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 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. 源亍孔子的中庸方法论 5. 教育和写作方法 法律意见书的性质和结构 1. 法律意见书的性质 2. 法律意见书

2、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 1. 样本 2. 结构透视 1. 样本 To: Sam B. Cooper, Manager Purchased Health Services Unit From: Office of Gener

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

4、law 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) Pr

5、ograms 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

6、 Public 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

7、refers 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 C

8、ode 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-

9、based 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

10、names 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 y

11、ears 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 inc

12、luded 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 关亍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，对亍股东大会的召集，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

13、据相关法律，行政法规， 规章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 1. 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； 2. 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； 3. 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； 4. 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，

14、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

15、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，列亍本次会议通知的议案 按照会议议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

16、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 Disclosure of Information, Understanding the Securities Laws, Third Edition; Larry D Soderquist, Practicing Law Institute (1997). (cont.) The basic rules of disclosure is

17、 this: If something is material 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 Rul

18、e 405 of the 1934 Act. With 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 circums

19、tances, a company may disclose 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

20、 to correct and the duty to 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 h

21、ave generally rejected the 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 sufficie

22、ncy and adequacy of disclosures, “Many issuers are now reviewing the procedures used to prepare Annual Reports and MD 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 ame

23、ndment or report filed for the purpose of updating such description; 3. incorporated 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, pr

24、ior to the filing of a post-effective amendment to this Registration Statement which 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 th

25、e laws and regulations governing the disclosure requirements which are set forth 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 e

26、mployees, officers, Directors, and Consultants pursuant to an S-8 Registration Statement 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 prospectiv

27、e 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 ad

28、equate disclosures as required by regulation and law. (cont.) It would be difficult indeed, if not impossible, for an investor or shareholder to allege that there was not sufficient information and material contained in all of these aforementioned documents, reports, and filings to alert them to the

29、 activities of the Company an to fully comply with all of the disclosure requirements and standards required pursuant to the Acts and Form 8-K. To the contrary, it is my opinion that collectively all of these means of information were adequate and sufficient to impart the disclosures necessary to fu

30、lly comply with 1933 and 1934 Act, and as further required by Form 8-K. The shares of stock contemplated to be issued by the Company pursuant to the Compensation Plan filed with the SEC on Form S-8 are authorized and permissible under the regulation without further registration. The shares to be iss

31、ued and registered in the amount of 3,000,000 are compliant with the laws and regulations promulgated by the SEC and are to be validly issued. Respectfully, Howard Bruce Abbott Attorney at Law 2. 示例二 Oct. 25, 2009 Board of Directors Avalon Pharmaceuticals, Inc. 2038 Seneca Meadows Parkway Germantown

32、, MD 20876 Ladies and Gentlemen, We are acting as counsel to Avalon Pharmaceuticals, Inc., a Delaware corporation (the “Company” ), in connection with its Registration Statement on Form S-3, as amended (the “Registration Statement”), filed with the Securities and Exchange Commission relating to the

33、proposed public offering of up to $50,000,000 in aggregate amount of one or more series of the following securities of the Company: (i) debt securities (the “Debt Securities”), (ii) shares of preferred stock, $0.01 par value per share (the “Preferred Shares”); (iii) shares of common stock, $0.01 par

34、 value per share (the “Common Shares” ) and associated stock purchase rights (the “Rights”); (iv) warrants to purchase Debt Securities (the “Debt Warrants”); 2. 示例二 (v) warrants to purchase the Preferred Shares (the “Preferred Stock Warrants”); and (vi) warrants to purchase Common Shares (the “Commo

35、n Stock Warrants”) (together with the Debt Securities, Preferred Shares, Common Shares, and associated Rights, Debt Warrants and Preferred Stock Warrants, the “Securities” ), all of which may be sold from time to time and on a delayed or continuous basis, as set forth in the prospectus which forms a

36、 part of the Registration Statement, and as to be set forth in one or more supplements to the prospectus. (cont.) This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601 (b)(5) of Regulation S-K, 17 C.F.R. 229.601(b)(5), in connection with the Re

37、gistration Statement. For purpose of this opinion letter, we have examined copies of the documents listed on Schedule 1 attached hereto. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and compl

38、eteness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies, including telecopies. This opinion letter is given and all statements herein are made, in the context of the foregoing.

39、 (cont.) For purpose of this opinion letter, we have assumed that (i) the issuance, sale, amount, and terms of any Securities of the Company to be offered from time to time will have been duly authorized and established by proper action of the board of directors of the Company or a duly authorized c

40、ommittee of such board (Board Action) consistent with the procedures and terms described in the Registration Statement and in accordance with the Companys charter and bylaws and applicable Delaware corporate law, in a manner that does not violate any law, government or court-imposed order or restric

41、tion or agreement or instrument then binding on the Company or otherwise impair the legal or binding nature of the obligations represented by the applicable Securities; (ii) at time of offer, issuance sale of any Securities, the Registration Statement will have been declared effective under the Secu

42、rities Act of 1933, as amended (the “Act”), and no stop order suspending its effectiveness will have been issued and remain in effect; (iii) any senior Debt Securities will be issued pursuant to a “senior indenture” and any subordinated Debt Securities will be issued pursuant to a “subordinated inde

43、nture”, substantially in the forms of such indentures filed as Exhibits 4.2 and 4.3, respectively, to the Registration Statement, with items shown in such exhibits as subject to completion completed in a satisfactory manner; (iv) the indenture under which any Debt Securities are issued will be quali

44、fied under the Trust Indenture Act of 1939, as amended; (v) any Debt Warrants will be issued under one or more debt warrant agreements, each to be between the Company and a financial institution identified therein as a warrant agent; (vi) any Preferred Stock Warrants will be issued under one or more

45、 equity warrant agreements, each to be between the Company and a financial institution identified therein as a warrant agent; (cont.) (vii) any Common Stock Warrants will be issued under one or more equity warrant agreements each to be between the Company and a financial institution identified there

46、in as a warrant agent; (viii) prior to issuance of any preferred shares, appropriate certificates of designation will be accepted for record by the Secretary of State of the State of Delaware; (ix) if being sold by the issuer thereof, the Securities will be delivered against payment of valid conside

47、ration therefor and in accordance with the terms of the applicable Board Action authorizing such sale and any applicable underwriting agreement or purchase agreement and as contemplated by the Registration Statement and/or the applicable prospectus supplement; (x) the Company will remain a Delaware

48、corporation; and (xi) any Rights associated with the Common Stock will be issued under one or more rights agreements, each to be between the Company and a financial institution identified therein as a rights agent. (cont.) To the extent that the obligations of the Company with respect to the Securit

49、ies may be depended upon such matters, we assume for purpose of this opinion that the other party under the indenture for any Debt Securities, under the warrant agreement for any Debt Warrants, Preferred Stock Warrants, or Common Stock Warrants, and under any rights agreement for any Rights associat

50、ed with Common Stock, namely, the trustee, the warrant agent, the rights agent, respectively, is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that such other party is duly qualified to engage in the activities contemplated by such indentur

51、e, warrant agreement, or rights agreement, as applicable; that such indenture, warrant agreement, or rights agreement, as applicable, has been duly authorized, executed and delivered by the other party and constitutes the legal, valid and binding obligation of the other party enforceable against the

52、 other party in accordance with its terms; that such other party is in compliance with respect to performance of its obligations under such indenture, warrant agreement, as applicable, and with all applicable laws and regulations; and that such other party has the requisite organizational and legal

53、power and authority to perform its obligations under such indenture, warrant agreement, or rights agreement, as applicable. (cont.) This opinion letter is based as to matters of law solely on the applicable provisions of the following, as currently in effect: (i) as to the opinions given in paragrap

54、h (b) and (c), the Delaware General Corporation Law, as amended; and (ii) as to opinions given in paragraphs (a), (d), (e), and (f), the laws of the State of New York (but not including any laws, statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below

55、the state level). We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations (and in particular, we express no opinion as to any effect that such other laws , statutes, ordinances, rules, or regulations may have on the opinions expressed herein). As used herein, t

56、he term “Delaware General Corporation Law, as amended” includes the statutory provisions contained therein, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws. (cont.) Based upon, subject to and limited by the foregoing, we are of the opini

57、on that: (a) The Debt Securities (including any Debt Securities duly issued upon the exercise of Debt Warrants), upon due execution and delivery of an indenture relating thereto on behalf of the Company and the trustee named therein, and upon authentication by such trustee and due execution and deli

58、very on behalf of the Company in accordance with the indenture and any supplemental indenture relating thereto, will constitute valid and binding obligations of the Company; (b) The Preferred Shares (including any Preferred Shares that are duly issued upon exercise of Preferred Stock Warrants and re

59、ceipt by the Company of any additional consideration payable upon such exercise), upon due execution and delivery on behalf of the Company of certificates therefor, will be validly issued, fully paid and non-assessable; (cont.) (c) The Common Shares and associated Rights (including any Common Shares

60、 and associated Rights duly issued upon the exchange or conversion of Debt Securities or Preferred Shares that exchangeable for or convertible into Common Shares or upon the exercise of Common Stock Warrants and receipt by the Company of any additional consideration payable upon such conversion, exc

61、hange or exercise), upon due execution and delivery on behalf of the Company of certificates for the Common shares, will be validly issued, and the Common Shares will be fully paid and non-assessable; (d) The Debt Warrants, upon due execution and delivery of a debt warrant agreement relating thereto

62、 on behalf of the Company and the warrant agent named therein and due authentication of the Debt Warrants by such warrant agent, and upon due execution and delivery of the Debt Warrants on behalf of the Company, will constitute valid and binding obligations of the Company; (cont.) (e) The Preferred

63、Stock Warrants, upon due execution and delivery of an equity warrant agreement relating thereto on behalf of the Company and the warrant agent named therein and due authentication of the Preferred Stock Warrants by such warrant agent, and upon due execution and delivery of the Preferred Stock Warran

64、ts on behalf of the Company, will constitute valid and binding obligations of the Company; (f) The Common Stock Warrants, upon due execution an delivery of an equity warrant agreement relating thereto on behalf of the Company and the warrant agent named therein and due authentication of the Common S

65、tock Warrants by such warrant agent, and upon due execution and delivery of the Common Stock Warrants on behalf of the Company, will constitute valid and binding obligations of the Company. (cont.) The opinions expressed in Paragraphs (a), (d), (e), and (f) above with respect to the valid and binding nature of obligations may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors rights (including, without limitation, t