Lawyers are both traditional and modern. From ancient Rome in the third century BC to today in the 21st century, lawyers have always played an important role in social life. Lawyers undertake the glorious mission of safeguarding the legitimate rights and interests of the parties, safeguarding the normal implementation of the law, and safeguarding social fairness and upholding justice. Among them, safeguarding the legal rights of the parties is the most fundamental. Lawyers maintain the normal implementation of the law and realize the society by safeguarding the legal rights of the parties. Fairness and justice. The process of safeguarding the legitimate rights and interests of the parties is mainly the technical process of applying the law based on evidence. In the modern society where the spirit of innovation is increasingly valued, this understanding can no longer cover the entire practice process of lawyers, because the technical practice process is being controlled by lawyers. Creative thinking gradually becomes artistic. The success of this case and the ultimate achievement of the predetermined goals are the result of the lawyer's creative thinking.

1. The case

On April 21, 1993, Henan Province in Guangzhou Trade Development Corporation (hereinafter referred to as the Guangzhou company) signed an agreement with the Fourth Chemical Plant (hereinafter referred to as the Chemical Plant) in a county (subordinate to Jiaozuo City) in Henan Province. The agreement stipulates: Chemical Plant Supplying 12 70-type bulldozers to Zhuguang Company, each with a unit price of 73,000 yuan. Zhuguang Company will process a remittance of 816,000 yuan according to the third party account designated by the chemical plant. The chemical plant is also responsible for handling transportation and guarantees that the truck will be loaded before June 15, 1993. After the signing of the agreement, the Guangzhou company transferred the third party to the old cadre of Luoyang No. 1 Tractor Manufacturing Factory Economic and Technological Development Company Comprehensive Machinery Repair Factory (hereinafter referred to as the Repair Factory) account of 816,000 yuan, and paid 12,000 yuan to the chemical factory for car skins. The repair factory wrote In order to ensure that the 12 70-type bulldozers are qualified and authentic, it also emphasizes that the delivery location is the warehouse of Luotuo Factory. When picking up the goods, the staff of the Guangzhou company should be present and the invoice delivery list should be delivered to them. However, the chemical plant did not notify the Guangzhou company to pick up the goods in May, and used the bill of lading to directly bring 12 bulldozers to the chemical plant yard from the third-party repair plant. Relevant departments of the Guangzhou company found after inspection that these 12 70-type bulldozers were not genuine original products from Luotuo Factory as agreed in the agreement between the two parties, but were patchwork substandard products.

After the dispute arose, in order to protect the interests of the company, the Guangzhou company prepared to file a lawsuit with the Intermediate People's Court of Jiaozuo City, Henan Province to recover the loss of 862,000 yuan that it had paid to the repair factory, and entrusted the author to appear in court as its attorney. On July 20, 1993, as the entrusted agent of this case, the author filed a complaint with the Intermediate People’s Court of Jiaozuo City, Henan Province, with the chemical plant as the defendant and the repairing plant as the third party, and requested the court to order the defendant and the third party. The person repaid the company in Guangzhou with a payment of RMB 822,000 and compensated for the economic losses caused to the company in Guangzhou.

After the case entered the litigation proceedings, the defendant Chemical Factory stated in the statement of defense submitted to the court that “The agreement signed between the Guangzhou Company and it required the plaintiff to pay the third party in this case by April 22, 1993. However, in addition to the timely remittance of RMB 816,000 to the first tractor manufacturer and the payment of RMB 12,000 for the car, the plaintiff still has RMB 63,600 in arrears.” This led to the conclusion that “the plaintiff lacked serious performance from the beginning. The sincerity of the agreement, deliberately deceived my unit", and insisted that the stationed company "(1993) June 2nd, the plaintiff applied to the freight station for temporary non-delivery" application, it was the stationed company’s breach of contract, and it was conclusive. It stated that "the plaintiff first defaulted and failed to pay the goods, and again defaulted and failed to inspect the goods on time, and the result was that the goods were not picked up on time." The author pointed out tit-for-tat and pointed out: The plaintiff had paid the third party's purchase price of 816,000 yuan and the cost of the car in full. It was not the defendant's lack of sincerity and deliberate deception to perform the agreement seriously at the beginning. The plaintiff’s failure to take delivery of the goods was based on the fact that the goods were found to be counterfeit after inspection, and the exercise of the right of first performance defense was not the intentional breach of contract as the defendant said. At the same time, in response to the defendant’s actions in this case, the author first provided evidence to prove that the agreement signed between the Guangzhou company and the defendant’s chemical plant was an invalid contract; secondly, it provided evidence to prove that the third party and the defendant were against each other in this case. The plaintiff’s series of acts were malicious collusion, deceived the plaintiff, and harmed the plaintiff’s interests, and they were also invalid. Finally, the author listed the legal basis for supporting this party’s claims. In this case, the key to supporting the author’s agency opinion, leading to the agreement signed between the Guangzhou company and the defendant’s chemical plant, and the third party and the defendant’s invalidation of the plaintiff’s actions in this case is that these 12 70 bulldozers belong to Counterfeit goods.

Regarding whether the 12 70 bulldozers in this case are counterfeit products. The third-party repair factory stated in its defense that it had no legal relationship with Zhuguang Company and ignored the facts, claiming that "12 70 bulldozers are indeed qualified products." In order to prove that the 12 70 bulldozers in the repair factory were assembled counterfeit products, the author represented the client and issued the Jiaozuo Technical Supervision Bureau "Technical Inspection Report on the 12 Bulldozers in the Fourth Chemical Plant of a County" to the court. The report identified the chemical plant The twelve bulldozers parked in the courtyard of the fourth factory are counterfeit products, and the bureau has seized their bulldozers. At the same time, we also issued to the court the "Current Host Product Price List" issued by the Sales and Service Company of Luoyang No. 1 Tractor Manufacturing Factory to prove that the chemical plant and the repair factory sold the assembled fake and inferior products to our company at the price of genuine products. Obvious fraud.

After a public hearing, on September 16, 1993, the Intermediate People’s Court of Jiaozuo City, Henan Province issued (1993) Jiao Jingchu No. 120 Economic Judgment. The judgment adopted the opinion of the plaintiff’s agent and determined that: The Turkish agreement, because the defendant deliberately concealed the important fact that it was an old bulldozer, and used shoddy as good and fake as genuine. There was obvious fraud, and the agreement should be deemed invalid. Although the third party has no contractual relationship with the plaintiff, when the plaintiff paid the money, it issued a letter of guarantee to deceive the plaintiff, deliberately concealing that the batch of bulldozers were substandard products produced by itself, and asked the defendant to pay the price without submitting the freight bill A total of 816,000 goods were picked up. The above facts proved that the third party had deliberately communicated with the defendant maliciously to infringe the interests of the plaintiff, and the technical supervision department has identified the batch of bulldozers as fake and shoddy products. The third party bears certain responsibilities in this dispute. Judgment: 1. The agreement signed on April 21, 1993 between the plaintiff and the defendant is invalid. 2. This court lawfully recovered the defendant's 12,000 yuan from the plaintiff and the return of interest. 3. This court recovers the 816,000 yuan and interest return claims obtained by the comprehensive repair and manufacturing plant from the plaintiff in accordance with the law. 4. The defendant's counterclaim request was rejected.

The result of the judgment achieved the entrusted purpose of the parties, and also achieved the goal that the author had set when he accepted the agency for this case. The victory in this case is a victory of justice on the one hand, and a victory of the art of lawyers on the other. In the case of the purchase and sale contract dispute that the author represented, from taking over the case, to planning a specific litigation plan, to investigation and evidence collection, court debates, etc., a series of processes made the author deeply feel that as a full-time lawyer, it is necessary to handle For good cases, to satisfy the client, it is not enough to rely solely on familiarity and understanding of some legal provisions. It requires an overall grasp of a country’s legal system, a thorough understanding of the spirit and philosophy of the law, and a practical approach from multiple perspectives. Design a set of practical litigation plan for the client. The success of an excellent lawyer is often based on the success of his thinking art supported by his legal theoretical foundation and practical experience.

2. The lawyer's handling of the case

(1) Handling before litigation

After accepting the entrustment, after studying the case in detail, the author found that the Guangzhou company and the chemical plant signed a purchasing agency sales contract, entrusting the chemical plant to purchase the bulldozers of the Luotuo plant, but there is no direct sale between the Guangzhou company and the repairing plant. The contractual relationship is the sale and purchase contract signed between the chemical plant and the repairing factory, but in fact, the 816,000 yuan payment was directly transferred to the bank account of the repairing factory by the Guangzhou company. How to claim the payment for the goods? Reply is the fundamental purpose of the Guangdong company entrusting the author to proceed with the lawsuit. Therefore, the pre-litigation of this case is mainly to prove that there is malicious collusion between the chemical plant and the repairing plant to damage the plaintiff, thereby breaking through the principle of relativity of debt, and then making the repairing plant a party in this case.

According to the principle of relativity of debt, if the company in Guangzhou claims a breach of contract with the chemical plant and sues the other party to the court, it can only claim compensation from the chemical plant, even if the lawsuit wins the court’s support. The payment made by Guangzhou company can only ask the court to enforce the chemical plant. Moreover, since there is no direct contractual relationship between the Guangzhou company and the repair factory, there is no way to list him as a co-defendant when the lawsuit is filed. However, the situation at that time was that the chemical plant was unable to repay the payment. How to directly recover the payment for the client from the repair factory and recover the client's loss in time became a difficult problem for the author at that time. Whether the principle of the relativity of debt can be broken through in this case has become the key to whether the repair factory can be brought into the lawsuit. This requires the lawyer handling the case to have a detailed study and a more in-depth understanding of some legal theoretical issues. The mastery of legal knowledge and the understanding of the changes in legal principles in social practice are the prerequisites for the formation of creative thinking in lawyers’ litigation. And foundation.

The principle of the relativity of debt originated in the Roman period. In Roman law, debt is called "legal lock". On the one hand, the meaning of debt is that as a legal "chain", both parties of the debt are locked together, and both parties are bound. , No party may destroy arbitrarily; on the other hand, it also shows that the debt is only binding on the creditor and the debtor, and the third party outside the debt is free. The principle established by Roman law had a significant impact on the two legal systems. Both legal systems believe that the relativity of debt means that the effect of the debt is limited to the party to the debt. The creditor's rights can generally only be exercised by the creditor, and the debt can generally only be performed by the debtor. There is no third party that has a creditor's debt relationship with the party. , Shall not claim rights from the parties based on the relationship of the debt, and shall not assume the obligations or liabilities arising from the relationship of the debt. The establishment of this principle is a generalization of the nature of debt, distinguishing between creditor’s rights and real rights, and at the same time reflects the need for the principle of autonomy of will, is the prerequisite for the existence and development of the principle of freedom of contract, and conforms to the development of social values at that time . However, with the development of market economy and transaction relations, the debt-law relationship has undergone tremendous changes, and the freedom of contract has also exposed many drawbacks. Sometimes contract freedom is used by people with ulterior motives as a shield against normal trading order, as a natural excuse for the strong to deceive and predicate the weak, and the principle of contract relativity has become their usual trick to shirk responsibility. Therefore, the necessary restrictions on contract freedom, the amendment of "contract justice" and the amendment of "contract freedom" are recognized by legislators. The legislation introduces the liability for negligence in contracting based on the principle of good faith in traditional contracts. Protection has also been widely recognized. In addition, the legislator also stipulated the system of preservation of debts, the system of signing contracts for third parties, the system of third parties infringement of creditor's rights and their liabilities, etc. at the specific legal level. These are undoubtedly admonishing civil affairs in a legal language. Both parties to the event must respect the interests of others in the transaction process, treat others with sincerity, abide by credit, actively exercise their rights, fulfill their obligations, and do not expect to use others’ omissions or contract flaws to evade obligations and evade performance .

Lawyers’ mastery of legal knowledge and understanding of the evolution of legal principles in practice can light up a beacon and open doors and windows for themselves in related cases they undertake, so that they have sufficient reasons to believe that they can design a set of litigation The plan is recognized by the referee’s judgment and achieves the client’s purpose, but it is far from enough for lawyers to only understand these, and they need to transform their own understanding of the law and legal thinking into guidance from this in practice A series of actions. The spark of thinking is not only ignited by empty legal knowledge, and the breakthrough point of the case is not found aimlessly in the law. The author knows that to find an effective litigation plan, we must have a deeper understanding of the facts of the case, and facts are facts proved by evidence, and every little piece of evidence in the case may find a solution for us. Provide the most beneficial clues. The author spent a lot of time in the early stage of the litigation to retrieve the original agreement between the Guangzhou company and the chemical plant, the original sales contract between the chemical plant and the repair plant, the legal person business licenses of multiple parties, witness testimony, guarantee documents, relevant bills of exchange, invoices, etc. A series of evidence materials such as product certificate, warranty card, technical inspection report of bulldozer and product price list. By listening to the client and relevant witnesses and analyzing the evidence materials, the author found that the existing evidence materials were sufficient to prove that the chemical plant had deliberately deceived when signing the agreement with the Zhuguang company, and colluded with the workshop to sell the counterfeit to the Zhuguang company. The patchwork bulldozer is posing as a genuine product. The fraudulent behavior seriously violates the basic spirit of the civil law and the basic norms of civil society. The fraudulent behavior of chemical plants and repairing plants has become a breakthrough point designed by the author to bring both parties to the trial table together.

In civil society, good faith is the most basic principle of commodity transactions. This is not only the basic guarantee for party autonomy, but also the guarantee for maintaining the normal operation of social life and the orderly progress of economic life. Only by acting honestly and credibly, can both parties fully understand the counterparty and express their needs to maximize their own interests. Once the will of the transaction participants is restricted based on one party’s fraudulent behavior, it will not only It is a kind of destruction to the mechanism of social transactions, and it is also a kind of trampling on people's independent choice and desire to grasp their own destiny. As a repair factory, even if it does not have a direct contractual relationship with the Zhuguang company, its malicious collusion with the chemical plant to deceive the Zhuguang company into entering into a contract is an objective existence, and it is precisely based on its “false” assurance that the bulldozer is genuine , The Guangzhou company signed an agreement with the chemical plant and paid the purchase price in full immediately. The repair factory has an inescapable responsibility for this. The Guangzhou company is sufficient to comply with the provisions of Article 56 of the Civil Procedure Law of the People’s Republic of China, that is, " Although the third party has no independent right to claim the subject matter of the litigation of both parties, if the outcome of the case has a legal interest in him, he may apply to participate in the litigation, or the people's court may notify him to participate in the litigation. The people's court decides to bear civil liability The third party has the litigation rights and obligations of the litigant,” and he is listed as a third party without independent claim to pursue his legal responsibility.

Regarding the definition of a third party without independent claim rights in civil litigation, some believe that “a third party without an independent claim right is relative to a third party with an independent claim right, which means that although there is no relationship between the plaintiff and the defendant, The subject of the litigation claims an independent right to claim, but has a legal interest in the outcome of the case and applies to participate in the litigation or the court notifies the person participating in the litigation. Some people think: “There is no third party with independent right to claim in civil litigation. It refers to a person who has no independent right to claim the subject matter of the litigation disputed by others, but has a legal interest in the outcome of the case, and therefore participates in the litigation that the party has started.” In summary, as a civil lawsuit The third party without independent claim rights in the litigation should have the following characteristics: First, the third party without independent claim rights should not have independent claim rights on the subject matter of the litigation between the parties to the litigation. This feature is the key to distinguishing third parties without independent claims from third parties with independent claims and joint litigants. However, there are different opinions in the theoretical circles about the status of the party who does not have the right to claim. One view is that since a third party without independent claim has no independent claim, he can only act in the lawsuit. An assistant of a party provides evidence and debates for him from the standpoint of the party. A third party without independent claim is always attached to the plaintiff or defendant, and the interests are often the same as the plaintiff or defendant, but they are not the plaintiff or defendant of the case. The purpose of their application to participate in the litigation or being notified by the court to participate in the litigation is to help or support one party , Oppose the other party, thereby safeguarding their own interests. Another point of view is that the participation of a third party without an independent right of claim is actually a combined trial, and the outcome of the case is involved in the interests of the case, and the plaintiff’s lawsuit against the defendant is the same as the defendant or the plaintiff. The involvement between the three people's suits. Second, the outcome of the case has a legal interest in a third party without independent claim. Regarding the judgment of this kind of interest, there are currently different opinions in the theoretical circles. Some believe that "the legal relationship between the third party and one of the parties is implicated in the rights and obligations of the legal relationship between the parties. Once a party loses the lawsuit , The losing party has the right to demand compensation from related parties or assume obligations.” Some people think: “It refers to the existence of a certain physical legal relationship between the third party and one of the parties in this lawsuit. The three persons have the right to claim return or compensation that may exist based on a certain entity relationship." Others believe that this kind of interest is "the realization of the rights and obligations in the legal relationship between the parties in this lawsuit is implicated in the non-performance of the obligations of the third party without independent claim rights." Third, the ways for third parties without independent claims to participate in litigation include their own application to participate and the court to notify them to participate ex officio. As far as the first method of participation is concerned, the parties choose litigation in order to protect their civil rights and interests. Based on the stability and authority of the litigation procedure itself, the parties can make reasonable expectations of the consequences of their own litigation actions, and carry out sufficient proof and Defence and have the confidence to lead the procedure to a favorable judgment. This is the intended meaning of procedural justice. As far as the second way of participation is concerned, giving the court the right to compel a third person to join after review can more flexibly maintain the justice of the entity, better protect the interests of one party, and realize the justice of the individual case. Finally, the people's court judged that the third party who bears civil liability has the litigant rights and obligations of the party. If a third party without independent right to claim loses a lawsuit, it can also file an appeal or apply for a retrial. However, it is undeniable that before the commencement of the lawsuit, the third party loses its right to choose regional jurisdiction and level jurisdiction, which is its disadvantage.

In order to recover the payment already paid by the Guangzhou company, the author first determined the litigation status of the third party who has no independent claim right through the appeal analysis. At the same time, considering that the chemical plant and the repair plant deliberately fraudulently obtained the payment when signing the agreement, in order to prevent the payment of this case from being hidden and making it difficult to execute after the judgment, the author follows the provisions of Article 92 of the Civil Procedure Law In the name of the Guangzhou company, an application for property preservation was filed to the court to apply for the court to freeze the accounts of the chemical plant and repair plant and seize the property. Through the above actions, the author has done a good job in the prosecution stage, and then enters the litigation process.

(2) Handling in litigation

In the proxy statement submitted to the court, the author divided the ideas of the case designed for the client into three parts. First, the agreement signed between Zhuguang Company and the defendant chemical plant in this case is an invalid contract. Before signing the agreement, the plaintiff in this case repeatedly emphasized that what he wanted was the authentic goods produced by Luotuo's large factory, and clearly stated in the agreement that the product quality requirements were "Luotuo bulldozers", and the price was 73,000 yuan. The price of authentic goods from the factory. Before the plaintiff signed the agreement, the defendant had signed an agreement with a third party to assemble 70 bulldozers, and the fact that the bulldozer to be supplied to the plaintiff was "assembled" by a third party has been concealed, which violates the plaintiff's true will. According to the provisions of Article 7, Paragraph 1, Item 3 of the "Economic Contract Law of the People's Republic of China" that was being implemented at that time: an economic contract signed by means of fraud, coercion, etc. is an invalid economic contract, and an invalid economic contract shall start from the date of signing Since then, there is no legal binding force, and the responsibility is entirely borne by the party that caused the contract to be invalid.

Second, a series of actions by the third party and the defendant against the plaintiff in this case should also be invalid. After a series of evidence and court investigations obtained by our side, it can be proved that the third party and the defendant had malicious collusion in this case, which harmed the interests of the plaintiff. First of all, before the plaintiff paid the payment, because the plaintiff proposed to sell the authentic goods of the big factory, the third party issued two written guarantees saying: "Buy" or "buy" 70 bulldozers from my company, but actually Both the third person and the defendant knew very well that these bulldozers were not "purchased" or "purchased", but were assembled by the third person himself. In this regard, the third party and the defendant also admitted in the trial. Secondly, since it is necessary to ensure that it is an authentic product produced by a large manufacturer of Luotuo Factory, it is clearly stated in the two written guarantees that it is a qualified product. In fact, these bulldozers were assembled by a third party when the third party signed the contract with the defendant. When the third party handed over to the defendant, it became a "refurbishment", but in fact it was a bulldozer assembly. Thirdly, in order to ensure that the plaintiff can deliver the authentic goods from the major factory, the plaintiff should be present at the time of delivery, and use the bill of lading as proof. However, the third party brought the goods worth 816,000 yuan to the defendant’s factory without the defendant taking the bill of lading or notifying the plaintiff. Finally, in order to pretend to be the authentic goods of the big factory, the authentic product trademark "Dongfanghong" is marked on the head of the bulldozer provided by the third party. According to Article 37, Item 12 of the "Trademark Law": "Using the same or similar trademark on the same product or similar product without the permission of the registered trademark owner is an act of infringing on the exclusive right to use a trademark." Luotuo Factory did not agree to any other units to use their trademarks. Therefore, the Jiaozuo Technical Supervision Bureau concluded after inspection: this bulldozer is a fake and shoddy product. Based on this, the author believes that the actions of the third party and the defendant are malicious attempts to deceive the plaintiff and harm the interests of the plaintiff. "General Principles of the Civil Law" Article 58 Item 3 and 4: "A party uses fraud, coercion or taking advantage of the danger to make the other party act in violation of the true meaning; malicious collusion harms the country, the collective or a third party Interests "should be recognized as invalid civil acts, and have no legal binding force from the beginning of the act."

The two parts of the appeal characterize the case from the perspective of law and evidence, but this is only part of the completion of the litigation plan. The entrusting company in Guangzhou wants to recover the payment from a third party through litigation. Therefore, Let the judge hearing the case agree that this part of the characterization is the basis, but this is far from reaching the client's purpose, and far from showing the level of a professional lawyer. In the third part of the attorney, the author expressed his opinions on the handling of the case, so that the judge can accept the advice of one party’s agent on handling the case, which requires the art of a lawyer.

Third, the case handling opinions presented to the court as an attorney should be supported by a legal basis. Based on the facts proved by the evidence in his own litigation plan, the lawyer's art of handling is a matter of course. The author proposes that according to Article 16 of the "Economic Contract Law," if a contract that violates the national interest or social public interest, if only one party is deliberate, the deliberate party should return the property acquired from the other party to the other party. The proceeds from the defendant shall be recovered, and the defendant shall compensate the plaintiff for the losses caused. According to Article 61, paragraph 3 of the "General Principles of the Civil Law": if the two parties have maliciously colluded to damage the interests of the state, the collective or the third party, the property of both parties shall be recovered and returned to the state or collective or returned The third person. Therefore, in this case, the third party and the defendant should recover the plaintiff's money, return to the plaintiff, and compensate the plaintiff for the losses in accordance with the first paragraph of this article.

After handling the case before and during the litigation, the repair factory became the third party without independent claim right to participate in the litigation, and returned the 816,000 yuan and interest obtained from the Guangzhou company, achieving the author's goal for this case. Effectively safeguard the legal interests of the principal agent. It can be seen that the lawyer's agency process, while safeguarding the interests of the attorney, also artistically demonstrates the perfect integration of legal theory, practical experience, and wisdom.

3. Lawyer Art

The so-called art of lawyers, the author believes, refers to the creativity of lawyers on the basis of professionalism. Among them, the professionalism of lawyers is the basis for forming the art of lawyers, and it is also the essence of the art of lawyers that distinguishes them from other art; the creativity of lawyers is the guarantee for the art of the lawyer's case-handling process. Therefore, the art of lawyers includes the two aspects of lawyers' professionalism and creativity, which are both closely related and different from each other.

(1) Professionalism of lawyers

As a profession, as early as the third century BC, in ancient Rome, the emperor at that time was identified as a "major clergyman" in the form of an edict, engaged in the work of "providing civilians to consult legal matters", and also represented others in litigation. behavior. In Western society, the earliest form of litigation is debate. The parties have equal litigation status. They can fully state their views in court and refute the other party's litigation claims. The judge makes judgments based on the results of the debate between the two parties. This litigation structure makes professional The emergence of lawyer groups has become possible, and it has also determined that lawyers, as a profession, provide services for maximizing the interests of their clients. The professional characteristics of lawyers determine that lawyers must stand in the position of the client and seek solutions that are in line with the interests of the client from contradictory opposition, instead of judging issues from a fair standpoint like a judge. This is the need of the lawyer profession. It is also the original intention of the client to hire a lawyer to provide services for him.

As a member of the legal community, lawyers realize their own belief in the law and realize the value pursuit of social fairness and justice, which is reflected on the basis of better safeguarding the interests of the parties. Professor Zhu Suli pointed out in the article "Reading "Towards the Age of Rights": "Lawyers may be more concerned with protecting civil rights, but this is not because they-on the whole-are morally higher than the average person in society, but because He is concerned about his professional interests, and it is in the process of pursuing professional interests that they play a role in safeguarding civil rights.” Therefore, as a professional lawyer, in the process of representing clients in litigation and providing legal services for them, The first thing I think of is how to create a legal and efficient path through my professional knowledge and wisdom, so that the interests of the parties can be effectively protected within the framework of the law. This protection does not stop at a judgment that is difficult to enforce on a piece of paper. It is not only to win legal and moral support and sympathy for the parties, but more importantly, to protect the interests of the parties from loss or to maximize the recovery of the losses that have been caused to the parties. The well-known barrister Mr. Zhang Sizhi defined an excellent lawyer in this way. He said: “A good lawyer should have the wisdom of a philosopher, the passion of a poet, the quality of a jurist, and the position of a politician. The four are unified in the scientific mission and professional conscience. Social justice."

As a member of the legal community, lawyers also determine that they must have a specific way of thinking in practice, and that they must think and analyze issues in accordance with the logic of law in the decision-making process. This way of thinking is divided by some scholars into "practical thinking based on law" and "theoretical thinking about law". The former requires lawyers to handle cases and legal issues in accordance with the existing provisions of the law, while the latter requires lawyers to think about what is behind the legal text, and requires lawyers to share the language, ideas and culture of a nation with other members of society as a legal person. Only when lawyers finally transform their legal thinking into public thinking, can they be recognized by the public. We are more willing to say that the thinking of lawyers is developed from people's various thinking on legal issues. The difference may only be that lawyers have deeper and more persistent and creative thinking about the law and legal language. It is precisely because of this kind of thinking that legal professional skills exist, and it is also because of these thinking that a group of social elites in the profession of lawyers, through rigorous training, have more autonomy and freedom of thought, consciousness, concepts and attitudes. The wonderful work of ”began to bloom in the thinking, a kind of professional charm began to appear in the thinking.

(2) The creativity of lawyers

The profession of a lawyer is more like an art. It is different from the breathtaking and beautiful melody in the music created by musicians, but it is also the value aesthetic of a group of legal professionals for the ideal of fairness and justice; it is different from the gorgeous colors and images in the artist’s inner world depicted on the painter’s cardboard, but It is also the true essence of legal practice interpreted by a group of legal persons with their belief in the law, the rights consciousness of the world and universal values; it is different from the staged interpretation of real life by performers, but it is also used by a group of legal persons. The staged life makes the lives of themselves and those of people who desire justice more realistic and vivid. This kind of lawyer's art lies in the use of lawyers' exquisite professional knowledge, rigorous logical thinking ability, good communication and communication skills, and vivid expressions to find or create a legal and effective path for their clients to achieve their goals. . Conditions such as law, speculation, language, behavior, etc. can only be regarded as the "weapon" used by a lawyer. The use of "weapon" and the good use of "weapon" are the lawyer's art.

In specific litigation cases, the art of lawyers is to design an effective litigation plan for the parties through their own legal knowledge and legal practice experience, so that the litigants’ claims can not only be supported by the court, but also can be issued after the court’s decision. Be practically implemented, after all, what the client wants to obtain in the end by hiring a lawyer is beneficial to his own interests. Therefore, in order to design such an effective litigation plan, lawyers must be able to find the key legal basis for solving the problem in the voluminous law on the basis of fully understanding the facts of the case; they must be able to rely on their own litigation experience It is roughly judged how to establish the defendant or third party in the litigation process, which can ultimately benefit the interests of the client; you must be able to make your own understanding of abstract legal principles roughly fit with the thinking of the referee, all of which benefit from Lawyers need to have creative thinking. Thinking guides practice, thinking determines the way, and the way determines success or failure. In fact, each case has its own characteristics and differences from other cases. As a lawyer, when undertaking every case, he should also have different ideas suitable for it. It can also be said that when undertaking every business, lawyers are innovating to different degrees, and they all reflect the case handling to different degrees. the art of. Therefore, the author believes that: a conscientious lawyer, every time he undertakes a business, he is creating and embodying the art of lawyers.

For an individual, creation is the innovation of thinking. Only when the individual’s thinking is creative first, can we better guide our individual’s practical activities and transform the world we live in from a new and higher level, and because of the differences in their social status and professional characteristics, individuals also determine their adoption Different ways of thinking and innovation differ in the way of practicing innovation; for a group and a country, creation is innovation, innovation is the way to enrich the people, the way to strengthen the country, and to maintain a country in the fierce international competition environment. And the inexhaustible driving force for the prosperity of the nation. National innovation is not only a scientific and technological innovation, but also a humanistic innovation including social systems.

my country is now striving to become an innovative country, guiding and encouraging the development of industries with independent intellectual property rights. The report of the 17th National Congress of the Communist Party of China put forward the task of "improving independent innovation capabilities and building an innovative country". Comrade Hu Jintao made a specific exposition on this: "Improving independent innovation capabilities and building an innovative country is the core of the national development strategy and the key to improving overall national strength. We must adhere to the path of independent innovation with Chinese characteristics, and strengthen innovation capabilities throughout. In all aspects of modernization...Improve the legal guarantee, policy system, incentive mechanism, and market environment that encourage technological innovation and the industrialization of scientific and technological achievements. Implement intellectual property strategies. Make full use of international scientific and technological resources. Further create an environment that encourages innovation and strive to achieve World-class scientists and leading talents in science and technology should pay attention to cultivating front-line innovative talents, so that the innovation wisdom of the whole society will compete concurrently, and a large number of innovative talents in various fields will emerge." From this, we can see that building an innovative country includes three levels: technology, concept, and system. But now, as a national strategy, the construction of an innovative country in our country is a process of bringing about changes in concepts and technologies and achieving overall economic, social, and cultural development through institutional construction. As far as system innovation is concerned, the construction of the rule of law is particularly important because of the concept of rights and freedom contained in the rule of law, as well as a series of legal principles and legal systems established by the rule of law and the legal order maintained and established in actual operation. Both provide a guarantee for the creation of an innovative country.

The freedom provided by the rule of law provides the soil for innovation. Innovation requires association, imagination, and inspiration. To be adventurous requires freedom, especially freedom of thought. Only when a person has freedom of thought can he generate inspiration and make innovations. Locke said: "The purpose of law is not to abolish and restrict freedom, but to protect and expand freedom. This is because in all human states that can be governed by law, where there is no law, there is no freedom." Therefore, only by granting citizens a wide range of freedoms and rights in the construction of the rule of law can it be more beneficial to promote the construction of an innovative society in my country. Here, as a member of the legal community, lawyers should have a deep-rooted concept of freedom. As long as every member of the legal community has such a concept, the innovation and development of the national legal system is just around the corner.

Rights are the driving force of innovation. Pursuing benefits is human nature, just as avoiding hardship and seeking pleasure is human instinct. Therefore, only by protecting the innovation achievements of innovators through laws can we stimulate greater innovation. Innovation results are the long-term hard work and hard work of innovators. If the hard work is not rewarded or recognized, the creative body will inevitably lose the motivation for innovation. Therefore, the construction of an innovative society under the rule of law is to protect the rights of citizens. As a lawyer, you must stand on the side of the client and protect the legitimate rights and interests of the client to the maximum. This is not only the need for lawyers' innovative thinking, but also the need for building an innovative country under the rule of law.

The rule of law guarantees that enterprises enjoy independent legal status and guarantees the operating rules of the market economy. The key technology and core technology of the enterprise cannot be bought, and it needs independent research and development. This requires that under the conditions of the market economy, the enterprise should be given the mainstay status of the market economy, encourage the enterprise to be market-oriented, and comprehensively improve its independent innovation capabilities. Technological innovations can be effectively protected at the legal level. This requires specific rules established by the law and the continuous improvement of the legal system. Here, as a lawyer, the process of using the weapon of law on behalf of one’s own client to compete with the other party is the process of following specific legal rules to protect the rights and interests of the parties. The awareness of rules is very important for the enterprise as the innovation subject, but for lawyers. The words are also particularly important.

Specific to the lawyer profession, what is the creation of a lawyer? Even as an individual, the creation of lawyers is an innovation of lawyers’ legal thinking, which is to observe and think from multiple angles, levels, and perspectives from facts and laws for cases with different characteristics, and to legally and skillfully break through existing legal obstacle designs Create efficient and convincing solutions to legal problems and convince the referees to accept the solutions proposed by lawyers. Like a concert, the lawyer is not a passive performer, but a conductor who promotes the entire concert process. It seems to walk in the court and understatement, but in fact it is well-informed and strategizing, and the thoughtful judges should have long been intoxicated. , Impressed by it. As far as the construction of the rule of law in society, the creation of lawyers is to promote the general improvement of legal awareness and legal literacy of a country’s citizens and the continuous improvement of legal gaps through all or most people in such a professional group through their own wisdom and down-to-earth legal practice. , The continuous filling of legal loopholes and the continuous adaptation and closeness of legal provisions to complex and changeable social life enable the laws and legal systems of a country to truly reflect the needs of the people in life, and to respond to the universal value of fairness and justice by the people of a country The pursuit.

Four, conclusion

The verdict of this case is consistent with the verdict that the litigation plan designed when the author initially accepted the case is consistent with the verdict expected to be achieved. Although the result is satisfying, what is even more satisfying is that the innovative thinking mode that a lawyer should have in his practice can once again be used flexibly in the cases he undertakes. It’s still like that, a music conductor and a lawyer. One is controlling the whole scene and the melody flowing in the hearts of the audience with the baton in his hand, while the other is the interpretation of his own performance, the outcome of the case, and even the opposition between himself and the public. The demands of legal fairness and justice values are placed in the framework of a set of legal schemes carefully designed by him, so that it can be implemented logically, and the application and operation of substantive laws and procedural laws can promote the continuation of their own ideas. Carry out to realize the value of your own thoughts. Therefore, laws and facts speak for the thoughts of conductors like lawyers; therefore, abstract laws are more detailed and reasonable by the thoughts of conductors like lawyers in the face of complex and changeable social life; therefore, one country is one country. In society, the magnificent, huge, and even remote laws have been reformed and polished to be more perfect, reasonable, soft, and humane by the thinking of a conductor like a lawyer and the thinking of other legal people.