A Discussion On The Construction Of The Transfer Payment System Of Attorneys’ Fees In China

Since legal services become paid services, There are four burden models of legal fees, including national payment burden model, lawyers themselves burden mode, client commitment burden mode, the losing party mode. The losing party burden mode The losing party burden mode,we also call it" borne the winning party lawyer fee system".Most of the common law, civil law countries have established the transfer payment system of attorneys’ fees in the lawsuit, the court borneing the winning party’s attorney fees. In these countries,they regulate stringent requirements to the conditions and scopes of the system. In order to achieve fairness and justice,they authorize the court to examine and evaluate the attorney’s fees what the losing party need to assume. Although there are some differences in the arbitration field about the application of the transfer payment system of attorneys’ fees, some countries have banned the arbitral tribunal to rule on attorneys’fees. However, If the parties authorized the arbitral tribunal to award the attorneys’fees in arbitration agreement, the arbitral tribunal obtain the rights to adjudicate reasonable attorney fees between the parties.In addition, some countries clearly defined in the relevant law the arbitral tribunal to award arbitration costs, including attorneys’fees commitment, such as the United Kingdom, Portugal. most countries support that the parties can make agreement on attorneys’ fees freely.At present, China has not been established the transfer payment system of attorneys’ fees, but the proposal requires on the establishment of the system in our country is increasing these years. Supreme Court also concerned about this issue, some judicial interpretation cleared that the losing parties or the fault parties should bear the attorney fees as compensation. The relevant substantive laws provide opportunities and possiblities to establish the transfer payment system of attorneys’ fees in our countey. Establish the transfer payment system of attorneys’ fees is achievable for a fair and reasonable share of the cost of litigation needs, is effectively safeguard the needs of the citizens’, legal persons’ and other organizations’ legitimate rights and interests, is the needs of protecting the citizens right to appeal, equal access to legal services lawyers litigation, and reducing the tired party defendants, prompting dedicated lawyers.Studying from the successful application experience of the system of other countries, and combining with Chinese specific national conditions, to construction the transfer payment system of attorneys’ fees, we need to follow the principles of limited application, reasonable compensation, not warning ignored, the court borne, in civil, criminal litigation, administrative proceedings, arbitration of labor disputes, civil and commercial arbitration cases differences application, limited application. In addition, relevant departments need to introduce a detailed cost assessment and dispute resolution mechanisms to safeguard the implementation of the system.