In litigation, the court often encounters that the parties will regard the lawyer's legal fees as one of the litigation requests. Can the court support such a request? In general, unless otherwise stipulated, the attorney's fees shall be paid by the client, and the legal fees shall generally be borne by the losing party, but it shall still be stated in the litigation request. If you win the lawsuit, who will pay the lawyer's fee? Under what circumstances is the lawyer's fee paid by the other party? Let's take a look with Bian Xiao. In civil litigation, some plaintiffs may think that the legal fees they pay should be borne by the losing party. However, in judicial practice, the people's court basically does not support this kind of litigation request, so in general, the attorney's fee is borne by the client himself. However, there are always exceptions. Both parties can agree in advance who will bear the legal fees. Considering the professionalism and complexity of some cases, the national judicial organs (or arbitration organs) have stipulated through relevant regulations (including judicial interpretation) that the court can support the plaintiff to claim that the defendant who lost the case should bear the lawyer's fees of some cases. The specific list and analysis are as follows:

1. According to the law and judicial interpretation, the losing party can bear the case of attorney's fees.

1. In case of contract dispute, the creditor exercises the right of cancellation.

Article 26 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law (I): "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

Article 48 of the Copyright Law 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. " According to the provisions of Article 26 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Copyright Civil Disputes, "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 litigation request of the parties and the specific case, calculate the lawyer's fees that meet the requirements of the relevant state departments within the scope of compensation. "

3. Trademark civil dispute cases

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Disputes: Article 17: The reasonable expenses paid for stopping the infringement as stipulated in Article 56, paragraph 1 of the Trademark Law include the reasonable expenses paid by the obligee or entrusted agent for investigating and collecting evidence of the 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. "

4. Patent dispute cases

Article 22 of the Provisions of the Supreme People's Court on the Applicable Law in the Trial of Patent Disputes: "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". "

5. Cases of disputes over security rights

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." Creditor's rights can be realized if the debtor performs his debts according to the contract. 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.

6. Cases of unfair competition

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. "

7, personal injury compensation, reputation infringement, traffic accident cases

Article 1 19 of the General Principles of the Civil Law: "Anyone who infringes on a citizen's body and causes damage shall compensate for medical expenses, income reduced due to absenteeism, living allowance for the disabled and other expenses. ; If death is caused, the funeral expenses and the 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, pointing out that "lawyer's fees are property interests in nature and can be regarded as losses in principle."

In the judicial practice of traffic accident cases, there are different opinions on whether the lawyer's fee supports the local court. For example, the Shanghai court supported it. In the notice issued by the Shanghai Higher People's Court in 2005, it was clearly stipulated that "the parties request compensation for the expenses incurred in handling the accident (such as transportation expenses, lost time, evidence collection fees, attorney fees, etc.). ), if the cost has actually occurred and must be reasonable, it can be supported. "

8. Arbitration cases

The Arbitration Rules of China International Economic and Trade Arbitration Commission (hereinafter referred to as CIETAC Rules) 1994, 1995, 1998 and 2000 have similar provisions. The arbitration tribunal has the right to award the losing party compensation to the winning party for some reasonable expenses incurred in handling the case, but the compensation amount shall not exceed 65,433 of the winning party's winning amount at most.

In practice, this fee also includes attorney's fees, but it is limited by the proportion of 10% of the winning amount. However, the "China Trade Rules" (2005 edition) abolished the limit of 10%, and its Article 46 stipulated: "The expenses shall be borne:

(1) The arbitration tribunal has the right to decide in the arbitration award the arbitration fees and other fees that both parties should finally pay to the arbitration commission.

(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 arbitration tribunal shall specifically consider the ruling result of the case, the complexity, the actual workload of the winning party and/or the agent, the amount of disputes in the case and other factors. "In practice, fees should include attorney's fees, but the arbitral tribunal has great discretion in bearing the fees.

Two, the two sides can clearly stipulate in the contract that the lawyer's fee shall be borne by the losing party.

According to the principle of freedom of contract, as long as both parties agree in the contract that the lawyer's fee shall be borne by the losing party, the lawsuit request about lawyer's fee will generally be supported in prosecution or arbitration. Therefore, when drawing up a 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. When drafting such a breach of contract clause, special attention should be paid to clearly stating "lawyer's fees". Others, such as the "fees for realizing creditor's rights", are not clear and may not be supported by lawyer's fees. The court's examination of this agreement is very strict. 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. But how much specific support depends on the judge's discretion. According to the nature of the case, the court will usually support the "reasonable" lawyer's fee, not the full fee.