Гонорар успіху представника в контексті витрат на правничу допомогу: юридично-психологічний аспект і практика застосування в господарському судочинстві

Abstract

The purpose of the article is to study the legal essence of contingency fee of judicial representative in the context of legal expenses, to outline the judicial and psychological aspects of application of contingency fee, as well as main problems and tendencies of law enforcement practice in this sphere of legal relations. Methodology. The methods used in the survey were chosen according to the defined purpose, specific of object and subject of the research. The survey is based on the use of general and specific scientific methods. By means of cognition method the problems of legal background of contingency fee were studied. The method of comparative analysis was used while analyzing of legislation and scientific categories of the research. For theoretical investigation of various sides of the problem the methods of analysis and synthesis were used (in particular, for determent of the possibility of adaptation of foreign legislation to the processes that take place in modern Ukraine). Scientific novelty lies in the formulation of the scientific concept of application of contingency fee in the national legal field. The proposition was made to determine the amount of attorney’s remuneration in the fixed sum or by applying of calculation formula, in particular in the percentage equivalent to the amount of claim, or otherwise provided that it can be clearly defined, the payment of which depend on the outcome of legal aid provision. It was proved that the limits of application of contingency fee must be established not by prohibitions and restrictions as to certain categories of cases, but by formation of moral and ethical characteristics of attorney, by the prohibition of abuse of the rights for contingency fee in the context of moral, material, disciplinary responsibility of attorney at law. Conclusions. On the basis of conducted research, it is established that the contingency fee, as a part of a fee of legal representative (attorney at law), belongs to the legal expenses for legal aid. The procedure of reimbursement of these expenses comprises: existence of provisions about contingency fee in the legal aid agreement with clear prescription of the rules of definition if its size and conditions of payment; confirmation of the fact of incurring of expenses for payment of contingency fee; compliance with the criteria of proportionality and reasonableness while distribution of court costs. Keywords: contingency fee; attorney’s fee; legal aid expenses; court expenses; economic judicial procedure.