1, regular charge
Conventional charges refer to the level of litigation procedures, that is, the system of "second instance and final adjudication", that is, litigation is divided into two stages: first instance and second instance. After the judgment or ruling of the first instance, if one party refuses to accept it, it may file a second instance, which is final and generally cannot file a lawsuit. But in reality, there is an execution procedure after the judgment, that is, after the judgment, the other party fails to perform the contents determined in the judgment, and the other party applies to the court for compulsory execution of the other party's property (that is, the usual seizure and seizure of property) in order to realize the contents of the judgment. Correspondingly, the lawyer's fee also has three stages: the first trial fee, the second trial fee and the execution fee.
2. One-time expenses
Lump-sum charge refers to taking charge of the case to the end after charging the fee, that is, charging the fee only once, and being responsible for the first trial, second trial and execution. The charging standard is appropriately raised on the basis of the first-instance charge in the conventional charging.
3. Risk cost
Risk charge means that only a small amount of fees are charged before the execution of judgment, mediation and settlement, and higher fees are charged after winning the case or executing the payment. The charging standard is about 2000- 10000 in the upfront cost, and 10-30% after winning the case.
The above charging methods shall be determined by the lawyer and the client through consultation according to the specific circumstances.
In a word, the way and amount of lawyer's fees are determined by the lawyer and the client through consultation within a certain range. How to charge for a specific case and how much the lawyer's fee should be determined through consultation with the lawyer.
Second, who will bear the legal fees?
1. There are three main modes to bear the lawyer's fees in international civil litigation: one is that the losing party bears the lawyer's fees, mainly represented by some civil law countries such as France, Germany and Britain, that is, the legal remuneration and fees paid by the winning party to the lawyer in various lawsuits are paid by the losing party; Second, the mode of giving priority to personal responsibility, supplemented by special application, with the United States as a typical representative, the court makes a separate judgment on the request for lawyer's fees according to the facts ascertained and the legal conclusions drawn; Third, all parties should bear the main responsibility and make clear the exception mode, with Japan as the representative. For example, Japan's Supreme Court ruled that if a victim of infringement has to file a lawsuit to protect his rights, he can demand compensation from the other party.
2. For a long time, China's commitment to legal fees has formed a conventional situation in judicial practice. However, in theory, there are still two different views on the issue of legal fees:
(a) a view that the lawyer's fees should be borne by the losing party, the main reasons are:
(1) The lawyer's fee is the indirect loss that the losing party should compensate. With the improvement of China's legal system, legal provisions and litigation work are becoming more and more complicated. In order to protect their legitimate rights and interests, it is an objective and realistic need for parties to hire lawyers to participate in litigation. The lawyer's fees paid by the parties are also part of the losses suffered by infringement, which should undoubtedly be included in the compensation scope of the losing party.
(2) The lawyer's fee shall be borne by the losing party, which has corresponding legal basis. According to the provisions of the General Principles of Civil Law that "citizens and legal persons shall bear civil liability if they infringe upon other people's property or person through fault", the losing party (or the party at fault) may be required to bear the corresponding legal costs.
(3) The lawyer's fee shall be borne by the losing party, which is helpful to reduce the excessive litigation. If the lawyer's fee is borne by the losing party, the plaintiff will not easily arouse the idea of litigation, forcing the parties to take other ways to solve the dispute, which is conducive to saving national judicial resources and serving the construction of a harmonious society.
(4) It is a common practice in many countries and regions that the lawyer's fees should be borne by the losing party. In addition to the United States, Japan and other countries mentioned above, the courts of the Hong Kong Special Administrative Region of China usually award the losing party compensation for the winning party's lawyer's fees directly according to the law. In addition, some international treaties and rules have also established the rule that "the lawyer's fees shall be borne by the losing party". For example, according to the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the infringer should not only "compensate the damage caused to the obligee by the infringement of intellectual property rights", but also pay the obligee reasonable fees including attorney fees.
(2) Another view is that the lawyer's fee should be borne by the party who hired the lawyer. The main reasons are:
(1) The existing provisions on legal fees are only applicable to some fields and cannot be understood as the legal basis for the losing party (the wrong party) to bear legal fees;
(2) Whether to hire a lawyer is the right of the parties, not a necessary act, and the court will not change the trial result of case [] because of whether the parties hire a lawyer, so there is no inevitable causal relationship between hiring a lawyer and bringing a lawsuit;
(3) China's current relevant regulations do not completely unify the lawyer's fees, and the parties and entrusted lawyers can negotiate on their own, so it is very difficult for the court to define the accuracy of fees;
(4) The losing party's legal fees may also lead to malicious competition among lawyers, which is not conducive to the current legal system construction in China.
Most of us think that the lawyer's fee should be borne by the losing party. In recent years, relevant laws and judicial interpretations have made new provisions on the fees of lawyers in disputes in some specific fields. For example, the Civil Code also stipulates that the lawyer's fees, travel expenses and other expenses paid by the creditor to exercise the cancellation right shall be borne by the debtor. However, it should be pointed out that the lawyer's agency fee has not actually occurred, and there is no actual damage result. When the creditor recovers the debt, it may not claim the lawyer's agency fee from the debtor in the same lawsuit.
legal ground
Joint circular of the Supreme People's Court and the Ministry of Justice on several issues concerning civil legal aid.
Article 7: "If the litigation request includes necessary expenses such as travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees of legal aid personnel, the court may award it to the losing party who is not the recipient according to the specific circumstances." Therefore, when handling legal aid cases, lawyers suggest that the lawyer's fee should be included in the litigation request, requiring the defendant to bear it. "