(I) Basic situation of the case
1. Judgment font size
First instance judgment: Linzi District People's Court of Zibo City, Shandong Province (2013) Linminchu No. 2375.
Second-instance ruling: Civil ruling No. 148 of Zibo Intermediate People's Court of Shandong Province (2015).
2. Cause: Dispute on health rights.
3. Both parties to the lawsuit
plaintiff (appellant): Liu Moumou
Attorney (first instance): Yao Jinying, lawyer of Shandong Huayuxuan Law Firm.
Attorney (second instance): Liu Zongmou, the husband of Liu Moumou.
Defendant (appellant): Xie Mou
Attorney (first instance): Wang Chungang, legal worker at the Linzi Zhongping Legal Service Institute of Zibo.
Attorney (second instance): Qiu, who is Xie's husband.
4. Review level: Second audit.
5. Judicial organs and trial organizations
First instance court: Linzi District People's Court, Zibo City, Shandong Province.
Second instance court: Intermediate People's Court of Zibo City, Shandong Province.
6. Review time
(2) First instance
1. First instance defender claims
(1) The plaintiff said
(1) On the afternoon of May 15, 2013, in the finished product workshop of Qiwangda Company, the plaintiff and the defendant had a dispute over using a scale. The plaintiff was pushed onto a forklift by the defendant, injured his left shoulder and back. He was later sent to the District People's Hospital for treatment. He was diagnosed with a comminuted fracture of the left scapula, which was identified as a minor injury. Therefore, the defendant was asked to compensate for various losses of 40,000 yuan.
(2) The defendant argued that the plaintiff's injury was caused by the plaintiff's beating the defendant first, and that the plaintiff himself fell on the forklift arm and had nothing to do with the defendant. The defendant should not compensate.
2. First instance facts and evidence
After public trial, the People's Court of Linzi District, Zibo City, Shandong Province found out that on the afternoon of May 15, 2013, in the finished product workshop of Qiwangda Company, the plaintiff and the defendant quarreled over using a scale while working. Then the plaintiff beat the defendant with a packing belt. The defendant immediately tore up with the plaintiff. During the tearing process, the plaintiff was pushed onto a forklift by the defendant, causing the plaintiff to be injured in the northern part of the left shoulder and sent to the district people's hospital for treatment. He was diagnosed with a comminuted fracture of the left scapula, which was later identified as a level 10 disability. He was hospitalized for 12 days at Linzi District People's Hospital and spent 4,058.77 yuan on medical expenses. The defendant had objections to the plaintiff's appraisal result and believed that the plaintiff was not enough to constitute a level 10 disability and should be re-examined, but the reason for applying for re-examined does not meet the statutory conditions for applying for re-examined. The defendant's application has been rejected in accordance with the law during the trial. The defendant believes that the transportation expenses and mental damage compensation claimed by the plaintiff are too high and should be appropriately determined. The plaintiff and the defendant failed to reach an agreement on compensation issues, and a lawsuit was formed.
The above facts have the following evidence:
(1) 5 medical expense receipts, one inpatient medical record, and one outpatient medical record;
(2) One judicial appraisal document;
(3) Copy of ID card and copy of household registration book;
(4) Each salary statement and one rest certificate issued by the hospital;
(5) 2 appraisal fee documents;
(6) One transportation fee document;
(7) 4 interrogation records of the public security organs;
(3) The plaintiff and the defendant made a statement in court.
3. Reasons for the first instance judgment
After trial, the People's Court of Linzi District, Zibo City, Shandong Province held that the plaintiff and the defendant should have been courteous and worked in harmony when working together. After the two parties quarreled with the scale, the plaintiff first beat the defendant with a packing belt, and the defendant broke into pieces with the plaintiff. The plaintiff was injured in the forklift arm during the tearing process. The defendant is partially at fault for the plaintiff's injury, but the plaintiff's injury is partially at fault, so the defendant's partial compensation liability should be appropriately reduced (50% reduction), so the opinions that both parties believe that the other party is fully responsible will not be adopted. The medical expenses spent by the plaintiff after being injured are the expenses that must be spent on treating his injury. The defendant should compensate him for the part that should be compensated. The plaintiff asked the defendant to compensate 739.71 yuan for nursing expenses (82.19 yuan/day × 9 days of hospitalization). The defendant believed that the plaintiff's claim was too high but did not provide evidence to confirm it.The plaintiff asked the defendant to compensate for the loss of work of 10,500 yuan (3,500 yuan/month × 3 months). The defendant believed that the plaintiff's salary calculation standard of 3,500 yuan had objections and should be calculated according to the average. Moreover, the plaintiff did not submit the company's proof of deduction of wages, and did not know whether the wages were deducted. However, the salary list submitted by the plaintiff and the rest certificate issued by the medical institution can confirm that the monthly salary is approximately 3,000 yuan and rest for three months. The plaintiff's claim complies with the law. The plaintiff's injury constitutes a level 10 disability and requires the defendant to pay 21,240 yuan in disability compensation. The calculation standard complies with the law. The living expenses of the dependent claimed by the plaintiff should also be calculated together with the disability compensation. For the above-mentioned losses and other reasonable losses claimed by the plaintiff, the defendant shall compensate him for the part he should compensate. However, it should be reasonably determined if the defendant believes that the plaintiff's claim of excessive transportation costs and mental damage compensation. In summary, the plaintiff's request for reasonable support is supported.
4. Conclusion of the first instance case
0 The People's Court of Linzi District, Zibo City, Shandong Province, in accordance with Article 119, Article 134, Paragraph 1, Item (7), Article 9, Article 17, Article 18, Article 19, Article 19, Article 20, Article 22, Article 23, Article 24, Article 25, Article 28, Article 9, Article 10, Article 11 of the People's Court's Interpretation of Several Issues Concerning the Application of Laws in Handling Personal Injury Compensation Cases", Article 9, Article 10, Article 11 of the People's Court's Interpretation of Several Issues Concerning the Determination of Liability for Mind Torts Compensation for Civil Torts, Article 64 of the Civil Procedure Law of the People's Republic of China, made the following judgment:
(1) The defendant Xie Mou compensated the plaintiff Liu Mou's medical expenses of 4,058.77 yuan.
(2) The defendant Xie compensates the plaintiff Liu with disability compensation of 21,979.30 yuan.
(3) The defendant Xie compensated the plaintiff Liu for 10,500 yuan in lost work.
(4) The defendant Xie compensated the plaintiff Liu for 108 yuan in hospital food subsidy.
(5) The defendant Xie compensated the plaintiff Liu for 739.71 yuan in nursing fees.
(6) The defendant Xie compensated the plaintiff Liu with 50 yuan in transportation fees.
(7) The defendant Xie compensated the plaintiff Liu with 300 yuan in mental damage compensation.
(8) The defendant Xie compensated the plaintiff Liu for 1,300 yuan in appraisal fee.
The above items 1 to 8 total 50% of the total of 39,035.78 yuan, totaling 19,517.89 yuan. The defendant Xie will compensate the plaintiff Liu within ten days after the effectiveness of this judgment.
(9) Dismissed the other lawsuit requests of the plaintiff Liu Moumou.
case acceptance fee is 800 yuan, the plaintiff Liu Moumou shall bear 400 yuan, and the defendant Xie Moumou shall bear 400 yuan.
(III) The second instance defense claims
1. The appellant claimed that
. The appellant claimed that
. The appellant fell on the forklift arm while beating the appellant with a packing belt. His injury had nothing to do with the appellant. The appellant only provided the hospitalization and outpatient medical records on the sixth day after the incident. He had no evidence to prove that the comminuted fracture of the left shoulder swelling bone stated was causally related to the fall on the afternoon of May 15, 2013. Request the second instance court to re-judgment or send it back for retrial in accordance with the law.
2. The respondent argued that the appeal of
was not valid. My companion sent me to the hospital on the day of the incident, but because he had no money and considered that the child was not taken care of, he was not hospitalized that day. My arm was unable to move after the incident, so I rested at home. The first-instance judgment determines the facts clearly and applies the law correctly. The appellant's appeal has no factual or legal basis. The second instance court requested the second instance to ascertain the facts, dismiss the appellant's appeal, and uphold the original judgment.
(IV) Second instance facts and evidence and reasons for the case
After trial, the Intermediate People's Court of Zibo City, Shandong Province held that the original judgment found that the facts were unclear and the evidence was insufficient.
(V) Conclusion of the second instance case
Shandong Zibo Intermediate People's Court made the following ruling in accordance with Article 169 and Article 170, Paragraph 1, Paragraph (3) of the Civil Procedure Law of the People's Republic of China:
1. Revoke the civil judgment No. 2375 of Linzi District People's Court of Zibo City, Shandong Province (2013);
2. Send it back to the Linzi District People's Court of Zibo City, Shandong Province for retrial.
(VI) Commentary
The key to this case lies in what standards apply to employees to assess disability, and how to deal with the original identification conclusion if the standards for disability assessment are incorrect.
1. What standards should be used to assess disability when an employee causes personal injury during employment activities?
At this stage, each appraisal agency applies more disability identification standards for the identification of personal injury and disability: the "Classification of Workers' Work-Injury and Occupational Disease Disability" standard and the "Assessment of Disability in a Road Traffic Accident Injury". The two are as follows: ① Both standards divide the degree of disability into ten levels, but there are many differences in the specific content. To evaluate the same personal injury, the "Classification of Disability of Employees and Occupational Diseases" standards should be used to use the "Classification of Disability Persons Injured by Workers" standards, the results often evaluated by one level, sometimes even two or three levels higher than those of the "Assessment of Disability of Injured Persons in Road Traffic Accidents". Sometimes the previous standard is applied to meet the disability, and the application of the latter standard does not constitute disability. ②The two standards have different principles for promotion. The "Disability Assessment of Injured Personnel Injured in Road Traffic Accidents" stipulates that "if the injured person meets the disability level of two or more places, the disability level of each place should be stated", that is, no promotion regulations are made, but "using the comprehensive calculation method in Appendix B". The "Classification of Workers' Work-Injury and Occupational Disease Disability" standard has the provisions of "Two or more items of the same level, up to one level". ③The basis and purpose of formulation are different. The basis for formulating the standard "Classification of Workers' Work-Injury and Occupational Disease Disability" is the relevant provisions of the Labor Law and its related supporting regulations. The purpose of formulating the standards is to provide a basis for the identification of disability related to national social insurance regulations such as the "Work Injury Insurance Regulations". The scope of the standard applies to the identification of the degree of disability caused by work and occupational diseases in professional activities. The basis for formulating the standard "Assessment of Disability of Injured Persons in Road Traffic Accidents" is the relevant legal provisions on handling road traffic accidents. The purpose of formulating the standard is to provide a basis for the identification of disability of road traffic accidents and is applicable to the assessment of the degree of disability of injured persons in road traffic accidents.
The difference between the work-related injury system and the civil tort compensation system. Since inconsistent standards for personal injury to employees and personal injury caused by road traffic accidents, what standards should be applied to other personal injury and disability assessments have brought so many problems, before the "Assessment of Human Injury and Disability" drafted by the Supreme People's Court has not yet been formally approved and issued, we should choose from the existing "Assessment of Workers' Work-Injury and Occupational Disability Disability" standards and the "Assessment of Disabilities in Road Traffic Accidents" standards. The author believes that it is inappropriate to apply the standard "Classification of Workers' Work-Injury and Occupational Disease Disability Disability" for disability identification in general personal injury. The standard "Classification of Workers' Work-Injury and Occupational Disease Disabilities" serves the work-injury insurance system. Work-related injury insurance refers to a social security system in which a worker or his relatives provide material assistance and economic compensation when an accident occurs at work or under special circumstances, or is injured (or suffers from occupational diseases), disability or death due to occupational harmful factors. As mentioned above, the basis for formulating the "Classification of Workers' Work-Injury and Occupational Disease Disability Level Classification" is the relevant provisions of the Labor Law and its related supporting regulations. The purpose of formulating the standards is to provide a basis for the identification of disability related to national social insurance regulations such as the "Work Injury Insurance Regulations". Its scope applies to the identification of employee's degree of disability due to work-related injuries and occupational diseases during occupational activities. Compared with the civil tort damage compensation system, the main differences between the two are as follows: ① The main functions and compensation principles are different. Filling damage is the basic function of tort law. The perpetrator is liable for compensation for the damage caused by his tort, and it is not a punishment. The punishment function of tort law is very limited, because the deterrent effect of traditional tort law is achieved by paying infringement compensation. Therefore, the premise for its effect is that the infringer is actually responsible. If the responsible person does not have the ability to pay compensation at all, and the infringer cannot actually pay compensation, then paying compensation cannot have any deterrent effect on it. The core function of work-related injury insurance lies in the compensation function for victims and the exemption function for the enterprise.Once an injury accident occurs, the work injury damage will be filled directly in accordance with the provisions of the Work Injury Insurance Law, without the need to maintain a considerable cost like the private law. The work-related injury insurance system aims to protect workers' right to survive and ensures the minimum living standards of workers. ②The liability for fault is different. Generally, when a victim of tort liability makes a claim for compensation, it is necessary to provide evidence that the perpetrator is at fault. In situations where the victim has gross negligence or even intentionality, the responsible person can also apply the negligence offset system to reduce or even exempt the liability. However, the work-related injury insurance implements the employer's fault liability and does not consider whether the employer and the employee are at fault. Even if the employee has gross negligence, it can request all labor insurance payments. As long as the work-related injury occurs, the work-related injury insurance agency shall provide full compensation. The premise of work-related injury compensation is not a violation of the obligation, but based on the fact that the work-related injury accident occurs, and there is no room for negligence to offset the application. ③The content of the payment varies. In addition to requesting property damage caused by personal injury, general tort liability can also request compensation for mental damage for the resulting mental damage. However, work-related injury insurance is not necessary for fault and is aimed at basic living security. Therefore, workers cannot request compensation for mental damage, and there are often a limit on the amount. ④The scope of compensation is different. The scope of compensation for ordinary personal injury compensation is larger, and some items are not available for work-related injury insurance payment. ⑤The amount of compensation is different. For some same compensation items, the amount of compensation calculated based on work-related injury insurance payment is relatively low, while the amount of compensation calculated based on ordinary personal injury compensation standards is relatively high. In view of the above differences, it is obviously inappropriate to apply the "Classification of Workers' Work-Injury and Occupational Disease Disability Grade" standard for general personal injury compensation. There is a clear difference between employee work-related injury and other general personal injury compensation, while road traffic accident disability compensation and other general personal injury disability compensation are infringement compensation cases, and there are many similarities. The standard of "Assessment of Disability of Injured Personnel in Road Traffic Accidents" is to solve the disability level of injured persons in Road Traffic Accidents and solve the problem of infringement compensation. Therefore, compared with the two standards, the general physical injury disability assessment should be more applicable to the "Assessment of Disability in People Injured in Road Traffic Accidents".
General personal injury compensation for disability identification. The rationality of the road traffic accident injury assessment standards is: While comprehensively regulating the degree of human disability, the road traffic accident injury assessment standards have also established a comprehensive calculation mathematical method for multiple levels of disability and loss of limb function, introduced the concept of shoulder joint complex and established a calculation method for loss of function, providing a basis for solving the calculation of multiple disabilities and loss of limb function and the assessment of scapulae. The contents of identifying disability include: abnormalities in mental, physiological functions and anatomical structure and the loss of ability to live, work and social activities caused by varying degrees. The principle of disability assessment is to carefully analyze the relationship between disability, accidents and injuries based on the effect of post-injury treatment, and evaluate it realistically.
In summary, the assessment criteria for employee work-related injuries are significantly different from general personal infringement. The disability of injured persons in road traffic accidents and other general personal injury disability belongs to the assessment of personal injury compensation. The compensation principles, establishment conditions, and payment content are very similar to other infringement cases. The two are more comparable and their standards are more admissible. Therefore, the assessment of compensation for personal injury disability should refer to the "Assessment of Disability of Injured Persons in Road Traffic Accidents". Before the "Assessment of Disability in Human Injury" drafted by the Supreme People's Court has not yet been formally approved and issued, the "Assessment of Disability in Employees' Work-Injury and Occupational Diseases" standard shall be applied to the assessment of employee work-related injury and occupational disease disability grades" standard shall be applied to the assessment of disabled persons in traffic accidents; when assessing the disability of injured persons in traffic accidents, the "Assessment of Disability in Traffic Accidents" standard shall be applied to the assessment of disabled persons in traffic accidents; for other types of disability appraisals, especially those involving personal injury compensation, the "Assessment of Disability in Traffic Accidents" standard shall be referred to the standards of disabled persons in traffic accidents.Based on the above reasons, the Supreme People's Court's "Reply on What Standards to Assess Disability in Employees' Caused Personal Injury in Employment Activities" in May 2013 [(2013) He 8 Reply Letter] clearly stipulates that if an employee suffers personal injury during employment activities, if he does not fall within the labor relations and work-related injury insurance scope adjusted by the "Work Injury Insurance Regulations", the "Work Injury and Occupational Disability Degree Assessment Standards" should not be applied when assessing the degree of disability (has been replaced by the "Work Injury and Occupational Disability Disability Grade Grade Grade for Employees"). Before the unified national standards for personal injury and disability assessment are issued, national standards such as the "Assessment of Disability in Injured Personnel in Road Traffic Accidents" can be referred to and applied. The local courts (such as Zibo Intermediate People's Court) also immediately made it clear that in addition to work-related injury insurance benefits dispute cases, the disability assessment standards for other types of personal injury compensation cases shall be referred to and applied before the unified national standards for personal injury disability assessment will be issued.
Specifically for this case, the plaintiff was beaten by the defendant at work, which did not constitute an industrial injury. For his disability assessment, the disability assessment should be carried out in accordance with the standards of the "Disability Assessment of Personnel Injured in Road Traffic Accidents". The original appraisal opinion is obviously inappropriate in accordance with the "Standards for the Identification of Workers' Work-Injury and Occupational Disease Disability Disability".
2. How to deal with the original identification conclusions when the criteria for evaluating the disability are incorrect.
Article 27 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation" (hereinafter referred to as the "Evidence Provisions") stipulates that if the parties have objections to the appraisal conclusion made by the appraisal department entrusted by the people's court, and if the evidence proves that one of the following circumstances exists, the people's court shall approve: (1) The appraisal institution or appraisal personnel do not have the relevant appraisal qualifications; (2) The appraisal procedure is seriously illegal; (3) The appraisal conclusion is obviously insufficient; (4) Other circumstances that cannot be used as evidence after cross-examination and certification. The serious violation of the appraisal procedure is mainly because the appraisers who should be avoided do not avoid it. The identification conclusions are obviously insufficient, and they need to be analyzed based on the scientific and technological field of the identification and the technical means used for the identification. They are mainly technical standards issues and require technical personnel in this field to judge. In this regard, Article 61 of the "Evidence Regulations" stipulates that the parties may apply to the people's court to apply to the people's court to have one to two persons with specialized knowledge appear in court to explain the specialized issues of the case, that is, an expert assistant. Other situations where cross-examination is determined not to be used as evidence, including after cross-examination, it is found that the appraisal conclusion conflicts with other evidence with high probative power in the case, or new appraisal materials appear, and the original appraiser does not have any special knowledge in some aspects. If any of the above reasons appear, the parties may apply for re-appraisal, and the people's court shall also allow them to apply. If the appraisal conclusion does not have the above serious problems and only has some defects, it can be solved through supplementary appraisal, re-examination or supplementary cross-examination, and re-examination will not be re-examination. Supplementary identification is an appraisal that re-corrects and supplements are made by the original appraiser based on the original appraisal to make the original appraisal more complete. It is not a necessary step in the identification process, but a remedy for the usual process in specific circumstances. There are still cases where additional appraisal is needed: (1) The wording of the original appraisal conclusion is incorrect or the expression is inaccurate; (2) The original appraisal letter has incomplete responses to the appraisal requirements; (3) After the original appraisal conclusion is made, the commissioning authority has obtained appraisal materials that may affect the original appraisal conclusion; (4) There are omissions in the appraisal requirements put forward during the initial appraisal. Therefore, for the appraisal conclusions made by the parties applying to the people's court, the re-appraisal procedure cannot be initiated without review just because either party requests re-appraisal.
Article 39 of the "Shandong Province Judicial Appraisal Regulations" stipulates that if any of the following circumstances occurs, the judicial appraisal agency may perform additional appraisal according to the request of the principal: (1) The principal adds new appraisal requirements; (2) The principal finds that the entrusted appraisal matters are omitted; (3) The principal provides or supplements new appraisal materials; (4) Other circumstances that require additional appraisal.Article 40 stipulates that if any of the following circumstances occurs, a judicial appraisal agency may be entrusted for re-appraisal: (1) The former judicial appraisal agency or judicial appraiser shall conduct an appraisal beyond the registered business scope; (2) The former head of the judicial appraisal agency and judicial appraiser shall avoid it but have not evaded; (3) The original judicial appraisal seriously violates the prescribed procedures, technical operation specifications or the applicable technical standards are obviously improper; (4) The parties have objections to the original appraisal opinion and can raise legal basis and reasonable reasons, except that if the appraisal opinion is defective, it can be resolved through supplementary appraisal, re-examination or supplementary cross-examination; (5) Other circumstances where re-appraisal can be entrusted for re-appraisal as stipulated by laws, regulations, and rules. Re-appraisal shall be entrusted to other judicial appraisal institutions, and the qualification conditions of the entrusted judicial appraisal institutions shall not be lower than the qualification conditions of the original judicial appraisal institutions; if the parties reach an agreement, they may also entrust the original judicial appraisal institutions to be entrusted to the appraisal and shall be carried out by other judicial appraisers.
In this case, the defendant had objections to the plaintiff's appraisal results in the original trial, believing that the original appraisal opinion was inappropriate in accordance with the "Standards for the Appraisal of Workers' Work-Injury and Occupational Disease Disability", and should be subject to disability assessment in accordance with the "Standards for Disability Assessment of Injured Persons in Road Traffic Accidents". The plaintiff was not sufficient to constitute a level ten disability and requested a re-appraisal. The original trial believed that the reason for his application for re-appraisal did not meet the statutory conditions for applying for re-appraisal in Article 27 of the "Evidence Regulations" and was rejected in accordance with the law. According to the above provisions, the plaintiff's injury should be assessed in accordance with the "Disability Assessment of Personnel Injured in Road Traffic Accidents". The original appraisal opinions should be assessed in accordance with the "Assessment of Workers' Work-Injury and Occupational Disease Disorders". The application of technical standards is obviously improper and should be re-evaluated in accordance with the law. Considering that the original appraisal agency has problems with the appraisal opinions due to its own reasons and has collected the appraisal fees, it can re-evaluate the plaintiff's disability based on the "Quality Identification Standards for Employee Workers' Work-Injury and Occupational Disease Disability".
