In daily life, it is difficult to avoid disputes with individuals or enterprises. When the dispute is complicated or professional, the parties usually ask a lawyer to solve it. At this time, the lawyer's fee is the biggest expense in this process. What kind of case?
Lawyer's fee for winning a civil lawsuit
Can it be borne by the other party? Bian Xiao will give you a detailed introduction in the following content.
First, the lawyer's fee for winning a civil lawsuit and the lawyer's fee for a traffic accident case can be required to be borne by the other party.
Civil law (effective from 20211)
Article 179
Anyone who infringes upon others and causes personal injury shall pay compensation for medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital food subsidies and other reasonable expenses for treatment and rehabilitation, as well as the income reduced 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 funeral expenses, living expenses of dependents, death compensation, transportation expenses, accommodation expenses, lost time due to work and other reasonable expenses according to the situation of rescue and treatment."
As early as 2000, the Shanghai Higher People's Court issued a notice on printing and distributing Several Specific Opinions on the Trial of Civil Cases, pointing out that "attorney's fees are property interests in nature and can be used 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, Hefei generally does not support attorney fees, while Shanghai does. 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. "
Two, the two sides clearly agreed in the contract, 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.
Three, the law and judicial interpretation clearly stipulates that the losing party shall bear the reasonable legal fees of the winning party.
1, legal aid cases:
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 recipient is included in the litigation request, the court may order to pay the expenses necessary for legal aid workers to handle legal aid cases, such as travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees, etc. It is borne by the losing party who has not received assistance. " Therefore, when handling legal aid cases, lawyers suggest that the lawyer's fee should be included in the litigation request, requiring the defendant to bear it.
2, copyright infringement 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 Application of Laws in 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 the 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 infringement cases:
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. 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 infringement cases:
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. Cases of unfair competition
Article 20 of the Anti-Unfair Competition Law stipulates that an operator who violates the provisions of this law and causes damage to the infringed operator 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; And bear the reasonable expenses paid by the infringed business operator for investigating the unfair competition behavior of the business operator that infringes on its legitimate rights and interests.
6. Litigation cases in which the creditor exercises the right of cancellation in contract disputes:
Article 26 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of People's Republic of China (PRC) Contract Law (I) clearly stipulates: "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. "
7. Litigation cases of security interests:
Article 2 1 of the Guarantee Law of People's Republic of China (PRC) stipulates: "The scope of guarantee includes the principal creditor's rights and interest, liquidated damages, damages and expenses for realizing creditor's rights."
Analysis: Only when the debtor fulfills his obligations as promised can the creditor's rights and interests 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.
8. Arbitration cases
Arbitration can support the arbitration request that the lawyer's fee shall be borne by the losing party. The Arbitration Rules of China International Economic and Trade Arbitration Commission (hereinafter referred to as the Arbitration Rules) 1994, 1995, 1998 and 2000 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.
10%。 In practice, this fee also includes attorney's fees, but it is limited by the proportion of 10% of the winning amount.
The latest "China Trade Rules" (2005 edition) abolished the limit of 10%, and Article 46 stipulated that "the expenses shall be paid by:
(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. "Obviously, this gives the arbitral tribunal greater discretion.
To sum up, if the case is a traffic accident case, or the contract clearly stipulates that the losing party shall bear the lawyer's fees, then the winning lawyer's fees in civil litigation may be required to be borne by the losing party. If the parties encounter such disputes in their daily lives, they must consult local professional lawyers, carefully check their own cases and contract terms, and try to avoid their own losses.