Reflections And Improvements On The Rules Of Attorney F Ees Assignment In Civil Litigation

The attorney fee transfer system refers to a system in which the winning party has the right to request the losing party to pay its own attorney fees according to the outcome of the lawsuit.At present,there are no universally binding regulations on attorney fees in China.In recent years,China has identified attorney fees as unavoidable losses or reasonable expenses arising from the actions of the losing party in some fields,and allows the winning party to apply for repayment,such as the expenses incurred when the creditor realizes the creditor’s rights,and the field of intellectual property infringement,civil public interest litigation,anti-unfair competition,and civil disputes involving the use of information networks to infringe on personal rights and interests.Judging from the current legal norms,the relevant provisions on the transfer of attorney fees are relatively scattered,and a standardized system has not been formed.There are also many problems in judicial practice.The nature of attorney fees applicable to transfer in our country should belong to damages rather than litigation costs,and transfer should also be claimed through the mode of damages.The function of implementing the attorney fee transfer rule is that it can prevent dishonest lawsuits,encourage the parties to actively protect their rights,and prevent the perpetrators from wanton infringement.There are some problems in the rules of transfer of attorney fees,such as too abstract rules,prominent problems of different judgments in similar cases,and obvious differences in judicial practice of evidence review standards.At the beginning of the formulation of the Chinese system,the legal fees were not included in the legal fees.Under this system design,the general application of the rule that the legal fees are borne by the losing party in all cases may cause injustice in the case,and it is difficult to reflect the purpose of the transfer rule,the full implementation of the transfer of attorney fees not only encourages the parties to protect their rights,but also inhibits some valuable lawsuits.Therefore,the attorney fee transfer rule is appropriate to apply in cases where liability is clear.The cases currently stipulated by the law are all such cases.The principle that attorney fees should be borne by the parties should be adhered to,and at the same time,after demonstrating the types of cases that are suitable for inclusion in the attorney fee assignment rules,the attorney fee assignment rules for types of cases should be added.On the basis of the current rules on the transfer of attorney fees,the scope of application of the transfer of attorney fees is appropriately expanded.In cases of breach of contract,the terms of the transfer of attorney fees are allowed to be generally agreed,and cases such as malicious infringement and labor dispute cases where the laborer is the winning party are added.The rules on the transfer of attorney fees have been adopted,and the rules on the transfer of attorney fees in non-faithful litigation cases have been raised to the legal level,and the subject who has the right to request the transfer of attorney fees is clearly defined;The responsibility is to determine the assumption of legal fees,establish the review and evaluation standards for reasonable legal fees,clarify the stage of requesting transfer,and make up for the gaps in the normative level.It is also necessary to improve the supporting system of the transfer rules,set up an attorney fee assessment agency,and establish a guarantee mechanism for attorney fees.