Who should bear the attorney's fees has always been a very controversial issue. I have encountered in practice that the same court dealt with the issue of attorney's fees in the same case. , making two different judgments. Now on this issue, I will make a statistics on various views and provide it to friends who browse my site. It will also be of great benefit to the expansion of my own knowledge. There are three main modes of bearing lawyers' fees in civil litigation in various countries around the world: one is the mode borne by the losing party, mainly represented by some civil law countries such as France and Germany, as well as countries such as the United Kingdom, that is, the winning party has legal obligations to lawyers. Remuneration and expenses should be paid by the losing party in various lawsuits; the second is to bear the main responsibility, with special applications as a supplement. The United States is a typical representative. For requests for attorney fees, the court shall base on the determined facts and benefits. The third is to make separate judgments based on the legal conclusions reached; the third is to bear the main responsibility and clarify the exception model, represented by Japan. For example, the Supreme Court of Japan has ruled that when the victim of an infringement has no choice but to file a lawsuit in order to protect his or her rights, the lawyer- If the loss is causally related to the infringement, you can request compensation from the other party. 1. Relevant regulations clearly stipulate that the losing party shall bear attorney's fees. 1. In contract dispute cases, the creditor exercises the right of revocation. Legal basis: "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (1)": "Article 26: Lawyer fees, travel expenses and other necessary expenses paid by the creditor when exercising the right of revocation , shall be borne by the debtor; if the third party is at fault, the liability shall be appropriately shared." 2. Copyright civil dispute cases. Legal basis: "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases": "Article 26 Reasonable expenses paid to stop infringement as stipulated in Paragraph 1 of Article 48 of the Copyright Law include rights The people's court may calculate the reasonable expenses of a person or entrusted agent to investigate and collect evidence for infringement in accordance with the litigation claims of the parties and the specific circumstances of the case." 3. Trademark civil dispute cases. . Legal basis: "The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases": "Article 17 The reasonable expenses paid to stop infringement as stipulated in Paragraph 1 of Article 56 of the Trademark Law include the right holder Or the reasonable expenses of entrusting an agent to investigate and collect evidence on the infringement. The people's court may calculate the lawyer's fees that comply with the provisions of the relevant state departments into the scope of compensation based on the litigation claims of the parties and the specific circumstances of the case. " 2. The relevant provisions are as follows. It is stipulated but not clear that the judicial arbitration agency may arbitrate cases where the losing party shall bear reasonable attorney fees accordingly. 1. Patent dispute cases. Legal basis: "Several Provisions of the Supreme People's Court on Applicable Legal Issues 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 circumstances of the case, reduce the reasonable amount paid by the right holder for investigating and stopping infringement. Expenses are calculated within the scope of the amount of compensation. "If attorney fees are to be calculated within the scope of the defendant's compensation in patent dispute cases, they must be based on the premise of "reasonable expenses paid for investigating and stopping infringement." 2. Security rights dispute cases. Legal basis: Article 21 of the "Guarantee Law" stipulates: "The scope of the guarantee includes the principal creditor's rights and interest, liquidated damages, damages and costs of realizing the creditor's rights." If the debtor performs its debts in accordance with the contract, the creditor's rights and interests will be realized. Because the debtor fails to perform its obligations, the creditor has to resort to litigation to realize its rights. The lawyer's fees paid are the expenses incurred by the party to realize its creditor's rights and belong to the party's property losses. Article 21 of the "Security Law" stipulates that "Expenses for realizing the creditor's rights" shall include reasonable attorney's fees. 3. Unfair competition cases. Legal basis: Article 20 of the "Anti-Unfair Competition Law" "If an operator violates the provisions of this law and causes damage to the infringed operator, he shall bear liability for damage compensation. If the infringed operator's loss is difficult to calculate, the amount of compensation shall be The infringer shall bear the profits gained by the infringement during the infringement period; and shall 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.” 4. Compensation for personal damages and reputation infringement. , traffic accident cases.
Legal basis: Article 119 of the General Principles of the Civil Law: "Whoever infringes upon a citizen's body and causes injury shall be compensated for medical expenses, loss of income due to missed work, living allowances for the disabled and other expenses; if death is caused, funeral expenses and lifetime support of the deceased shall be paid. "The Supreme People's Court's Interpretations on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" Article 17, Paragraph 3: "If the victim dies, the person obligated to compensate shall compensate according to the circumstances of the rescue and treatment." In addition to the relevant expenses stipulated in paragraph 1, compensation shall also be provided for funeral expenses, living expenses of dependents, death compensation expenses, transportation expenses, accommodation expenses, loss of work time and other reasonable expenses incurred by relatives of the victim for funeral matters." Shanghai Higher People's Court. As early as 2000, the "Notice on Issuing the "Specific Opinions on the Trial of Civil Cases"" pointed out in personal injury compensation cases that "lawyer fees are property interests in nature and can, in principle, be treated as losses." " 5. Legal aid cases. Legal basis: "Joint Notice of the Supreme People's Court and the Ministry of Justice on Several Issues Concerning Civil Legal Aid Work" Article 7: "Travel expenses, printing fees, transportation and communication expenses required by legal aid personnel to handle legal aid cases , investigation and evidence collection fees and other necessary expenses for case handling, if the aided party is included in the litigation claims, the court may determine that the non-aided losing party shall bear it according to the specific circumstances. Therefore, when lawyers handle legal aid cases, it is recommended that the lawyer’s "necessary expenses for handling the case" "Include the claim in the lawsuit and require the defendant to bear it. 6. Arbitration case. Legal basis: The 1994, 1995, 1998, and 2000 versions of the "China International Economic and Trade Arbitration Commission Arbitration Rules" (referred to as the "CIETAC Rules") have similar provisions , the arbitral tribunal has the right to rule in the award that the losing party should compensate the winning party for part of the reasonable expenses incurred in handling the case, but the amount of compensation shall not exceed 10% of the winning amount of the winning party (CIETAC Rules (2005 Edition)). This 10% limit was cancelled, and Article 46 stipulates: “Cost liability: (1) The arbitral tribunal shall have the right to determine in the arbitration award the arbitration fees and other expenses ultimately payable by the parties to the arbitration committee. (2) The arbitral tribunal has the right to rule in the award based on the specific circumstances of the case that the losing party should compensate the winning party for the reasonable expenses incurred in handling the case. When the arbitral tribunal determines whether it is reasonable for the losing party to compensate the winning party for the expenses incurred in handling the case, it shall specifically consider factors such as the outcome of the case, the complexity, the actual workload of the winning party and/or its agent, and the amount in dispute in the case.” In practice, the fee should include attorney's fees, but the arbitral tribunal has great discretion on the issue of bearing the fees. 3. The parties can expressly agree in the contract that the attorney's fees will be borne by the losing party when the contract is signed. When making a contract, attorney's fees can be listed as liquidated damages, and the method and standard of bearing attorney's fees can even be listed in detail. Special attention should be paid to clearly stating "attorney's fees". It is best not to write The People's Court is very strict in reviewing this agreement with unclear terms such as "expenses for realizing claims". When filing a lawsuit, the plaintiff must submit the entrustment contract signed with the law firm and the attorney's fee invoice issued by the law firm as payment of attorney's fees. According to the evidence, the agreement on attorney fees should be reasonable. What are the items of attorney fees? 1. Piece-rate and proportional charging standards (refer to Jiangsu Province lawyer service fee government guide price standards) Time-based charges for simple litigation cases (1) Criminal cases 100- 2,500 yuan/hour 1. Investigation stage 1,000-8,000 2. Review and prosecution stage 1,500-10,000 3. First instance stage 2,500-20,000 (2) Civil cases 1. No property involved: 2,500-10,000 2. Property involved: subject matter ≤ 10,000 yuan 2500 Target >100,000 yuan, ≤100,000 yuan 4-7% Target >100,000 yuan, ≤500,000 yuan 3-6% Target >500,000 yuan, ≤1 million yuan Target >1 million yuan, ≤5 million yuan2 -4% 3. If it exceeds 30 minutes and is less than 1 hour, it will be charged as 1 hour. If it is less than 30 minutes, there will be no charge. The time spent in handling legal affairs will be calculated as half. 4. The time spent by one lawyer to handle the matter will be determined. If two or more lawyers are required, they will be calculated separately. The time shall be added up and then determined. 2. Charges for handling criminal cases 1. Those who serve as defenders or agents in criminal private prosecution cases or as victims’ attorneys in public prosecution cases shall be charged according to the first-instance standard for criminal cases.
2. If you represent a victim in a criminal case, the fee will be reduced according to the standard. 3. For the civil litigation part of criminal incidental civil litigation cases, the fees will be reduced according to the first-instance fee standards for civil cases. 4. Individual representation in second instance, death penalty review, trial supervision and special procedure cases will be charged according to the first instance fee standards. Those who have acted as agents in the previous stage will be halved from the next stage. 3. Fee regulations for agency in civil cases 1. Individual agency for second instance, retrial, enforcement and counterclaim cases shall be charged according to the fee standards for first instance cases respectively. Those who have acted as agents in the previous stage will be halved from the next stage. 2. If the client represents the main lawsuit and counterclaim at the same time, the amount of the counterclaim will be halved. 3. If risk agency charges are implemented, the maximum charge amount shall not be higher than 30% of the subject amount agreed in the contract. If the contract is unclear or obviously unfair, the interpretation shall be in favor of the client. 4. Other charging regulations 1. If the client is overseas or from Hong Kong, Macao or Taiwan, the law firm may refer to the representative offices of foreign countries or Hong Kong, Macao or Taiwan in my country to handle foreign-related or Hong Kong-, Macao- or Taiwan-related legal affairs. The charging standard for similar legal matters shall be determined through consultation with the client. 2. Litigation fees, arbitration fees, appraisal fees, notarization fees and file search fees paid by the law firm on behalf of the client in the process of providing legal services are not lawyer service fees and shall be paid separately by the client. 3. Travel expenses and accommodation expenses incurred by the law firm when it needs to go to other cities in the province or other provinces to handle cases will be separately charged by the law firm based on the actual amount after negotiation and confirmation by both parties. If a law firm needs to collect travel expenses in advance for handling cases in other places, it shall provide a cost estimate to the client. If it is really necessary to change the cost estimate, the law firm must obtain the client's written consent in advance. 5. Contingency fees are prohibited in the following cases: 1. Criminal litigation cases, administrative litigation cases, state compensation cases and group litigation cases. 2. Marriage and inheritance cases. 3. Cases requesting social insurance benefits or minimum living security benefits. 4. Cases requesting alimony, support, support, relief funds, work-related injury compensation, and compensation for personal injuries caused by traffic and medical accidents. 5. Cases requesting payment of labor remuneration. Who will bear the lawyer's fees? When litigating a lawsuit, the lawyer's fees are not necessarily borne by the losing party. The winning party may also need to bear the lawyer's fees. Therefore, before filing a lawsuit, you must make sure that you can afford the relevant fees. If you want to know how much legal fees are reasonable before filing a lawsuit, you can consult a lawyer.