The Supreme People's court case bulletin []

Shanghai Hongzheng law firm v. China ship and marine engineering design and Research Institute of service contract dispute case

[Abstract] the referee
The parties voluntarily accept the mediation, conciliation in litigation process, is on their rights to dispose of, is a party is entitled to right of action. Law firms and lawyers as legal services, in accept party entrusts acting legal affairs, should respect the independent choice of the principal about accept mediation, reconciliation, even if that improper selection of the principal, shall be for the maintenance of the legitimate rights and interests of clients to consider providing legal advice, not to maximize their own interests, more the fee is based on the purpose of the agreement with the client, the relevant provision of the contract limit client accepts mediation, reconciliation. These acts not only violated the principal of litigation rights, increase litigation risk of the client, and is not conducive to the promotion of social harmony, a violation of public interests, the relevant provision of the contract is invalid.

Plaintiff: Shanghai Hongzheng law firm.
Person in charge: Wang Zhensheng, the office director.
Defendant: Chinese ship and marine engineering design and Research Institute (eight Institute of China State Shipbuilding Corporation, seventh 0).
Legal representative: Xing Wenhua, director of the institute.
Plaintiff Shanghai Hongzheng law firm (hereinafter referred to as Hiromasa lawyers) due to the design and the China ship and Marine Engineering Research Institute (eight Institute of China State Shipbuilding Corporation seventh 0) (hereinafter referred to as the ship design institute) service contract dispute, bring a lawsuit to the people's Court of Huangpu District, Shanghai.
The plaintiff lawyers claimed: the plaintiff Hong former defendant ship design institute legal counsel. In 2003 May, the plaintiff lawyer Wang Zhensheng commissioned agent with the Shanghai city Huangpu District commercial network management office (hereinafter referred to as commercial outlets) compensation dispute case (hereinafter referred to as the compensation dispute case, the defendant risk agency). The agreement the two sides agreed: the defendant in accordance with the 15% of the amount of litigation plaintiff attorney fees; the defendant has to accept mediation, reconciliation and termination of agency, and the consensus, otherwise, in accordance with the contract law agency fee compensation accuser pecuniary loss. In the lawsuit, the defendant made several improper mediation program, all by Wang Zhensheng lawyer refused. In 2005 June, the defendant reached mediation with the other party in the not to let Wang Zhensheng lawyer to know, and made by court mediation. The plaintiff in the objection, the defendant will be known once promised to pay attorney fees, the plaintiff therefore agree to the defendant to pay 125 000 yuan, balance time of payment. Perennial legal counsel for the defendant had suddenly lost after. The objection, the defendant promised again agreed to pay the attorney fee, but the delay did not pay. The plaintiff argues that the original, the defendant, the risk between the huge investment, has to pay, the defendant should be executed according to the object of action (price assessment of housing market) 2 090 000 yuan 15% yuan compensation for the plaintiff's economic loss (attorney fees). Now request to order the defendant to compensate the economic losses (attorney fees) 188 000 yuan, and by the people's Bank of China loan interest payments since September 1, 2005 until judgment day of interest payment.
The ship design institute argued that: the agency contract, the plaintiff lawyers disagree Hiromasa accepted by the defendant and other mediation, so refused to attend in the mediation. The original, the defendant before already lawyer agency agreement, risk agency by the way is the plaintiff. Risk agency in terms of the contract, the real risk is the defendant. The agreement on the mediation of risk agency contract, should be dependent features of the litigation, the parties dispute, should be based on the meaning of the expression is accurate, and the relevant provisions of the contract clearly limits the defendant's litigation rights. In addition, the defendant to pay the plaintiff's attorney fees 125 000 yuan, is considering our good relationship exists between the two sides, to resolve this matter in a friendly way. To dismiss the plaintiff's claim.
The ship design institute in the case filed a counterclaim, claimed: the compensation dispute lawsuit, plaintiff Hiromasa lawyer proposed the signing of contract risk agent to improve the enthusiasm of lawyers on the basis of the original contract. Supplementary contract agreed to by the plaintiff, content without any risk to the plaintiff, only increased the attorney's fees. In the lawsuit, on the question of whether or not accept mediation the parties dispute, the plaintiff will not agree to mediation, and refused to attend court hearings in June 28, 2005. Compensation dispute mediation, the mediation for silence, in accordance with the amount or the plaintiff to pay the attorney fee 125 000 yuan. The defendant that the plaintiff, as agents ad litem, should safeguard the lawful rights and interests of the client, the client will respect. However, the plaintiff is to maximize their own interests regardless of wins, litigation risk of the client, blindly abandon mediation opportunities, and no reason to refuse to appear in court, a serious violation of the contract and the law occupation ethics. This requires the plaintiff to the defendant second times return fee 125 000 yuan.
The ship design institute to submit two copies of pleadings, the trial transcript which is formed in a compensation dispute in the proceedings, the plaintiff Hong Zheng lawyers solve opinion letter, mediation record and check stubs and other evidence.
The plaintiff lawyers argued that: the defendant Hong Ship Design Institute said that the plaintiff fails to appear, without any evidence, the fact of the matter is that the defendant did not inform the plaintiff. To dismiss the defendant counterclaim request.
The plaintiff lawyers submitted Hiromasa lawyers contract, agreement, the civil petition, real estate appraisal report, compensation dispute case court mediation, lawyer fee invoice, notice, Dunning letter and certificate of mailing, e-mail, lawyer Wang Zhensheng to the hospital ship letter as evidence.
Shanghai Huangpu District people's court shall organize the quality of evidence. The real division submitted by the plaintiff lawyers accused Hiromasa e-mail Ship Design Institute have objections, the authenticity of the evidence of the plaintiff submitted are no objection. But said: real estate appraisal report on housing prices there are three amount, should not be determined by the maximum amount of litigation, according to the 1 110 800 yuan; mediation book is not only for the compensation dispute case related issues, to pay 800000 yuan contains 500 000 element other cases; non recognition of the lawyer fee invoice the "advance" two words; letter is irrelevant to the case; different letters statement and fact. Hong Zheng lawyer for the defendant to submit proof of authenticity that no objection, but in this case no significance.
Shanghai Huangpu District people's Court of first instance found:
May 14, 2003, the plaintiff and the defendant Hiromasa lawyer Ship Design Institute signed a "contract" agreed to hire a lawyer, the lawyer appointed by Wang Zhensheng between the defendant and the commercial network compensation dispute case, attorney fees 20000 yuan. In February 18, 2004, the two sides signed the "agreement", agreed to implement risk agency in the original basis of the agency relationship, such as accept the mediation, reconciliation and terminate the agency with the case of consensus, otherwise agreed to compensate the plaintiff attorney fees amount of economic loss. Both sides agreed to compensation dispute litigation (compensation number) as the base, such as no payment of damages, the defendant in the litigation of 15% payment of attorney fees (not including fee); the judgment or mediation the amount of compensation in the litigation of 50% (including 50%) above the attorney's fees, payment for the 20 000 yuan paid; below 50%, the compensation dispute case litigation agency fee of 15% per annum lawyer 50% following parts (not including payment of attorney fees); if all lost the original sentence the defendant, you also have received 15 000 yuan lawyers fees in.
In the case of compensation dispute litigation, commercial outlets claimed, Zhongshan South Road 198 Lane 16, room 104, room 701, Lane 17, room 101 198, Room 301, the ship design institute as public facilities housing after the transfer, the south city of Shanghai residential development board allocated to commercial outlets use, but the defendant is called the 4 housing units have been allocated to their workers can not return, requests that the defendant by the housing market assessment price compensation. In September 13, 2004, Shanghai City Real Estate Appraisal Co., Ltd. issued by the valuation report, stated: "in June 27, 2003 for the valuation, the 4 set of housing real estate market price 2097 000 yuan, the right to use the price of 1997200 yuan; in January 15, 1998 for the valuation, the right to use the price of 1 110 800 yuan." The defendant argued that the compensation dispute case it has to pay the public construction costs, so it should not be delivered to houses, at the same time, the above 4 sets of housing and the city of Shanghai Luwan District people's court is Quxi road 680 Lane 1, room 205 housing disputes handled. Commercial outlets also agreed that the two case combined treatment. In the lawsuit, the defendant and the commercial outlets accept the mediation, the mediation by the defendant to compensate the commercial network 800 000 yuan, the return of the two sides reached a conciliation matters not involved in this case the defendant's public facilities fees. Compensation dispute mediation, 2005 year in August 23rd, the defendant to the plaintiff lawyers and lawyers Hiromasa pay agency fees 125000 yuan.
In this case the focus of controversy is the plaintiff and the defendant: Hiromasa lawyer Ship Design Institute in February 18, 2004 signed the "agreement" in the "Ship Design Institute for mediation, reconciliation and termination of agency should be the same with Hiromasa lawyer consultation, otherwise agreed to attorney fees amount compensation Hiromasa lawyers economic loss" agreement is effective.
Shanghai Huangpu District people's Court of first instance that:
First of all, in the civil action, although the agent can be within the scope of his agency according to the specific situation of independent means, but the agent the agent is expressed meaning, Proceedings of the consequences are attributable to the agent, therefore, independent meaning of principal-agent people were in the proceedings, shall be maintained the interests of the agent based on, and subject to the principal means and accepted by the agent's instructions. With the commercial outlets in the case, the defendant ship design institute decided to with each other on their disposition, mediation, litigation rights in this regard, the plaintiff lawyers as agents ad litem Hiromasa can use their knowledge of the law to provide their own views, but in the end should implement is accused of meaning, and should not be the plaintiff. Foist one's opinions upon others.
Secondly, the ship design institute in the lawsuit mediation to dispose of their own interests and the other is controversial, the interests of the punishment may not infringe the plaintiff lawyers as agents of interest hiromasa. Even if the disposition results may influence the charge, the plaintiff has no reason to require the defendant so at the expense of their own interests, to bear greater litigation risk, and therefore requested the defendant to compensate the attorney's fees.
To sum up, the plaintiff Hiromasa firm where the legal service contract, such as mediation and consensus, otherwise agreed to the lawyer agency costs of compensation of their economic losses terms, is accused of infringing the rights and interests of the ship design institute proceedings. In the lawsuit, the plaintiff about the aggravate the accused obligation clause is the defendant to the statement, perverse, shall not be accepted. The defendant had pledged to pay attorney fees, to pay 125 000 yuan, balance benefit factual claims, failed to provide evidence, shall not be accepted.
Control risk agency agreement, both sides agreed the attorney's fees on commercial outlets in litigation (compensation number) as the base, the amount of compensation for the judgment or mediation in the litigation attorney fee 50%, 15% per annum standard the following 50% part to commercial outlets suit. Although the two sides agreed understanding ambiguous, but the results of action be attorney fees means is clear. Considering the defendant Ship Design Institute in the case's mediation gave up the right of public facilities fees refunded, the actual investment and the plaintiff lawyer Hong Zheng is the case, the respondent in the case and the other with total amount of mediation as the base, in accordance with the 15% pay attorney fees, is reasonable. Because of the proceedings, the defendant has not been completely without compensation to the results, the difference, the plaintiff asked to commercial outlets all litigation meter for attorney's fees unreasonable, and obviously runs counter to both agreement.
To sum up, the plaintiff Hiromasa lawyer litigation request of the facts and legal basis, in accordance with the law shall not support. On the ship design institute has been paid to the plaintiff's attorney fees, in consideration of the defendant and the commercial network of litigation is to reach a mediation results based on previous work on the plaintiff and the defendant, and the plaintiff had no notice not to appear in court presided over the mediation of court trial evidence, the defendant also made it clear that, 125 000 yuan attorney fees is due to that the plaintiff has completed the task, according to the calculation of standard below the stage, therefore, the request of the defendant to return the money on the counter, in accordance with the law had not supported. Accordingly, the Shanghai Huangpu District people's court in accordance with the "contract law" provisions of the people's Republic of China in March 18, 2009 107th, the decision as follows:
A, dismissed the plaintiff Hiromasa lawyers about the defendant Ship Design Institute of compensation for their economic losses 188000 yuan and pay interest litigation request;
Two, dismissed the Ship Design Institute on the plaintiff Hiromasa lawyers to return the attorney's fees 125000 yuan of the counterclaim.
The case acceptance fee of RMB 4060 yuan, the burden of the plaintiff lawyers counterclaim Hongzheng; RMB 2800 yuan of case acceptance fee shall be borne by the defendant, ship design institute.
Hong Zheng lawyers the verdict of the first trial, appeal to the Shanghai second intermediate people's court, the main reasons are: the risk of 1. on both sides of the agency agreement is the true meaning, not in conformity with the contract void or voidable elements, so the two sides should be about performance; 2 law lawyer can make risk agency, and the percentage of the amount of 30%, while the case only upon the 15%, did not exceed the risk agency fee caps; 3 protocol does not ban the ship design institute and the other party mediation, the first instance court ascertained that the agreement violated Ship Design Institute's disposition right cannot be established. Request to withdraw the first instance judgment first, support Hiromasa lawyers in the litigation request.
The appellee Ship Design Institute said in reply: appellee agree with the first trial of the agreement second for identification, the agreement limits the trustee of the matters entrusted to dispose of the right, the provisions of the agreement shall be invalid corresponding. Required to maintain the original judgment.
Shanghai second intermediate people's Court of second instance trial by, confirmed the finding of facts.
The focus of controversy in this case the second instance is still: the appellant and appellee Hong Zheng lawyers Ship Design Institute in 2004 in February 18th signed the "agreement" in the "Ship Design Institute for mediation, reconciliation and termination of agency should be the same with Hong Zheng lawyer consultation, otherwise agreed agency costs of compensation lawyer Hong Zheng the economic loss" agreement is valid.
Shanghai second intermediate people's Court of second instance that:
One, "agreement" in the original "lawyer" is based on the contract for the implementation of risk agency contracts, constitute the relationship between principal and agent between the two sides. According to the "measures" provisions of the administration of lawyers service charge eleventh, inheritance, request to pay labor remuneration, and other related life security costs and other aspects of the case and the criminal, administrative, state compensation cases and group litigation cases shall not be subject to risk agency fees on marriage. For the other lawyer service project, the relevant laws and regulations did not make provisions prohibiting contingent fees, because the matters involved in this case does not belong to the category of the ban, between the two sides agreed for contingent fees is not wrong. According to the "measures" provisions of the administration of lawyers service charge of thirteenth of the second paragraph, for contingent fees, the maximum charging amount shall not exceed the amount stipulated in the charging contract 30%. In this case, both sides agreed risk agency charging ratio of 15%, does not exceed the highest proportion, no improper.
Two, about the "agreement" in the "Ship Design Institute for mediation, reconciliation and termination of agency should be the same with Hiromasa lawyer consultation, otherwise agreed to play lawyer agency costs of compensation Hiromasa lawyers economic loss" agreement problems.
Occupation liability 1 lawyer is entrusted by the parties concerned, to provide legal services for a client, safeguard the legitimate rights and interests of the parties, to ensure the correct implementation of law, safeguard social fairness and justice. In the process of practice, the lawyer shall maintain social order, promote the settlement of disputes, resolve social conflicts, promote social harmony, should play a positive role in mediation, reconciliation. The lawyer to provide legal services for a client, can collect the corresponding costs, but the lawyer's fees shall follow the principle of openness, fairness, honesty and credit principle of voluntary and compensatory. Such as the maximum law for their own interests, limiting the parties shall enjoy rights, its behavior is not protected by law.
The 2 case involved the content for the litigation agent. The concept of principal agent issues related to authorization to the agent, the agent to handle the entrusted affair, the results to the client. Therefore, agents from the purpose and results, the principal awarded the agent right does not mean giving up their ability in proxy scope send or receive the idea, namely the trustee of the matters entrusted to the right of disposition and still enjoy can terminate the agency. Agent's obligation to use professional knowledge of law, provide evidence collection, to participate in the litigation, legal advice, its purpose is through the services of a lawyer to enable parties to increase the chance of winning, to protect the lawful rights and interests of the parties.
The parties voluntarily accept the mediation, conciliation in litigation process, is on their rights to dispose of, is a party is entitled to right of action. Rapid resolution of mediation, reconciliation is conducive to disputes and resolve, to reduce the cost of litigation, more conducive to reduce the social contradiction, constructing the harmonious society. Law firms and lawyers as legal services, in accept party entrusts acting legal affairs, should respect the independent choice of the principal about accept mediation, reconciliation, even if that improper selection of the principal, shall be for the maintenance of the legitimate rights and interests of clients to consider providing legal advice, not to maximize their own interests, more the fee is based on the purpose of the agreement with the client, the relevant provision of the contract limit client accepts mediation, reconciliation. These acts not only violated the principal of litigation rights, increase litigation risk of the client, and is not conducive to the promotion of social harmony, a violation of public interests.
3 with regard to the case of "agreement" agreed to mediation, reconciliation must be principal and agent consensus, otherwise it shall compensate for the losses in terms of the agreement, said the appellant Hiromasa law clause did not prohibited by the hospital ship design the appellant's enjoy themselves with the other party mediation, reconciliation. The court thinks, although not expressly agreed to the terms of a ban on the Design Institute for mediation, reconciliation, but the terms of the self and the other party mediation, litigation and ship design institute set the liability for breach of contract, the two sides in the agency relationship inside must be in accordance with the "agreement" agreed by the default clause, if the ship design institute to unilaterally mediation or conciliation, will inevitably subject to the liability for breach of contract terms and have scruples, so can not according to their own wishes to mediation, reconciliation. The appellant claims that this clause does not restrict the Ship Design Institute of mediation, reconciliation right justification cannot be established.
Between the 4 parties agreed to implement the risk agency lawyers and lawyers, if the processing fee standard in case the final result as the basis, the results should not be closed manner of different. The agency said the case by the appellant Hiromasa lawyer by mediation resulted in economic losses and compensation requested by the appeal person ship design institute. The court thinks, the appellant acting case with mediation, the court has not issued, the result is unknown, the agency may be the result of successful, may be lost, the amount of compensation is more than the amount does not determine the mediation. Therefore, the appellant that judgment result is better than the results of the mediation has no basis in fact, the mediation will result in attorney fees reduce claims also can not stand. For the termination of the trust, "" contract law of the people's Republic of China stipulates that the 410th of the principal or the agent may terminate the contract, to the other party as a result of cancelling the contract caused by the loss, in addition to not attributable to the party's cause, shall compensate for the losses. In this provision shall pay compensation for the losses should be understood as the actual loss, while the "agreement" agreed as unilateral Ship Design Institute to terminate the agreement, shall be agreed by the appellant counsel fees compensation economic losses, the lack of legal basis of the convention.
In sum, the court thinks, the appellant Hiromasa lawyers to maximize their own interests may limit the appellee Ship Design Institute for mediation, reconciliation, aggravated the risk of litigation of the parties, violated the principal independent action in litigation rights, not conducive to the promotion of social harmony, violate the public interest. According to the "contract law" provisions of the people's Republic of China fifty-second, damage the public interests, the contract invalid. The "agreement" in the "Ship Design Institute for mediation, reconciliation and termination of agency should be the same with Hiromasa lawyer consultation, otherwise agreed to the lawyer agency costs of compensation Hiromasa lawyers economic loss" provisions should be invalid.
Related terms three, the contract is null and void, and pay a certain amount of labor agents as the agency matters, the principal shall pay reasonable compensation. The compensation dispute case ended, by the hospital ship design appeal to the appellant Hiromasa lawyers paid attorney fees 125 000 yuan. About the payment amount is reasonable, the court said, first of all, in this case occurred before, ship design institute is a voluntary pay agency fees, not to request the return of unreasonable grounds; secondly, the two sides agreed to the amount of subject matter of litigation as the base, the amount of compensation in accordance with the case judgment or mediation to determine the different agent fees payable amount of Ship Design Institute; Ship Design Institute and commercial outlets on the compensation cases and the courts of Luwan another case with mediation, required to pay the other party to the case of commercial network compensation funds 800000 yuan, compensation dispute with the maximum amount of 000 yuan and Luwan 2 097 court of another $500000 bid by pro rata, hospital ship design compensation dispute case to commercial outlets to pay compensation for the 645 976 yuan, the amount of compensation is far less than the case amount is 50%, according to both sides of the case "agreement" agreement, the number 50% should be subject to litigation part 15% pay attorney fees, i.e. subject to litigation amount 2 097000 50% minus the compensation funds 645976 yuan to 402524 yuan by 15% to 60378.6 yuan. Ship Design Institute paid to the appellant 125 000 yuan agency fees have exceeded 60378.6 yuan. The court thinks, ship design institute to pay 125000 yuan reward the appellant is reasonable.
To sum up, the first instance judgment clear in fact finding, is not wrong. The appellant Hiromasa lawyer grounds of appeal can not be established, shall not support. Accordingly, the Shanghai second intermediate people's court in accordance with the "PRC Civil Procedure Law" article 153rd (a), "the people's Republic of China Contract Law" article seventh, article fifty-second (four), the provisions of article 410th, in 2009 year August 17th decision as follows:
Dismiss the appeal, upheld the.
The second case acceptance fee of RMB 4060 yuan, the burden by Hong Zheng lawyer.
This judgment is the final judgment.