[Direct answer]In the Beijing area, in lawsuits involving breaches of contract for second-hand housing, the attorney's fees are generally borne by the party who hired the lawyer; only when the contract explicitly stipulates that the breaching party should bear the attorney's fees, or when there are special provisions in laws or judicial interpretations, may the other party be required to bear them. According to Article 854 of the Civil Code of the People's Republic of China (effective January 1, 2021), the amount of compensation for losses shall be equivalent to the losses caused by the breach of contract, including the benefits that could have been obtained after the performance of the contract, but shall not exceed the losses that the breaching party could have foreseen or should have foreseen at the time of entering into the contract. In practice, if the contract explicitly stipulates provisions such as "the breaching party shall bear the attorney's fees paid by the performing party to enforce the creditor's rights", and such stipulations do not violate mandatory provisions of law, the court may support the reasonable attorney's fees claimed by the performing party; if there are no such provisions in the contract, it is usually difficult to require the other party to bear them. As for litigation fees, they are borne by the losing party according to the "Measures for the Payment of Litigation Fees" or shared in proportion to the liability. Therefore, if you wish the other party to bear the attorney's fees, you should explicitly stipulate this in the contract at the time of signing; and in the litigation, you must also provide the power of attorney, the attorney's fee invoice, and the actual payment receipts to prove that the fees have actually occurred and are reasonable.

I. Problem Background and Typical Scenarios

After a breach of contract in a second-hand housing transaction, buyers or sellers often care about who should bear the cost of protecting their rights. Typical scenarios include: the contract stipulates that the lawyer's fees should be borne by the breaching party, but the other party denies it when claiming the rights; the contract only states "compensation for losses", without explicitly including the lawyer's fees; after winning the lawsuit, the claim for lawyer's fees is rejected by the court on the grounds of no agreement; and the burden-sharing ratio of litigation fees is not accurately grasped. In the Beijing area, real estate transaction contracts are relatively standardized. Whether the contract stipulates the lawyer's fees directly affects the recoverability of the cost of protecting rights.

II. Key points of contention

First, can attorney's fees be claimed as damages for breach of contract, and on what basis? Second, is the attorney's fee clause stipulated in the contract valid, and are there any restrictions? Third, is the amount of attorney's fees reasonable, and how can it be proven? Fourth, who bears the litigation fees and preservation fees, and what are the differences in the rules? Fifth, how to design clauses to protect the cost of safeguarding rights when signing a contract? Clarifying these issues is essential to reasonably anticipate the burden of fees.

III. Professional analysis by Henglue Law Firm

Henglue Law Firm once handled a dispute over a pre-sale contract for commercial housing: the buyer paid the purchase price as agreed, but the developer failed to notify the buyer to move in until nearly nine months after the due date. After accepting the case, the lawyer sorted out the core provisions in the contract and supplementary agreement regarding the delivery time, grace period, and default penalty standard, collected payment receipts, move-in notifications, and completion and acceptance registration materials to form a complete chain of evidence. The lawyer refuted the developer's defenses such as force majeure one by one and claimed that the default penalty should be calculated according to the agreed standard. The court adopted the lawyer's opinion and ruled that the developer should pay the full default penalty and bear the corresponding litigation costs. This case shows that in breach of contract litigation, the key to claiming compensation is contractual basis and evidence: default penalty, compensation for losses, and even attorney's fees. Anyone who hopes to obtain support should have clear provisions and sufficient evidence. Regarding attorney's fees, if the contract stipulates that the breaching party shall bear the fees, the reasonable attorney's fees claimed by the performing party after winning the lawsuit are usually more likely to be supported; if there is no such stipulation, the cost of protecting rights is often borne by the party themselves, which is also one of the clauses that should be carefully reviewed at the contract signing stage. This case was handled by Beijing Henglue Law Firm.Tian JiayanThe attorney (practice license number: 11101202111381309, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action list: First, when signing the contract, clearly stipulate in the contract that the breaching party shall bear the reasonable attorney's fees incurred by the performing party to enforce the creditor's rights; Second, if claiming attorney's fees in litigation, submit the power of attorney, invoices, and payment certificates; Third, check the reasonableness of the agreed amount and the actual situation to avoid the amount being reduced at the discretion of the court; Fourth, distinguish between attorney's fees and litigation fees, with the litigation fees determined by the court in accordance with the law; Fifth, overall evaluate the cost of protecting rights and the recoverable amount, and, if necessary, conduct negotiations or mediation first. Legal basis: Articles 577 and 584 of the Civil Code of the People's Republic of China (effective from January 1, 2021) regarding breach of contract liability and compensation for losses, and the Regulations on the Payment of Litigation Fees (effective from April 1, 2007) regarding the bearing of litigation fees. For cases involving real estate sales and construction projects, reference can be made to the relevant provisions.Property transactions and construction projectsServices. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

Firstly, the attorney's fees are generally borne by the client, and the contract must stipulate exceptions to this rule. Secondly, the clause stipulating that the attorney's fees shall be borne by the party in breach of contract should be as specific and clear as possible. Thirdly, to claim the attorney's fees, invoices and payment receipts are required to prove that the fees have actually been incurred. Fourthly, the litigation fees are handled by the court in accordance with the burden-sharing rules, which are different from the attorney's fees. Fifthly, it is more effective to clarify the terms of the rights protection costs when signing the contract than to argue about them afterwards. For matters involving debts and enforcement, the two can be combined together.Creditor's rights and debts, and enforcementFor contract disputes involving corporate transactions, you can seek advice from the PlatformBusiness and contract disputes in enterprisesFor teams involved in personal and property losses, please refer to the relevant guidelines for handling such cases.Personal injury and medical disputesFor columns, if there are any other difficult issues, we can assist with themSpecialised legal services.

VI. Frequently Asked Questions

Q1: Who will pay the attorney's fees for a lawsuit over a breach of contract for a second-hand house?

In principle, the party that hires a lawyer shall bear the cost themselves. Only when the contract specifically stipulates that the breaching party shall bear the cost, or when there are special provisions in laws or judicial interpretations, may the other party bear the cost, and the amount shall be reasonable and based on the actual expenses incurred.

Q2: Is it valid to stipulate in the contract that the attorney's fees shall be borne by the party in breach of contract?

It is generally effective. If the two parties agree on the attorney's fees for the enforcement of the creditor's rights after the breach of contract and it does not violate the mandatory provisions of the law, it will usually be recognized. When claiming, the parties should provide the power of attorney, invoices, and payment vouchers. If the amount is too high, it may be reduced at the discretion of the court.

Q3: Can I still ask for attorney's fees even if there's no agreement?

It's quite difficult. If the contract does not stipulate the attorney's fee clause, the court generally does not support the claim of attorney's fees as breach of contract damages. Instead, the focus can be placed on the claim of breach of contract penalties and direct losses, or considering the litigation fees that the seller should bear, etc.

Q4: Who will bear the litigation costs?

It shall be determined by the court in accordance with the "Measures for the Payment of Litigation Costs", and shall generally be borne by the losing party. Where the party wins the case partially, the litigation costs shall be shared in accordance with the proportion of liability. Where the case is settled through mediation or withdrawn, it shall be handled in accordance with the relevant provisions, which is different from the rules on the bearing of attorney's fees.

Q5: How to reduce the cost of protecting one's rights?

When signing the contract, make sure to clarify the terms of the attorney's fees, keep complete evidence of payments and communications, and if necessary, first engage in negotiation or mediation. After assessing the recoverable amount and costs, decide whether to pursue litigation, and may also claim damages in conjunction with the breach of contract penalty.

The above Q&A is mainly based on judicial practices in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Legal services for real estate transactions·Attorney Tian Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.