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Lawyer/Attorney and His Function in Private Law
Whether a criminal defense attorney or a lawyer engaged in the field of private law, main function of a lawyer is to defense. Just as a criminal defense attorney advocates the rights of both the victim and the defendant, a compensation attorney also advocates the rights of the debtor or creditor.
In private law, every field requires a specific method of attorneyship. For instance, lawyers working as divorce attorneys are aware of the fact that the family law has specific processes and the parties may fight at times; thus making them miserable and this process should be smoothed through some measures. Lawyers known as real estate attorneys know that the real estate cases last very long due to several grounds and the problems encountered during the proceedings should be resolved and finalized one by one.
Regardless of the fields of law, the main function of every lawyer is to defense. Likewise, the lawyer performs the function of defensing in the private law. Since the function of defensing differs in every field of law, the lawyer engaged in private law should have a good knowledge of legal terms.
Contract Law and Lawyer/Attorney
The lawyer engaged in private law should perform his duty in a broad field. Contract law is the most likely field to require the legal assistance of a lawyer. There are at least two parties of a contact. Two parties of a contract have both rights and liabilities. The lawyer ensures that the rights and liabilities are reflected in compliance with the will of the parties. The main function of the lawyer in contract law is to draft up, set out and interpret the contracts and r the necessary legal actions on the rights laid down in the contracts. Since the contracts define certain rights and liabilities to the parties in case of a violation, these contracts should be meticulously drafted up by a lawyer.
The most important phase of contracts is negotiation. Negotiation process offers the lawyer the opportunity to understand wills of the parties and provide the legal formulation in accordance with the contract. The lawyer should have knowledge on the targets of the parties and their program to achieve these targets in order to prepare a sound contract. The lawyer reviews all the details of the subject matter while drafting the contract. He determines the type of the contract language so as to clarify the rights and liabilities of the contractual parties. During the negotiation process, the lawyer should ask the parties and note on the contract the procedures to terminate the contract in case of a violation by one of the parties; the competent court in case of the submission of the case before a court and whether a penal clause will be applicable to the party violating the contract.
The lawyer should explain the legal aspect of the contract properly. The legal aspect of the contract is essential to determine the contractual norm. For instance, the person signing on a contract as “guarantor” and the one signing on the contract as “warrantor” has different legal status. The lawyer should include the legal attribution applicable for the parties in the contract and ensure that there is a sound contractual relationship.
Case for Pecuniary and Non-Pecuniary Damages and Lawyer
Although the lawyers following up such cases are colloquially called as compensation attorneys, this term has not been in use, yet. Cases for pecuniary and non- pecuniary damages require a wide range of legal studies from law of obligations to labor law. The lawyer should consider which rules of the right legal field are applicable, namely the material law applicable for the dispute before filing a case for pecuniary and non-pecuniary damages.
The lawyer should determine the ground of pecuniary and non-pecuniary damages, namely whether they result from a wrongful act, violation of a contract or unjust enrichment. This will help the lawyer to prepare his defense in compliance with the norms on material law. For instance, if the ground of a wrongful act resulting in a pecuniary and non-pecuniary damage is a traffic accident cleared of an offense, the lapse of time is two years as of the act. Moreover, if the wrongful act is a criminal act such as murder in a traffic accident, the lapse of time for this offense becomes applicable for the pecuniary and non-pecuniary damage. In such a situation, the lapse of time to file a case is up to 15 years, the lawyer should determine the exact norm on material law.
Since the incomes and assets of the parties are determinant for the compensation amount in cases for pecuniary and non-pecuniary damages, the lawyer should also conduct necessary researches within this respect. Especially if a physical injury is of question on the person claiming for pecuniary damages, the current income of this person is a determinant for the compensation amount. As the incomes of people are not registered in Turkey, the lawyer should confirm the income of the claimer through documents and witness statements.
If the ground for a pecuniary and non-pecuniary damage is a contract, the lawyer should review the contract in details and determine the reason and amount of the compensation. While deciding on compensation in contract law, the important thing is the contractual conditions. If these conditions are inexplicit, the contract should be interpreted. Therefore, the lawyer should interpret the contract in the light of the case-law of Supreme Court and laws.
Family Law and Lawyer/Attorney
Family law is a field of civil law applied through family courts and a special jurisdiction procedure. Divorce is a challenging process considering the custody of children, moral and material compensation, division of assets; therefore, such processes which are difficult to overcome without getting a legal assistance are resolved based on the specific rules of family law. Why the lawyers engaged in divorce cases are called as divorce lawyers is that this process is conducted in a specific field of law.
Custody and Divorce Lawyer
A lawyer or the divorce lawyer as colloquially used should take necessary measures to prevent the children being overcome by the divorce. The divorce lawyer should give suggestions to the parties considering the interests of the children rather than theirs about temporary custody and personal relationship. The custody of children may be seen as a means of revenge by the parties in divorce cases. The divorce lawyer should avoid the personal conflicts between the two parties and suggest a solution to the parties for the benefit of the child. For instance, the psychology of two years old child due to the fear of losing his mother has been proved scientifically. The divorce lawyer should convince the parties that the custody of a small child should belong to the mother. Taking necessary measures to protect the children from the severe effects of divorce is also an obligation as envisaged in professional codes of conduct for lawyers.
Division of Assets in Case of a Divorce and Divorce Lawyer
Division of assets is the most backbreaking process for the parties in case of a divorce. After 2002, the new civil law envisages that the assets gained during the period of marriage should be shared half and half by the parties in case of a divorce. Therefore, the divorce lawyer should confirm the assets of the parties; determine the items on division of assets and accordingly file a case for division of assets. In this process, the husband and wife may hide assets from each other. The divorce lawyer should ensure that the family court has taken necessary measures to prevent the parties from hiding their assets.
The divorce lawyer should investigate how the parties have acquired the assets subject to the division. How the husband and wife have acquired the assets will determine whether these assets will be considered in the division in case of a divorce. For instance, a house donated to one of the parties or a bequest during the period of marriage cannot be included in the division of assets. However, the rental incomes of this house gained during the period of marriage are included in the division. Therefore, the lawyer should govern this process well in a divorce case.
Before filing a case for division of assets, the lawyer should interview with his client in details and clarify the details such as the property bought prior to, during the marriage and whether one of the parties contributed to the purchase of this property. All these should be taken into account by the divorce lawyer to make a correct division of assets. Because of the cases for division of assets filed mistakenly, there are long-lasting cases before the Bakirkoy and Istanbul courthouses.
A lawyer or the lawyer engaged in private law as we have mentioned in our article performs an important function of defensing in order to ensure the achievement of certain rights under private law.
Istanbul - Turkey Lawyer Baran Doğan