In some litigation cases accepted by the court, it is often because the legitimate rights and interests of citizens have been infringed, which has brought certain losses to the parties, that is, infringement. Many people will hire a lawyer when they sue. Under normal circumstances, the attorney's fees need to be borne by the client, and some can apply to be borne by the defendant. So, does the defendant bear the lawyer's fee for the infringement case? Let me give you a detailed introduction, hoping to help you.
1. Is the lawyer's fee for the infringement case borne by the defendant?
Under legal circumstances, the lawyer's fees for property infringement cases can be borne by the defendant.
The plaintiff has the right to ask the other party to pay the lawyer's fee.
1, traffic accidents, medical disputes, personal injuries and other infringement cases.
Article 1 179 of the Civil Code (in force): Anyone who infringes upon others and causes personal injury shall be compensated for the reasonable expenses of treatment and rehabilitation, such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital food subsidies, and the reduced income due to absenteeism. If it causes disability, it shall also compensate for the cost of assistive devices and disability compensation; If death is caused, funeral expenses and death compensation shall also 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 stipulates: "If the victim dies, the compensation obligor shall compensate the funeral expenses, living expenses of the dependents, death compensation and other reasonable expenses paid by the relatives of the victim, such as transportation expenses, accommodation expenses, lost time due to funeral." The "equal expenses" and "other reasonable expenses" in these two provisions show that the national laws not only protect the losses listed in the law, but also generally protect other reasonable expenses, which provides a legal basis for the lawyer's fees to be ultimately borne by the compensation obligor.
2. A kind of contract case in which the creditor exercises the cancellation right to realize the secured creditor's rights.
Necessary expenses such as lawyer's agency fees and travel expenses paid by the creditor in exercising the cancellation right shall be borne by the debtor; If the third party is at fault, it shall share it appropriately.
Article 691 of the Civil Code: "The scope of guarantee includes the principal creditor's right and its interest, liquidated damages, damages and expenses for realizing the creditor's right. Unless otherwise agreed by the parties, such agreement shall prevail. " "The expenses for realizing creditor's rights" shall include reasonable attorney's fees.
3. Intellectual property cases of copyright infringement
Article 48 of the Copyright Law clearly stipulates: "If copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual loss of the obligee; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation should also include the reasonable expenses paid by the right holder to stop the infringement. "
Article 26 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Disputes stipulates that the reasonable expenses paid for stopping the infringement as stipulated in Article 48, paragraph 1 of the Copyright Law include the reasonable expenses paid by the obligee or entrusted agent for investigating and collecting evidence of infringement.
4. Intellectual property cases of trademark infringement
Article 17 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Trademark Civil Disputes clearly stipulates: "The reasonable expenses paid for stopping infringement as stipulated in Article 56, paragraph 1 of the Trademark Law include the reasonable expenses paid by the obligee or entrusted agent to investigate and collect evidence of infringement.
Article 22 of the Supreme People's Court's Provisions on the Applicable Law in the Trial of Patent Disputes stipulates: "The people's court may, according to the request of the obligee and the specific case, calculate the reasonable expenses paid by the obligee to investigate and stop the infringement within the scope of compensation."
5. Legal aid cases
According to the Joint Notice of the Ministry of Justice of the Supreme People's Court on Several Issues concerning Civil Legal Aid, legal aid workers need to pay travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees and other necessary expenses when handling legal aid cases. If the claim includes the donee, the court may award it to the losing party who is not the donee according to the specific circumstances.
Supplement: In contract dispute cases, how does the losing party bear the legal fees?
Except for the above-mentioned creditor's rights contract disputes, there is no legal provision for lawyer's fees in other contract disputes. However, according to the principle of freedom of contract and autonomy of the parties, if the parties agree in the contract that the breaching party will bear the other party's attorney's fees, the general court will decide that the breaching party will bear it without violating the law. However, if the parties stipulate the liability for breach of contract in the contract, and the liquidated damages agreed by both parties are enough to make up for their actual losses, the general court will not consider the litigation request that the lawyer's fees shall be borne by the other party.
Two, three ways to calculate the compensation for copyright infringement
According to Article 48 of the Copyright Law: "If copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual loss of the obligee. If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be determined, the court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. " There are three calculation methods for copyright infringement compensation in China:
1, based on the actual loss of the infringed;
2, based on the illegal income of the infringer;
3. Legal compensation.
There are some specific practices in judicial practice, and we can choose to apply these compensation methods and calculate them in the most favorable way for us. The following respectively introduce the applicable calculation of three compensation calculation methods and the main practices in judicial practice.
Third, the criteria for judging patent infringement.
1, to determine the protection scope of the patent right. The scope of protection of the patent right for invention or utility model shall be subject to the content of the claim, and the description and drawings can be used to explain the claim. When interpreting the claims, the technical content recorded in the claims shall prevail, not the words or wording of the claims.
2. According to the principle of universal coverage. All the technical features of the accused infringing object (product or method) are compared with all the technical features of the technical scheme recorded in the patent claim one by one, and the accused infringing object (product or method) corresponds to and is the same as all the necessary technical features recorded in the patent independent claim, which constitutes infringement. There are four specific situations:
(1) includes: the technical features of the accused infringer include all the necessary technical features recorded in the claim;
(2) The upper concept covers the lower concept: the necessary technical features recorded in the patent independent claim adopt the upper concept, and the object accused of infringement is the lower concept;
(3) Addition: the accused infringer added new technical features on the basis of using all the necessary technical features in the claim;
(4) Dependent patent: The accused infringer improved the technology of the former patent and obtained the patent right, which belongs to the dependent patent and was implemented without the permission of the former patentee.
3. According to the principle of equivalence. Comparing the technical features of the accused infringer with those in the patent claims, even though they are not the same literally, we can draw the same conclusion through analysis, that is, basically the same function and effect are achieved by the same means, or the technical features of the accused infringer are the technical features that ordinary technicians in the patent field can associate without creative labor to read the patent claims and instructions. In this case, it should be considered that the alleged infringement belongs to the scope of patent protection.
The above is what I have introduced to you about the defendant's legal fees in infringement cases. It can be seen that for property infringement cases that meet the statutory conditions, the lawyer's fee can be applied to be borne by the defendant. When we encounter this kind of dispute, we can first consult the law firm about the relevant expenses, or we can ask whether it can be borne by the defendant.