1. In case of contract dispute, the creditor exercises the right of cancellation.
Legal basis: Article 74 of the Contract Law states 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 explanation on some issues concerning the application of the People's Republic of China (PRC) Contract Law (I): "Article 26 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. "
2. Copyright civil dispute cases
Legal basis: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Copyright Civil Disputes: "Article 26 The reasonable expenses paid for stopping 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 evidence of infringement. The people's court may calculate the lawyer's fees (bills) that meet the requirements of the relevant state departments within the scope of compensation according to the litigant's claims and specific cases. "
3. Trademark civil dispute cases
Legal basis: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes: "Article 17 The reasonable expenses paid for stopping the infringement as stipulated in the first paragraph of Article 56 of the Trademark Law include 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. "
Two, the relevant provisions, but not clear, the judicial arbitration organ may decide at its discretion that the losing party shall bear reasonable legal fees.
1, patent dispute case
Legal basis: "Several Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Dispute Cases": "Article 22 The people's court may, according to the request of the obligee and the specific case, calculate the reasonable expenses paid by the obligee for investigating and stopping the infringement within the scope of compensation." If the lawyer's fee for a patent dispute case is to be calculated within the scope of the defendant's compensation, it must be based on the premise of "reasonable expenses paid for investigating and stopping the infringement".
2. Disputes over security rights
Legal basis: Article 2 1 of the Guarantee Law stipulates: "The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights. "If the debtor performs the debt according to the contract, the creditor's rights can be realized. Because the debtor fails to perform his obligations, the creditor has to realize his rights through litigation. The lawyer's fees thus paid are the fees paid by the parties to realize their creditor's rights and belong to the property losses of the parties. The "expenses for realizing creditor's rights" stipulated in Article 2 1 of the Guarantee Law shall include reasonable attorney's fees.
3. Cases of unfair competition
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 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; It should also bear the reasonable expenses paid by the infringed operator for investigating the unfair competition behavior of the operator against his legitimate rights and interests. "
4, personal injury compensation, reputation infringement, traffic accident cases
Legal basis: "General Principles of Civil Law": "Article 1 19 infringes on citizens' health and causes injuries, and shall compensate for medical expenses, income reduced due to absenteeism, living allowance for the disabled, etc.; If death is caused, the funeral expenses and necessary living expenses of the dependents of the deceased shall be paid. Paragraph 3 of Article 17 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases states that if the victim dies, the compensation obligor shall compensate funeral expenses, living expenses of dependents, death compensation, transportation expenses, accommodation expenses, lost time due to work and other reasonable expenses according to the rescue and treatment. "As early as 2000, the Shanghai Higher People's Court issued the Notice on Printing and Distributing Some Specific Opinions on the Trial of Civil Cases, which pointed out that" attorney's fees are property interests in nature and can be used as losses in principle. "
5. Legal aid cases
Legal basis: Article 7 of the Joint Notice of the Ministry of Justice of the Supreme People's Court on Several Issues concerning Civil Legal Aid: "If the expenses necessary for legal aid workers to handle legal aid cases are included in the litigation request by the recipient, the court may award them to the losing party who is not the recipient according to the specific circumstances." Therefore, when a lawyer handles a legal aid case, it is suggested that the lawyer's "necessary expenses for handling the case" be included in the litigation request and the defendant be required to bear it.
6. Arbitration cases
Legal basis: The Arbitration Rules of China International Economic and Trade Arbitration Commission (hereinafter referred to as the Arbitration Rules) 1994, 1995, 1998, 2000 editions all have similar provisions. The arbitration tribunal has the right to award the losing party some reasonable expenses incurred by the winning party in handling the case in the award, but the compensation amount shall not exceed the winning amount of the winning party at most. The Arbitration Rules (2005 edition) abolished the limit of 10%, and Article 46 stipulated: "Fees: (1) The arbitration tribunal has the right to decide the arbitration fees and other fees that the parties should finally pay to the arbitration commission in the arbitration award. (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 arbitral tribunal shall specifically consider the verdict of the case, the complexity, the actual workload of the winning party and/or the agent, and the disputed amount of the case. " In practice, fees should include attorney's fees, but the arbitration tribunal has great discretion in the issue of bearing fees.
7. In case of contract dispute, the creditor exercises the right of cancellation.
Legal basis: Article 73 of the Contract Law states that if the debtor delays in exercising the due creditor's rights, thus causing damage to the creditor, the creditor may request the people's court to subrogate the debtor's creditor's rights in its own name, unless the creditor's rights belong exclusively to the debtor.
The scope of subrogation is limited to creditor's rights. The necessary expenses for the creditor to exercise subrogation shall be borne by the debtor.
According to the Supreme People's Court's explanation on several issues concerning the application of the People's Republic of China (PRC) Contract Law (1): "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. " According to the principle of analogy, the interpretation of the necessary expenses stipulated in Article 74 of the Contract Law can be used as the consideration for the judicial arbitration organ to decide that the losing party shall bear reasonable legal fees according to law.
Three, the two sides can clearly stipulate in the contract that the lawyer's fee shall be borne by the losing party.
When signing the contract, both parties to the contract can list the lawyer's fees as compensation for breach of contract, and even specify the way and standard of bearing the lawyer's fees in detail. Special attention should be paid to clearly stating "lawyer'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 examining this agreement. The plaintiff must submit the entrustment contract signed with the law firm and the lawyer's fee invoice issued by the law firm as evidence to pay the lawyer's fee. However, even if there is an agreement on the lawyer's fee in the contract, the judge still has certain discretion, and finally determines the specific amount of the lawyer's fee, and determines the reasonable lawyer's fee according to the nature and specific circumstances of the case, not all. Therefore, when signing the lawyer's fee, it should still be within a reasonable range.