Why attorney fees cannot be borne by the losing party

Previously, the law stipulated that the losing party should bear attorney fees only in the following 11 cases: personal injury compensation, reputation infringement, traffic accident cases, legal aid cases, copyright infringement cases, trademark infringement cases, patent infringement cases, non-compliance cases Fair competition cases, creditor exercise of revocation rights in contract disputes, security rights litigation, and arbitration cases

However, on September 13, 2016, the Supreme People's Court of the People's Republic of China issued the " "Several Opinions of the Supreme People's Court on Further Promoting the Separation of Complex Cases from Simple Cases and Optimizing the Allocation of Judicial Resources", after which attorney fees can be applied for to be paid by the losing party.

Extended information:

"Several Opinions of the Supreme People's Court on Further Promoting the Separation of Complex Cases from Simple Cases and Optimizing the Allocation of Judicial Resources"

In order to further optimize judicial resources, improve Judicial efficiency, promoting judicial fairness, reducing litigation costs for parties, and safeguarding the legitimate rights and interests of the people. According to the "Civil Procedure Law of the People's Republic of China", "Criminal Procedure Law of the People's Republic of China" and " "Administrative Procedure Law of the People's Republic of China" and other legal provisions, combined with the actual work of the people's courts, the following opinions are hereby put forward to further promote the separation of complex cases and optimize the allocation of judicial resources.

1. Follow judicial rules and promote the separation of traditional and simplified sentences. Scientifically allocate and efficiently use trial resources, quickly try simple cases in accordance with the law, strictly standardize the trial of complex cases, and achieve quick trials of simple cases and precise trials of complex cases. Based on the facts of the case, application of law, social impact and other factors, select and apply appropriate trial procedures, standardize and improve the conversion and connection between different procedures, make it possible to make it more complicated when it is necessary, to make it simple when it is necessary, to make it simple and appropriate, and strive to use smaller judicial procedures achieve better legal results at lower costs.

2. Promote the screening and diversion of cases during the filing process. In accordance with legal provisions, local people's courts at all levels have scientifically formulated standards and diversion rules for distinguishing simple cases from complex cases, and adopted random case division as the main method and designated case division as a supplement to ensure that simple cases are tried in a timely manner by the people's courts and expedited adjudication teams. , series, group or related cases shall in principle be tried by the same trial organization. For cases whose complexity and simplicity are difficult to accurately determine in a timely manner, the case filing, trial and trial management departments should consult and communicate in a timely manner to achieve orderly and efficient case division work.

3. Improve service procedures and delivery methods. If the parties agree on a service address before the dispute occurs, the people's court may use that address as the confirmation address for service of litigation documents. When a party files a lawsuit or makes a defense, it shall fill in a confirmation of service address in accordance with regulations. Actively use electronic delivery methods; if the parties agree to electronic delivery, they should provide and confirm electronic delivery addresses such as fax number, email address, and WeChat ID. Make full use of the China Trial Process Information Disclosure Network to establish a unified electronic service platform for courts across the country. Improve the national postal agency to provide court express delivery.

4. Give full play to the advantages of rapid trial procedures in civil cases. In accordance with the provisions of the Civil Procedure Law and its judicial interpretations, the parties shall be actively guided to agree on the application of simplified procedures for hearing civil cases. For a simple civil case in which the subject amount exceeds the prescribed standard, or a civil case in which the subject amount does not fall under the circumstances specified in Paragraph 1 of Article 157 of the Civil Procedure Law but the subject amount is below the prescribed standard, if the parties agree to apply the small claims litigation procedure, Small claims proceedings can be applied. Special procedures for cases involving the realization of security rights shall be applied in accordance with the law. Actively guide parties to transfer cases in which creditors request debtors to pay money or securities to supervision procedures, and promote the use of electronic payment orders.

5. Innovate the working mechanism of speedy criminal prosecution. Summarize the experience of pilot programs for expedited criminal prosecution and strengthen the connection and cooperation between investigation, prosecution and trial procedures. Promote the establishment of expedited processing office areas in detention centers, law enforcement case handling units and other places, promote the sharing of case information and paperless circulation of case files, and promote the simplification and speeding up of case processing.

6. Simplify administrative case hearing procedures. For administrative cases that have been filed but do not meet the conditions for prosecution, if after reviewing the files, investigating and questioning the parties, it is deemed that there is no need for a court hearing, the case may be dismissed directly. For cases with clear facts, clear rights and obligations, and little controversy, explore the establishment of an administrative expedited adjudication working mechanism.

7. Explore and implement model litigation methods. For series or group civil cases and administrative cases, select individual or a small number of cases to conduct demonstration litigation first, and handle other similar cases with reference to the judgment results, so as to promote the efficient resolution of batch cases through individual case demonstration processing.

8. Promote the practice of concentrating time on hearing cases. For civil cases that are subject to summary procedures, and minor criminal cases that are subject to expedited adjudication procedures or summary procedures, centralized filing, transfer, scheduling, hearings, and verdicts are implemented, and the same trial organization will hear multiple cases continuously within the same period of time.

9. Give full play to the function of pre-trial conferences. The judge or a judge's assistant under the guidance of the judge presides over a pre-trial meeting to resolve relevant procedural matters such as verifying the identity of the parties, organizing the exchange of evidence catalogs, and initiating the exclusion of illegal evidence. For cases suitable for mediation, we will actively promote the parties to reconcile or reach a mediation agreement through pre-trial meetings. For undisputed facts and evidence confirmed at the pre-trial conference, after explanations are given during the trial, the presentation and cross-examination of evidence at the trial can be simplified; for disputed facts and evidence, the focus of the dispute can be summarized after soliciting the opinions of the parties.

10. Innovate the way of holding court. For civil and criminal cases that are subject to summary procedures, remote video hearings can be used with the consent of the parties concerned. Witnesses, evaluators, and victims can use audio-visual transmission technology or synchronized video testimony rooms to testify.

11. Promote the reform of court hearing recording methods. Actively develop and utilize intelligent speech recognition technology to simultaneously convert court hearing voices into text and generate court transcripts. Implement the requirements for audio and video recording of the entire court hearing activities, and explore the use of audio and video recording of court hearings to simplify or replace court records by clerks.

12. Promote the reform of civil trial methods. For civil cases that are subject to the small claims procedure, the court hearing can be conducted directly around the claims and are not subject to the restrictions of court investigation, court debate and other court hearing procedures. For civil cases where the case elements and trial points are relatively concentrated, the order of the trial can be determined based on the relevant elements and the litigation claims, and court investigations and court debates can be conducted simultaneously around the controversial elements.

13. Explore the reform of trial methods in cases of confession and punishment. For cases in which the defendant pleads guilty and accepts punishment, we will explore ways to simplify court proceedings, but the defendant’s final statement should be heard. If the criminal expedited procedure is applied to the trial, court investigation and court debate may no longer be conducted; if the criminal summary procedure is applied to the trial, the court investigation, court debate and other court procedures are not restricted.

14. Promote sentencing in court. For civil cases that are subject to small claims procedures and criminal cases that are subject to expedited adjudication procedures, in principle, the judgment should be pronounced in court. For cases subject to civil, criminal, and administrative summary procedures, the judgment shall generally be pronounced in court. For civil, criminal, and administrative cases that are subject to ordinary procedures, the rate of in-court judgments will be gradually increased.

15. Promote the separation of traditional and simplified judgment documents. According to the court level, case type, court hearing situation, etc., the style structure and reasoning of the judgment documents are divided into traditional and simplified ones. Judgment documents in complex cases should be focused on the focus of the dispute in a targeted manner. For new types of simple cases with guiding significance, reasoning can be strengthened; for other simple cases, simplified judicial documents such as writ style, element style, table format, etc. can be used to simplify reasoning. In cases where the judgment is pronounced in court, the judgment documents can be appropriately simplified. In civil cases that are performed immediately in court, with the consent of all parties, the relevant circumstances may be recorded in the court transcripts without the issuance of a judgment document.

16. Improve the connection mechanism for second instance cases. Actively guide parties and lawyers to submit electronic litigation materials, promote the construction of smart courts and the digitization of litigation files, and use electronic file transfer methods to speed up the transfer of case files between superior and lower courts. Optimize the trial method of the second instance and focus on the issues disputed by the parties to the litigation to avoid unnecessary duplication of court hearings and judgment documents between the second instance and the first instance. Strengthen the functions of unifying the refereeing standards and clarifying the refereeing rules for the second instance.

17. Improve the scientific nature of the ratio of persons to cases. On the basis of accurate calculation of personnel, number of cases and workload, dynamically adjust the judicial power of different courts and different judicial departments.

Based on relevant factors such as the court's trial level and the complexity of cases, the proportion of judges, judge assistants, and clerks should be reasonably determined, and their respective functional positions and their interrelationships should be scientifically defined to maximize the advantages of the trial team.

18. Promote professional trials. On the basis of fully considering factors such as judges' case-handling abilities, experience and expertise, professional trial organizations for hearing types of cases are determined according to different types of cases, and judges who specialize in hearing simple cases and complex cases are determined according to the complexity of the cases. Promote the standardization of case handling and improve the case work system. Establish a judge rotation mechanism, improve the performance evaluation system, and stimulate and maintain the vitality of the trial team.

19. Promote centralized management of trial auxiliary matters. According to the actual needs of the trial, special trial auxiliary personnel shall be arranged in the litigation service center or trial business department to be centrally responsible for trial auxiliary matters such as service delivery, court scheduling, preservation, appraisal and evaluation, and document online access.

20. Improve the diversified dispute resolution mechanism. Promote various governance entities such as comprehensive governance organizations, administrative agencies, people's mediation organizations, commercial mediation organizations, industry mediation organizations, arbitration institutions, and notary agencies to play a role in preventing and resolving conflicts and disputes, improve the construction of litigation and mediation docking work platforms, and strengthen litigation and mediation. The organic connection of non-litigation dispute resolution methods promotes the pre-litigation diversion of disputes. Improve reconciliation and mediation in criminal proceedings. Promote administrative mediation and administrative reconciliation, and actively support administrative agencies in adjudicating civil disputes closely related to administrative management activities in accordance with the law.

21. Give full play to the role of lawyers in litigation. Actively support lawyers to practice in accordance with the law, protect lawyers' rights to practice, value lawyers' opinions on the separation of complex and simplified cases and selection of litigation procedures, and actively promote lawyers to participate in mediation, agency appeals and other work.

22. Guide the parties to litigate honestly and rationally. Strengthen the crackdown on unfaithful litigation behaviors such as false litigation and malicious litigation, give full play to the leverage of litigation fees and attorney fees to regulate the litigation behavior of parties, and encourage parties to choose appropriate ways to resolve disputes. If a party engages in obvious misconduct such as abusing litigation rights, delaying the assumption of litigation obligations, etc., causing direct losses to the litigating party or a third party, the People's Court may, based on the specific circumstances, support legitimate demands such as reasonable compensation for attorney's fees made by the party without fault in accordance with the law.

Reference link: Supreme People's Court: "Several Opinions on Further Promoting the Separation of Complex Cases from Simple Cases and Optimizing the Allocation of Judicial Resources"