Many people in life are unwilling to go to court. In addition to the difficulty of going to court, there are also factors that make it expensive. Many people expect the judge to judge the other party to bear the lawyer's fees and legal fees. After all, this is no small property interest.
However, in judicial practice, the lawsuit that requires the other party to bear the lawyer's fee is not supported. If you want the other party to bear the lawyer's fee, you can ask the court to judge the other party to bear the lawyer's fee.
1. Both parties agree that the breaching party shall bear the legal costs.
The principle of bearing lawyer's fees in civil litigation is not to sue and ignore. If you don't file a lawsuit to ask the other party to bear the lawyer's fee in the course of litigation, the judge will not judge the lawyer's responsibility according to his authority and sovereignty.
In order to make the losing party bear the lawyer's fees, it is necessary to clearly stipulate the relevant contents in the contract, such as "the breaching party needs to bear the expenses paid by the observant party to realize the creditor's rights, including but not limited to (lawyer's fees, legal fees, appraisal fees, transportation fees, lost time fees, etc.). )".
If the two parties clearly agree on the above contents when signing the contract and file a lawsuit as a request, the court will generally support the request for attorney's fees.
Two, the legal provisions should be borne by the other party, you can ask the other party to bear.
According to the law, the following types of cases can require the other party to bear the lawyer's fee:
1, intellectual property case. In cases of copyright infringement, trademark infringement, patent infringement and unfair competition, the law clearly stipulates that the amount of compensation includes the reasonable expenses paid by the right holder to stop the infringement.
Article 48 of the Copyright Law stipulates: "If copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual loss of the obligee; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation should also include the reasonable expenses paid by the right holder to stop the infringement. "
The provisions of the law on trademark and patent infringement cases and unfair competition cases are similar to those of the copyright law, and they are not quoted here.
2. Litigation cases in which creditors exercise their right of cancellation in contract disputes. Article 26 of Interpretation of Contract Law (I) stipulates: "The necessary expenses such as lawyer's agency fees and travel expenses paid by the creditor in exercising its cancellation right shall be borne by the debtor; If the third party is at fault, it shall share it appropriately. "
3. Litigation cases with security rights. Article 2 1 of the Guarantee Law of People's Republic of China (PRC) stipulates: "The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights.
The above-mentioned cases can basically be supported as long as they are accompanied by legal fees.
Third, the Supreme People's Court issued a litigation guidance last year, proposing that the litigation costs should be borne by the losing party.
Article 22 of the Supreme People's Court's Opinions on Further Promoting the Diversion of Complexity and Simplification and Optimizing the Allocation of Judicial Resources: Guide the parties to be honest and rational in litigation. Intensify the crackdown on dishonest litigation such as false litigation and malicious litigation, give full play to the leverage of legal fees and attorney fees, standardize the litigation behavior of the parties, and urge the parties to choose an appropriate way to resolve disputes. If a party abuses litigation rights, delays in undertaking litigation obligations and other obvious misconduct, resulting in direct losses to the other party or a third party, the people's court may, according to the specific circumstances, support the innocent party's legitimate request for compensation for reasonable attorney's fees.
This opinion is to encourage and support the people's court to determine that the wrong party (usually the losing party) should compensate the lawyer's fees of the innocent party according to the actual situation.
In short, in actual judicature, the national standards are not uniform, and even the judges in the same court have different understanding and support for it. The best way is to stipulate reasonable expenses such as attorney fees in civil activities in the form of contract terms, and the court will basically support the prosecution according to the contract. So the key point is to do a good job of agreeing to undertake the content.
How much do lawyers usually charge? According to the law, there are four cases where lawyers don't have to pay.
As we all know, a lawsuit is no guarantee of winning or losing. Sometimes, if you obviously hire a lawyer, you will still lose the lawsuit, and you will feel that you might as well not hire a lawyer and lose the lawsuit if you spend money. So if the lawsuit is lost, do you still have to pay the lawyer's fee?
Under normal circumstances, if the lawsuit is lost, the lawyer's fee should be. Winning or losing a lawsuit is not a reason to refuse to pay a lawyer's fee. Moreover, the lawyer's fee is usually paid to the lawyer entrusted by you when signing the agency contract, and it is impossible to return it to you if the lawsuit is lost.
1. Should the lawyer's fee be paid first or after the lawsuit is finished?
After consultation with the client, the lawyer can decide how to collect the lawyer's fee. You can pay in advance or later. In fact, lawyers' fees are usually paid in advance. As a member of the service industry, every lawyer can only say that he promises to do his best. Lawyer's fee is the process from entrustment to closing the case, and lawyer's fee is not the fee for the lawyer to guarantee your victory.
Two, lawyer fees mainly in the following ways:
1. General agent
This is a common way for lawyers to charge fees. After signing the contract, you can pay as much as you want No matter what the final result is, the lawyer's fee is non-refundable.
2. Semi-risk institutions
This way refers to giving a part of the fee when entrusting a lawyer, and then paying the remaining lawyer's fee if the agreed result is reached after the case result comes out; If you don't reach a result or lose the case, you don't have to pay the remaining money.
3. All-insurance agency
This way refers to the lawyer's fees that were not paid when the contract was signed, and after the final case came out and won the case, the lawyer's fees were paid according to the contract; If you lose, you don't have to pay the lawyer's fee. However, the legal fees for going to the court, like ordinary agents and semi-risk agents, need to be paid by themselves. If you lose the case, the legal fees will not be refunded.
There are many reasons for losing the case. If the lawyer is irresponsible and loses the case, for example, the lawyer is not present at the trial, you can ask the lawyer for compensation or refund. Semi-risk or full-risk agency model can save all or part of the lawyer's fees.
You have to pay for the lawsuit, and you will only pay if you win.
As we all know, no one can guarantee winning or losing a lawsuit, so we are faced with an embarrassing situation that not only wastes money, but also loses the lawsuit. In view of this situation,
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Only when the lawsuit is won will it be charged (after the lawsuit):
All the expenses of the parties' litigation, including attorney's fees, litigation fees and execution fees, must be paid in advance, and then paid in proportion after the case is successfully executed.
To sum up, that is to say, there are only four situations in which you can lose the case without paying legal fees:
1 lawyer's gross mistake, 2 semi-risk agency, 3 full-risk agency, 4 magic weapon online fund-raising litigation mode.
Lawsuits don't cost money, and they don't give money if they lose. The "first action" mode binds the interests of the client and the lawyer together, making the lawyer more responsible for the client when representing the case.
Legal basis for the "lawyer's fee" to be borne by the losing party (paid in full this time)
There is no necessary causal relationship between the lawyer's fees arising from litigation and the defendant's breach of contract, infringement and other acts that lead to losing the case. In judicial practice, the people's court basically does not support this claim unless there is evidence that the original defendant and the defendant agreed in advance that the lawyer's fee should be borne by the losing party.
However, there are always exceptions. Both parties can agree in advance who will bear the legal fees. The relevant judicial organs of the state have also taken into account the professionalism and complexity of some cases. Through the relevant provisions (including the judicial interpretation of the court), the court can support the plaintiff's claim that some cases should be borne by the defendant who lost the case.
0 1. Legal aid cases
Joint Notice of the Ministry of Justice of the Supreme People's Court on Several Issues Concerning Civil Legal Aid Work
Article 7:
Travel expenses, printing expenses, transportation and communication expenses, investigation and evidence collection expenses and other necessary handling expenses required by legal aid personnel to handle legal aid cases. If the claim includes the donee, the court may award it to the losing party who is not the donee according to the specific circumstances.
02. Copyright infringement cases
copyright law
Article 48:
If copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual losses of the obligee; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
The Supreme People's Court's interpretation of some issues concerning the application of law in the trial of copyright civil disputes.
Article 26:
The reasonable expenses paid to stop the infringement as stipulated in the first paragraph of Article 48 of the Copyright Law include the reasonable expenses for the obligee or entrusted agent to investigate and collect the evidence of infringement. The people's court may, according to the litigant's claims and specific cases, calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation.
03. Trademark infringement cases
The Supreme People's Court's interpretation of some issues concerning the application of law in the trial of trademark civil disputes
Article 17:
The reasonable expenses paid to stop the infringement as stipulated in Article 56, paragraph 1 of the Trademark Law include the reasonable expenses for the obligee or entrusted agent to investigate and collect the evidence of infringement. The people's court may, according to the claims of the parties and the specific circumstances of the case, calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation.
04. Patent infringement cases
Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases
Article 22:
According to the request of the obligee and the specific case, the people's court can calculate the reasonable expenses paid by the obligee to investigate and stop the infringement within the scope of compensation.
05. Cases of unfair competition
anti- unfair competition law
Article 20:
If a business operator violates the provisions of this law and causes damage to the infringed business operator, he shall be liable for damages. If it is difficult to calculate the loss of the infringed operator, the amount of compensation shall be the profit obtained by the infringer during the infringement period; And bear the reasonable expenses paid by the infringed business operator for investigating the unfair competition behavior of the business operator that infringes on its legitimate rights and interests.
06. Litigation cases in which creditors exercise their right of cancellation in contract disputes.
The Supreme People's Court's Interpretation on Several Issues Concerning the Application of People's Republic of China (PRC) Contract Law (I)
Article 26:
Necessary expenses such as lawyer's agency fees and travel expenses paid by the creditor in exercising the cancellation right shall be borne by the debtor; If the third party is at fault, it shall share it appropriately.
07. Security right litigation cases
People's Republic of China (PRC) Securities Law
Article 2 1:
The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights.
08. Commercial arbitration cases
Arbitration Rules of China International Economic and Trade Arbitration Commission
Article 52: Bearing of expenses
(2) The arbitral tribunal has the right to award the losing party compensation for the reasonable expenses incurred by the winning party in handling the case according to the specific circumstances of the case. When deciding whether it is reasonable for the losing party to compensate the winning party for the expenses incurred in handling the case, the arbitration tribunal shall specifically consider the ruling result of the case, the complexity, the actual workload of the winning party and/or the agent, and the disputed amount of the case.
beijing arbitration commission arbitration rules
Article 5 1: Bearing of expenses
(4) The arbitration tribunal has the right to award the reasonable expenses incurred by the winning party in handling the case, including but not limited to attorney's fees, preservation fees, travel expenses, notarization fees, etc., to the losing party. When determining the above fees, the arbitration tribunal shall consider the judgment result of the case, the complexity, the actual workload of the parties or agents, the amount of disputes in the case and other related factors.
09. Cases where the contract clearly stipulates that the lawyer's fees shall be borne by the losing party.
Contract law of the people's Republic of China
Article 8:
A legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization.
Contracts established according to law are protected by law.
local statute/law
Some Specific Opinions of Shanghai Higher People's Court on the Trial of Civil Cases (Gao Hu Famin [2000] No.44)
10. Can the lawyer's fee claim the loss?
We believe that the so-called loss refers to the loss of property interests brought to the victim by the illegal behavior of the breaching party or the injuring party. Lawyer's fees should belong to property interests in nature, and can be regarded as losses in principle, but they can't go beyond the scope that the injurer or the defaulting party should foresee.
In view of the fact that there are two kinds of lawyers' fees at present: according to the regulations and according to the agreement, we believe that if the lawyer's fees determined by the victim and the lawyer are higher than the relevant regulations, it can be considered that the higher part is beyond the scope that the offender or the defaulting party should foresee, and the excess part will not be supported.
Regulations of Shenzhen Special Economic Zone on Promoting Harmonious Labor Relations (effective as of June 1 65438+1October1day, 2008)
Article 58:
In the process of labor dispute arbitration and litigation, if the laborer wins the case, the lawyer's agency fee paid by the laborer can be borne by the employer, but the maximum amount is not more than 5,000 yuan; The part exceeding 5000 yuan shall be borne by the laborer.
Typical cases and court guidance
In recent years, the Supreme People's Court and local people's courts at all levels have also published typical cases and guiding opinions in judicial practice, which provide reference precedents for lower people's courts to hear similar cases and standardize the judicial adjudication behavior in which the lawyer's fees are borne by the losing party.
On March 3 1 2003, the Supreme People's Court released a typical case: Lu Hong v. United Airlines, a dispute over compensation for international air passenger transportation, which came into effect in the first instance of Jing 'an District Court. Defendant United Airlines compensated plaintiff Lu Hong for agency fee 16595. 10 yuan and lawyer's travel fee 1 1802.50 yuan.
A typical case published by the Supreme People's Court: Yang Wenwei v Shanghai Baosteel No.20 Metallurgical Company for personal injury compensation. On June 30, 2006, the Shanghai No.2 Intermediate People's Court finally ruled that Shanghai Baosteel No.20 Metallurgical Company compensated the plaintiff Yang Wenwei for his attorney's fee of RMB 3,000. Opinions of the Supreme People's Court on Further Promoting the Diversion of Complicated Cases and Optimizing the Allocation of Judicial Resources (Fa Fa Fa [2065438+06] No.21)
22. Guide the parties to conduct rational litigation in good faith. Intensify the crackdown on dishonest litigation such as false litigation and malicious litigation, give full play to the leverage of legal fees and attorney fees, standardize the litigation behavior of the parties, and urge the parties to choose an appropriate way to resolve disputes. If a party abuses litigation rights, delays in undertaking litigation obligations and other obvious misconduct, resulting in direct losses to the other party or a third party, the people's court may, according to the specific circumstances, support the innocent party's legitimate request for compensation for reasonable attorney's fees.