关于律师费用由败诉当事人负担的探讨——以民事诉讼为中心

On the Defeated Suitor Bearing Counsel Fee——Focus on Civil Actions

两大法系国家都不同程度地认可了律师费用由败诉当事人负担的制度。这样一种制度的建立都经历了一个逐渐发展的过程。我国司法实践包括司法审判和司法解释,都曾确定律师费用作为损害赔偿的一部分由败诉当事人负担。律师费用由败诉当事人负担已成为现代民事诉讼的潮流。为与国际司法体制接轨,我国应尽快建立民事诉讼的律师费用由败诉当事人负担的制度,即确定“律师费用由败诉方负担”一般规则,确定由败诉方承担的律师费用的评定标准,建立律师费用保险制度,处理好律师费用负担制度与律师援助制度的关系。

Both common law and civil law approve the system of the defeated suitor bearing counsel fee （or DSBCF） in varying degrees. The formation of such a system has witnessed a gradual development. The Chinese judicial trial and judicial interpretation have stipulated that the counsel fee should be borne by the defeated suitor as a part of the compensation for losses. DSBCF has become a trend in modem civil actions. In order to be integrated with the international judicial system, China should establish the system of the defeated suitor bearing counsel fee as soon as possible, which involves defining the general rules of the defeated suitor bearing counsel fee, fixing the evaluation standard for the counsel fee borne by the defeated suitor, setting up the insurance system of counsel fee, and handling the relationship between the counsel fee bearing system and the lawyer aid system.