1. What is the basis for requiring the defendant to bear attorney's fees?
1. Patent infringement case.
"Several Provisions of the Supreme People's Court on the Application of Laws in the Trial of Patent Dispute Cases" Article 22 The People's Court may, based on the request of the right holder and the specific case, calculate the right holder's labor within the scope of compensation to investigate and stop infringement Reasonable fees paid for the conduct.
2. Trademark infringement cases.
Article 56 of the Trademark Law: The amount of compensation for infringement of the exclusive right to use a trademark refers to the benefits obtained by the infringer during the infringement period, or the losses suffered by the infringer during the infringement period, including the infringer’s efforts to stop the infringement. Reasonable fees paid for the conduct.
3. Copyright infringement cases.
Article 48 of the Copyright Law: If a copyright or copyright-related rights are infringed, the infringer shall compensate the right holder according to the actual loss; if the actual loss is difficult to calculate, the infringer may be compensated according to the infringer's illegal income. . The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement.
4. Integrated circuit layout design infringement cases.
The amount of compensation for infringement of the exclusive right to a layout design stipulated in Paragraph 3 of Article 30 of the "Regulations on the Protection of Integrated Circuit Layout Designs" refers to the benefits obtained by the infringed party or the losses suffered by the infringed party. Losses include reasonable expenses paid by the infringer to stop the infringement.
5. Cases of revocation rights.
The Supreme People’s Court’s Interpretation on Several Issues Concerning the Application of the Contract Law of the People’s Republic of China (1) Article 26 The debtor shall bear the attorney fees, travel expenses and other necessary expenses paid by the creditor to exercise the right of revocation; If the third party is at fault, the burden should be appropriately shared.
6. Unfair competition infringement cases.
Article 20 of the Anti-Unfair Competition Law If an operator violates the provisions of this law and causes damage to the offended operator, he shall be liable for damages. If the losses of the infringed operator are difficult to calculate, the amount of compensation shall be the profits gained during the infringement period; the infringed operator shall also bear the reasonable expenses paid by the infringed operator for investigating the operator's unfair competition behavior that infringes upon its legitimate rights and interests.
It should be pointed out that the first four situations are all intellectual property cases, all must be infringement cases, and they are all expressed as "reasonable expenses paid to stop infringement." Although not expressly defined as litigation costs, they include litigation costs, provided that the litigation costs are "reasonable" expenditures consistent with market conditions.
Second, can it be stipulated in the contract that attorney fees will be borne by the losing party?
According to the principle of freedom of contract, as long as both parties agree in the contract that attorney fees will be borne by the losing party, then during the prosecution or arbitration process, claims for attorney fees will generally be supported by the court. Therefore, when drafting the contract, the parties to the contract can list attorney's fees as liquidated damages, and even stipulate in detail the method and standard for bearing attorney's fees. When drafting such a breach of contract clause, special attention should be paid to clearly stating "attorney's fees." For other cases, if the "expenses for realizing creditor's rights" are not clearly agreed upon, the attorney's fees may not be supported. The court scrutinized this agreement very strictly.
Third, the work and role of lawyers
In civil litigation, the work of lawyers can be roughly divided into three stages. After accepting the entrustment, the lawyer must conduct a comprehensive analysis of the case by understanding the facts of the case and the parties' requests, and then come up with a rigorous litigation plan. The plan's conception is largely laid out in the pleadings. A civil complaint is an important legal document drafted by an attorney. At the same time, parties should be guided to prepare and organize evidence. This is the first stage. At this stage, the main work of the lawyer is invisible and the most important, and even plays a decisive role in the success or failure of the case. The second stage is to file the case. The lawyer must prepare the case filing materials and go to the court to file the case on behalf of the client. After the court accepts the application, it will wait for the court summons to notify the court of the opening of the hearing.
The third stage is the trial, which is the central part of the litigation. The lawyer will be fully prepared before the trial. In court, lawyers should give evidence, cross-examine evidence, express opinions and argue. After the hearing, the lawyer can also organize a written statement and submit it to the court. After the court makes a decision, if the party concerned is dissatisfied, he or she can also appeal on behalf of the party. The above is the main work of lawyers in civil litigation.
The above is the relevant content on the basis for requiring the defendant to bear attorney fees. From the above we can know that although in principle the legal fees are borne by the party hiring the lawyer, there are many exceptions. If you still don't understand or encounter any problems, you can consult a lawyer and they will give you professional advice.