Analysis On Mechanism Of Attorney Fees Be Borne By Losing Party In Civil Litigation

With the advancement of judicial reform process, the legal system of our country is becoming more and more perfect. In the process of seeking justice through litigation,people's dependence on lawyer for legal service is stronger and stronger. However,the lawyer fees in the lawsuit cost become an important factor preventing people seeking the judicial relief. Therefore, it is necessory to set a scientific mechanism of attorneys' fees.The system of attorneys' fees burdened by the losing party not only encourage real right holder to claim lawsuits,thus promoting the effective implementation of the law,but also play an important role in sanctioning civil vioations by increasing the offender's illegal costs. At the same time,based on the guidance of law which can function, it makes parties be rational in litigation,ane inhibition of malicious litigation and false action.In terms of the existing legislation, there is not a unity legislation about burden of attorney fees, but referring to various departments in the legislation and relevant judicial explanation. To satisfy the need of trial practice and experience summary, some regions also have issued a series of regulatory documents. The status of attorney fees among the normative documents is not consistently. From the point of view of system operation practice, the court for legal fees and thereafter burden the request of the referee, the applicable case type is relatively fixed, ruling way is different, the attorney fees on the referee to determine the amount of difference is more obvious. From the perspective of the cognitive practice of related subject, based on the investigation and research on four court of hunan province, using methods such as questionnaire survey, one-on-one interviews,held seminars, through to the judges, lawyers, the parties, the investigation and found that three groups, three kinds of main body for the legal fees and thereafter burden of the attitude of the problem doesn't see eye to eye, but in general, the demand for legal fees and thereafter burden exists quite a part, lawyers are identity, in the realization of the losing party burden way lawyers fees, judges and lawyers are more agree with the attorney fees as damages request.The traditional damage law pay attention to filling the damages,but with the continuous development of the theory of tort law, the punitive damages has been increasingly recognized and gradually applied in many fields. In the system of compensatory damages to the punitive damages against the background of system transformation, the attorney fees as part of the damage compensation request, has the theoretical basis in damage compensation law. But legal fees as a request for damagesshall be borne by the losing party system has only a relative suitability. Attorney fees,therefore, the construction of the losing party burden system must first clear scope of the system, At present we can gradually extend the scope to the applicable field of punitive damages in the case and default damage compensation cases and intentional misconduct or gross negligence of tort damage compensation cases, such as divorce, adoptive relationship should apply in cases involving personal relationship; Second, we shall determine the evaluation principles to predictability, make sure the range of compensation is predictable,the lawyers who involved the case is necessory and he is actually involved.Finally, we should also build a systemized attorney fees burden of assessment procedures and remedies of the parties hereto.