Transfer: should the losing party bear the legal fee of the winning party?

Original article: http://yufuhai.laweach.com/Content_92951.html

WinFang'sAttorneyFeeWho should it be?BurdenAt present, there are two kinds of views. One is that the winning party bears the burden on its own, on the grounds that China does notDefeated partyPaid by the Claimant's attorneyLawsRules, but China has"PartiesParticipateLitigationYou can either hire a lawyer or not hire a lawyer. Moreover, Chinese laws also stipulate that citizens have the obligation to learn and understand Chinese laws. Therefore, if the parties do not understand the law themselves, they should hire lawyers to serve themselves, it is a matter of course that he should pay for his own attorney fees.

The other point is that the claimant's attorney fees should be borne by the loser on the grounds that the claimant's attorney fees are due to default orInfringementActionIf the loss is caused, the loser shouldCompensation. Although there are no relevant laws and regulations in China, litigation in modern society is a kind of professional andTipsStrong performanceLaborEven if the client understands the law or even is familiar with the law, it may not be able to use the law well or make statements that are advantageous to the client. Therefore, I have to ask a lawyer to respond to the lawsuit for my own case. The reason is that the losing party defaults or fails to make timely compensation after infringement, or is unwilling to make compensation. That is to say, if there is no defaulting or infringement by the losing party, and the losing party defaults or fails to make compensation in a timely manner after the infringement, there will be no litigation against such breach or infringement, in this case, there will be no such behavior as the fact that the claimant will hire a lawyer, and there will be no legal fee paid by the Claimant to hire a lawyer. Therefore, legal liabilities apply to attorney fees and infringement or breach of contract.LinkThe Legal Counsel's fee must be compensated by the defaulting party or the infringing party.

In my opinion, we cannot generalize who bears the legal counsel's fees. We need to analyze specific cases. In some cases, the claimant must bear the legal counsel's fees. In some cases, it is extremely inappropriate for the claimant to bear the legal counsel's fees. But even so, we can still make a general rule in the law that the losing party will pay for the legal counsel of the winning party, and list the exceptions one by one.

For the convenience of the discussion, I will first cite several cases where the claimant cannot afford the legal fee of the claimant:

I. Both parties are at faultDivorceLawsuit. Divorce is acceptable.ProtocolDivorce can also be a lawsuit. However, if the agreement fails, litigation is not required. IfHusband and wifeNeither party is at fault. Either party is unwilling to continue living with the other party. At this time, either party suedCourtAnd hired a lawyer. Even if the court decides to agree to his divorce request, the lawyer's fee should not be borne by the losing party (that is, the party unwilling to divorce, the reason should be who is hired and who is responsible for the failure of the claimant's infringement or breach of contract. Some people say that if the losing claimant agrees to negotiate a divorce, the claimant will not have to go to the court to file a lawsuit, and the claimant will not have to ask a lawyer or pay the attorney fee. However, ChinaMarriageThe law stipulates that marriage and divorce are free. Divorce freedom means you can choose to divorce or choose not to divorce. One party submits a divorce, and the other party has the right to refuse. You cannot decide that there is a breach or infringement because you reject the divorce request. That is to say, rejecting a divorce request from one party is not an infringement or breach of contract. If not, the Court will not be able to afford the legal counsel of the claimant.

2. litigation in which both parties confirm the ownership relationship without fault. Both parties claim ownership of the same object, but neither party encroaches on the object and both parties prove that the ownership of the object belongs to them.EvidenceHowever, the proof of the evidence is quite powerful. No one will give up his claim on the ownership of the object. If the negotiation fails, one party will file a lawsuit with the Court and hire a lawyer. The other party will appear in court to respond to the lawsuit, he also hired a lawyer.TrialIf this item is judged to be owned by the same party, the legal counsel fee of the victory party cannot be borne by the losing party. Because the losing party has no fault, that is, no infringement or breach of contract, obviously, there is no legal basis for the claimant's legal compensation, and it is also extremely unfair.

In this case, either party has no infringement or breach of contract, but either party has resolved it through the Court.DisputeAt this time, it is fair and reasonable to hire a lawyer and pay for the lawyer's fees.

The law may make a general rule that one party has no fault, no breach of contract or infringement, and the other party has a fault, and there is a breach or infringement. At this time, a lawsuit is filed with the court, to resolve disputes between the two parties, the court should hire a lawyer. In this case, the court should decide that the Legal Counsel of the victory party shall be compensated by the losing party. Why?

1. It is reasonable for the losing party to pay for the legal counsel of the winning party. As mentioned above, litigation in modern society is a kind of professional and skillful work, coupled with various laws, regulations andJusticeExplanationThe continuous introduction of various new cases, as well as the increasingly sophisticated branches of the Legal Science, the increasingly complex division of labor in society, ordinary citizens cannot be familiar with all laws and regulations, and increasinglyDevelopmentSociety requires every citizen to be familiar with, understand, and use the law freely. If so, the social and personal costs are extremely high.

In additionCivilThe trial method is evolving from the traditional Questioning Method to the litigation method, which puts forward higher requirements on the parties, not only requires the Parties to have a considerable degree of legal knowledge, the client is also required to have a special capability, such as reading and copying relevant archives in the archivesHealthcareCheck the medical archives of the department and go to the relevant functional departments.IdentificationTo obtain evidence from the client. Although such a method of litigation imposes such a high requirement on the parties, the parties rarely reach such a high level, but the dispute must be resolved by the court. What should I do, we have to hire professionals who are knowledgeable and skilled in using the law, that is, hiring lawyers. That is to say, we cannot choose to hire a lawyer when the client is in litigation, for this reason, the lawyer's fee is another four losses after being breached or infringed.

2. It is also necessary for lawyers to be paid by the losing party. As mentioned above, the legal charge of the winning party is due to the loss caused by the defaulting or infringement of the losing party. Such a loss should not be compensated, but of course it should be compensated. In addition, it is stipulated that the Legal Counsel of the victory party should be borne by the losing party, which can also effectively curb extremely serious defaults or infringements and increase the cost of the liquidated damages or the infringers. In particular, China's civil law has not yet established punitive compensation.SystemPreviously, this provision was even more necessary.

3. the losing party shall have its legal basis for attorney fees.

(1) individual laws or individual laws

Article 119th of the General Principles of Civil Law of the People's Republic of China stipulates: "In the event of physical harm to a citizen, medical expenses, income reduced due to lost work, living allowances for persons with disabilities, and other expenses shall be compensated ......" I believe that the word "fee" in this article can be used as the legal basis for the decision of the defeated party to bear the legal counsel's fee. This article cannot be understood as a violation of the body of citizens, only medical expenses, lost labor fees, and living allowances for persons with disabilities can be compensated, but no other fees will be compensated.

Article 48th of the Copyright Law of the People's Republic of China stipulates: "... The amount of compensation shall also includeRightsReasonable expenses spent to stop infringement ." Article 56th of the Trademark Law of the People's Republic of China also stipulates: "The amount of compensation for infringement of the right to use a trademark ...... Including reasonable expenses incurred by the infringed person to stop the infringement ." The "reasonable expenses" mentioned here should, of course, include attorney fees,PatentsThis is also the same.

Article 21st of the Guarantee Law of the People's Republic of China stipulates that "guaranteedRangeIncluding Primary creditor's rights and interest, liquidated damages,DamageCompensation and the cost of realizing Creditor's Rights ", according to the author's understanding, the" cost of realizing Creditor's Rights "here should include the attorney's fee.

According to the above provisions, it can be seen that the loss of the claimant's legal counsel fee is in line with China's legislative trend.

(2) The general provisions of the General Principles of Civil Law of the People's Republic of China (hereinafter referred to as the General Principles of Civil Law) provide theoretical support to the lost party to bear the other party's attorney fees.

Article 4 of the General Principles of Civil Law stipulates: "civil activities shall be voluntary, fair ,......Principles", The principle of fairness is the principle that the parties must abide by in conducting civil activities, and also the principle that must be followed in judicial practice. In the end, is it true that the decision to let the defeated party bear the costs of the lawyers hired by the winning party is in line with the principles of fairness, or is it true that the fact that the winning party is willing to pay the lawyers by itself is in line with the principles of fairness. Therefore, we can understand that the principles of fairness in this article are the legal basis for the determination of the defeated party to bear the legal counsel fee of the winning party.

To sum up, the author believes that the losing party shall not only have its own necessity, but also its rationality and legitimacy to bear the litigation fee of the winning party. The loser shall not only promptly and to the maximum extent protect the legitimate rights and interests of the claimant, but also sanction violations and infringements so that they canEconomicNot only do they not get any cheap, but they also have to pay more for it to maintain social equity and justice.

In addition, many lawsuits are difficult to tell who wins or who fails. These Lawsuits often show that one party is better than the other, but this party is also at fault, there may be a certain amount of infringement, a certain amount of breach, or both. At this time, the burden of attorney feesRulesIt should have changed. For example, when some old masters go to the streets and run red lights, another old master accidentally drove the car to you. You rubbed your injured leg and scolded the old driver. It wasn't long before you sued the old man in court. The Court ruled by law that you would assume 90%LiabilityThe driver is responsible for 10% of the responsibilities. At this time, it is hard to say who is the winner and who is the loser. You two old masters have paid for their own behaviors and your violations, drivers who use highly dangerous tools to access public areas should be held responsible for the loss caused by related personnel! In this case, who will charge your attorney fee and the legal proceedings? Obviously, it is inappropriate to let the driver out. It should be based on the responsibility. If you assume 90% of your responsibilities and 90% of your responsibilities are incurred by the driver, 10% of your responsibilities will be borne by the driver. If you ask a lawyer to spend 10% Yuan, you have to pay 1000 yuan on your own, another 100 yuan is borne by the driver. If the driver asks a lawyer to spend 1000 yuan, you will have to pay 900 yuan for it, and the driver will pay 100 yuan.

To sum up, the burden of attorney fees is a matter of fairness and justice. The national legislative and judicial departments should make a reasonable arrangement on this issue in order to establish a harmonious judicial order, in order to fully realize people's right of action, so as to effectively curb all kinds of infringement or breach of contract, in order to make full relief for people who should receive judicial assistance!

Yu Fuhai
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Lawyers do not want to do this. Otherwise, how will they charge fees based on the price department's standards? Reply time: 12:29:27