Several situations in which the lawyer's fee can be borne by the defendant in litigation.

When people go to court (civil litigation), they may sometimes think that the lawyer's fees they pay should be borne by the other party (defendant, third party) who loses the case, but after consulting a lawyer, they often get a negative answer. This is because there is no necessary causal relationship between the lawyer's fees arising from litigation and the defendant's breach of contract, infringement and other acts that lead to losing the case. In judicial practice, unless there is evidence that the original defendant and the defendant agreed in advance that the lawyer's fee should be borne by the losing party, the people's court basically does not support this claim.

The Civil Procedure Law stipulates that the parties can participate in all litigation activities in their own names, but it does not force the parties to be represented by lawyers. Therefore, the lawyer's fee is generated by the parties' independent choice of whether to hire a lawyer according to their own situation (knowledge, experience, ability to pay, etc.). ), they can hire a lawyer or not. Therefore, there is no necessary causal relationship between the expenses incurred in litigation and the defendant's breach of contract and infringement. However, there are always exceptions. Both parties can agree in advance who will bear the legal fees. The relevant judicial organs of the state have also taken into account the professionalism and complexity of some cases. Through the relevant provisions (including the judicial interpretation of the court), the court can support the plaintiff's claim that some cases should be borne by the defendant who lost the case. The specific list and analysis are as follows:

First, the relevant provisions clearly stipulate that the lawyer's fees shall be borne by the losing party.

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 litigant's claims 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 decide at its discretion 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." 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.

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 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: "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 the lawyer's fee, but the arbitration tribunal has great discretion in the issue of bearing 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 specify the way and standard of bearing the lawyer's fees in detail. Special attention should be paid to clearly stating "lawyer's fees", and it is best not to write unclear words such as "expenses for realizing creditor's rights". The people's court is very strict in examining 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 to pay the lawyer's fee, and the agreement on the lawyer's fee should be reasonable.

Four, typical cases and court guidance

In recent years, the Supreme People's Court and local people's courts at all levels have also published typical cases and guiding opinions in judicial practice, which provide reference precedents for lower people's courts to hear similar cases and standardize the judicial adjudication behavior in which the lawyer's fees are borne by the losing party. For example:

& lt？ XML:namespace prefix = ST 1 ns = " urn:schemas-Microsoft-com:office:smart tags "/& gt； On March 3 1 2003, the Supreme People's Court released a typical case: Lu Hong v. United Airlines, a dispute over compensation for international air passenger transportation, which came into effect in the first instance of Jing 'an District Court. Defendant United Airlines compensated plaintiff Lu Hong for agency fee 16595. 10 yuan and lawyer's travel fee 1 1802.50 yuan.

A typical case published by the Supreme People's Court: Yang Wenwei v Shanghai Baosteel No.20 Metallurgical Company for personal injury compensation. On June 30, 2006, the Shanghai No.2 Intermediate People's Court finally ruled that Shanghai Baosteel No.20 Metallurgical Company compensated the plaintiff Yang Wenwei for his attorney's fee of RMB 3,000.

The local higher people's court has also formulated some Guiding Opinions containing the meaning of attorney fee transfer system according to the characteristics of cases within its jurisdiction.

For example, 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 (Hu [2000] No.44), which stipulated that "lawyer's fees are property interests in nature and can be regarded as losses in principle."