Several situations in which attorney’s fees are borne by the losing party in civil litigation

According to my country’s current relevant judicial interpretations, in the following nine categories, it is clearly stipulated that the losing party should bear the reasonable costs of the winning party. Lawyer fees:

1. Personal injury compensation, reputation infringement, traffic accident cases

Article 1179 of the Civil Code (effective on January 1, 2021) Personal Injury Scope of Compensation: If someone infringes upon another person and causes personal injury, he shall be compensated for reasonable expenses such as medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospitalization food subsidy, etc. for treatment and recovery, as well as the loss of income due to missed work. If disability is caused, the cost of assistive devices and disability compensation shall also be compensated; if death is caused, funeral expenses and death compensation shall also be compensated.

Article 17, paragraph 3, of the "Supreme People's Court's Interpretations on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases" stipulates: "If the victim dies, the person obligated to compensate shall, in addition to paying compensation based on the rescue and treatment conditions, In addition to the relevant expenses stipulated in paragraph 1, compensation shall also be provided for funeral expenses, living expenses of dependents, death compensation expenses, transportation expenses, accommodation expenses, loss of work and other reasonable expenses incurred by relatives of the victim for funeral matters.”

< p> As early as 2000, the Shanghai Higher People's Court issued the "Notice on Issuing the "Several Specific Opinions on the Trial of Civil Cases"" for personal injury compensation cases, which stated that "lawyer fees are property interests in nature, and in principle Can be used as a loss. "

II. Legal Aid Cases

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": "Legal aid personnel handle legal aid cases If the aided party includes travel expenses, printing fees, transportation and communication fees, investigation and evidence collection fees and other necessary expenses for handling the case, the court may decide that the losing party who is not the aided party shall bear it according to the specific circumstances. Therefore, when lawyers are handling legal matters When assisting in cases, it is recommended that attorney fees be included in the litigation request and required to be borne by the defendant.

3. Copyright infringement cases

Article 48 of the Copyright Law stipulates: “Infringement of copyright or For rights related to copyright, the infringer shall compensate the right holder according to the actual loss; if the actual loss is difficult to calculate, the infringer may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the reasonable expenses paid by the right owner to stop the infringement."

According to Article 26 of the "Interpretations of the Supreme People's Court on Several Issues Applicable in the Trial of Copyright Civil Disputes", "Copyright Law The reasonable expenses paid to stop an infringement as stipulated in the first paragraph of Article 48 include the reasonable expenses of the right holder or its authorized agent to investigate and collect evidence on the infringement. The People's Court may, based on the parties' litigation claims and specific case circumstances, calculate attorney fees that comply with the provisions of relevant state departments into the scope of compensation."

IV. Trademark Infringement Cases

"Supreme People's Court" Article 17 of the Court’s Interpretation on Several Issues concerning the Application of Law in the Trial of Trademark Civil Disputes clearly stipulates: “The reasonable expenses paid to stop infringement as stipulated in Article 56, paragraph 1, of the Trademark Law include the right holder or his authorized agent to pay for the infringement. Reasonable expenses for investigation and evidence collection. The people's court may, based on the parties' litigation claims and the specific circumstances of the case, calculate attorney fees that comply with the regulations of the relevant state departments into the scope of compensation. "

V. Patent Infringement Cases

Article 22 of "Several Provisions of the Supreme People's Court on Applicable Legal Issues in the Trial of Patent Dispute Cases" stipulates: "The People's Court shall, based on the request of the right holder and Depending on the specific circumstances of the case, the reasonable expenses paid by the right holder to investigate and stop the infringement can be calculated within the scope of the compensation amount. ”

6. Unfair Competition Cases

Article 20 of the “Anti-Unfair Competition Law” stipulates: If an operator violates the provisions of this law and causes damage to the infringed operator, Should be liable for damages. If the infringed operator’s losses are difficult to calculate, the amount of compensation shall be the profits gained by the infringer due to the infringement during the infringement period; Reasonable expenses incurred for unfair competition.

7. Litigation cases concerning the exercise of the right of rescission by creditors in contract disputes

The Supreme People's Court's "Interpretation of Several Issues Concerning the Application of the Contract Law of the People's Republic of China (1)" Article 26 clearly stipulates: "The necessary expenses such as attorney fees and travel expenses paid by the creditor to exercise the right of revocation shall be borne by the debtor; if the third party is at fault, it shall be appropriately shared."

8. Security Rights Litigation Cases

Article 691 Scope of Guarantee of the Civil Code (Effective on January 1, 2021) The scope of guarantee includes the principal creditor’s rights and their interest, liquidated damages, damages and costs of realizing the creditor’s rights. If the parties agree otherwise, such agreement shall prevail.

If the debtor performs its debts as promised, the rights and interests of the creditors can be realized. Since the debtor fails to perform its obligations, the creditors have to resort to litigation to realize their rights. The attorney fees paid are the legal fees paid by the parties to realize their claims. The expenses incurred belong to the property losses of the parties. The "expenses for realizing the creditor's rights" stipulated in Article 691 of the Civil Code (effective on January 1, 2021) should include reasonable attorney's fees.

9. Arbitration Cases

Arbitration can support arbitration requests where attorney fees are borne by the losing party. 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 for handling the case. Some reasonable expenses incurred, but the amount of compensation shall not exceed 10% of the winning amount of the winning party. In practice, this fee also includes attorney fees, but is limited to 10% of the winning amount.

The latest CIETAC Rules (2005 edition) has canceled this 10% limit. Article 46 stipulates: "Costs: (1) The arbitral tribunal has the power to rule in the arbitration award Arbitration fees and other expenses ultimately payable by the parties 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 expenses incurred in handling the case. When it is reasonable for the losing party to compensate the winning party for the expenses incurred in handling the case, 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." Obviously, this gives the arbitral tribunal greater freedom.