There is no inevitable causal relationship between the attorney fees incurred in litigating a lawsuit and the defendant’s breach of contract, infringement and other behaviors that led to the failure of the lawsuit. In judicial practice, the People’s Court basically does not support this claim unless there is evidence to prove it. The plaintiff and the defendant agreed in advance that the attorney's fees would be borne by the losing party.

But there are always exceptions. The parties can agree in advance on who will bear the attorney fees. The relevant national judicial authorities also take into account the professionalism and complexity of certain cases and pass relevant regulations (including The Court's Judicial Interpretation) stipulates that under certain circumstances, the court may support the plaintiff's claim that the losing defendant shall bear attorney's fees.

The specific enumeration and analysis are as follows:

1. The relevant regulations clearly stipulate that the losing party shall bear the attorney fees

1. In contract dispute cases, the creditor’s exercise of revocation rights situation. 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 (1)": "Article 26: Lawyer fees, travel expenses and other necessary expenses paid by the creditor when exercising the right of revocation , shall be borne by the debtor; if the third party is at fault, the liability shall be appropriately shared. ”

2. Copyright civil dispute cases. Legal basis: "The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Disputes": "Article 26 Reasonable expenses paid to stop infringement as stipulated in Paragraph 1 of Article 48 of the Copyright Law include rights The people's court may calculate the reasonable expenses of a person or an agent to investigate and collect evidence for the infringement within the scope of compensation based on the litigation claims of the parties and the specific circumstances of the case."

3. Trademark civil dispute cases. Legal basis: "The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Trademark Civil Dispute Cases": "Article 17 The reasonable expenses paid to stop infringement as stipulated in Paragraph 1 of Article 56 of the Trademark Law include the right holder Or the reasonable expenses of entrusting an agent to investigate and collect evidence on the infringement. The people's court may calculate the attorney's fees that comply with the provisions of the relevant state departments into the scope of compensation based on the litigation claims of the parties and the specific circumstances of the case. ”

2. The relevant provisions are stipulated but not clear. Judicial and arbitration organs may judge the situation in which the losing party shall bear reasonable attorney fees accordingly

1. Patent dispute cases. Legal basis: "Several Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Dispute Cases": "Article 22 The people's court may, based on the request of the right holder and the specific circumstances of the case, reduce the reasonable amount paid by the right holder for investigating and stopping infringement. The expenses are calculated within the amount of compensation.” If attorney fees are to be calculated within the amount of compensation for the defendant in a patent dispute case, they must be based on the “reasonable expenses paid for investigating and stopping infringement.”

2. Security rights dispute cases. Legal basis: Article 21 of the "Guarantee Law" stipulates: "The scope of the guarantee includes the principal claim and interest, liquidated damages, damages and expenses for realizing the claim." If the debtor performs its debts in accordance with the contract, the creditor's rights and interests will be realized. Because the debtor fails to perform its obligations, the creditor has to resort to litigation to realize its rights. The attorney fees paid are the expenses incurred by the party to realize its creditor's rights and belong to the party's property losses. Article 21 of the "Guarantee Law" stipulates that " "The cost of realizing the creditor's rights" shall include reasonable attorney's fees.

3. Unfair competition cases. 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 bear liability for damage compensation. If the infringed operator's loss is difficult to calculate, the amount of compensation shall be The infringer shall bear the profits made by the infringement due to the infringement during the infringement period; and shall bear the reasonable expenses paid by the infringed operator for investigating the operator’s unfair competition behavior that infringes upon 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" "Whoever infringes upon a citizen's body and causes injury shall be compensated for medical expenses, lost income due to missed work, living allowances for the disabled, etc.; if death is caused, funeral expenses and support for the deceased during his or her lifetime shall also be paid. Necessary living expenses and other expenses for the person.

"Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" Article 17, paragraph 3, "If the victim dies, the compensation obligor shall, in addition to compensation for the relevant expenses stipulated in paragraph 1 of this article based on the rescue and treatment conditions, Compensation should also be made for funeral expenses, living expenses for dependents, death compensation, and other reasonable expenses such as transportation expenses, accommodation expenses, and loss of work lost by relatives of the victim for funeral matters. " As early as 2000, the Shanghai Higher People's Court issued the "Notice on Issuing "Some Specific Opinions on the Trial of Civil Cases" in which it pointed out in personal injury compensation cases that "lawyer fees are property interests in nature and can, in principle, be treated as losses." .”

5. Legal aid cases. Legal basis: Article 7 of the "Joint Notice of the Supreme People's Court and the Ministry of Justice on Several Issues Concerning Civil Legal Aid Work": "Travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees, etc. required by legal aid personnel to handle legal aid cases are necessary for handling the case. If the aided party includes the expenses in the lawsuit, the court may order the non-aided losing party to bear the expenses according to the specific circumstances." Therefore, when lawyers handle legal aid cases, it is recommended that the lawyer's "necessary expenses for handling the case" be included in the litigation request and the defendant be required to bear them.

6. Arbitration cases. Legal basis: The 1994, 1995, 1998 and 2000 editions of the China International Economic and Trade Arbitration Commission Arbitration Rules (referred to as the CIETAC Rules) all have similar provisions. The arbitral tribunal has the right to rule in the award that the losing party should compensate the winning party. This is because it is part of the reasonable expenses incurred in handling the case, but the amount of compensation shall not exceed 10% of the winning amount of the winning party. The CIETAC Rules (2005 Edition) have canceled this 10% limit, and Article 46 stipulates: “Cost borne: (1) The arbitral tribunal has the power to rule in the arbitration award on the amount that the parties should ultimately pay to the arbitration committee. (2) The arbitral tribunal shall have the right to rule in the award that the losing party shall compensate the winning party for the reasonable costs incurred in handling the case based on the specific circumstances of the case. When determining whether the expenses incurred are reasonable, factors such as the outcome of the case, complexity, actual workload of the winning party and/or agent, and the amount in dispute of the case should be specifically considered." In practice, this fee should include attorney's fees, but the arbitral tribunal has wide discretion over the bearing of these fees.

3. Both parties can clearly stipulate in the contract that the attorney's fees will be borne by the losing party

When signing the contract, the parties can list attorney's fees as liquidated damages, or even The method and standards for bearing attorney's fees should also be listed in detail. Special attention should be paid to clearly stating "attorney's fees". It is best not to write unclear words such as "expenses for realizing creditor's rights". The People's Court's review of this agreement is very strict. When filing a lawsuit, the plaintiff must submit the entrustment contract signed with the law firm and the attorney fee invoice issued by the law firm as evidence of payment of attorney fees. The agreement on attorney fees should be reasonable.

IV. Typical cases and guiding opinions of the courts

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. Provide precedents for the trials of lower people's courts, for reference when lower courts try similar cases, and standardize judicial decisions where attorney fees are borne by the losing party.

For example:

①. Typical case issued by the Supreme People’s Court on March 31, 2003: Lu Hong v. United Airlines International Airline Passenger Transport Damage Compensation Dispute Case, filed in Shanghai The first instance of the Jing'an District Court has come into effect. The defendant United Airlines compensated the plaintiff Lu Hong for the attorney fees of RMB 16,595.10 and the lawyer's travel expenses of RMB 11,802.50.

②. Typical cases announced by the Supreme People's Court: Yang Wenwei v. Shanghai Baosteel No. 20 Metallurgical Co., Ltd. personal injury compensation case was finalized by the Shanghai Second Intermediate People's Court on June 30, 2006. Shanghai Baosteel No. 20 Metallurgical Co., Ltd. Compensate the plaintiff Yang Wenwei’s attorney fees of RMB 3,000.

Several Opinions of the Supreme People’s Court on Further Promoting the Separation of Complex Cases from Simple Cases and Optimizing the Allocation of Judicial Resources (Fafa [2016] No. 21)

“22. Guide parties to litigate in good faith and rationally. Add We will vigorously crack down on unfaithful litigation behaviors such as false litigation and malicious litigation, give full play to the leverage of litigation fees and attorney fees to regulate the litigation behavior of parties, and encourage parties to choose appropriate ways to resolve disputes.

If a party commits obvious misconduct such as abusing litigation rights, delaying the assumption of litigation obligations, etc., causing direct losses to the other party or a third party, the people's court may, based on the specific circumstances, support the legitimate request for compensation of reasonable attorney's fees made by the party without fault in accordance with the law." .

The local higher people's court has also issued certain "guiding opinions" that include the transfer of attorney fees system based on the characteristics of cases within its jurisdiction.

For example, the Shanghai Senior People's Court. As early as 2000, the People's Court issued the "Notice on Issuing the "Several Specific Opinions on the Trial of Civil Cases" (Shanghai Gaofa Min [2000] No. 44), which stated that "lawyer fees are property in nature" in cases of personal injury compensation. Benefits can, in principle, be treated as losses. ”