When fighting a lawsuit (civil lawsuit), the common citizens may sometimes think that the lawyer fee they pay should be borne by the losing party (the defendant and the third party), so that the legal rights of the victim party (in contractual breaching case or legal right infringement cases) could be protected fully; but after consulting the lawyer, they often get a negative reply. This is because there is no inevitable causal relationship between the lawyer's fees incurred in the lawsuit and the defendant's breach of contract, infringement and other acts leading to the loss of the lawsuit. In judicial practice, the people's court basically does not support this claim, unless there is evidence that the plaintiff and the defendant agreed in advance that the lawyer's fees should be borne by the losing party, and so on.
According to the Civil Procedure Law, the parties can participate in all litigation activities in their own names, and there is no mandatory requirement that the parties' litigation actions must be represented by lawyers. Therefore, the lawyer fee is generated by the parties' independent choice of whether to hire a lawyer according to their own conditions (knowledge, experience, and ability to pay, etc.), and can or cannot hire a lawyer, Therefore, there is no necessary causal relationship between the expenses incurred in the litigation and the defendant's breach of contract and infringement. However, there are always exceptions. In addition to making a prior agreement on who should bear the lawyer's fees, the relevant national judicial authorities also take into consideration the professionalism and complexity of some cases. Through relevant provisions (including the judicial interpretation of the court), it is stipulated that the court can support the plaintiff's claim for the defendant to bear the lawyer's fees in some cases.
Specific examples and analysis are as follows:
I、 The relevant regulations clearly stipulate that the losing party shall bear the lawyer's fee
1. In the case of contract dispute, the creditor exercises the cancellation right. 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 (I): "Article 26 The necessary expenses such as attorney's fees and travel expenses paid by the creditor to exercise the cancellation right shall be borne by the debtor; if the third party has made mistakes, it shall be appropriately shared."
2. Civil disputes over copyright. Legal basis: Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Copyright Disputes: "Article 26 The reasonable expenses paid to stop the infringement as stipulated in the first paragraph of Article 48 of the Copyright Law, including the reasonable expenses for the obligee or the entrusted attorney to investigate and obtain evidence of the infringement. The people's court may, according to the litigant's claim and the specific case, calculate the lawyer's fees in accordance with the provisions of the relevant departments of the State 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 Disputes: "Article 17 The reasonable expenses paid to stop the infringement as stipulated in the first paragraph of Article 56 of the Trademark Law include the reasonable expenses for the obligee or the entrusted agent to investigate and obtain evidence of the infringement. The people's court may, according to the litigant's claim and the specific circumstances of the case, calculate the lawyer's fees in accordance with the provisions of the relevant departments of the State within the scope of compensation."
II、 The relevant provisions have provisions, but are not clear. The judicial and arbitration authorities may, at their discretion, decide on the situation where the losing party should bear reasonable legal fees
1. Patent dispute cases. Legal basis: Several Provisions of the Supreme People's Court on the Application of Law to the Trial of Patent Dispute Cases: "Article 22 The people's court may, at the request of the obligee and the specific circumstances of the 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 in the patent dispute case is to be calculated within the scope of compensation of the defendant, It must be based on the premise of "reasonable expenses paid for investigating and stopping infringement".
2. Security right dispute cases. Legal basis: Article 21 of the Guarantee Law stipulates that "the scope of guarantee includes the principal creditor's rights and interests, liquidated damages, damages and the cost of realizing the creditor's rights." If the debtor performs the obligation according to the agreement, the creditor's rights and interests can be realized. Because the debtor does not perform the obligation, the creditor has to realize its rights through litigation, and the lawyer's fees paid thereby are the costs paid by the parties to realize their creditor's rights, For property losses belonging to the parties, the "expenses for realizing creditor's rights" stipulated in Article 21 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, it shall bear the liability for damages. If the loss of the infringed operator is difficult to calculate, the amount of compensation shall be the profit obtained by the infringer due to the infringement during the infringement period; and it shall bear the reasonable expenses paid by the infringed operator for investigating the unfair competition behavior of the infringed operator that infringes its legitimate rights and interests."
4. Personal injury compensation, reputation infringement, traffic accident cases. Legal basis: Article 119 of the General Principles of the Civil Law "In case of injury to a citizen's body, compensation shall be made for medical expenses, reduced income due to work delay, living allowance for the disabled and other expenses; in case of death, compensation shall be made for funeral expenses, necessary living expenses of the deceased's dependents and other expenses." Article 17, paragraph 3, of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in Hearing Cases of Personal Injury Compensation "In case of the death of the victim, the compensation obligor shall, in addition to the relevant expenses specified in the first paragraph of this article according to the rescue and treatment situation, also compensate for the funeral expenses, the living expenses of the dependants, the death compensation expenses, and other reasonable expenses such as the transportation expenses, accommodation expenses and the loss of work delay incurred by the relatives of the victim in handling the funeral affairs." The Shanghai Higher People's Court made the "Decision on Printing and Distributing the In the Notice on Several Specific Opinions on the Trial of Civil Cases, for personal injury compensation cases, it is proposed that "lawyer'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 Work: "The necessary expenses for legal aid personnel to handle legal aid cases, such as travel expenses, printing costs, transportation and communication costs, investigation and evidence collection costs, etc., if the recipient is included in the litigation request, the court may, according to the specific circumstances, judge that the non-recipient losing party shall bear the expenses". Therefore, when handling legal aid cases, the lawyer suggested that the lawyer's "necessary expenses for handling the case" should be included in the lawsuit request, and the defendant should bear it.
6. Some arbitration cases. Legal basis: The 1994, 1995, 1998 and 2000 versions of the Arbitration Rules of the China International Economic and Trade Arbitration Commission (hereinafter referred to as the "Arbitration Rules") have similar provisions. The arbitration tribunal has the right to rule in the award that the losing party should compensate the winning party for some reasonable expenses incurred in handling the case, but the compensation amount should not exceed 10% of the winning party's winning amount. The Arbitration Rules (2005 edition) abolished the 10% limit, Article 46 stipulates: "Cost bearing: (1) The arbitration tribunal has the right to determine in the arbitration award the arbitration fee and other expenses that the parties should ultimately pay to the arbitration commission. (2) The arbitration tribunal has the right to decide in the award that the losing party shall compensate the winning party for the reasonable expenses incurred in handling the case according to the specific circumstances of the case. When the arbitration 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 take into account such factors as the award result of the case, the complexity of the case, the actual workload of the winning party and/or the agent, and the disputed amount of the case. ". In practice, the fee should include the lawyer's fee, but the arbitration tribunal has great discretion on the issue of bearing the fee.
III、 Both parties can clearly agree in the contract that the lawyer's fee shall be borne by the losing party
When signing the contract, both parties can list the lawyer's fee as the content of compensation for breach of contract, and even specify the way and standard of bearing the lawyer's fee in detail. Special attention should be paid to clearly stating "lawyer's fee", and it is better not to write such ambiguous words as "cost of realizing creditor's rights". The people's court is very strict in reviewing 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 of the lawyer's fee payment when filing a lawsuit. The agreement on the lawyer's fee should be reasonable.
IV、 Typical Cases and Guiding Opinions of the Court
In recent years, the Supreme People's Court and local people's courts at all levels have also provided precedents for the trial of lower people's courts by publishing typical cases, guiding opinions and other ways in judicial practice, for the reference of lower people's courts in the trial of similar cases, and to standardize the judicial decision behavior that the lawyer's fees are borne by the losing party.
For example:
A. A typical case issued by the Supreme People's Court on March 31, 2003: The case of Lu Hong v. United Airlines International Air Passenger Transport Damage Compensation Dispute has come into effect after the first instance of the Jing'an District Court of Shanghai. The defendant United Airlines compensated the plaintiff Lu Hong for the agency fee of 16595.10 yuan and the lawyer's travel expenses of 11802.50 yuan.
B. The typical case announced by the Supreme People's Court: Yang Wenwei v. Shanghai Baosteel 20th Metallurgical Co., Ltd. for personal injury compensation was finally judged by the Shanghai Second Intermediate People's Court on June 30, 2006. Shanghai Baosteel 20th Metallurgical Co., Ltd. compensated the plaintiff Yang Wenwei for the lawyer's agency fee of 3000 yuan.
Several Opinions of the Supreme People's Court on Further Promoting the Diversion of Complicated and Simple Cases and Optimizing the Allocation of Judicial Resources (Fa Fa [2016] No. 21)
"22. Guide the parties to conduct litigation in good faith and reason. Strengthen the fight against dishonest litigation behaviors such as false litigation and malicious litigation, give full play to the leverage of litigation costs and lawyer fees to regulate the parties' litigation behaviors, and urge the parties to choose appropriate ways to resolve disputes. If the parties have obvious misconduct such as abuse of litigation rights, delay in assuming litigation obligations, and cause direct losses to the other party or the third party, the people's court We can support the legitimate demands of the faultless party to compensate for reasonable lawyer fees according to the law according to the specific situation ".
According to the characteristics of the cases within the jurisdiction, the local higher people's court has also made some "guiding opinions" that contain the meaning of the lawyer's fee transfer system.
For example, in the "Notice on Printing and Distributing Several Specific Opinions on the Trial of Civil Cases" (HGFM [2000] No. 44) issued by the Shanghai Higher People's Court as early as 2000, for personal injury compensation cases, it proposed that "lawyer's fees are property interests in nature and can be used as losses in principle."