1, which is clearly stipulated in the contract
If the contract clearly stipulates that the lawyer's fees arising from rights protection or dispute settlement need to be borne, the plaintiff may claim that the lawyer's fees should be borne by the defendant when the contract is valid. If the agreed attorney fees meet the relevant provisions of the local lawyer's charging standards and provide actual payment vouchers, the court shall support them.
2. When the creditor exercises the right of cancellation,
Legal basis:
Article 74 of the Contract Law stipulates that if the debtor abandons the due creditor's rights or transfers the property for free, thus causing damage to the creditor, the creditor may request the people's court to cancel the debtor's behavior. If the debtor transfers the property at an obviously unreasonable low price, causing damage to the creditor, and the transferee knows the situation, the creditor may also request the people's court to cancel the debtor's behavior. The scope of revocation right is limited to creditor's rights. The necessary expenses for the creditor to exercise its right of cancellation shall be borne by the debtor.
The Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law (I) (No.1999) Article 26 The necessary expenses such as attorney's 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. Stop trademark infringement.
Legal basis: The reasonable expenses paid to stop the infringement as stipulated in Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes (Fa Shi [2002] No.32) and the first paragraph of Article 56 of the Trademark Law, including the reasonable expenses paid by the obligee or entrusted agent to investigate and collect 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.
4. When stopping copyright infringement.
Legal basis: The reasonable expenses paid to stop the infringement as stipulated in Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes (No.31No.2002) and Article 48, paragraph 1 of the Copyright Law, including the reasonable expenses paid by the obligee or entrusted agent to investigate and collect 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.
5. Stop patent infringement.
Legal basis:
Article 65 of the Patent Law stipulates that the amount of compensation for patent infringement shall be determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the interests of the infringer, it shall be reasonably determined by reference to the multiple of the patent license fee. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement.
Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases (Law Interpretation [2015] No.4)
Article 22 If the obligee claims that reasonable expenses have been paid to stop the infringement, the people's court may calculate the compensation amount in addition to the compensation amount determined in Article 65 of the Patent Law.
6. Stop acts of unfair competition infringement.
Legal basis: Paragraph 3 of Article 17 of the Anti-Unfair Competition Law stipulates that the amount of compensation for operators who have suffered unfair competition shall be determined according to the actual losses they have suffered due to infringement; If the actual loss is difficult to calculate, it shall be determined according to the interests obtained by the infringer due to infringement. If the business operator maliciously commits an act of infringing business secrets, and the circumstances are serious, the amount of compensation can be determined in accordance with the amount determined by the above method. The amount of compensation shall also include the reasonable expenses paid by the operator to stop the infringement.
7. When the creditor realizes the creditor's right to the guarantor.
Legal basis: Article 2 1 of the Guarantee Law. The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights. If there are other provisions in the guarantee contract, such provisions shall prevail. Where the parties have not agreed on the scope of guarantee or the agreement is unclear, the guarantor shall be liable for all debts. The expenses for realizing creditor's rights may include reasonable attorney's fees.
8. Stop information network infringement.
Legal basis: Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Disputes over the Use of Information Networks (Law Interpretation [20 14]No.1/)
) Article 18, paragraph 1, the reasonable expenses paid by the infringed person to stop the infringement can be recognized as the property loss stipulated in Article 20 of the Tort Liability Law. Reasonable expenses include the reasonable expenses of the infringed or the entrusted agent to investigate and collect the evidence of infringement. According to the request of the parties and the specific case, the people's court may calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation.
9. When bringing a consumer civil public interest lawsuit.
Legal basis: Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Consumer Civil Public Interest Litigation Cases (Law Interpretation [20 16]No. 10), the people's court can support the plaintiff and his litigation agent for reasonable investigation and evidence collection fees, appraisal fees and reasonable lawyer's agency fees according to the actual situation.
10, when environmental civil public interest litigation is filed.
Legal basis:
Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Environmental Civil Public Interest Litigation Cases (Law Interpretation [20 15] No 1)
Article 22 If the plaintiff requests the defendant to bear the inspection and appraisal fees, reasonable attorney fees and other reasonable litigation expenses, the people's court may support it according to law.
Article 1 1 of the Supreme People's Court's Opinions on Comprehensively Strengthening the Trial of Environmental Resources to Provide Strong Judicial Guarantee for Promoting the Construction of Ecological Civilization (Fa Fa [2065] No.438+04) reasonably determines the subject of litigation costs. If the plaintiff wins the case, he may be ordered to pay reasonable attorney fees, investigation and evidence collection fees, appraisal and evaluation fees and other expenses.
Article 28 of "the Supreme People's Court's Work Standard for Hearing Environmental Public Interest Litigation Cases (Trial)" (No.65438 of April 2007+KLOC-0 of April 2007) stipulates that if the parties reach a mediation agreement or reach a settlement agreement by themselves, the people's court shall announce the contents of the agreement on the bulletin board of the court, the official website of the people's court against whom the lawsuit is filed or other corresponding media, and notify the department responsible for environmental protection supervision and management. The announcement period is not less than thirty days. A mediation agreement or a settlement agreement shall generally include the following contents: (1) Confirm the defendant's specific plan to carry out environmental pollution and ecological destruction and stop carrying out environmental pollution and ecological destruction; (two) for the ecological environment that has been damaged, it is clear that the defendant should bear the responsibility of environmental restoration; (three) to determine the environmental recovery plan, the implementation and supervision subject of environmental recovery, the specific amount of environmental recovery expenses and the payment object; (4) The amount of compensation that the defendant should bear for the loss of the ecological environment service function is clear; (5) If the plaintiff asks for an apology, he shall clearly make a written apology in the influential media; (6) Determining the inspection and appraisal fees borne by the defendant, the plaintiff's reasonable attorney fees and other reasonable litigation costs.
1 1. When it comes to compensation for ecological environment damage,
Legal basis: Article 14 of the Provisions of the Supreme People's Court Municipality on the Trial of Compensation Cases for Ecological Environment Damage (Trial) (Fa Shi [2019] No.8) stipulates that if the plaintiff requests the defendant to bear the following expenses, the people's court will make a judgment according to the specific circumstances: (1) To prevent the occurrence and expansion of ecological environment damage, implement emergency plans and adopt reasonable measures. (two) the investigation, inspection, appraisal and evaluation fees and litigation fees of compensation consultation for ecological environment damage; (3) Reasonable attorney fees and other reasonable litigation expenses.
12. such as false litigation, malicious litigation, etc.
Article 22 of the Supreme People's Court's Opinions on Further Promoting the Diversion of Complicated Cases and Optimizing the Allocation of Judicial Resources (Fa Fa Fa Fa [2016] No.21) guides 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.
13. Failure to participate in mediation without justifiable reasons or obvious malice leading to mediation failure is at fault.
Legal basis: Article 15 of the Opinions of the Supreme People's Court and the Ministry of Justice on Launching the Pilot Work of Lawyer Mediation (No.105 of Sifatong [20 17]), so as to leverage the litigation cost. If the parties reach a settlement agreement and apply for withdrawal of the lawsuit, the people's court shall waive the legal fees. If the parties reach a mediation agreement through mediation in litigation, the people's court may charge half of the legal fees. If one party refuses to participate in mediation without justifiable reasons, or mediation fails due to obvious malice, the people's court may support the innocent party's legitimate request for compensation for reasonable legal fees according to the specific circumstances.
14. When the dispute is arbitrated,
Legal basis:
In the second paragraph of Article 52 of the Arbitration Rules of China International Economic and Trade Arbitration Commission (20 15), the arbitration tribunal has the right to award the losing party to compensate the winning party for the reasonable expenses incurred 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.
According to Item (4) of Article 52 of the Arbitration Rules of Beijing Arbitration Commission (version 20 19), the arbitration tribunal has the right to award the losing party compensation for 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. 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.
According to Article 6 1 of the Arbitration Rules of Shanghai Arbitration Commission (20 13 Edition), the arbitration tribunal has the right to award the party at fault to compensate the observant party for the reasonable expenses incurred in handling the case.
Article 74 (3) and (4) of the Arbitration Rules of China Guangzhou Arbitration Commission (20 15) stipulates: "The arbitration tribunal has the right to award the reasonable expenses of the losing party (including lawyer's service fee, preservation fee, notarization fee, etc.). The expenses incurred by the winning party in handling the case at the request of the parties. " "If the winning party requests the losing party to bear the lawyer's service fee for handling the case, the arbitration tribunal shall make a ruling by comprehensively considering the relevant factors such as the result of the case ruling, the complexity, the actual workload of the lawyer and the amount of the case dispute. If both parties agree on the specific amount and have a lawyer to represent them, such agreement shall prevail, but the maximum amount shall not exceed15% of the winning amount; If there is no agreement between the two parties, the support amount of the actual lawyer service fee shall not exceed 15% of the winning amount at most. "
15, compensation for traffic accidents, medical accidents and personal injuries (Shanghai only)
Legal basis: Notice of Shanghai Higher People's Court on Printing and Distributing Several Specific Opinions on the Trial of Civil Cases (Gao Hu Famin [2000] No.44) 14. Can the lawyer's fee claim for 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.
16, when workers defend their rights in labor disputes (Shenzhen only)
Legal basis: Article 58 of the Regulations of Shenzhen Special Economic Zone on Promoting Harmonious Labor Relations stipulates that in labor dispute arbitration and litigation cases, 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.