient evidence. The subjects that concluded the Representative Agreement on Nonlitigious Entrustment should be Wang Shouzhi and Sanxin Law Firm so that it was Sanxin Law Firm that was entitled to decide how to perform the Agreement as concluded with Wang Shouzhi. Zhanghe was only a lawyer who was designated by Sanxin Law Firm to handle the relevant matters according to the instruction of Sanxin Law Firm and wasn't entitled to decide the proceeding. Sanxin Law Firm argued that the decision of designating only Zhanghe to act as the witness was made according to Wang Shouzhi's entrustment on Zhanghe. This plea could not be well established.@# 中华人民共和国民法通则》第一百零六条第二款规定:“公民、法人由于过错侵害国家的、集体的财产,侵害他人财产、人身的,应当承担民事责任。”被告三信律师所在履行与王守智签订的《非诉讼委托代理协议》时,未尽代理人应尽的职责,给委托人及遗嘱受益人造成损失,应当承担赔偿责任,但赔偿范围仅限于原告王保富因遗嘱无效而被减少的继承份额。虽然三信律师所在履行协议过程中有过错,但考虑到王保富在本案选择的是侵权之诉而非合同之诉,况且王守智的继承人并非只有王保富一人,故对王保富关于三信律师所应当退还王守智向其交付的代理费之诉讼请求,不予支持。三信律师所在代为见证王守智所立遗嘱过程中的过错,不必然导致王保富提起并坚持进行了两审继承诉讼,故对王保富关于三信律师所应当赔偿其在两审继承诉讼中付出的代理费和诉讼费之诉讼请求,亦不予支持。@#
Paragraph 2 of Article 106 of the General Principles of the Civil Law of the People's Republic of China prescribes that “Citizens and legal persons who, through their fault, encroach upon state or collective property, or the property or person of other people shall bear civil liability.” When performing the Representative Agreement on Nonlitigious Entrustment as concluded with Wang Shouzhi, Sanxin Law Firm failed to fulfill its obligatory responsibility as an agent, brought about losses to the entrusting person as well as the beneficiary of the will, and thus should be subject to the liabilities of compensation. The compensatory scope should be limited to Wang Baofu's deducted share in the inheritance due to the invalidity of the will. Although Sanxin Law Firm had fault in the performance of the Agreement, based on the fact that Wang Baofu chose to file an action on tort instead of a contract-related action and that there was other inheritors of Wang Shouzhi besides Wang Baofu, Wang Baofu's claim that Sanxin Law Firm should refund the agency fees as paid by Wang Shouzhi thereto should not be supported. The fault as committed by Sanxin Law Firm in the process of witnessing Wang Shouzhi's will might not necessarily cause Wang Baofu to file and go through two instances of action for inheritance. Therefore, Wang Baofu's claim that Sanxin Law Firm should compensate the agency fees and court hearing fees should not be supported.@# @#
PROCEDURAL POSTURE@# 据此,北京市朝阳区人民法院于2004年5月判决:@#
Therefore, the People's Court of Chaoyang District, Beijing Municipality adjudicated in May, 2004 that:@# 一、被告三信律师所于判决生效后7日内赔偿原告王保富经济损失114318.45元。@#
1. Sanxin Law Firm should compensate to Wang Baofu an economic loss of 114, 318. 45 yuan within 7 days as of the date when the judgment came into force.@# 二、驳回原告王保富的其他诉讼请求。@#
2. The other claims as filed by Wang Baofu should be rejected.@# 案件受理费4208元,由原告王保富负担412元,由被告别三信律师所负担3796元。@#
The case acceptance fee were 4, 208 yuan, 412 yuan of which should be borne by Wang Baofu, and 3, 796 of which should be borne by Sanxin Law Firm.@# 判决后,三信律师所不服,向北京市第二中级人民法院提出上诉,理由是:根据王守智与我所签订的协议,我所只是为王守智在遗嘱上的签字提供见证,不是为王守智立遗嘱的行为见证,遗嘱早就由他人代王守智写好。在履行这一《非诉讼委托代理协议》的过程中,王守智没有财产损失,不享有违约赔偿请求权。王守智所立的遗嘱,由于不具备法定形式要件而被法院认定无效,这与我所见证其签字的行为无关。《民法通则》第五十八条第二款规定,无效的民事行为,从行为开始时起就没有法律约束力。这就是说,从立遗嘱时起,被上诉人王保富就没有获得过依王守智的遗嘱继承财产的权利。现法院认定王保富按照法定继承获得王守智的遗产,这才是其应当享有的权利。王保富根本没有遭受过侵权损失,也就不享有侵权赔偿请求权。原审认定事实不清,适用法律错误,请求二审撤销原审判决第一项,改判驳回王保富的全部诉讼请求。@#
After the judgment was announced, Sanxin Law Firm refused to accept it and filed an appeal with the No. 2 Intermediate People's Court of Beijing Municipality, claiming that: According to the agreement it had concluded with Wang Shouzhi, Sanxin Law Firm only provided the witness of Wang Shouzhi signing a will but not provide the witness of Wang Shouzhi making a will, where the will had already been written on Wang Shouzhi' s behalf. In the process of performing the Representative Agreement on Nonlitigious Entrustment, Wang Shouzhi had no property loss so that he could not enjoy the right to claim any compensation for contractual breach. The will made by Wang Shouzhi had been ruled by the court as invalid due to its failure to comply with the statutory essential elements, which had nothing to do with the signature witness conducted by Sanxin Law Firm. Paragraph 2 of Article 58 of the General Principles of the Civil Law prescribes that: “Civil acts that are null and void shall not be legally binding from the very beginning.” That is to say, as of the date when the will was made, the respondent had no right to inherit the property under Wang Shouzhi's will. The court had ruled that Wang Baofu should inherit the property according to the statutory succession, which was the very right that Wang Baofu might enjoy. Wang Baofu hadn't suffered any loss from tort, and thereby might not enjoy the right to claim any tortious compensation. Therefore, the original judgment was based on ill-established evidence and wrong application of law. Sanxin Law Firm pleaded to overrule item (1) of the original judgment and adjudicate to reject all of Wang Baofu's claims in the second instance.@# 被上诉人王保富同意原判。@#
The respondent agreed with the original judgment.@# 北京市第二中级人民法院经审理,确认了一审查明的事实。@#
Upon hearing, the No. 2 Intermediate People's Court of Beijing Municipality affirmed the facts as ascertained in the first instance.@# @#
DISPUTED ISSUES@# 本案争议焦点为:(1)三信律师所“代为见证”的,究竟是王守智在遗嘱上签字的行为,还是王守智立遗嘱的行为?(2)三信律师所的见证行为是否侵犯王保富的民事权利,应否承担赔偿责任?@#
The focuses of the disputes in this case were: (1) whether the “agent-based witness” of Sanxin Law Firm was the witness of Wang Shouzhi's signing a will or the witness of Wang Shouzhi making a will, and (2) whether the witness of Sanxin Law Firm injured Wang Baofu's civil right and Sanxin Law Firm should, therefore, bear the compensation liabilities.@# @#
JUDGMENT'S REASONING@# 北京市第二中级人民法院认为:@#
The No. 2 Intermediate People's Court of Beijing Municipality held that:@# 中华人民共和国律师法》第二条规定:“本法所称的律师,是指依法取得律师执业证书,为社会提供法律服务的执业人员。”第十五条第一款规定:“律师事务所是律师的执业机构。”第二十七条规定:“律师担任诉讼法律事务代理人或者非诉讼法律事务代理人的,应当在受委托的权限内,维护委托人的合法权益。”公民在不具有法律专业知识,又想使自己的行为符合法律要求时,通常向律师求助。律师是熟悉法律事务,为社会提供法律服务的专业人员。律师在担任非诉讼法律事务代理人时,应当在受委托的权限内,维护委托人的合法权益。被上诉人王保富的父亲王守智委托上诉人三信律师所办理见证事宜,目的是通过熟悉法律事务的专业人员提供法律服务,使其所立遗嘱具有法律效力。作为专门从事法律服务的机构,三信律师所应当明知王守智的这一签约目的,有义务为王守智提供完善的法律服务,以维护委托人的合法权益。三信律师所不能以证据证明其与王守智约定的“代为见证”,只是见证签字者的身份和签字行为的真实性;也不能以证据证明在签约时,该所已向王守智明确告知其仅是对签字见证而非对遗嘱见证,故应当承担举证不能的不利后果。三信律师所上诉主张其仅为王守智签字行为的真实性提供见证,没有证据支持,不予采信。@#
Article 2 of the Law of the People's Republic of China on Lawyers prescribes that: “The term ‘lawyer' as mentioned in this Law means a practitioner who has acquired a lawyer's practice certificate pursuant to law and provides legal services to the public.” Paragraph 1 of Article 15 of the Law of the People's Republic of China on Lawyers prescribes that: “A law firm is an organization in which lawyers practice.” Article 27 of the Law of the People's Republic of China on Lawyers prescribes that: “A lawyer acting as an representative in litigation or nonlitigious legal affairs shall, within the limits of entrustment, protect the lawful rights and interests of the entrusting party.” Therefore, when a citizen lacks the relevant legal knowledge but desires to enable his act to comply with the statutory requirements, he goes to a lawyer for assistance. A lawyer is a special person who is familiar with legal affairs and provides legal services to the general public. A lawyer shall, when assuming the role of attorney for nonlitigious legal affairs, safeguard the legitimate rights and interests of the entrusting party within the entrusted authority. Wang Shouzhi entrusted Sanxin Law Firm to handle the matter of witness for the purpose of enforcing his will on a legal basis through the legal services as provided by legal professionals who are familiar with legal affairs. As an institution that is specialized in legal services, Sanxin Law Firm must be aware of Wang Shouzhi's purpose in concluding an agreement therewith and thus shall be obliged to provide complete legal services for Wang Shouzhi so as to safeguard the legitimate rights and interests of the entrusting party. Sanxin Law Firm failed to provide the relevant evidence to prove that the stipulation of “agent-based witness” as concluded with Wang Shouzhi was just to witness the authenticity of the identification of the signing party as well as of the act of signing. Neither could it provide the relevant evidence to prove that, when concluding the agreement, the firm had clearly notified Wang Shouzhi that it just witnessed the process of signing a will but not the process of making a will. Therefore, Sanxin Law Firm should bear the unfavorable outcomes resulting from the failure to produce evidence. The allegations of Sanxin Law Firm that it only provided the witness service for the authenticity of Wang Shouzhi signing a will had no evidential ground and should not be accepted.@# 中华人民共和国律师法》第四十九条第一款规定:“律师违法执业或者因过错给当事人造成损失的,由其所在的律师事务所承担赔偿责任。律师事务所赔偿后,可以向有故意或者重大过失行为的律师追偿。”王守智立遗嘱行为的本意,是要将遗嘱中所指的财产交由被上诉人王保富继承。由于上诉人三信律师所接受王守智的委托后,在“代为见证”王守智立遗嘱的过程中,没有给王守智提供完善的法律服务,以至王守智所立的遗嘱被人民法院生效判决确认为无效,王守智的遗愿不能实现。无效的民事行为自然是从行为开始时起就没有法律约束力,但这只是说王保富不能依法获得遗嘱继承的权利,不是说王守智从来不想或者不能通过立遗嘱把自己的财产交由王保富继承,更不是说王保富根本就不能通过遗嘱继承的途径来取得王守智遗产。王保富现在不能按遗嘱来继承王守智遗产的根本原因,是三信律师所没有给王守智提供完善的法律服务,以至王守智立下了无效遗嘱。三信律师所履行自己职责中的过错,侵害了王保富依遗嘱继承王守智遗产的权利,由此给王保富造成损失,应当承担赔偿责任。@#
Paragraph 1 of Article 49 of the Law of the People's Republic of China on Lawyers prescribes that: “If a lawyer practices illegally or causes losses to a party concerned due to his fault, the law firm in which he practices shall bear the liability for compensation. After paying compensation, the law firm may recover the losses from the lawyer who acted intentionally or committed gross negligence.” Wang Shouzhi's real intention in making a will was to pass the property as mentioned in the will to Wang Baofu. As Sanxin Law Frim, after accepting Wang Shouzhi's entrustment, failed to provide complete legal services in the process of “agent-based witness” of Wang Shouzhi making a will so that the will made by Wang Shouzhi was ruled as invalid by the court and Wang Shouzhi's wish wasn't able to come true. An invalid civil act has no legal biding force from the very beginning. However, that only indicates that Wang Baofu was unable to obtain the right of inheritance under a will according to law but not that Wang Shouzhi never thought of handing over his property to Wang Baofu or could not do so through making a will and nor that Wang Baofu could not, on a fundamental basis, obtain Wang Shouzhi's inheritance by means of inheritance under a will. The fundamental reason why Wang Baofu couldn't inherit Wang Shouzhi's inheritance laid in Sanxin Law Firm's failure to provide complete legal services, which caused the invalidity of the will made by Wang Shouzhi. The fault of Sanxin Law Firm in the performance of its obligations had injured Wang Baofu's right to inherit Wang Shouzhi's inheritance under a will and thus incurred loss to Wang Baofu. Therefore it should bear the compensation liabilities.@# @#
JUDGMENT@# 综上,原审认定事实清楚,依照《中华人民共和国民法通则》第一百零六条第二款的规定判决上诉人三信律师所赔偿被上诉人王保富因不能按遗嘱继承而遭受的财产损失,适用法律正确,处理并无不当,应当维持。三信律师所的上诉理由均不能成立,应当驳回。据此,北京市第二中级人民法院依照《中华人民共和国民事诉讼法》第一百五十三条第一款第(一)项的规定,于2004年12月1日判决:@#
To sum up, the facts were clear in the original instances and, according to the provisions of paragraph 2 of Article 106 of the General Principles of the Civil Law of the People's Republic of China, the judgment that Sanxin Law Firm should compensate for the property losses Wang Shouzhi suffered due to failure to inherit the bequests under the will was based on correct application of law. The sentence was correct and thus should be sustained. None of Sanxin Law Firm's claim in its appeal was well-established and all should be rejected. Therefore, the No. 2 Intermediate People's Court of Beijing Municipality adjudicated in December, 2004 according to item (1) of paragraph 1 of Article 153 of the Civil Procedure Law of the People's Republic of China that:@# 驳回上诉,维持原判。@#
The appeal should be rejected and the original judgment should be sustained.@# 一审案件受理费按一审判决执行;二审案件受理费4208元,由上诉人三信律师所负担。@#
The acceptance fee of the first instance should be implemented according to the first instance. The 4, 208 yuan of acceptance fee in the second instance should be borne by Sanxin Law Firm.@# 本判决为终审判决。@#
The present judgment should be final.

 

     
     
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