When litigating a lawsuit, many plaintiffs may believe that the attorney fees they pay should be borne by the losing party. However, in judicial practice, the people's courts generally will not support this claim. However, in certain circumstances, the court may conditionally support the plaintiff's claim that the losing defendant bear its own attorney's fees.
1. The relevant regulations clearly stipulate that the losing party shall bear the attorney fees.
1. In contract dispute cases, the creditor exercises the right of revocation.
Legal basis: Article 74 of the "Contract Law"
If the debtor gives up its due creditor's rights or transfers property for free, causing damage to the creditor, the creditor may request the People's Court to revoke the debt. Debtor’s conduct. If the debtor transfers property at an obviously unreasonable low price, causing damage to the creditor, and the transferee is aware of this situation, the creditor may also request the people's court to revoke the debtor's behavior. The scope of exercise of the right of revocation is limited to the creditor's claims. The necessary expenses incurred by the creditor in exercising the right of revocation shall be borne by the debtor.
"The 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: Attorney's fees paid by the creditor for exercising the right of revocation, Necessary expenses such as travel expenses shall be borne by the debtor; if the third party is at fault, it shall be appropriately borne. ”
2. Copyright civil dispute cases
Legal basis: “The Supreme People’s Court’s Rules on Trial. Interpretation of Several Issues on the Application of Law in 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 the right holder or an agent entrusting an agent to handle the infringement. Reasonable expenses for investigation and evidence collection. Based on the parties’ litigation claims and specific case circumstances, the People’s Court may include attorney fees (notes) that comply with the provisions of relevant state departments within the scope of compensation.”
3. Trademark civil dispute cases
Legal basis: "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Trademark Dispute Cases": "Article 17
Article 56, Paragraph 1 of the Trademark Law The stipulated reasonable expenses for stopping infringement include reasonable expenses for the right holder or his agent to investigate and collect evidence for the infringement. The people's court may, based on the parties' litigation requests and the specific circumstances of the case, appoint lawyers who comply with the regulations of the relevant state departments. Fees are calculated within the scope of compensation. ”
2. The relevant provisions are stipulated but not clear. Judicial arbitration authorities may decide accordingly where the losing party shall bear reasonable attorney fees
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 shall, based on the request of the right holder and the specific Depending on the circumstances of the case, the reasonable expenses paid by the right holder to investigate and stop the infringement can be calculated within the scope of the compensation amount. ”
If attorney fees are to be calculated within the scope of the defendant’s compensation amount in a patent dispute case, It must be based on "reasonable expenses paid for investigating and stopping infringement".
2. Security right dispute cases
Legal basis:
"Guarantee Law": "Article 21 stipulates: "The scope of guarantee includes the principal creditor's rights and Interest, liquidated damages, damages and costs of realizing creditor's rights. "If the debtor performs its debts in accordance with the contract, the creditor's rights and interests can be realized. Because the debtor fails to perform its obligations, the creditor has to realize its rights through litigation. The attorney fees paid thereby are the expenses incurred by the party to realize its creditor's rights. For property losses belonging to the parties, the "expenses for realizing the creditor's rights" stipulated in Article 21 of the "Security Law" shall include reasonable attorney's fees.
3. Unfair competition cases
Legal basis. : "Anti-Unfair Competition Law": "Article 20
If an operator violates the provisions of this law and causes damage to the infringed operator, he shall bear the liability for damages and the infringed operator's losses shall be borne by the operator. If it is difficult to calculate, the amount of compensation shall be the profits gained by the infringement due to the infringement during the infringement period; and the infringed operator 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. Personal injury compensation, reputation infringement, traffic accident cases
Legal basis: "General Principles of Civil Law": "Article 119
Infringement on the body of citizens If injury is caused, medical expenses, reduced income due to missed work, living allowances for the disabled and other expenses shall be compensated; if death is caused, funeral expenses, necessary living expenses of the deceased's dependents and other expenses shall be paid. "
"Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Injury Compensation Cases" "If the victim in paragraph 3 of Article 17 dies, the person obligated to compensate shall, in addition to paying compensation based on the rescue and treatment conditions, pay the amount stated in paragraph 1 of this Article In addition to the relevant expenses stipulated in the paragraph, compensation shall also be provided for funeral expenses, living expenses of dependents, death compensation, and other reasonable expenses such as transportation expenses, accommodation expenses, and loss of work lost by relatives of the victim for funeral matters. "
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: "Legal aid personnel handle legal matters If the aided party includes the travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees and other necessary expenses required for handling the case, the court may decide that the non-aided losing party shall bear them based on the specific circumstances." Therefore, lawyers When handling legal aid cases, it is recommended that the lawyer's "necessary expenses for handling the case" be included in the litigation request and the defendant be required to bear them.
6. Arbitration cases
Legal basis: 1994, 1995, 1998. , the 2000 version of the China International Economic and Trade Arbitration Commission Arbitration Rules (referred to as the "CIETAC Rules") all have similar provisions. The arbitral tribunal has the right to rule in the award that the losing party should compensate the winning party for a reasonable portion of the expenses incurred in handling the case. The amount of compensation shall not exceed 10% of the winning amount of the case. The CIETAC Rules (2005 Edition) cancels this 10% limit. Article 46 stipulates: “Expenses to be borne by: (1) The arbitral tribunal. It has 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, its 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 liability.
7. In contract dispute cases, the creditor exercises the right of rescission. Situation.
Legal basis: Article 73 of the "Contract Law" If the debtor fails to exercise its due credit rights, causing damage to the creditor, the creditor may request the People's Court to subrogate the debtor in its own name.
The scope of the right of subrogation is limited to the creditor's rights. The creditor's necessary expenses for exercising the right of subrogation shall be borne by the debtor.
According to the "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 to exercise the right of revocation, The liability shall be borne by the debtor; if the third party is at fault, the liability shall be appropriately shared. "The interpretation of the necessary fees stipulated in Article 74 of the Contract Law can be used as a consideration based on the principle of analogy that the judicial arbitration agency may decide according to the law that the losing party should bear reasonable attorney fees
Three , Both parties can clearly stipulate in the contract that the attorney's fees will be borne by the losing party.
When signing the contract, the parties can list the attorney's fees as part of the liquidated damages content, and can even specify the manner in which the attorney's fees will be borne. The standard of liability is also listed in detail. Special attention should be paid to clearly stating "attorney's fees", and it is best not to write unclear words such as "expenses for realizing creditor's rights". The People's Court is very strict in reviewing this agreement. The plaintiff must submit it when filing a lawsuit. The entrustment contract signed with the law firm and the attorney fee invoice issued by the law firm are used as evidence of payment of attorney fees. However, even if there is an agreement on the bearing of attorney fees in the contract, the judge still does not agree on the final specific amount of attorney fees. There is a certain degree of discretion to determine a reasonable attorney's fee based on the nature of the case and the specific circumstances, but not all. Therefore, when signing the attorney's fee, it should still be within a reasonable range