Source: Legal Opinion, Approaching Civil Code , Judicial Case Research Institute of the Supreme People's Court
Reprinted from: Hunan High Court
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If the accident is minor and there is no objection to the liability, both parties may negotiate on their own about compensation for damages. If you have vehicle insurance, you can call the insurance company’s customer service number to report the case and the insurance company will compensate you. After consensus, you can evacuate the site and resume traffic. If you fail to evacuate the site immediately, you should promptly report to the on-duty traffic police or the traffic management department of the public security organ.
If you have any objections to the responsibility or cannot reach an agreement, you should call the police immediately and the traffic police department will issue a written traffic accident responsibility identification form . The two parties divide responsibilities and negotiate compensation according to the traffic accident responsibility identification form. If the agreement cannot be reached, the traffic management department may intervene in the mediation. If the traffic management department still cannot reach an agreement after intervening, a lawsuit may be filed with the court.
[Reference of the law]
" Road Traffic Safety Law " Article 73 The traffic management department of the public security organ shall promptly produce traffic accident identification based on the traffic accident site inspection, inspection, investigation and relevant inspection and identification conclusions, as evidence for handling traffic accidents. The traffic accident identification letter shall state the basic facts, causes and responsibilities of the parties involved, and serve them to the parties involved.
Article 74 For disputes regarding damages to traffic accidents, the parties may request mediation from the traffic management department of the public security organs, or they may directly file a civil lawsuit with the people's court.
If the parties fail to reach an agreement or the mediation document takes effect after the traffic management department of the public security organ is mediated, the parties may file a civil lawsuit with the people's court.
Road traffic accident responsibility identification is a document formed by the public security traffic management department in accordance with traffic regulations whether the parties to the traffic accident have violated the rules, and the causal relationship between the violation and the consequences of the traffic accident damage. It is a technical document with legal effect. Its purpose is to distinguish the responsibility for accidents, to make correct and appropriate punishments to the perpetrators in accordance with traffic regulations and other regulations, and to lay the foundation and provide a basis for future compensation for accident damages. It is also of great significance and role to educate the majority of traffic accident participants to learn useful lessons from it, study the laws of traffic accident occurrence, and formulate effective safety precautions.
According to "Handling Procedures for Handling Procedures " Article 64 , the road traffic accident identification letter shall state the following content:
(I) Basic information of the person in charge of a road traffic accident, vehicles, roads and traffic environment;
(II) The occurrence of a road traffic accident;
(II) Analysis of evidence of road traffic accidents and the cause of the accident;
(IV) The fault and liability or accident cause of the party causing the road traffic accident;
(V) The name and date of the traffic management department of the public security organ that made the road traffic accident identification.
Road traffic accident identification letter shall be signed or sealed by the traffic police and stamped with the special seal for handling road traffic accidents in the traffic management department of the public security organs.
Article 65 stipulates that the road traffic accident identification certificate shall be delivered to the parties within three days after production, and the right and time limit for applying for review, mediation and filing civil lawsuits shall be informed.
Article 60 of the "Procedures for Handling Procedures for Road Traffic Accidents" stipulates that the traffic management department of the public security organs shall determine the responsibility of the parties based on the role of the parties' actions in the occurrence of road traffic accidents and the severity of the fault.
(I) If a road traffic accident is caused by the fault of one party, he shall bear all responsibility;
(II) If a road traffic accident occurs due to the fault of two or more parties, he shall bear the main responsibility, equal responsibility and secondary responsibility according to the role of the action on the accident and the severity of the fault;
(III) None of the parties has any fault that causes the road traffic accident. If an traffic accident is , no party is responsible.
If one party intentionally causes a road traffic accident, the other party is not responsible.
When determining the compensation ratio, there are two types of things to distinguish. One is a traffic accident between motor vehicles and non-motor vehicle drivers and pedestrians; the other is a traffic accident between motor vehicles and motor vehicles.
(I) Traffic accidents occur between motor vehicles and non-motor vehicle drivers and pedestrians
If a traffic accident occurs between motor vehicles and non-motor vehicle drivers and pedestrians, causing personal injury and property losses, the insurance company shall first compensate within the limits of the third-party liability compulsory insurance liability. The motor vehicle party shall bear the compensation liability for the part exceeding the liability limit; but if there is evidence to prove that the non-motor vehicle driver or pedestrian is at fault, the compensation liability of the motor vehicle party shall be appropriately reduced according to the degree of fault:
Non-motor vehicle drivers or pedestrians may be borne 5% of the compensation if the motor vehicle is not responsible.
(II) Traffic accident occurs between a motor vehicle and a motor vehicle
Traffic accident occurs between a motor vehicle and a motor vehicle, and the insurance company shall compensate within the limit of the compulsory insurance liability for the third party liability of the motor vehicle. The party at fault shall bear the compensation liability for the part exceeding the liability limit; if both parties are at fault, they shall share the liability according to the proportion of their respective faults:
"Provisions on Handling Procedures for Road Traffic Accidents" Article 71 stipulates that if the parties have objections to the road traffic accident identification or issue a road traffic accident certificate, they may submit a written review application within three days from the date of delivery of the road traffic accident certification or the road traffic accident certificate. If the parties submit a review application within the deadline, the application will not be accepted and the applicant will be notified in writing.
review application shall state the review request and its reasons and main evidence. The review of the same accident is limited to one time.
The following circumstances do not fall within the scope of review acceptance:
The party concerned has objection to the identification of a road traffic accident or issuing a road traffic accident certificate.
combined with the "Regulations on the Procedures for Road Traffic Accident Handling Procedures" for the specific requirements for accident identification and the specific content of the traffic accident identification certificate, the following issues must be paid attention to:
If the party is dissatisfied with the traffic accident responsibility identification certificate made by the traffic police, he may submit a written review application to the traffic accident responsibility identification certificate or road traffic accident certificate within 3 days from the date of delivery of the traffic accident responsibility identification certificate or the road traffic accident certificate. The public security traffic management department at the next level shall make a decision on whether to accept the application within 5 days after receiving the written review application by the parties.
Public security traffic management department accepts the application for review, if it believes that the facts of the original traffic accident responsibility identification certificate are unclear, the evidence is indeterminate, the division of responsibility is unfair, or the investigation and determination violates the statutory procedures, a review conclusion will be made, and the original case-handling unit is ordered to re-invest and determine the original traffic accident responsibility identification ; if it is believed that the original traffic accident responsibility identification certificate is clear, the evidence is sufficient, the law is correct, the responsibility is fair, and the investigation procedures are legal, a review conclusion will be made to maintain the original road traffic accident identification.
tml12. How many times can the traffic accident responsibility certification certificate be reviewed?
Apply for a review of the traffic accident responsibility certification letter from the previous level public security traffic management department.
Road traffic accident liability As a special infringement liability, according to the relevant provisions of the " Civil Procedure Law of the People's Republic of China ", it is governed by the people's court of "place of infringement" or "place of the defendant's domicile". To finally choose which court to choose, you can follow the following steps:
[Reference of the Law Articles]
" Civil Procedure Law " (Amendment in 2021) Article 22 Civil lawsuits against citizens shall be subject to the jurisdiction of the People's Court of the defendant's place of residence; if the defendant's place of residence is inconsistent with the place of residence of the defendant, the people's court of the place of residence of the defendant shall be subject to the jurisdiction of the People's Court of the place of residence of the defendant; if the defendant's place of residence is inconsistent with the place of residence of the usual place of residence, the people's court of the place of residence of the regular residence shall be subject to the jurisdiction.
civil lawsuits filed against legal persons or other organizations shall be subject to the jurisdiction of the People's Court of the defendant's place of residence.
If the defendants in the same lawsuit have their domicile and frequent residence in the jurisdiction of more than two people's courts, each of the people's courts has jurisdiction.
Article 29 The lawsuit filed for infringement shall be subject to the jurisdiction of the people's court in the place of infringement or the place where the defendant is domicile.
"Interpretation of the Civil Procedure Law" (Amendment in 2022) Article 24 The place of infringement stipulated in Article 29 of the Civil Procedure Law, including the place where the infringement is carried out and the place where the infringement results occur.
" Civil Code of the People's Republic of China " Article 1179 If you infringe on others and cause personal injury, you shall compensate for medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital food subsidy expenses, etc. for reasonable expenses for treatment and rehabilitation, as well as income reduced due to loss of work. If a disability is caused, the auxiliary equipment expenses and disability compensation shall also be compensated; if a death is caused, the funeral expenses and death compensation shall also be compensated.
This modification will modify the disability compensation, death compensation and living expenses of dependents from the original compensation standard for urban and rural areas to uniformly calculate using urban residents' standards.
disability compensation and death compensation were modified from the original calculation according to the per capita disposable income of urban residents or the per capita net income standard of rural residents to the calculation according to the per capita disposable income standard of urban residents; the living expenses of the dependents were modified from the original calculation according to the per capita consumption expenditure of urban residents or the per capita annual living expense expenditure of rural residents to the calculation according to the per capita consumption expenditure of urban residents.
(I) Medical expenses
will be determined according to the actual amount incurred before the end of the first instance court debate. Generally, it is confirmed based on the diagnosis certificate of a medical institution and documents or medical records and prescriptions for medical expenses, treatment expenses, and hospitalization expenses. If necessary, judicial appraisal agency can be entrusted to for appraisal. The compensation right holder may file a separate lawsuit for the rehabilitation fee, appropriate plastic surgery fee and other follow-up treatment fee for organ function recovery training. However, the inevitable expenses determined based on the medical certificate or the appraisal conclusion can be compensated together with the medical expenses that have been incurred.
(II) Loss of work fees
(1) The victim has a fixed income, and the loss of work is calculated based on the actual reduced income.
The amount of compensation for lost wages = the victim's salary (yuan/day) x the time for lost work (day)
(2) The victim has no fixed income and is calculated based on his average income in the past three years.
A. The compensation amount for lost work expenses = the average income of the victim in the past three years (yuan/day) x the loss of work time (day)
B. The compensation amount for lost work expenses = the average wage of employees in the same or similar industry in the previous year (yuan/day) x the loss of work time (day) (if the victim cannot provide evidence to prove his average income status in the past three years, it can be calculated based on the average wage of employees in the same or similar industry in the past year)
(3) The determination of the loss of work time is generally based on the recommended rest time or judicial appraisal opinions of the hospital. If the victim continues to lose work due to injury, the loss of work can be calculated until the day before the fixed disability date.
(4) If the victim has no labor income and asks for compensation for lost wages, it will generally not be supported. The "Enderstanding and Application of Judicial Interpretation on Personal Injury Compensation of Personal Injury Compensation" explains Article 20 (see Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases") as follows: A victim without an income refers to the victim's source of living mainly or entirely relies on others for supply, or has an accidental small amount of income, but is not enough to maintain the normal life of the victim. Compensation for lost wages shall be limited to those who are able to work. If the victim is a person with no ability to work, he or she has no right to request compensation for lost wages. People who are able to work but have no income are mainly housewives and unemployed people. For housewives, although they have no income, the housework they undertake undoubtedly has a supportive and guaranteed effect on the normal working income of other family members. After a housewife is victimized, the income and expenses of the entire family will inevitably be affected. If compensation is not given to him only because he has no "income", is obviously unfair.For unemployed people, although they have no income for the time being, they still have the opportunity to find employment and obtain income. The possibility of obtaining such benefits will not be realized within a certain period of time due to the damage caused by the infringer's infringement. Therefore, the position of claiming that its compensation is in line with the loss of interests is relatively fair and reasonable. It can be seen from this that compensation for lost wages to non-income victims with labor capacity is in line with fair values.
(III) Nursing fee
(1) If the nursing staff has income, the calculation shall be based on the provisions on the loss of work fee.
Nursing fee compensation amount = Nursing staff salary (yuan/day) x nursing period (day)
(2) If the nursing staff has no income or hires nursing staff, the labor remuneration standard for local nursing staff to engage in the same level of nursing staff will be calculated.
Nursing fee compensation amount = labor remuneration standard for local nursing staff to engage in the same level of nursing (yuan/day) x nursing period (day) × number of nursing staff (one)
In principle, nursing staff is one person, but if the medical institution or appraisal institution has clear opinions, the number of nursing staff can be determined by reference.
nursing period should be calculated until the victim recovers his ability to take care of himself. If the victim cannot recover his ability to take care of himself due to disability, a reasonable period of care can be determined based on factors such as age, health status, etc., but the maximum period shall not exceed twenty years. The nursing level of the victim after the treatment of disability should be determined based on the degree of nursing dependence and the preparation of disability assistive devices.
(IV) Transportation fee
Transportation expenses shall be based on the official receipt; the relevant certificates shall be consistent with the place, time, number of people, and number of times of medical treatment.
(V) Hospitalization food subsidy
Hospital food subsidy = Food subsidy standard for general staff on business trips in local state organs (yuan/day) x hospitalization days
The victim is indeed necessary to go to other places for treatment and cannot be hospitalized for objective reasons. The reasonable part of the accommodation and food expenses incurred by the victim himself and his accompanying personnel shall be compensated.
(VI) Nutrition fee
Nutrition fee = The actual necessary nutrition expenses incurred (based on the victim's disability situation, refer to the opinions of the medical institution)
(VII) Disability compensation
Disability compensation = Per capita disposable income of urban residents in the previous year where the court is sued is located x compensation period × disability coefficient
(1) The determination of the years of compensation for disability compensation shall be calculated based on twenty years from the date of deterrence. However, for those over 60 years old, the age decreases by one year for every increase of one year; for those over 75 years old, the age is calculated based on five years.
(2) If the victim is disabled due to injury but his actual income has not decreased, or the disability level is light but causes occupational hindrance and seriously affects his employment, the disability compensation can be adjusted accordingly.
(3) If the compensation right holder can provide evidence to prove that the per capita disposable income of urban residents in his place of residence or his place of residence is higher than the standard of the court where the court is held, the disability compensation or death compensation can be calculated according to the relevant standards of his place of residence or his place of residence.
(eight) Disability assistive device fee
(1) If the equipment with compensation function needs to be prepared due to disability, the amount of compensation should be calculated based on the certificate of the medical institution or judicial appraisal opinions, combined with the user's age, average lifespan of my country's population, and the service life of the instrument, etc., the compensation amount should be calculated based on the expenses of popular devices. If the injury has special needs, the corresponding reasonable cost standards can be determined by referring to the opinions of the auxiliary equipment preparation agency.
(2) The replacement cycle and compensation period of auxiliary equipment are determined by referring to the opinions of the preparation agency.
(9) Funeral expenses
funeral expense compensation amount = the average monthly salary of employees in the previous year in the place where the court was charged (yuan/month) x 6 months
(10) Death compensation
Death compensation = Per capita disposable income of urban residents in the previous year where the court was sued was located x compensation period
(1) The determination of the compensation period for the death compensation period shall be calculated based on twenty years. However, for those over 60 years old, the age decreases by one year for every increase of one year; for those over 75 years old, the age is calculated based on five years.
(2) If the compensation right holder can provide evidence to prove that the per capita disposable income of urban residents in his place of residence or his place of residence is higher than the standard of the court where the appeal is located, then the disability compensation or death compensation can be calculated according to the relevant standards of his place of residence or his place of residence.
(11) Living expenses for dependents
(1) If the dependent is a minor, it shall be calculated to be 18 years old.
Living expenses = per capita consumption expenditure of urban residents × (18-actual age)
(2) Those who are dependents are from 18 to 60 years old, have no ability to work and no other source of living, and are calculated for 20 years.
Living expenses = per capita consumption expenditure of urban residents × 20 years
(3) The dependents are from 60 to 75 years old, they are unable to work and have no other source of living, and their age decreases by 1 year for every 1 year.
Living expenses = per capita consumption expenditure of urban residents ×[20-(actual age-60)] years
(4) The dependent is over 75 years old, has no ability to work and no other source of living, and is calculated based on 5 years.
Living expenses = per capita consumption expenditure of urban residents × 5 years
(5) When there are other dependents
Living expenses = living expenses of the dependents ÷ number of dependents
(6) When there are several dependents
Total compensation in annual ≤ per capita consumption expenditure of urban residents
If the dependents have other dependents, the person who is responsible for compensation will only compensate the victims for the part that should bear according to law. If there are several dependents, the total annual compensation shall not exceed the per capita consumption expenditure of urban residents in the previous year.
(Twelve) Mental damage compensation
Mental damage compensation is subject to the " Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Mind Torts and Mind Damage Compensation for Civil Torts " to determine.
should be supported.
[Reference of the Legal Article]
"Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases" Article 19 If the determined nursing period, auxiliary equipment fee payment period or disability compensation payment period exceeds the determined nursing period, auxiliary equipment fee payment period or disability compensation payment period, and the compensation right holder sues the people's court to request that the nursing fee, auxiliary equipment fee or disability compensation continue to be paid, the people's court shall accept it. If the right holder of compensation really needs to continue to care for, prepare auxiliary equipment, or has no ability to work or live in a source of life, the people's court shall order the compensation obligor to continue to pay the relevant expenses for five to ten years.
shall follow the order of compensation of compulsory first and then commercial, and the insurance company shall first compensate within the limit of compulsory traffic insurance liability. For the part that exceeds the liability limit, if commercial three-liability insurance has been insured, the insurance company will make claims according to the content of the commercial three-liability insurance contract, and the part that exceeds the commercial three-liability insurance will be borne by the individual; if the commercial three-liability insurance is not insured, the remaining part of the accident liability shall be borne by the individual.
(I) Compulsory traffic insurance liability limit
Motor vehicle traffic accident liability compulsory insurance is a compulsory liability insurance that is subject to compensation for personal casualties and property losses of victims (excluding the personnel of the vehicle and the insured) caused by the insurance company for road traffic accidents in the insured motor vehicle and shall be compensated within the liability limit.
The compensation limit for insured motor vehicles in road traffic accidents is: death and disability compensation limit
The compensation limit for insured motor vehicles is not liable for road traffic accidents: the limit for compensation of death and disability is RMB 18,000; the limit for compensation of medical expenses is RMB 1,800; and the limit for compensation of property losses is RMB 100.
(II) Liability limit for commercial three-part insurance
The liability limit for commercial three-part insurance is determined based on the insurance premium rate and the agreement between the two parties.
(I) Loss of traffic accidents intentionally caused by the victim;
(II) Loss of property owned by the insured and property on the insured motor vehicle;
(III) Insured machine Traffic accidents in high-speed trains, resulting in losses caused by the victim's suspension of business, shutdown, power outage, water outage, gas outage, production outage, communication or network interruption, data loss, voltage changes, etc., as well as depreciation of the victim's property due to market price changes, losses caused by the reduction of value after repair, and other indirect losses;
(IV) Arbitration or litigation costs and other related expenses arising from traffic accidents.
" Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Road Traffic Accident Damage Compensation Cases " (Amendment in 2020) stipulates that if a traffic accident occurs in a motor vehicle with a license plate, it is the responsibility of the motor vehicle. If the party requests the owner or administrator of the license plate to bear the compensation liability, the people's court shall support it; if the owner or administrator of the license plate agrees to the license plate, it shall bear joint and several liability with the owner or administrator of the license plate.
The victim of a traffic accident was not at fault, and the impact of his physical condition on the consequences of the damage is not a statutory situation that can reduce the liability of the infringer. (See Guidance Case No. 24)
electric vehicle manufacturers produce products that are not motor vehicles but are actually identified as motor vehicles. They have defects in product warning instructions, which mislead consumers and cause the electric vehicle to be in an unreasonable danger. If a consumer drives an electric bicycle and the electric bicycle is identified as a motor vehicle, the electric bicycle manufacturer shall bear the liability for compensation.
Traffic accidents may involve traffic accidents, Negligent death, , Intentional homicide , and endangering public safety by dangerous means.
" Criminal Law " Article 133 If a person violates transportation management regulations and causes serious accidents, causing serious injuries, death, or causing serious losses to public and private property, he shall be sentenced to fixed-term imprisonment of not more than three years or detention; if he escapes after a traffic accident or has other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not more than three years but not more than seven years; if he causes death by escape, he shall be sentenced to fixed-term imprisonment of not more than seven years.
Article 233 of the Criminal Law If a person causes death by negligence, he shall be sentenced to fixed-term imprisonment of not more than three years but not more than seven years; if the circumstances are minor, he shall be sentenced to fixed-term imprisonment of not more than three years. If otherwise provided by this Law, it shall be in accordance with the provisions.
Both are negligent crimes, but the two are special and general relationships. If a traffic accident occurs on a public transportation road, it may constitute a traffic accident; if an accident occurs on a motor vehicle on a road where social vehicles are not allowed to pass, it may constitute a crime of negligence to cause death.
Article 232 of the Criminal Law Those who intentionally kill people shall be sentenced to death, life imprisonment or more than ten years of fixed-term imprisonment; if the circumstances are milder, they shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.
Article 114 of the Criminal Law If arson, water breaking, explosion, and the release of toxic, radioactive, infectious disease pathogens and other substances, or endangering public safety by other dangerous methods and has not yet caused serious consequences, he shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years.
Article 115 of the Criminal Law If arson, water breaking, explosion, and the release of toxic, radioactive, infectious disease pathogens and other substances, or other dangerous methods, causes serious injury, death or causes serious losses to public and private property, he shall be sentenced to fixed-term imprisonment of more than ten years, life imprisonment or death.
Both intentional homicide and endangering public safety by dangerous methods are intentional crimes. The biggest difference between the two is: whether the act of the perpetrator endangers public safety, that is, whether the perpetrator commits criminal acts against specific objects or the life, health and property safety of the unspecified majority. If targeting a specific object, it constitutes intentional homicide. If targeting an unspecified object, it constitutes the crime of endangering public safety by dangerous means.
The difference between the crime of endangering public safety through dangerous methods and the crime of causing traffic accidents is mainly because of the subjective intentionality or negligence of the crime. For example, if the perpetrator is driving under the influence of drunkenness and stops after a traffic accident occurs, it may be considered a traffic accident crime, because although the perpetrator drives under the influence of intention, the result is negligent; but if he drives under the influence of multiple vehicles in a continuous manner, causing some victims to be seriously injured or dead, he is ultimately forced to stop, and it should be considered a crime of endangering public safety by dangerous means, because the perpetrator can be determined to be subjectively negligent in the first collision, but the perpetrator does not stop, and there are several subsequent collisions, and the perpetrator should be subjectively deemed as intentional.
According to Articles 2, 4 and 7 of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Traffic Accidents,
(I) If a traffic accident occurs, he shall be sentenced to fixed-term imprisonment of not more than three years or detention:
(1) Driving a motor vehicle after drinking or taking drugs;
(2) Driving a motor vehicle without driving qualifications;
(3) Driving with a motor vehicle knowing that it is an incomplete safety device or the safety components are ineffective;
(4) Driving with a motor vehicle knowing that it is an unlicensed or scrapped;
(5) Driving with a severe overload;
(6) Fleeing the scene of the accident to evade legal prosecution.
(II) If a traffic accident occurs in one of the following circumstances, it is "other particularly bad circumstances" and is sentenced to fixed-term imprisonment of not more than three years and seven years:
(III) If the unit supervisor, motor vehicle owner or motor vehicle contractor instructs or forces others to drive illegally, causing major traffic accidents, and one of the circumstances stipulated in item (I) shall be convicted and punished for the crime of causing a traffic accident.
Criminal understanding of traffic accidents is a written document of legal nature issued by the victim of a criminal case and the suspect or his family to reach a settlement on the outcome of the criminal case.
Criminal Understanding is a discretionary case in the law. When the public prosecution is filed and the cross-examination process is completed, it has the effect of discretionary reduction and lenient reduction in the criminal law.
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