On Issues Of Attorney Fees Undertaken By The Losing Party In Civil Litigation

As China's existing legislation does not make uniform provisions on the burden of attorney fees,apart from the special provisions on the burden of attorneys in more than ten special laws,judicial practice is generally borne by the parties at their own risk.Some scholars have called for the establishment of a losing party to pay the attorney fees system in China from the perspective of reducing the cost of defending the rights of the parties and suppressing the abuse of the lawsuit,so that the judges can have a law to follow,and then avoid the situation of different judgments on the same lawsuit.While other scholars point out that the losing party's burden of attorney fees is not in line with China's national conditions,and will inhibit the parties' right to appeal.Among the scholars who support the losing party to pay the attorney fees,there are disputes in the way of its implement.Some scholars reckon that the attorney fees should be included in the scope of litigation costs,while other scholars believe that the fees should be embodied in the scope of damages.Such differences in understanding will lead to a different theoretical basis for the losing party to bear the attorney fees system of the winning party.The former involves the constitutional issue of the court as a state agency involved in the civil field,and the latter involves the question of whether the legal causality is established.In general,there is still much controversy in whether the losing party pays the attorney fees and how the fees are paid by the losing party.Judging from the existing legislation,the burden of attorney fees has been stipulated in only a few special cases.The special provisions made according to the policy requirements of the special department law are not sufficient to prove that a general system of the burden of attorney fees should be established in the procedural law.From the perspective of the judicial practice,in the case of contract disputes,if there is an agreement,the parties should bear their responsibility according to the provisions,otherwise,the court's judgment will be different.As for infringement disputes,the courts that have the law clearly stipulated the burden of attorney fees will support the parties' attorneys fees in varying degrees,while in other types of cases,the courts have different judgments.In a word,in the types of cases that have no agreement and no legal provisions,the court's judgment shows a chaotic situation.There is no thorough judgment on whether to award the attorney fees and the amount of judgments,and there is no specific standard.At present,it is inappropriate to include the attorney fees in the scope of litigation costs.The attorney fees as a damages is not universal.It should not be generally stipulated in the civil litigation that the losing party should bear the attorney fees.Still,we should refine the existing rules on the burden of attorney fees in China,such as defining the winning case under the burden of legal fees,establishing the factors that should be considered in the reasonable legal fees,and improving the assessing procedures and remedy manners for the attorney fees.