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How a Divorce Lawyer Charges its Attorney Fee in China

  • Time:2020-02-20
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How a Divorce Lawyer Charges its Attorney Fee in China

Divorce Lawyer fee in China is based on aspects, such as the amount of time involved, the difficulty of the case, and the skills, experience, specialization of the attorney in a particular area, and the cost of doing business. The cost of doing business is usually overhead costs, such as salaries, equipment, maintenance of a library, and rent.

The legal system in China adheres to the principle of “judiciary with compensation.” The amount of legal fees Divorce Lawyers charge their clients is determined by two main factors: whether the case is controversial or non-controversial and whether it is a property or non-property case.

Attorney Fee Issues in a Non-Controversial and Non-Property Case

A non-controversial case involves settling matters where the parties to the case are not disputing the existence or absence of civil rights between them. In such cases, the parties would just be requesting the judge to confirm if some specified facts should exist between them. They may further be seeking to establish, terminate, or change certain legal connections.

A non-property case is a type of case that lacks a direct relationship between any property and the civil rights in dispute, but rather central to the subject’s identity or personality.

The acceptance charges for non-controversial and non-property cases are determined under the doctrine of “flat fee for each case.” This is because it usually is not possible to quantify the precise monetary value of the benefits and rights involved.

In litigation and property cases, the acceptance charges are determined on the sum in the dispute, in an incremental manner, and on an aggregate basis. Other significant factors for shaping the number of lawsuit costs are:

· The complexity of the proceedings;

· The phase of the proceedings;

· The level of the proceedings;

· Whether the litigation is closed by mediation, judgment, or settlement.

In China, litigation costs other than acceptance expenses are levied on an out-of-pocket basis. The law in China stipulates that Divorce Lawyers shall follow fees suggested by the government when collecting legal fees on their clients. The administrative authority of the judiciary, together with the government authority in control of each municipality, province, or autonomous region at the same level, determines the floating range and basic legal fee rates that a  Divorce Lawyer in China charges.

The litigation rates set by the government are considered mandatory in theory. The government body in charge of legal fee valuing may enforce punishments for going against the above provisions, for example, charging at a rate beyond the government suggested floating rates, duplicating charging, Dividing chargeable items to increase legal fees, lengthening the range of charges, and undercharging to cause unfair competition.

In practice, however, the above provisions are not implemented strictly. These provisions only act as a point of reference. It is common for Divorce Lawyers and clients in China to negotiate and decrease or increase the litigation fee rates, as mentioned above.

Principal Factors Considered when Negotiating Legal Fees

· The time spent;

· Clients’ affordability;

· Potential risk and responsibility the attorneys may be exposed to;

· The complexity of the underlying legal affairs;

· The reputation and the capability of the Divorce Lawyers.

Either the legal fee structure can be determined on an hourly rate basis, on the percentage of the price of the object, or it can be a flat fee. For many years in China, non-litigation legal services have attracted hourly rates of litigation payments.

Identification of the Party Bearing Litigation Costs in China

In China, the party bearing lawsuit costs can be identified in two main ways. Firstly, the adjudicating court directly decides the allocation of the “acceptance charges.” In most cases, the petitioner will take account of acceptance charges in their complaint and appeal to the judge to include a suitable ruling when closing the case. As per the Chinese law, if there is no doubt the party is losing the case, the court lacks discretion and must give instructions that the losing party pays the winning party the acceptance charge. Otherwise, the judge has the liberty to allocate litigation costs.

The decision on acceptance charges is linked to the ruling itself and encompassed in the body of the ruling, and no isolated court order will be delivered. This is in accordance with the uniform formats of judgment in China.

Secondly, the allocation of Divorce Lawyer’s fees does not fall mainly within the range of judgment, apart from some instances, for example, those involving intellectual property disagreements, where the litigant demands that the judge instructs the respondent to pay the petitioner’s legal counsel fees.

Success-Oriented Legal Fees

Chinese laws allow Divorce Lawyers to charge success-oriented fees on a limited basis. The restriction is contingent on the specified type of success-oriented legal fees, for example:

Ø Contingency charges centered on the proportion of the extent the court awards;

Ø Fee pacts, with provisions of ‘no fee if losing;’

Ø Attorney’s fee arrangements with victory premium provisions;

Ø Fee contracts in which specified parts of the attorney’s dues are dependent on the outcomes of the case.

However, these contingent representations or legal fees must meet the following general preconditions:

1. Applicability is restricted to civil lawsuits involving property disputes;

2. Despite the client being informed of the government suggested price, the client still accepts contingent representation;

3. Success-oriented legal fees cannot be legally applied, for example in

· Marriage cases;

· Inheritance cases;

· Applications for social insurance;

· Applications for basic living security;

· Applications for alimony comfort funds;

· Poverty relief payments on-job injury damages cases or claims for salary payments;

· Group’s civil cases.

4. The contingent fee arrangements between Divorce Lawyers and clients shall stipulate the responsibilities and risks presumed by parties, the determination and amount or fraction of the fees;

5. The success-oriented legal fees shall not surpass 30% of the whole amount established in the fee agreement.

Wrapping up,

In China, attorney fees vary and are subject to the law firm selected and the case at hand. Unlike other countries, courts in China usually do not award attorney fees. In most cases, in China, when you are a party to the litigation, you may not shift your attorney's fees to the other party, even if the judge rules in your favor. However, for cases where both parties have agreed on apportioning Divorce Lawyer’s fees, in case of a dispute, the court may make an exception. Even then, judges may interpret it based on their individual criteria of fairness, generally as per the standard rates issued by the government.

Even though the Chinese government has set guidelines for the range within which Divorce Lawyer’s fee should fall under various circumstances, the guidelines are only in theory. In practice, Divorce Lawyers in China compute their fees based on hourly fee arrangements, flat-fee arrangements, contingency fee arrangements, and percentage fee arrangements.

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