法律尽职调查是企业在实施兼并收购中不可或缺的重要环节，一份有效的尽职调查报告应当在充分调查事实的基础上做出结论性意见，以此帮助收购方了解目标公司的真实状况和法律风险，因此这就要求律师在尽职调查的过程中勤勉尽责，履行审慎核查义务。
合伙人：赵仁英
尽管各律师事务所和律师在实际操作过程中大都总结出了方法和流程，但因缺乏企业并购重组领域法律尽职调查明确的规定和指引，导致在某些情形下尽职调查边界并不清晰。
这时，律师究竟应如何进行尽职调查，调查义务的边界又在何处？我们不妨参考要求更为严格的证券法律业务中律师尽职调查的具体规则。本文将尝试通过“勤勉尽责，审慎核查”这八个字来探讨尽职调查的边界问题。
“勤勉”是对尽职调查范围的要求，指律师应当亲自收集材料，亲自实施查验，应当在合理及必要的程度内实施调查。根据《律师事务所证券法律业务执业规则（试行）》（《执业规则》）和《律师事务所从事证券法律业务管理办法》（《管理办法》）的相关规定：
- 律师在进行尽职调查时，应当编制查验计划，并在查验工作结束后对计划的落实情况进行评估和总结；
- 对于资质、存款、不动产权、知识产权等需要可以通过书面凭证查验的，应当查验凭证的原件，没有原件的应当采用查询、复核的方式予以确认；
- 对于自然人职业经历、财产是否被设定担保等权利负担、生产设备、大宗产品、重要原料等的查验，应当通过实地调查、面谈等方式进行；
- 从不同来源取得的证据材料或者通过不同查验方式获取的证据材料，对同一事项所证明的结论不一致的，应当追加必要的程序以进一步查证。
律师：张潇扬
“尽责”是对律师的自我保护，指实施尽职调查律师应当尽到合理法律人的查验义务，而能够充分证明律师已经履行这一义务的证据就是尽职调查的工作底稿。《执业规则》要求律师事务所保存在出具法律意见书过程中形成的工作记录，包括对法律意见书讨论复核的相关记录等，以及在工作中获取的所有文件、资料，并将前述文件及时整理成工作底稿；工作底稿内容真实、完整、清晰，应当标明目录索引和页码，由指派律师签名并加盖律师事务所公章。工作底稿是判断律师是否勤勉尽责的重要依据，应当在尽职调查过程中注意收集和整理。
“审慎核查”是对尽职调查深度的要求，指律师在取得相关证据材料时应当通过合理的手段，对其真实性、准确性、完整性、有效性作出必要的查验、分析和判断。《管理办法》要求律师对法律相关的业务事项应当履行法律专业人士特别的注意义务，对于其他业务事项履行普通人一般的注意义务；律师发现委托人提供的材料有虚假记载、误导性陈述、重大遗漏，或者委托人有重大违法行为的，应当要求委托人及时纠正、补充。值得一提的是，对于从会计师事务所、资产评估机构、资信评级机构等专业中介机构取得的非法律文书，律师事务所仍然应当履行一般注意义务，不得直接引用。证监会在《行政处罚决定书》中认定，律师事务所在其工作底稿中直接引用其他中介机构的报告及材料，如果未发现其中的明显瑕疵，属于未尽到一般注意义务。
综合上述规则以及证监会的意见可知，在法律尽职调查之中，律师一方面应当履行合理、必要的核查验证程序，尽到相应的注意义务，对并购项目中应当取得并核查的材料进行收集和整理，获得足以支撑发表意见的证据材料。
另一方面，律师还应当将验证、核查过程中取得的材料和工作记录整理成完整、真实、清晰的工作底稿，作为律师已经履行勤勉尽责义务的证明。因此，律师在实施企业并购尽职调查的过程中，如果发生不能确定调查边界的情形，应当以“获取的证据材料足以支撑发表意见”作为边界，并以“勤勉尽责，审慎核查”作为衡量调查工作是否有效实施的标准。
原文登载于《商法》杂志2018年第6期
The Boundary of Due Diligence in Mergers & Acquisitions
Legal due diligence is an indispensable link for enterprises in the implementation of mergers and acquisitions (M&A). An effective due diligence report should make conclusive opinions based on a full investigation of the facts to help the acquirer understand the real state of the target company and the legal risks. To this end, lawyers are required to be diligent and conscientious in the process of due diligence and perform the duty of prudent verification.
Partner：Renying Zhao
Although law firms and lawyers have mostly summed up methods and procedures in practice, the lack of clear rules and guidelines for legal due diligence in the field of M&A has led to unclear due diligence boundaries in some cases.
At this point, how should lawyers conduct due diligence and where is the boundary? We may refer to specific rules for lawyers’ due diligence in the more rigorous field of securities legal services. This article will explore the boundary of due diligence under the premise of “diligence, conscientiousness, and prudent verification”.
“Diligence” is the requirement for the scope of due diligence, which means that lawyers should collect materials personally, conduct inspection in person, and carry out investigation at a reasonable and necessary level. In accordance with relevant provisions provided in the Practicing Rules of Legal Firms for Securities Legal Services (trial) and the Administrative Measures for Law Firms Engaged in Securities Legal Service: - When conducting due diligence, lawyers should prepare an inspection plan and then assess and summarize the implementation of the plan after inspection;
- For qualifications, deposits, real estate, and intellectual property rights, which can be examined through written vouchers, originals of such vouchers should be verified or in the absence of originals, they should be confirmed by way of inquiry and re-examination;
- The inspection of such rights as the occupational history of a natural person, or whether a guarantee or other encumbrance has been set up on the property or in the instance of a production equipment inspection, bulk products and significant raw materials should be conducted through field investigation and interviews;
- If the evidentiary materials obtained from different sources or through different means of inspection are inconsistent in terms of the conclusions made with respect to the same matter, necessary procedures must be supplemented for further verification.
Associate: Xiaoyang Zhang
“Conscientiousness” is the self-protection of lawyers, which means that a lawyer who performs due diligence should fulfil his/her duty of inspection as a reasonable legal person, and the evidence that a lawyer has fulfilled this obligation is the working papers of due diligence. The practicing rules require law firms to keep the work records produced in the process of issuing legal opinions, including the relevant records of the review of the legal opinions, as well as all the documents and materials obtained in the work, and sort the abovementioned documents into working papers in a timely manner. The sorted working papers must be true, complete and clear, and should be marked with an index and page numbers, signed by the assigned lawyers and stamped with the official seal of the law firm. Working papers are the important basis to judge whether a lawyer is diligent and conscientious, and thus should be collected and sorted in the process of due diligence.
“Prudent verification” is a requirement for the depth of due diligence, which means that lawyers should make necessary examination, analysis and judgment against the authenticity, accuracy, completeness and validity of the relevant evidentiary materials by reasonable means when obtaining relevant evidentiary materials.
The administrative measures require lawyers to perform a special duty of care of legal professions in law-related matters, and to perform general duty of care of ordinaries for other business matters. If a lawyer discovers that the materials provided by the client are a false record, misleading statement or major omission, or that the client committed a major violation of law, the lawyer should require the client to correct and supplement the material in a timely manner. It should be noted that for the non-legal documents obtained by professional intermediaries such as accounting firms, asset evaluation agencies and credit rating agencies, the law firm should still perform a general duty of care and should not quote such documents directly. In the Written Decision of Administrative Punishments, the China Securities Regulatory Commission (CSRC) determined that if a law firm directly quotes in its working papers the reports and materials of other intermediaries and if there is no obvious flaw in such quotations, the firm will be deemed as having not fulfilled a general duty of care.
According to the abovementioned rules and opinions of the CSRC, when performing legal due diligence, lawyers should, on the one hand, carry out reasonable and necessary verification procedures, fulfill the appropriate duty of care, collect and sort materials that ought to be collected and verified in M&A, and obtain sufficient evidence to support the opinions to be released.
On the other hand, lawyers should sort the materials and work records obtained in the process of inspection and verification into complete, authentic and clear working papers, supporting the evidence that proves that the lawyers have fulfilled the duty of diligence and conscientiousness. Therefore, in the event that an investigation boundary cannot be determined in the process of due diligence for the M&A of an enterprise, the lawyer is able to use the “evidentiary materials obtained [that] are sufficient to support the opinions to be released” as the boundary and the “diligence, conscientiousness, and prudent verification” as the standard to measure whether the investigation is effectively conducted or not.
Original source: CBLJ Issue 6, 2018