法律意见书撰写技巧(万法通）.ppt

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1、法律意见书撰写技巧,史玉明 律师密歇根州立大学法律博士 西北大学税法学硕士,I. 散论,A. 一般写作技巧B. 史玉明律师的写作方法C. 法律意见书性质和结构,A. 一般写作技巧,1. 小说的写作2. 公文的写作,1. 小说的写作,小说的结构和要素小说的写作流程小说的写作次序选择和角度,2. 公文的写作,公文的定义：和小说散文相对应公文的目的公文的结构要素：IRAC = 起承转合公文的写作技巧,史玉明律师的方法,1. 思维方法的无穷性2. 从周易阴阳五行的中华文化理念谈起3. 金木水火土对应选择结构过程次序角度4. 源于孔子的中庸方法论5. 教育和写作方法,法律意见书的性质和结构,1. 法律意

2、见书的性质2. 法律意见书的结构3. 两个具体的法律意见书示例,1.法律意见书的性质,公文针对有限受众或者公众的法律文件法律执业人的风险措辞用语必须避险法学院训练的核心思维习惯,2. 法律意见书的结构,形式主义的结构分析实用主义的结构分析模板主义的结构分析中庸方法的结构分析,III. 两个具体的法律意见书示例,A.一个简单的英文意见书样本B.另一个复杂一些的中文意见书的样本,A. 一个简单的英文意见书样本,样本2. 结构透视,1. 样本,To: Sam B. Cooper, Manager Purchased Health Services UnitFrom: Office of Genera

3、l CounselDate: Aug. 15, 2010Re: Whether Texas Law Provides for First Person Consent, Versus an Intent Registry, for Organ Donation,样本（继续）,BackgroudThe Purchased Health Services Unit of the Specialized Health Services Section has requested clarification concerning whether recent changes in Texas law

4、allow persons to override the decisions of deceased family members who, while living, had expressed their desire to become organ donors by executing gift cards to be maintained by an Internet-based registry.,Question,Did the establishment of the Donor Education, Awareness, and Registry (DEAR) Progra

5、ms Internet-based registry by HB 120, 79th Texas Legislature, in effect, mandate a “first person consent registry” or only an “intent registry” ?,Answer,Texas has an Internet-based registry through which persons may register their decisions to become organ donors either through the Department of Pub

6、lic Safety or directly through the DEAR Registry by complying with the requirements in the Anatomical Gift Act, Health and Safety Code, Chapter 692.,Discussion,Texas law does not define the term “first person consent” . However, according to the United Network for Organ Sharing (UNOS), the term refe

7、rs to “legislation that allows donor designation to be indicated on a drivers license or an official signed donor document, which gives hospitals legal authority to proceed with organ procurement without consent from family.” The mechanisms in Transportation Code, 521.401 and Health and Safety Code

8、692.003 are precisely those referred to in the UNOS definition of “first person consent”, i.e., either a donors designation on a drivers license or an official donor document. The Texas DEAR Program has gone a step further by including all the persons who have those designations in the Internet-base

9、d registry. However, other persons who have executed documents such as donor cards, defined at Health and Safety Code 692.002(4), before creation of the Internet-based registry, or concurrently, will not be included in the DEAR registry unless they take the specific steps required to have their name

10、s added to the registry.,Discussion,Although HB 120 did not directly support the integrity of the decisions made by organ donors by affirming the term “first person content” in 2005, Health and Safety Code, 692.003 (e) has provided since 1997 that “a gift made under this section by a person 18 years

11、 of age or older, including a gift made under Section 521.401, Transportation Code, shall be honored without obtaining the approval or consent of any other person” (Emphasis added.). Thus, the consent of no other person is required before proceeding with organ procurement for a person who is include

12、d in the DEAR Program Registry.,样本（继续）,Prepared By: Approved by:,结构透视,另一个复杂一些的中文样本,样本内容结构透视,样本内容,关于马山股份有限公司年度股东大会之 法律意见书致马山股份有限公司：根据中国公司法，证券法，上市公司股东大会规则，以及马山股份有限公司章程的相关规定，忠通律师事务所接受马山股份有限公司（以下简称“公司”）的委托，指派本所律师出席年月日召开的年度公司股东大会，对于股东大会的召集，召开程序，出席会议人员资格，提出新议案的股东资格，表决程序等事项发表法律意见。,样本（继续）,本所律师根据相关法律，行政法规，规章

13、等规范性文件的要求，按照律师行业公认的执业标准，道德规范，和勤勉尽职精神，对本次股东大会发表法律意见如下：,一股东大会的召集和召开程序,年月日，公司董事会在中国证券报刊登公告了公司股东大会通告（以下简称“会议通知”），在法定期限内公告了股东大会的召开时间和地点，会议议题，参加人员，参加办法等相关事项；年月日上午时整，股东大会在马山市东翰路号公司宾馆按时如期召开； 股东大会由公司副董事长童根生先生主持，就会议通知中所列事项进行了审议；经本所律师核查，股东大会的召集，召开程序符合中国公司法，上市公司股东大会规则等相关法律，行政法规，规章等规范性文件以及公司章程的规定。,二出席股东大会人员的资格,经

14、查验公司提供的出席会议的股东以及股东授权的委托代理人的身份证明，授权委托书，持股凭证等文件，本所律师查实出席股东大会的股东以及经股东授权的委托代理人持有的公司股份数为万股，占公司股份总数的；出席股东大会的其他人员为公司董事，监事，点票监察员以及本所律师；经本所律师核查，本法律意见书第二点第条所述股东和经股东授权的委托代理人出席股东大会并行使投票表决权的资格合法有效；本法律意见书第二点第条所述人员有资格出席股东大会。,三新议案的提出,经本所律师见证，股东以及经股东授权的委托代理人未在股东大会上提出任何未在会议通知上列明的议案。,四股东大会表决程序,经本所律师见证，列于本次会议通知的议案按照会议议

15、程进行了审议并以投票表决方式进行了表决；经本所律师见证，会议主席根据投票表决的结果在会上宣布议案或股东大会有效表决通过，出席股东大会的股东以及经股东授权的代理人没有对表决结果提出异议；本所律师认为股东大会的表决程序符合有关法律，行政法规，规章等规范性文件以及公司章程的规定。,五结论,综上所述，本所律师认为：股东大会的召集，召开程序符合中国公司法，证券法，上市公司股东大会规则等法律，行政法规，规章等规范性文件以及公司章程的规定，出席会议人员的资格合法有效，股东大会的表决程序合法有效。本所律师同意本法律意见书可以为公司需要随股东大会决议等资料一并进行公告，并依法对本所发表的法律意见承担责任。本法律

16、意见书一式两份。,忠通律师事务所,见证律师：童枝茂年月日,结构透视,分论,几个法律意见书示例优劣分析,示例一,Abbott &Abbott Attorneys at Law 1905 Diamond St., Ste. B San Marcos, CA 92078 Howard Bruce Abbott Tel 760-752-3166 Fax 760-752-1066Oct. 3, 2007Steven PeacockFranchise Capital Corporation29970 Technology Drive, Suite 203Murrieta, CA 92563 Re: Leg

17、al Opinion on Legality of Securities to be Issued,示例（继续） Dear Mr. Peacock, This law firm has been engaged to render a legal opinion regarding the legality of the issuance of the securities being contemplated by Franchise Capital Corporation pursuant to the establishment of a Compensation Plan for Em

18、ployees, Officers, Directors and Consultants, and which is a subject of a Form S-8 Registration Statement under the Securities Act of 1933. Thus, this opinion letter shall address whether Franchise Capital Corporation (“FCCN”), a Nevada publicly traded corporation, is authorized to issue shares of p

19、ublicly traded stock in the corporation by filing a Form S-8 Registration Statement as part of a compensation plan for employees, officers, Directors and consultants. Further, the company seeks an opinion whether the documents prepared and disclosed to prospective purchasers of such shares constitut

20、es a prospectus such that complies with Section 10 (a) of the Securities Act thereby requiring necessary disclosures.,Reporting and Disclosure Requirements re SEC Regulations As a means of protecting the interests of investors, the Securities Act of 1933 and Exchange Act of 1934 provide general and

21、specific guidance regarding disclosure requirements. Also known as the “Truth in Securities Act”, the US Securities Act of 1933, or the “Federal Securities Act” or “1933 Act”, provides two basic objectives: 1) to prohibit deceit, misrepresentation and other fraud in the sale of securities, and 2) to

22、 require that investors receive financial and other significant information concerning securities being offered for sale to the public. This Act is codified at 15 U. S. C. 77a and provides the regulations pertaining particularly to issues of new shares and registration.,Reporting and Disclosure Requ

23、irements re SEC Regulations This Securities Exchange Act of 1934, or the “1934 Act”, provides the regulatory controls for transactions involving securities, and of “practices and matters related thereto.” Thus, once securities have been registered, or are determined to be exempt from registration pu

24、rsuant to the 1933 Act, all further procedures and transactions are regulated and controlled by the 1934 Act. In other words, whereas detailed information about a company must be disclosed in a 1933 Securities Act registration statement, periodic updating of that information, and disclosure of new i

25、nformation, is then required by the 1934 Act. See Disadvantages of Registration or Being Publicly Held; Disclosure of Information, Understanding the Securities Laws, Third Edition; Larry D Soderquist, Practicing Law Institute (1997).,(cont.) The basic rules of disclosure is this: If something is mat

26、erial to investors, is should be disclosed. Materiality is generally addressed in terms of a matter “to which there is a substantial likelihood that a reasonable investor would attach importance in determining whether to purchase the security instrument registered.” See Rule 405 of the 1934 Act. Wit

27、h respect to an issuers duty to disclose, “so long as a public company is not trading in its own securities, there is no general duty that require it to disclose material inside information. In the absence of an explicit mandate in a given situation, or some special circumstances, a company may disc

28、lose material information or not, as suits its purposes. The interesting question is then what triggers a disclosure requirement?” See Disclosure of Information, Understanding the Securities Laws, Third Edition, P.255.,(cont.) It is important to distinguish between the duty to correct and the duty t

29、o update. That is, if information is disseminated to the public that is incorrect when released, the prior statement must be corrected within a reasonable period of time. See Stransky v.Cummins Engine Co., Inc., 51 F.3d. 1329 (7th Cir. 1995). On the other hand, the courts have generally rejected the

30、 notion that there is a duty to update, and have only found liability only if forward looking statements were unreasonable in light of the facts known at the time, or they were not made in good faith.See id. 257.,(cont.) Because of the sparked concern regarding the sufficiency and adequacy of disclo

31、sures, “Many issuers are now reviewing the procedures used to prepare Annual Reports and MD&Ss (Management Discussion and Financial Analysis) with a view to ensuring full and accurate disclosure and minimizing liability exposure.” citation deleted. Materiality is essential to consider when addressin

32、g disclosure requirements. “The substantial likelihood standard of materiality, set forth by the Supreme Court in the rule 14a-9 case of TSC Industries, Inc. v. Northway, Inc. is used in all securities law contexts.” citation deleted. The standard is explained thusly: A fact is material if there is

33、a substantial likelihood that a reasonable investor would consider it important in making a decision to buy or sell a security. As to those facts and circumstances which are deemed to be material, and which might seem to require disclosure for the protection of investors and purchasers of the securi

34、ties, it is necessary to look further into the appropriate sections of the 1934 Act, and more specifically, Form 8-K requirements.,II. Specific Disclosure Requirements Pursuant to Form 8-K The 1934 Act provides that any material and significant events pertaining to an issuers business must be made a

35、vailable to the public and disclosed adequately to fully inform them of the event so that they can make investment decisions based thereon. These events are reported and filed on Form 8-K which is made available and disclosed to all interested persons. The information contained therein must accurate

36、ly reflect the changed event or circumstances.,II. Specific Disclosure Requirements Pursuant to Form 8-K The SEC adopted new and final rules effective Aug. 23, 2004 which expanded the disclosures required on Form 8-K. These new rules added eight new events that a public company must include and repo

37、rt on the Form 8-K and expanded two existing items already required on Form 8-K. Additionally, two items previously required to be disclosed in a companys periodic reports were included on Form 8-K. citation deleted. More specifically, the Form 8-K Disclosure Items, as amended and effective on Aug.

38、23, 2004, address the following sections which are appropriate to this opinion letter, namely Section 2, Financial Information, Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet of a Registrant, and Section 3, Securities and Trading Markets, Item 3.02, U

39、nregistered Sales of Equity Securities. Emphasis added. Citation deleted.,(cont.) The following event also have to be disclosed on Form 8-K: Entry into material amendment of a material definitive agreement not made in the ordinary course of business. Relating to this requirement to the instant matte

40、r which is the subject of this opinion letter, it is arguable that the loan evidenced by a convertible debenture in favor of Golden Gate Investors may have been made in the ordinary course of business, and therefore not required to be disclosed. However, the safer approach for the company to have ta

41、ken would have been to disclose this event anyway, inassuch as it could be argued that this was an extraordinary event pursuant to a material definitive agreement between Golden Gate Investors and FCCN, and that is was made outside the ordinary course of business.,III. Adequacy and Sufficiency Provi

42、ded by the Following Disclosures The following resources have been reviewed and investigated to determine the extent to which activities of the company have been revealed and disclosed to the public in an effort to determine compliance with the SEC regulations. To make such determination, the follow

43、ing documents, available to the public, have been filed with the Securities and Exchange Commission by FCCN which provide the very disclosures intended by the regulations: 1. the reports of the Company files pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended since

44、the fiscal year ended June 30, 2007;,III. Adequacy and Sufficiency Provided by the Following Disclosures 2. the description of the Companys common stock contained in its Form 10-KSB filed Oct. 1, 2007, including any amendment or report filed for the purpose of updating such description; 3. incorpora

45、ted by all other reference are all other documents filed by the Company after the date of this particular Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to this Registration Statement wh

46、ich indicates that all securities offered have sold or de-registers all securities then remaining unsold.,IV. Summary After having examined and reviewed the documents described in this opinion letter, and a review of the laws and regulations governing the disclosure requirements which are set forth

47、in the 1933 Act, the 1934 Act, and Form 8-K as amended and modified, it is my unqualified opinion and the professional opinion of this law firm that the shares being issued under a Compensation Plan for the benefit of employees, officers, Directors, and Consultants pursuant to an S-8 Registration St

48、atement are legal and within purviews of the 1933 and the 1934 Act. Further, the documents submitted to the SEC, together with the reports filed by the Company and which are available to the public and to any prospective purchase of the securities, are sufficient to provide the required disclosures in accordance with the requirements promulgated by the SEC for the protection of investors and purchasers of the Companys stock. The disclosures thus made by the Company are sufficient to constitute a prospectus with adequate disclosures as required by regulation and law.,