[Direct answer]The attorney's fees in contract disputes are not necessarily borne by the losing party. If there is no clear agreement, the court generally orders each party to bear its own costs. If the contract stipulates that the breaching party shall bear the attorney's fees and other legal defense costs, or if there are special provisions in the law for specific cases, the reasonable portion of these costs will usually be supported. The case acceptance fees shall be borne by the losing party in accordance with Article 29 of the "Measures for the Payment of Litigation Costs". When signing the contract, it is necessary to include a clause on attorney's fees and retain the payment receipts.

1. Problem background and typical scenarios

"Can the other party pay for the attorney's fees if I win the lawsuit?" This is a frequently asked question by business owners when consulting about contract disputes. Common scenarios include: being owed unpaid debts and needing to sue for recovery, claiming damages when the other party breaches the contract and causes the project to stall, and hoping to shift the cost of protecting rights to the defaulting party in commercial arbitration. Most businesses mistakenly believe that "the losing party pays all the fees", but this is not the case in reality. The allocation of fees depends on three aspects: how to bear the procedural costs such as litigation fees and preservation fees, whether there is a basis for transferring the attorney's fees, and the distribution rules for arbitration fees.

II. Key points of contention

  • Is there any basis for transferring the attorney's fees? Does the contract explicitly stipulate that the breaching party shall bear the costs of enforcing the creditor's rights, or does the case fall into the types of legal disputes where the litigant can claim compensation for legal defense expenses as specified by law?
  • Is the attorney's fee reasonable? Whether it has actually been incurred and whether it is within a necessary and reasonable range. If the amount is excessively high or has not been actually paid, the court will often reduce it or not support it.
  • How are the procedural costs shared? The acceptance fee, preservation fee, and attorney's fee have different natures. When a party wins and loses partially, the costs are shared proportionally rather than being fully borne by one party.

III. Professional analysis by Henglue Lawyers

In a labor contract dispute handled by Henglue Law Firm, a decoration company entrusted Lu * to complete the decoration work. In January 2022, the two parties signed the "Payment Details of the Project Funds", confirming that the total settlement amount of the three projects was 200,000 yuan and would be paid in two installments. If the payment was overdue, interest would be calculated at an annual rate of 24%. After the company's legal representative paid 100,000 yuan, the remaining 100,000 yuan was delayed for a long time without being paid. The company also argued that it had already paid 62,600 yuan to a third party on behalf of Lu *, which should be deducted from the total amount.\nQiu JuanThe lawyer pointed out that: the so-called payment on behalf of Lu * was neither known nor approved by him, and there was no evidence to show that there was a corresponding creditor-debtor relationship between the two parties. Moreover, the payment time was earlier than the maturity of the creditor's rights, so it should not be deducted; the overdue interest was clearly agreed upon by both parties and was legally valid. In the end, the court ruled that the company should pay 100,000 yuan and pay interest at an annual rate of 24%. This case confirmed that the defaulting party must pay the real cost of the overdue payment, but whether this kind of "cost transfer" can cover the lawyer's fees still depends on whether there is a clear agreement in advance.

IV. Practical suggestions and legal basis

In terms of legal basis, Article 29 of the "Measures for the Payment of Litigation Costs" stipulates that the litigation costs shall be borne by the losing party, and in the case of partial victory and partial defeat, the court shall determine the amount to be borne by each party; Article 584 of the Civil Code defines the scope of compensation for breach of contract to include the benefits that can be obtained after the performance of the contract, providing an interpretation space for claiming rights protection costs in the case of contractual provisions. It is recommended that enterprises: First, specify in the breach of contract liability clause when entering into a contract that "if one party breaches the contract, the other party shall bear the attorney's fees, preservation fees, notarization fees, travel expenses, etc. incurred by the other party in realizing the creditor's rights"; Second, keep the entrusted agency contracts and attorney's fee invoices throughout the performance of the contract and the claim process; Third, claim an amount that is commensurate with the complexity of the case and the local fee level. For disputes involving labor employment and engineering services, you can refer to it further.Labor arbitration and work-related injury compensationFor services related to recovering overdue payments, you can refer to the following information.Creditor's rights and debts, and enforcementService.

5. Henglu Law Firm's Advice

The attorney's fee clause is a low-cost "legal protection insurance". If this clause is omitted when signing the contract, the parties often have to bear the costs themselves in the event of a dispute. This case is handled byQiu JuanThe attorney (practice license number: 11101201811026953, subject to the document issued by the judicial administrative organ) acts as the agent. If you need a review of the contract template and a dispute resolution plan, please feel free to consult us for more information.Business and contract disputes in enterprisesService or accessBeijing Henglue Law Firm.

Q1: If the contract does not stipulate attorney's fees, can I still require the other party to bear them when suing them?

We cannot expect this to be a certainty. Current laws do not have a general provision requiring the losing party to bear all legal fees. In the absence of an agreement, the court usually orders each party to bear its own expenses. Only in cases such as intellectual property infringement and the creditor exercising the right of revocation, may the court support reasonable legal defense expenses according to special provisions or judicial precedents. Enterprises can claim and submit the power of attorney and invoices when suing, and the court will review and adjudicate them. However, they should be prepared to bear some or even all of the expenses themselves. The most reliable approach is still to include a provision on the bearing of legal fees in the contract at the time of signing, leaving the rules to future disputes.

Q2: Is the case acceptance fee always fully borne by the losing party?

In principle, yes. According to Article 29 of the "Measures for the Payment of Litigation Costs", the litigation costs shall be borne by the losing party, unless the winning party voluntarily undertakes to bear them; if the party wins and loses partially, the court shall decide the amount to be shared by each party according to the specific circumstances of the case. For example, if a claim of 1 million yuan is ultimately supported by 600,000 yuan, the acceptance fee is usually shared according to the proportion of winning and losing; there are rules such as halving the fee in cases of mediation settlement and withdrawal of the lawsuit. This is different from attorney's fees. When estimating the cost of protecting rights, enterprises should estimate the acceptance fee, preservation fee and attorney's fees separately to avoid misjudgment.

Q3: Regardless of the amount of attorney's fees claimed, will the court always support it?

No. Even if there is a clear agreement in the contract, the court will review whether the attorney's fees have actually been incurred and whether the amount is necessary and reasonable. Generally, the court will refer to the government's guidance price for attorney's fees or the market level, and determine the amount based on the difficulty of the case, the subject of the dispute, and the workload. If the agreed fees are excessively high, based solely on the contract without payment invoices, or clearly exceed reasonable limits, they may be reduced or even not supported. It is recommended that enterprises claim based on the actual entrustment and payment situations, and provide complete invoices and payment records to substantiate the concept of "reasonableness".

Q4: Can I get the other party to compensate for my attorney's fees in an arbitration case?

This can be attempted. Commercial arbitration places greater emphasis on respecting the parties' autonomy. If the contract clearly stipulates that the defaulting party shall bear legal fees and other litigation costs, and the applicable arbitration rules permit it, the arbitral tribunal will usually rule that the losing party shall compensate for these costs. In some cases, the full amount of these costs may be recovered. Moreover, the arbitration fees themselves are often borne by the losing party or shared according to the proportion of liability. Enterprises that choose arbitration to resolve disputes should ensure that the cost-sharing provisions in their contracts are detailed and comprehensive. Otherwise, the arbitral tribunal will have difficulty making a decision without sufficient evidence to proceed with the case.

Q5: Who bears the costs such as security fees and notarization fees?

It depends on the terms of the agreement and the nature of the fees. If the contract explicitly stipulates that "the expenses for realizing the creditor's rights shall be borne by the defaulting party", reasonable expenses for safeguarding rights such as preservation fees, notarization fees, and travel expenses can be claimed in accordance with the contract. If there is no such stipulation, the preservation application fees are generally treated as litigation expenses and borne by the losing party or shared proportionally. For other expenses, the court has a wide discretionary power, and the court's support varies from place to place. Before making a claim, the enterprise should check the terms of the contract, list the expenses item by item, and attach receipts to avoid having the entire claim rejected due to its being too general and bundled together.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with evidence materials, to avoid missing the statutory time limit. →Business and commercial legal services·Attorney Qiu Juan·Beijing Henglu Law Firm