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題 名 | 律師作為證人時拒絕證言權範圍之研究--以專利侵權意見書為討論中心=The Counsel's Confidential Obligation and Attorney Client Privilege in Drafting Opinion of Counsel |
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作 者 | 葉雲卿; | 書刊名 | 世新法學 |
卷 期 | 7:1 2013.12[民102.12] |
頁 次 | 頁91-136 |
專 輯 | 「現代法學專業倫理的課題研討會」專刊 |
分類號 | 589.4 |
關鍵詞 | 專利意見書; 拒絕證言權; 保密義務; 忠實義務; 律師執業倫理; Patent opinion of counsel; Attorney-Client privilege; Confidentiality duty of loyalty; Professional responsibility; |
語 文 | 中文(Chinese) |
英文摘要 | In U.S., Attorney-Client Privilege will attach when the attorney-client relationship is existed. The reason to grant the Privilege is to guarantee parties rights to counsel without any third party interfering. Since the privilege will protect all communications between attorney and client from disclosure, parties can disclose all confidential information to attorneys to have counsels provide the best legal opinions on the basis of complete and accurate information. The privilege grants the attorney a defense to refuse to testify in the court. However, the privilege can be waived by the party’s actions. For example, when the client intended to use the attorney’s testimonies as a proof in the court, then privilege is waived. In the practice of patent litigation, it is common practice that the potential patent infringer sought a patent opinion of counsel to clear patent infringement issues. This opinion might be used in the court to prove that the potential infringer had not intended to infringe patents. Once Party decided to submit patent opinions to the court as a defense against willful infringement, then attorney-privilege is waived and communication between counsel and party has no longer been protected any more. To the contrary, in Taiwan, Attorney-Client Privilege is coded in Taiwanese civil and criminal procedure and protects attorneys to avoid criminal liability of disclosing clients’ secrets. Therefore, the attorney but not client could waive the privilege and decided to testify in the court. This approach might not guarantee parties to obtain the best advices from counsel and could raise certain professional ethical concerns. Because of the different approach of the attorney-client privilege, the right to counsels under Taiwanese Law is not well established. This article aims to seek a feasible attorney-client privilege to protect party’s right to counsel in Taiwan. In order to achieve this goal, this article will examine the U.S. and Taiwanese current law and practice with respect to the attorney-client privilege and its exceptions. In addition, this article analyzes the current approach of Taiwanese attorney-client privilege and its deficiencies to protect the right to counsel. Finally, this article will provide solutions to amend the current attorney-client privilege. |
本系統中英文摘要資訊取自各篇刊載內容。