Establish a system in which the losing party bears the lawyer's fee for the winning party.
At present, our courts have accepted a large number of cases. Except for criminal cases, which are filed by the state public prosecution agency, other cases, including civil, economic, administrative cases and bankruptcy cases, are advocated by the parties, and the court adopts the principle of not suing and ignoring them. In the judgment, the court often only makes a judgment on the rights and obligations of the defendant and the defendant related to the legal relationship involved. The burden of litigation fees charged by the court will not be regarded as an independent judgment, but will only be handled according to the defendant and the defendant's responsibility, while the lawyer's fees advocated by the defendant and the defendant are often avoided. At present, although in the handling of some cases, some judges have ruled that the lawyer's fees should be borne by the losing party, the analysis reason is usually because the contract involved stipulates that the lawyer's fees should be borne by the breaching party. In this case, the losing party was judged as the breaching party and should bear the lawyer's fees according to the contract.
Nowadays, with the more developed economy and the finer social division of labor, there are more and more disputes among market participants, and more and more cases are brought to court. The litigants expect a legal judgment and expect the lawyer's fee to be borne by the losing party.
Faced with the request of the parties, the judge is not unwilling to make a judgment, but suffers from no legal basis. The existing guidelines on the expenses related to litigation activities are limited to Article 46 of the Supreme People's Court's Several Provisions on Evidence in Civil Litigation, which stipulates that "if the evidence is not provided within the specified time limit due to the reasons of the parties, and the case is sent back to the people's court for retrial or revision during the second trial or retrial because of new evidence, the original judgment is by no means a misjudged case. One party requests the other party to provide new evidence to bear the reasonable expenses such as increased travel expenses, lost time, witnesses appearing in court to testify, and litigation expenses, and the court should support it. " This provision is mainly to strengthen the burden of proof of the parties. If the parties present evidence at any time in the litigation, the court trial cannot be centralized, which increases the litigation cost of the other party, leads to low litigation efficiency and trial efficiency, and leads to some cases not being closed within the trial period stipulated in the Civil Procedure Law. Therefore, the time limit for proof is standardized. As can be seen from the above provisions, the court ruled that the party bearing the expenses should adopt the principle of fault liability. Broadly speaking, in terms of bearing legal fees, it is of the following significance if we can establish a system of bringing a lawsuit to the court for the reasons of the parties, resulting in the other party paying the corresponding lawyer fees, and the losing party bearing the corresponding legal fees:
First, prevent malicious litigation. Malicious litigation is a kind of civil tort. Without any factual basis and justifiable reasons, the plaintiff deliberately files a lawsuit with his actions, which damages the defendant, mainly property interests. But in the end, the defendant won the lawsuit. It is usually divided into three situations-illegal accusation in criminal proceedings, illegal use in civil proceedings, and abuse of proceedings. Establish a litigation system in which the lawyer's fee is borne by the losing party. When the plaintiff wants to file a malicious lawsuit, he has to consider the litigation cost. Moreover, the uncontrollable legal fees demanded by the lawyers hired by the other party will definitely worry the plaintiff. So as to effectively prevent malicious litigation.
Second, increase the opportunities for lawyers to participate in litigation and further improve legal awareness. The expenses for the parties to hire lawyers shall be borne by the losing party, so that all parties are willing to hire lawyers to participate in the litigation, and expect to win the lawsuit smoothly with the help of lawyers. They not only don't have to bear legal responsibility, but also don't have to bear lawyer's fees. As a result, the opportunities for lawyers to participate in litigation are further expanded. On the other hand, due to the lawyer's participation in the case, the communication between the judge and the parties on the legal relationship and evidence of the case is further deepened, and the legal awareness of the parties is further improved.
Third, some cases were settled in the pre-trial procedure and did not enter the litigation procedure, which saved litigation resources. A litigation system has been established in which the lawyer's fees are borne by the losing party, and a supporting evidence discovery system can be established to make the parties cautious in litigation. Some cases can be settled through mediation in pre-trial procedures without entering litigation procedures. Before entering the litigation procedure, the parties should know their position in the legal relationship and judge whether the evidence they have is conducive to their success, so as to fully consider whether to file a lawsuit under the framework of the litigation system in which the lawyer's fee is borne by the losing party. This basically ruled out the possibility of false accusation.
The pre-trial preparation procedure in our country is a mere formality, which only stays in the substantive content of informing the parties to receive the summons for hearing, issuing the notice of hearing, informing the members of the collegiate bench and the place of hearing, and has no practical effect. There is no "three determinations" effect in the current pretrial procedure, that is, determining claims, evidence and disputes. Put the work content of the "three decisions" into court session, and many cases that can be mediated can only be solved through court session procedures. As a result, one party withdraws the lawsuit or both parties reach a mediation agreement; In addition, when one party requests to change the lawsuit during the court session, the court session will be postponed because the other party requests the defense period, resulting in a waste of litigation resources.
Therefore, we can learn from the evidence discovery system in Britain and America and establish a Chinese-style evidence discovery pretrial system. After the case is put on file, the judge will arrange for the two parties to meet first, and both parties will participate in the discovery of the evidence of the case. In addition to keeping the evidence confidential, it will also minimize the ignorance of the prior evidence, so that the parties can obtain the evidence related to their interests to the maximum extent and protect the interests of the parties to the maximum extent.
Fourth, establish the system that the legal fees shall be borne by the losing party, and at the same time, consider the nature of the legal fees. The nature of the lawyer's fee directly affects whether the lawyer's fee determined in the first instance can be appealed. If the lawyer's fee is regarded as the legal fee, then the legal fees, including translation fees and appraisal fees, are not independent judgments under the current procedural law system and cannot be appealed; If the lawyer's fee is defined as the damage result, the victim can claim compensation independently, and the court of first instance makes an independent judgment on this. If one party refuses to accept the judgment, it can appeal.
Attorney's fees should be defined as damages. Because the lawsuit that leads to the lawyer's fee is an infringement. The analysis shows that the lawsuit conforms to three legal characteristics of infringement: first, the losing party, whether the plaintiff or the defendant, did it on purpose. If the plaintiff loses the case, it is attributed to his intentional litigation without factual basis and justifiable reasons. If the defendant loses the case, it is because the defendant has delayed fulfilling his obligations in the legal relationship of this case and should bear corresponding legal responsibilities. Therefore, negligence or even gross negligence cannot constitute this tort liability. Second, the damage suffered by the victim in this litigation procedure is mainly damage to property interests. In order to cope with the lawsuit, we hired a lawyer and paid the lawyer's fee. Third, there is a causal relationship between the damage suffered by the victim and this lawsuit. Therefore, the lawsuit belongs to infringement, the losing party should bear the tort liability, the losing party should bear the liability for damages, and the lawyer's fee paid by the losing party is naturally defined as the damage result.
The above is taken from.