Lawyer. -Who's going to pay?
The commitment of legal fees has always been a controversial issue. I once met in practice that the same court made two different judgments on the issue of legal fees in the same case.
Now, on this issue, I will make a statistics of various viewpoints and provide them to my friends who browse my website, which is also of great benefit to the expansion of my knowledge.
There are three main modes of lawyer's fees in civil litigation all over the world: one is the losing party mode, which is mainly represented by some civil law countries such as France and Germany, as well as Britain and other countries, that is, the legal remuneration and expenses of the winning lawyer in various lawsuits should be 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, the Supreme Court of Japan ruled that the victim of infringement should file a lawsuit to safeguard his rights, and if there is a causal relationship with the infringement, he can ask the other party for compensation.
First, the relevant provisions clearly stipulate that the losing party shall bear the lawyer's fees.
1. In case of contract dispute, the creditor exercises the right of cancellation. Legal basis: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of People's Republic of China (PRC) Contract Law (I): "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. "
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, according to the claims of the parties and specific cases, calculate the lawyer's fees that meet the requirements of the 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 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, at its discretion, decide 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 and interests can be realized. Because the debtor fails to perform his obligations, the creditor has to realize his rights through litigation, and the lawyer's fees paid from this are the expenses 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: 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 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: Article 1 19 of the General Principles of the Civil Law: "If a citizen's health is damaged, he 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 "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 situation. 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 regarded 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, the fee should include attorney's fees, but the arbitration tribunal has great discretion to bear the fee.
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 stipulate in detail the way and standard of bearing the lawyer's fees. Special attention should be paid to clearly stating "lawyer's fees", and it is best not to write such ambiguous words as "expenses for realizing creditor's rights". The people's court is very strict in examining this agreement. The plaintiff submits 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, and the agreement on the lawyer's fee should be reasonable.
How much is the lawyer's fee?
I. Piece-by-piece and proportional charging standards (refer to the government-guided charging standards for lawyer services in Jiangsu Province)
Time charge for simple litigation cases
(a) criminal cases 100-2500 yuan/hour.
1, investigation stage 1000-8000
2. Review and prosecution stage 1500- 10000
3, the preliminary stage of 2500-20000
(2) Civil cases
1, not involving property: 2500- 10000
2, involving property:
Target ≤ 65,438+10,000 yuan, 2,500 yuan
Target > 4-7% of RMB 654.38+10,000 Yuan and ≤ 654.38+10,000 Yuan.
Target > 65438+ 10,000 yuan, ≤ 500,000 yuan 3-6%
Target > 500,000 yuan, ≤ 1 2.5% of 10,000 yuan.
Target value >1000000 yuan, less than or equal to 5 million yuan 2-4%
3. If the time is less than 30 minutes 1 hour, it will be calculated as 1 hour, and if the time is less than 30 minutes, there will be no charge, and the legal affairs will be handled in half.
4. According to the time for one lawyer to handle affairs, two or more lawyers need to calculate the time separately and add it up to determine.
Two. Provisions on charges for handling criminal cases
1. Those who act as defenders, agents or victims' agents in criminal private prosecution cases shall be charged according to the charging standard of first instance in criminal cases.
2, the criminal victim's agent, according to the standard, reduce the cost as appropriate.
3. For the civil litigation part of criminal incidental civil litigation cases, the fees shall be reduced or exempted according to the standard of first instance fees for civil cases.
4. Those who independently represent cases of second instance, death penalty review, trial supervision and special procedures shall be charged according to the standards of first instance. Has represented the previous stage, from the latter stage by half.
Three. Provisions on agency fees in civil cases
1. Independently represent cases of second instance, retrial, execution and counterclaim, and charge according to the charging standard of first instance cases respectively. Has represented the previous stage, from the latter stage by half.
2. If you represent this lawsuit and a counterclaim case at the same time, the amount of counterclaim subject matter will be charged by half respectively.
3, the implementation of risk agency fees, the maximum amount of fees shall not be higher than 30% of the contract amount. If the contract is unclear or obviously unfair, an explanation in favor of the client shall be made.
IV. Other expenses
1. If the client comes from overseas or Hong Kong, Macao and Taiwan, the law firm may consult the representative offices of foreign countries or Hong Kong, Macao and Taiwan to handle similar legal affairs, and negotiate with the client to determine the amount of fees.
2. The lawyer's fees, arbitration fees, appraisal fees, notarization fees and file retrieval fees paid by the law firm on behalf of the client in the process of providing legal services are not lawyer's service fees, and shall be paid separately by the client.
3. The travel expenses and accommodation expenses incurred by the law firm in handling cases in other cities in the province or other provinces shall be charged separately by the law firm after the actual amount is confirmed by both parties through consultation. If a law firm needs to collect the travel expenses for handling cases in different places in advance, it shall provide the estimated expenses to the client. If it is really necessary to change the estimated fee, the law firm must obtain the written consent of the client in advance.
Five, the following circumstances prohibit the collection of risk agency fees.
1, criminal litigation cases, administrative litigation cases, state compensation cases, group litigation cases.
2. Marriage and inheritance cases.
3. Cases requesting social insurance benefits or minimum living security benefits.
4. Cases requesting payment of alimony, alimony, alimony, relief, industrial injury compensation and personal injury compensation caused by traffic and medical accidents.
5. Cases of requesting payment of labor remuneration.
Lawyer. -Who's going to pay? The lawyer's fee is not necessarily borne by the losing party, and the winning party may also bear the lawyer's fee, so make sure that you can bear the relevant expenses before going to court. If you want to know exactly how many lawyers you want before going to court-whether the fee is reasonable, you can consult a lawyer.