The lawyer fee shall be borne by the losing party legal research and analysis

  Author: Gou Yiqiang lawyer

  Abstract: the lawyer fee includes the expenses necessary for the legal service fee that pay occurrence and lawyer to handle the legal affairs in the process, such as appraisal fees, notary fees, transportation fees, handling different travel. Attorney fees whether such as litigation expenses, shall be borne by the losing party commitment problem, long-standing debate, some courts have begun in the attempt. The author thinks, it is worthy to promote and popularize, attorney fees shall be borne by the losing party according to law.

Keywords: attorney's fees, the losing party, bear

A lawyer fees, property.

To make the Shanghai Higher People's court in 2000 of the "notice" several points about the civil trial specific advice "in cases of compensation for personal injury lawyers proposed " belongs to the property interests in nature, can in principle be as loss." Lawyer agency costs should be recognized as indirect loss of the parties. Theoretically speaking, the laws and regulations of our country's compensation for the losses, including direct and indirect loss, as in personal injury compensation cases for medical expenses, it belongs to the direct loss, but because the claim of the need to hire a lawyer, the lawyer agency is the indirect loss. The lawyer to the name of the party, litigation activities carried out within the scope of authorization is paid. The lawyer's fees for non specified, in practice only by the prevailing party the burden of the cost. The actual expenditure is not suit for both parties of the dispute of the litigation, but to the prevailing party cause economic loss, which belongs to the indirect loss. Although the law generally does not protect the indirect loss, but the cost has its particularity. Because of the civil litigation occurs, because the losing party implementation of infringement, breach of contract and invalid civil behavior, violation of the legitimate rights and interests of others caused, a causal relationship between the two. The resulting loss of the pen from civil liability theory, shall be borne by the losing party shall bear the responsibility.

 For two, foreign lawyers fees test

The burden of the cost of a lawyer, national legislation and cases of different regulation, following a brief overview of several representative countries.

(a) the French law. Trial court in France by the law enforcement "(Note:" France's new code of civil procedure "751st China legal press, 1999 edition.). Characteristics of the lawyer fees system: (1) in the legal provisions within the lawyer fee as litigation costs shall be borne by the losing parties (Note: "France's new code of civil procedure" 695th, 696, Chinese legal press, 1999 edition.). In France, a lawyer paid amount may be determined by the lawyer and client agreement. Part of reward and the outcome of litigation is connected, but not pay full success. The lawyer fee is a fixed part of 58 francs, attorney fees is 3% of the amount of payment procedure to 0.25%. can not be the cost of litigation, the parties even win, in principle unable recovered from each other. (2) but, on the other side of the abuse of the right of action of the occasion, may request compensation based on tort damage, by the compensation for their absorbed lawyer fees. (3) for not included in the cost of litigation attorney's fees by the judge according to the principle of equity discretion to decide whether to be borne by the losing party (Note: Luo Jiezhen: "the new French Civil Code" 700th Chinese legal press, 1999 edition.).

 (two) the German law. The general civil procedure law enforcement, "mining, the parties in the state courts must be licensed by the primary court or state court lawyer, in all the trial court must be made by the court permitted lawyers as agents ad litem took action (lawyer)." (Note: "the Federal Republic of Germany civil law" article Seventy-eighth China legal press, 2001 edition.) The lawyer fees system mainly has the following several points: (1) the attorney fee shall be borne by the losing party included in litigation costs, "the losing party should burden the cost of litigation, especially should the other party to the reimbursement of necessary expenses for extension rights or defend the right to branch out." "Successful party for the lawyer's legal compensation and expenses, in all proceedings shall be paid." (Note: "the Federal Republic of Germany civil law" article ninety-first China legal press, 2001 edition.) (2) assume the lawyers fees is to "achieve extension rights or the defense rights of purpose" as the standard, only "due to reach the promotion of the rights or defend the right to necessary expenses" expenditure can be borne by the losing party. (3) in Germany, because no successful remuneration agreed, so whether victory or defeat, lawyers can be obtained by the legal provisions of the fixed fee. The lawyer handling fee is the lowest line, a lawyer may and the client agreed compensation method above quota. But beyond the quota above part cannot recover from loser.

(three) the Japanese law. According to the provisions of the Civil Procedure Law of Japan and the costs of civil litigation law, in addition to the court lawyers occasions, lawyer fees are not included in the cost of litigation, the parties cannot win from the losing parties recovery of attorney fees. However, from the beginning of the Showa era, the case has gradually established compensation system for lawyers fees, compensation for damages in tort litigation cases based on request, that within a certain range of lawyer fees are quite causality and the tort damage. In recent years, the judicial and academic circles in addition to whether the lawyer fees shall be borne by the losing party issues continue to debate (Note: (day) "the Civil Litigation Cost System Research Report" (Japan), load "jurist" in June 1, 1997, No. 1112nd.) Outside, also involves the following issues:

First, the lawyer fee is entirely by losing to bear, or part shall be borne by the losing party. Now Japan's judicial and academic circles are in favor of lawyers' fees shall be borne by the losing party a partial solution, think "as part of a lawyer in court costs, such as the minimum cost to defense activities required to gold, shall be borne by the losing party, is a reasonable choice" (Note: (day) Kojima Takeshi: "around the" civil litigation expenses? Lawyer fees "problem and prospect", carrying on "jurist") (1997 June, 1112nd).

Secondly, the lawyer fees are based on and tort itself was established a causal relationship between damage or as part of the litigation costs, the cost of litigation lawyers. As to the gold attorney fees, some necessary expenses for the preparation of a lawsuit, a part can be seen as the litigation costs shall be borne by the losing party, burden. "Of course, if proceedings malicious or gross negligence, Proceedings of the other law shall bear the cost, and the cost is as a part of tort damages based on the." (Note: (day) Kojima Takeshi: "around" the civil litigation expenses? Lawyer fees "problem and prospect", carrying on "jurist" (1997) in June, 1112nd.)

Third, the establishment of the burden of attorney fee system is entrusted to case law or legislation. Japan about a lawyer fees shall be borne by the losing party system is determined by the case. Some scholars put forward, development will counsel fee burden problem Committee on current law system of case theory is not appropriate, especially the case only admit infringement litigation lawyer expenses compensation and does not acknowledge the other civil litigation lawyer expenses, it is not just, need to consider to solve the legislation (Note: (day) Moriwaki Juo: "the report?? from the burden of" positive position, load (day) "jurist" in 1997 June, No. 1112nd.).

(four) the British law. In the UK, not law enforcement, legal fees included in the cost of litigation in principle by the burden. According to the April 26, 1999 entry into force of the new British "rules of civil procedure" and 2000 July entry into force of the "guidance" of civil litigation, burden of British law on lawyers fees made detailed provisions: (1) contains the lawyer fees principle in litigation costs of shall be borne by the losing party wins the prosecution costs, but the court can not in general litigation costs and litigation costs borne rules otherwise command. Whether the party should bear the adverse party litigation costs, litigation costs, and the amount of time the burden of litigation costs, the court has discretion (Note: Xu Xin: "British civil litigation and civil judicial reform", China University of Political Science and Law press, 2002 edition, page 394th.). (2) to determine the basis of lawyers' fees assessed. The lawyer charge clients fees, according to the compensation basis (Note: refers to the compensation. The reasonable expenses actually generated) Evaluation, but the fees can be higher than the client from another party compensation costs at. (3) the law cost limit made clear. The court may at any stage of the proceedings, make an agent ad litem is personally liable for the costs of the wasted costs order (Note: Xu Xin: "British civil litigation and civil judicial reform", China University of Political Science and Law press, 2002, pp. 412-413.).

The British this lawyer fees burden system may lead to such results, i.e. if the client lost, even if does not have to pay their lawyers (UK 1990 that reward system), but should avoid to can not expense in litigation legal burden. It may prevent people through litigation claim. Therefore, the British Law Association developed a legal expense insurance, from 1995 onwards, the insurance premium is 85 pounds, insurance for 100000 pounds, to compensate not from each other recycling our attorney fees or to each other in the burden of losing the occasion litigation costs. However, the use of qualifications in the principal specializes in personal injury compensation sand lawyers Proceedings (Note: (day) "the Civil Litigation Cost System Research Report" (Japan), load "jurist" in 1997 June, No. 1112nd.).

(five) America method. American not law enforcement, law pay according to the contracts between the parties of the decision, by the time or the overall success of reward system. In civil litigation lawyer fees to their burden principle. But the burden situation is not a few. Firstly, according to the contract lawyers fees shall be borne by the losing party burden. If the lease contract, the contract, the bank charter contract, housing lease contract. The second is formulated according to the method for judging the lawyer fees shall be borne by the losing party burden. "American federal rules of civil procedure" fifty-fourth paragraph fourth, the lawyer fees and tax expenses relating to the request by application the proposed. Other federal laws such as the securities and exchange law, antimonopoly law also stipulated by the losing party lawyer fees. At the state level also has a considerable number of law. California has the following provisions about the lawyer's fees, i.e. if it is conducive to the public good litigation and tort inappropriate protest, the magistrate may according to the representations or discretion, judging by the losing party burden. The third is based on case law and determine the burden lawyer fees. For example, the plaintiff public interest lawsuit win situations, the court found the defendant to the plaintiff's lawyer fee burden. And the parties filed a lawsuit or defense is malicious or abuse of litigation, the court can determine the burden of the other party's legal fees. At the burden of its own has been carried out in the procedure, a certain class or group to the outside of their own benefit or to create, maintain, increase the common property of the occasion, the lawyer fees by the common property burden (Note: (day) "the Civil Litigation Cost System Research Report", load (day "jurist") 1997 June, 1112nd).

General examination three, our lawyers fees borne

On the legal fees and commitment, foreign general is "legal fees shall be borne by the losing party" as a general rule, our litigation fees system and will not burden of litigation costs between the parties as the adjustment object, and only focus on the between the court and the parties of the cost burden. Therefore, if the agreement is not clear legal fees, court of claims in the lawyer's fee is not processing. But according to China's current judicial interpretation, in the following nine categories, clear provisions shall be borne by the losing party reasonable attorney's fees of the prevailing party: 1) the personal injury compensation, defamation, traffic accident cases: 2) legal aid cases); 3 cases of infringement of copyright; 4) trademark right infringement cases; 5 the patent infringement case); 6) the anti unfair competition cases; 7) the right to revoke the contract dispute case exercise creditors; 8) secured litigation cases; 9) arbitration cases.

(a), the law, the judicial interpretation stipulates clearly shall be borne by the losing party reasonable attorney's fees of the prevailing party.

(1), personal injury compensation, reputation infringement, the traffic accident case: "general principles of civil law" 119th stipulates: "a citizen's person causing physical injury, shall compensate for the medical expenses, lost income, reduce disability allowance for daily life; cause of death, and shall pay the funeral expenses, the deceased maintenance of the necessary living expenses." "The Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case to explain the" seventeenth provisions of the third paragraph of : "the death of the victim, the obligation of reparation related should according to the rescue treatment of the first compensation section of the prescribed fee, should also be compensation for funeral expenses, living expenses for dependents, the compensation for death fee and relatives of the victims for funeral expenses of transportation, accommodation and loss of working time loss and other reasonable." In 2000 Shanghai Higher People's court in the early to make "on the issuance of a few" about civil trial suggestions according to the "notice in the cases of compensation for personal injury lawyer proposed " belongs to property charges in the property interests, can in principle be as."

(2), the legal aid of the case: union notice "the Supreme People's court some assistance of the Ministry of civil legal problems about" seventh: "the legal aid staff for legal aid cases required travel, printing costs, transportation and communication costs, investigation and evidence collection of fees, the necessary expenses, the recipient into the litigation request according to the specific situation, the court sentenced losing by non recipient". Therefore, lawyers for legal aid cases, suggested that lawyer fees included in the claim, request the defendant bear.

(3), copyright infringement case: "copyright law" the forty-eighth stipulation: " infringement of copyright or copyright related rights, the infringer shall be in accordance with the actual loss to give people the right to compensation; computation of the actual loss is difficult, given the illegal income can be in accordance with the infringer. The compensation shall include the reasonable expenses paid by the right to stop the infringing acts of". According to the "Regulations of the Supreme People's Court on Several Issues concerning the application of civil disputes over copyright interpretation" of article twenty-sixth, "the reasonable expenses copyright act forty-eighth provisions of the first paragraph of stopping the infringement of payment, including the reasonable expenses the right holder or authorized agent on the infringement investigation, forensics. The people's court according to the claim of the parties and the specific case, it will be in accordance with the provisions of the relevant departments of the state attorney fees in the compensation scope".

4, trademark infringement cases: "the Supreme People's Court on the law applicable to a number of cases of civil disputes trademark explanation" seventeenth stipulates: reasonable paragraph fifty-sixth first "trademark law in stopping the infringement to pay the expenses, including the reasonable rights or authorized agent behavior carry on the investigation, evidence of infringement. The people's court according to the claim and the circumstances of the case the parties, can be in accordance with the provisions of the relevant departments of the state attorney fees in the compensation scope."

(5), patent infringement cases: "twenty-second rule" provisions of the Supreme People's Court on the trial of patent dispute case applicable legal issues : "the people's court according to the request by the holder of right and the specific case, can be the right person for investigation, reasonable to stop the infringement to pay the cost of calculation in the amount of compensation."

(6), unfair competition cases: "Anti Unfair Competition Law" Twentieth stipulation: the operator violates the provisions of this law, causes damage to the infringed business operators, it shall be liable for damages, the infringed business operators the loss is difficult to calculate the amount of compensation for infringement, by the damager during the the reasonable expenses and profit; be unfair competition acts bear the infringed business operators for the investigation of the operator infringed upon their legitimate rights and interests paid.

(7), the creditor in exercising the right of revocation of contract dispute cases: the Supreme People's court "interpretation concerning the application of 'some problems in contract law of the people's Republic of China ' (a)" twenty-sixth stipulates: "the creditor exercise the right of revocation of the payment of attorney fees, travel expenses and other necessary expenses, shall be borne by the debtor; third person was also at fault, it shall properly."

(8), guarantee right litigation: the "PRC security law" twenty-first article: "the scope of the suretyship guaranty includes the principal claim and interest, liquidated damages, damages and the realization of creditor's right." analysis: the debtor about fulfilling debt, creditor's rights and interests can be achieved, because the debtor does not fulfill the obligations, the creditor must through litigation to the realization of the right, the payment of legal fees is the parties for the realization of the creditor's rights and expenses, which belongs to the property losses, "guarantee law" the provisions of article twenty-first "the realization of creditor's rights shall include the reasonable expenses".

(9), arbitration cases: arbitration request of lawyers fees shall be borne by the losing party arbitration. 1994, 1995, 1998, 2000 version of the "Chinese international economic and Trade Arbitration Commission for arbitration rules" (referred to as "CIETAC rules") has similar provisions, the arbitration tribunal has the power to determine in the award the losing party shall compensate the prevailing party for the handling of a case of the expenses reasonably incurred by, but the amount of compensation shall not exceed the prevailing party won 10% of the amount. In practice, the cost also includes the attorney's fees, but there is a limit to the amount of 10% of the proportion of successful. The latest "CIETAC rules" (2005 Edition) has cancelled the limit set forth in this 10%, the forty-sixth stipulation: "the expense to undertake: (a) the arbitration tribunal has the power to determine in the arbitral award the arbitration fee shall be the parties eventually to the Arbitration Commission to pay and other expenses. (two) the arbitration tribunal has the right according to the circumstances of the case in the award that the losing party shall compensate the prevailing party for handling cases and the reasonable expenses expenditure. The tribunal ruled that the losing party compensation the prevailing party's expenses incurred in pursuing the case is reasonable, given case verdict, complexity, the winning party and / or agent of the actual workload and the dispute amount and other factors". Obviously, this to the discretion of the arbitration tribunal greater rights.

(two), both sides in the contract clearly agreed fees shall be borne by the losing party.

According to the principle of freedom of contract, as long as the parties have agreed fees shall be borne by the losing party in the contract, in the lawsuit or arbitration, litigation request of lawyers generally supported. In June 12, 2003, a bank branch in Nanjing and Liu, Li Mou signed loan contracts, and interest rates and repayment methods, default responsibilities clearly agreed, with particular reference to such as borrowing party in breach of contract, should bear the legal fees, legal fees and charges; Li Mou 3 people Liu said loan guarantee responsibility. Since the signing of the contract, the bank promised to Liu of the loans, but Liu since June last year no longer by about repayment, Lee also fails to bear the guarantee liability about, banks demanded for many times failed, the proper court. The court held that: the plaintiff and the defendant LiuMou bank, Lee and others signed the loan contract is the true meaning of the parties said, the defendant Liu accepted the loan, not about to borrow loans, the act constituted a breach of contract, should bear the liability for breach of contract, the plaintiff has the right to terminate the contract in advance about and recover all the principal and interest of the loan, the defendant Lee and 3 shall bear joint liability guarantee also. Therefore, the court of First Instance judgement: the plaintiff and the defendant signed a bank Liu, Li and others of the loan contract in force on the date of termination decision; the defendant LiuMou in decision within ten days after the commencement of a one-time repayment of the loan principal of 206041.63 yuan, and the payment of interest and overdue interest, and impose a punitive interest payments according to the provisions of the defendant; Liu a one-time payment of plaintiff bank fees 9700 yuan; the accused Lee of the debt are jointly and severally liable. "The Chiangnan times" (November 17, 2005 Tenth Edition) "the plaintiffs attorneys fees to be borne by the defendant"

Must pay special attention, in this clause must be clearly stated, "legal fees", such as "to achieve debt costs" are the agreement is not clear, may not be on the legal fees to support, the court agreed to review very strict. The plaintiff shall submit the signed contract and law firms and law firms lawyer fee invoice issued as a lawyer fees payment evidence in the proceedings. Discretion but the specific number of support will depend on the judge, according to the nature of the case to support, usually the court will support "reasonable" attorney's fees, but not all of the cost.

Scope four, lawyer expenses shall be included in the party may claim for compensation

The burden of problems related to legal fees, the usual practice is now who entrusts a lawyer, lawyer fees will burden. If a party to a lawsuit to request the other party to bear the fees, but also because there is no legal basis and can't get the support of the court. Only a minority of cases, judicial interpretation of the provisions for other attorneys fees, shall be borne by the losing party but in fact, attorney fees shall be borne by the losing party.

(a) legal fees necessary shall be borne by the losing party

(1) democracy and legal requirements. No money because they can't afford a lawyer and unable to safeguard their legitimate rights and interests. Some of the very small but the complex cases, no money to people who couldn't afford a lawyer, even afford a lawyer is the loss of the sale. Because the case won, benefits can not offset the cost of a lawyer. While not professional legal knowledge, does not entrust lawyers rights they do not know where to begin.

(2) reduce the malicious litigation request. Determine the attorney's fees shall be borne by the losing party, not the general rule and to lead to the abuse of litigation, but can contain malicious litigation occurs. Because of the losing party to pay the lawyer fees, also need to burden the other attorney fees, therefore, people will be filed in the fully weigh the advantages and disadvantages, even the potential defendants are also more likely to negotiate with each other, and to solve the dispute.

(3) to establish judicial authority, encourage legitimate claim. Be borne by the losing party winning party attorney's fee reflects the people's court fully protect the legitimate rights and interests of the parties, at the premise to be borne by the losing party lawyer's fees, according to the degree of fault of the parties share the agency fee more fully reflect fair judicial purpose, is bound to benefit the judicial authority of the Yu Shuli court, will enhance the social public to the court a sense of trust, encourage informed Party boldly through judicial means to protect their legitimate rights and interests, vexatious litigation for fear of malicious litigation can have adverse consequences for yourself, and give up the malicious lawsuit, also encouraged people to use legal weapons to solve social contradictions, and further improve the law enforcement environment, improve law enforcement credibility. 　

 

(two) the feasibility legal fees shall be borne by the losing party

(1) the law. First, the general principles of the civil law principle of fairness stipulated in article fourth, can be borne by the losing party lawyer fee basic principles. The fair principle is the principle of civil activities should follow a principle of justice, also should be followed. Judgment is to be borne by the losing party winning party attorney fees in line with the principle of fairness, or let the prevailing party bear their own attorneys fees in line with the principle of fairness, obviously is the former. Because the defendant, if not tort or breach of contract, so the plaintiff could not sue, hire a lawyer. Therefore, only the judgment be borne by the losing party attorney's fees, just accord with the principle of fairness. Second, the general principles of the civil law the 119th regulation, can become the legal basis for any defendant bear the lawyer's fees. This stipulates: "citizens against the body caused by injury, shall compensate for the medical expenses, lost income, reduce disability living allowance and other expenses......" The author, in this article "costs" three words can become the legal basis for any defendant afford lawyers. Not only will this one understanding to the infringement of citizens the body caused by injury, just compensation for medical expenses, lost income, disability living allowance, and can not pay the other expenses. Third, local laws. In November 1, 2008, the entry into force of the "Shenzhen special economic zone to Promote Harmonious Labor Relations Ordinance" is the first fifty-eighth labor dispute cases attorney's fees to pay the first, the provisions of labor dispute arbitration and litigation cases, workers win, lawyer fee for workers to pay can be borne by the employer, the maximum not more than five thousand yuan. Sichuan Province Luzhou City District People's court in the basic understanding of the legislative spirit, from January 1, 2003 onwards, the attorney fee included in the scope of compensation cases, shall be borne by the losing defendant, and successfully judgment more than ten plaintiff attorney's fee shall be borne by the losing defendant's case, that the "Legal Daily", "Sichuan Sichuan trial", "sunset", "people power" and other news media, has aroused strong repercussions in society.

(2) the feasibility of judicial practice. Notice of the Supreme People's Court published case, with case properties, has guiding significance in judicial practice. As of 1997 third Gazette of the Supreme People's Court published the "Twentieth Century Fawkes v. Beijing culture and art publishing house audio-visual world copyright infringement case", clearly wrote in the case: "the plaintiff for the protection of their legitimate rights and interests and to seek judicial relief, the reasonable expenses paid 7514.56 yuan (including 4662.41 yuan the lawyer fee) shall be borne by the defendant." As the 1998 second Supreme Court bulletin published the "Nanjing electric power automation factory v. Nanjing Tianyin electric power equipment factory unfair competition case". In this case the plaintiff lawyers clear support costs 9106 yuan to be borne by the defendant. The Supreme Court bulletin published by the judicial committee of the Supreme Court case is examined strictly selected cases in judicial practice, should wait for respect, should have the guiding significance.

(3) the reference of foreign legislation. Through the above several major foreign countries legislation, judicature and theory study on legal fees burden system, we can draw the following conclusions: first, whether the mining law of force doctrine, whether civil law countries or the common law countries, there are different degrees of approval by the losing party the burden of attorneys' fees, lawyer system; second costs from the legal basis of losing party burden has two kinds: one is the legal fees as part of the cost of litigation, two is the part of the attorney fees as compensation for damage; judicial discretion, third countries with strict legal fees assessment system and judges, lawyers fees established by fourth; the losing party burden system has undergone a process of gradual development, especially in japan. The development process through the opposite point of debate, finally determined the counsel fee shall be borne by the losing party the burden of system parts. Establishment of the China's lawyer fees system has an important enlightenment.

(three) legal fees shall be borne by the losing party urgency

(1) the requirement for constructing harmonious society. To create a fair and efficient, healthy market economy environment, premise condition is the market status of equality, free will, honesty and credit. The losing party in civil litigation bear all the cost relief the prevailing party including attorney's fees, this will increase the tort, breach of contract and Culpa in contrahendo behavior cost, reduces the law-abiding, the other party of the transaction costs and risks, to guide market follow the equality, voluntary, honesty and credit principle in civil and commercial law consciousness activities, more respect for the rights of others, in the performance of the contract signed, can try to careful attention obligation and honest cooperation, but also conducive to mobilize the enthusiasm of honesty and trustworthiness of the market main body participation in economic activities, so as to make the market more secure, active transactions, more smooth and fast. At the same time, still want to emphasize the many changes in market economy, legal relationship is complex, so the more prominent in the premise to be borne by the losing party lawyers fees, lawyers fees to share fault of the parties, but also more humane, more reasonable. 　　

(2) the important condition to realize the power balance. Attorney fees shall be borne by the losing party according to the degree of fault sharing lawyers fees move, will undoubtedly increase the cost and risk of civil tort, breach of contract and Culpa in behavior, will strengthen the legal risk prevention measures for the motivation of market main body to draw on the advantages and avoid disadvantages, lawyer, this market will be more popular professional groups, positive action the lawyer was also effectively mobilize the lawyer, litigation and non litigation business has great role in promoting. At the same time, law enforcement agencies to review and attorney fees to lawyers fees standard promote standardization and related business activities, to regulate the lawyer market also has a positive role in promoting.

(3) the need to promote democracy and legal system in our country. The lawyer agency fee lawyer pay breach of contract or tort party is caused to the other party's inevitable direct losses, the lawyer fee is the losing party imposed the prevailing party cost, if the parties in infringement or breach of contract damage and forced to mention lawsuit and has after the win, still need to pay for the original can be avoided the attorney's fees, which can not fully protect the legitimate rights of the parties, but also against the law of justice. The losing party to breach of contract, tort bear each other's lawyer fees, is artificially increased the breach of contract, tort costs, reduce the victims to protect their legitimate rights and interests of the cost, thus, is conducive to curb tort, breach of contract, but also conducive to encouraging victims to pick up the legal weapons to protect their legitimate rights and interests

Five, improve the lawyer fees in China by the idea of losing party bear
Our lawyer fees from building the losing party burden system, from the following aspects:
(a) to determine the basic system. Determine the "lawyer fees shall be borne by the losing party" general rules, the judicial interpretation has been established by the basic rules of losing party afford an attorney in nine cases, the rules can be extend to all civil cases. Future revision of the civil procedure law, be explicitly stipulated in the "costs" chapter.
(two) security mechanism. (1) a lawyer fees fund system. The fund is the provincial lawyers association management, by all the lawyers from, the fund's money to help fight to win, but now they can not afford a lawyer, one party. That direct point is free borrow funds to engage in a lawsuit, after the return, this approach can ensure that the poor afford a lawsuit. (2) the establishment of lawyer expenses insurance. This is mainly for the chance to win is not too big case, mainly is the individual lawyers previously according to evidence-based decision, advice when things such as insurance, insurance one hundred Yuan Bao two thousand, then to the parties to the case, if lost, also lost one hundred yuan. If the parties have money or will win, then the lawyer will not recommend insurance, there is no need for.

(three) assessment to determine the counsel fee shall be borne by the losing party. In order to prevent nausea and damage the losing party spending exorbitant fees, lawyers fees on the expenditure standard should consider the following factors: (1) in accordance with the provisions of the relevant departments of the state attorney's fees. Such as "Chongqing lawyer service charges standard": lawyers, civil arbitration cases, (a) not involving property relationship, piecework fees, each charge 2000 to 6000 yuan; (two) involving property relationship, fees according to the proportion of the amount, in accordance with the following classification, specific proportion of the cumulative charge: 100000 yuan, 2000 - 6000 yuan; 100000 yuan of above 500000 yuan, 6% - 5%; more than 500000 yuan, 1000000 yuan, 5% - 4%; 1000000 yuan of above 5000000 yuan, 4% - 3%; 500 million yuan, 10000000 yuan, 3% - 2%; 1000 million above, 2% - 1%, (2) the parties due to reach the promotion of the rights or defend rights of purpose and necessary expenses or reasonable expenses. If we should first consider the local lawyers instead of foreign law, to reduce travel expenses; generally only pay a lawyer agency fees, unless the proceedings because of the objective situation and to replace the lawyer, about which is the necessary expenses reasonably incurred by the judge or, according to the specific circumstances of discretion. (3) if the parties burden on lawyer fees in the contract agreed, the priority of agreement.

 

As a lawyer, I think it is necessary to amend the Civil Procedure Law shall entrust a lawyer fees, Lawyer Litigation and related litigation fee shall be borne by the losing party. The defendant bear the plaintiff's attorney fees, can encourage the pick up the legal weapons to protect their legitimate rights and interests, to curb the acts of infringement and breach of contract, to curb malicious litigation, can promote the development of China's legal profession, its social significance is self-evident.

 

 

 

  Author introduction: Gou Yiqiang, male, Chongqing Jin Ming lawyer, born in eighty in Yilong County, Sichuan, has graduated from the Southwest University of Political Science and Law, University of International Business and Economics, published papers, is writing "research" tort law of negligence theory a, at present more than sixteen words have been completed. Good at civil, economic law, tort law. Practice saying: I may not agree with what you say, but I will defend to the death your right to say it. QQ:284386250, Tel: 13452104130