The existing General Principles of Civil Law, Education Law, Law on the Protection of Minors and other relevant laws have not made clear provisions on how to determine the facts and how to blame for the handling of student injury accidents, which has caused great differences in practice. The legal regulation of student injury accidents depends on how to define the legal nature of the relationship between schools and students. The theory of "special relationship" defines the relationship between schools and students as the relationship between rights and obligations based on education and education, management and being managed, protection and being protected, which is called educational legal relationship. This kind of relationship is a legal relationship with the characteristics of public law in the process of implementing education and teaching activities in schools and other educational institutions according to national education policies and teaching standards.
It is a controversial issue whether the presumption transfer of guardianship agreement or fault liability is applicable to the handling of student injury accidents. The presumption transfer of guardianship agreement is not in line with the original intention of our legislation, nor with jurisprudence, and it has insurmountable disadvantages in practice, so the principle of fault liability can only be applied. When a school or a teacher performs the duties of education and teaching, it may constitute a civil tort, which is a kind of fault liability based on his own tort.
The Measures for Handling Students' Injuries issued by the Ministry of Education provides a certain legal basis for handling students' injury accidents, which is of positive significance. However, its legal effect level is too low, and some clauses conflict with civil laws. There are no provisions on the burden of proof, compensation for mental damage, and the responsibilities of schools, school organizers and educational administrative departments in student safety, which need to be further improved.
Students' injury accidents focus on prevention and treatment. It is necessary to correctly define the student injury accident from a legal point of view, clarify the legal responsibilities of all parties after the student injury accident, and properly handle the damage compensation in time. Effectively safeguard the legitimate rights and interests of schools, teachers and students. The way to solve students' injury accidents is to appropriately disperse the risk of running a school to the society and socialize the liability for compensation for students' injury accidents.
In recent years, the personal safety of students and the handling of personal injury accidents have become one of the hot issues in the field of education, which has aroused widespread concern and discussion in the education sector and all walks of life. In fact, this kind of accident is not an accident that has just appeared now, but it has existed for a long time, but it has not appeared so frequently before. The constant occurrence of such accidents has not only caused many unstable factors to the society, but also brought great influence to the teaching and management of the school, and impacted the normal teaching and management order of the campus. Therefore, it is of great significance to strengthen the study of such accidents and their responsibilities and put forward proper handling principles and methods in law for improving the order of teaching management and strengthening the legal protection of students.
First, the concept and characteristics of student injury accidents
(A) the concept of student injury accidents
Student injury accidents are actually campus accidents. However, the concept of campus accidents is relatively narrow, and it cannot summarize all student injury accidents. Judging from the limited provisions on the liability of such accidents, the definition of the concept of such accidents is not comprehensive and accurate enough, which needs further consideration and improvement. For example, some scholars believe that "student injury accidents refer to personal injury accidents that occur in school education and teaching activities." There is no definition of student injury accident in the Regulations on Handling Student Injury Accidents in Primary and Secondary Schools in Shanghai, but it can be seen from Article 2 of the Regulations that student injury accidents should be defined as "personal injury or death accidents that occur in primary and secondary school education and teaching activities". The Measures for Handling Student Injury Accidents formulated by the Ministry of Education also does not clearly define the concept of student injury accidents. As can be seen from the provisions of Article 2, the student injury accident as mentioned in the present Measures refers to: "Accidents that occur in educational and teaching activities implemented by schools or extracurricular activities organized by schools, as well as in school buildings, venues, other educational and teaching facilities and living facilities with management responsibilities, causing personal injuries to students at school."
The author believes that the definition of student injury accidents should be analyzed from the legal characteristics of student injury accidents in addition to the above norms, so as to make an accurate and complete definition of student injury accidents.
(B) the characteristics of student injury accidents
1. The scope of the concept of students should not be so expanded as to deviate from the law to determine the intention of student injury accidents.
Students are victims of student injury accidents and people who deserve relief. Correctly defining the concept scope of students is the most important part of defining student injury accidents. After defining the scope of students, the scope of the school is determined.
Students, first of all, are students studying at school. A student injury accident must be a personal injury accident of a student at school, that is, a student studying at school. Accidents that happen to students who are not in school are not such accidents. Secondly, there are different views on the school where students are located. Some think it should be primary and secondary schools, some think it should include kindergartens, and some think it should also include universities. It is worth noting that Article 37 of the Measures for Handling Student Injury Accidents promulgated by the Ministry of Education stipulates: "The schools mentioned in these Measures refer to full-time primary and secondary schools (including special education schools) organized by the state or social forces, as well as various secondary vocational schools and institutions of higher learning. The term "students" as mentioned in these Measures refers to the educated who study full-time in the above-mentioned schools. " It can be seen that the schools identified by this method include colleges and universities, and students should also include college students. However, I believe that the concept of student injury accident defined by law is not to protect ordinary students, but to protect minors studying at school and other people whose rights have been violated because of minors studying at school.
Therefore, when defining the concept of "student", we should consider it from this basic idea. Therefore, it should be underage students and children in primary and secondary schools and kindergartens who are hurt by students. Among them, minor students in primary and secondary schools are the main protection objects of students' personal injury liability; Children in kindergartens are not students, but because they are minors, they should be regarded as students in kindergartens for preschool education stipulated by the state; Adult students in primary and secondary schools are not the main body of student injury accidents, but considering the characteristics of student injury accidents and primary and secondary school students, the relevant provisions for determining the handling methods of student injury accidents can be applied mutatis mutandis. As for college students, they are neither the object of compulsory education nor adults, so they don't need special protection. College students' injury accident can be included in the concept of student injury accident, but it is not the focus of legal protection.
2, the scope of student injury accidents, should be limited to the education and teaching activities in schools and kindergartens.
At this point, scholars and relevant legislation have the same understanding. The basic activities of the school are education and teaching activities. It is correct to define student injury accidents within this range.
But what needs to be clear is how wide the scope of education and teaching activities should be, which needs to be made clear. In reality, many people have different views on this issue. First of all, education and teaching activities should be organized by schools, usually on campus, but such activities organized by schools outside the school should also be included. Therefore, student injury accidents are not limited to the campus. This is also one of the reasons why it is inappropriate to call student injury accidents campus accidents. Secondly, students should take the "door-to-door" principle to participate in school education and teaching activities, that is, the school education and teaching activities that students participate in from the entrance to the exit. The exception is that the extracurricular activities organized by the school are not subject to this restriction; If there is a school or kindergarten shuttle bus, it should be limited to the door of the shuttle bus, including the safety protection of getting on and off. In one case, the kindergarten bus stopped improperly when sending the child home, and the teacher who picked up the child was negligent, resulting in the child being injured when getting off the bus. This belongs to the scope of "door-to-door" and belongs to the accident within the responsibility of kindergartens.
It must be noted here that the student injury accidents in schools and kindergartens in education and teaching activities are not necessarily the student injury accidents that schools (kindergartens) should be responsible for. In other words, the accident is a student injury accident, but the school (kindergarten) is not necessarily responsible for the accident. Just like the personal injury case in China, the China government cannot be fully responsible for compensation.
3. Types of accidents, including students' own personal injury accidents and death accidents, and others' personal injury accidents and death accidents caused by students.
In the general definition of student injury accidents, only students' own personal injury accidents and death accidents are included, but students' own personal injury accidents and death accidents caused by others are not included. This definition is only considered from the perspective of the school's responsibility to protect students, not from the perspective of tort law. In my opinion, the tort liability law attaches importance to the protection of students' safety and the relief of personal injury accidents caused by students' infringement of others' rights. Moreover, the latter case cannot be said to have nothing to do with the school, but an accident in which the school also has to bear corresponding civil liability. The regulations on the handling of personal injury accidents of the latter are not perfect. Of course, the previous accident is the key, which is beyond doubt.
As for accidents that cause students' property losses and accidents that students cause others' property losses, their handling methods should be consistent with those of students' injury accidents, but since it is said that students' injury accidents do not include such property loss accidents, they can be excluded.
According to the above analysis, it can be considered that student injury accidents refer to accidents in which students in primary and secondary schools and children in kindergartens are injured or killed while participating in educational and teaching activities organized by schools or kindergartens, resulting in personal injury or death of others, and schools should bear corresponding civil liabilities. This paper mainly studies student injury accidents in this sense, taking into account college student injury accidents at the same time.
Second, the composition of personal injury liability for student injury accidents
How to constitute the liability for personal injury compensation in student injury accidents? Some scholars believe that the necessary conditions are: first, the accident must occur between the school and the students; Second, the accident must occur in the environment where students receive education at school; Third, the accident must occur during the period of students' education at school; Fourth, accidents must be closely related to educating people; Fifth, there must be serious consequences of student casualties to constitute an accident.
This view basically states the constitutive elements of personal injury responsibility of students' injury accidents, but it is not accurate enough in some aspects.
In my opinion, since the personal injury liability in the student injury accident is fault liability, the personal injury liability in the student injury accident shall meet the following conditions:
(a) students must have personal injury accidents during school, or students may cause harm to others during school.
This requirement should have the following elements:
1, the personal injury liability of student injury accidents is limited to student injury accidents. Personal injury accidents refer to accidents that cause personal injury and death, excluding property damage accidents. It should be students who are injured, or students who cause personal injuries to others. In the former, students are both victims and victims; In the latter case, students are the executors, and they are the executors of behaviors that cause harm to others.
2. Students' injury accidents should occur while students are at school. The school period here should be understood in a broad sense, that is, not only the school period in the formal sense, but also the period during which the school educates, manages and protects students. The "door-to-door" principle mentioned above should be the standard for determining this boundary. Its basic meaning is that students are really under the management of the school, divorced from the management of the school, and the school is no longer responsible for student injury accidents. For example, the extracurricular activities organized by the school are also the management of students by the school. The management of students by the school has not been lost because students are not in school. If the school is at fault in the student injury accident caused by such extracurricular activities, it shall bear civil liability. On the issue of time, the most common mistake people make is that as long as students have personal injury accidents during their school days, the school is at fault and should be liable for compensation.
3, only refers to the injury accidents suffered by students, but also includes personal injury accidents caused by students to others during their school days. These two personal injury accidents are both student injury accidents, and they are both within the scope of responsibility for student injury accidents.
The forms of personal injury accidents are injury and death. From the perspective of tort law, this damage fact should also be manifested as property loss, such as medical expenses, nursing expenses, funeral expenses and so on. Some people object to the inclusion of compensation for mental damage in personal injury accidents. This view is wrong. In personal injury compensation, mental injury exists objectively, and it is not determined by people's subjective will, nor can it be chosen by people's subjective likes and dislikes. In legislation and judicature, the system of mental damage compensation for personal injury has been established, and there is no reason to think that the system of mental damage compensation should not be implemented in the case of student injury accidents. Therefore, the mental damage in students' injury accidents should also be identified. Article 18 of the Judicial Interpretation of Personal Injury Compensation also makes it clear: "If the victim or a close relative of the deceased suffers mental damage and the obligee requests the people's court to pay compensation for mental damage, it shall be determined in accordance with the Interpretation of the Supreme People's Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Tort. The right to claim compensation for mental damage shall not be transferred or inherited. However, the compensation obligor has promised to pay monetary compensation in writing, or the compensation obligee has brought a lawsuit to the people's court. "
(2) The education, management and protection of schools violate the provisions of the Education Law.
In principle, the school's behavior in student injury accidents is the behavior that the school fails to perform correctly or violates its duties in the implementation of education, management and protection.
In the specific behavior, there are the following three forms:
1, the school is negligent in management.
In the educational and teaching activities, the school neglects its management obligations, resulting in personal injury to students and injury to others. This management is the management of school activities, not the management of students. This kind of behavior is the school's own behavior, which has caused damage to people, so it belongs to ordinary tort, and the school should be responsible for its own behavior. For example, the toilet in a primary school in Jiangxi has been in disrepair for a long time and is in jeopardy. However, the school was neglected to repair, which led to the collapse of one day, and 68 students fell into the cesspool, killing 28 people. This is the school's own neglect of duty of care, and its own inaction has caused the death and injury of underage students. Schools should be liable for personal injury compensation for their actions. What needs to be explained is that this behavior of the school is not paying attention to its own behavior, and it is responsible for its own behavior, not the duty of care for the management, education and protection of students.
2. The school's neglect of protection.
Schools have the obligation to protect students, especially underage students, and to protect their safety. Although students receive education at school, the school should still undertake the obligation to protect their safety, although it is not the obligation of guardianship. To shoulder this obligation, we must do our duty well, and we must not let students suffer personal injury because of our negligence and slack. The school neglects this duty of care for students' safety, causing personal injury to students, and the school's behavior constitutes illegal. For example, if the school encounters an accident, the school should also have the conditions to help students, but it doesn't help. Teachers take the lead to avoid disasters, causing personal injury to students. Schools neglect to protect students and should bear corresponding responsibilities for the occurrence of damage.
3. The school neglects education.
This kind of educational behavior refers to the education of students, not educational activities in a broad sense. In the education of students, if students fail to fulfill their educational responsibilities and cause personal injury to others in teaching activities, they shall be liable for personal injury compensation. What needs to be emphasized here is that after the teacher educates the students, if the students refuse to accept it, resulting in student injury accidents, the responsibility of the school and the teacher can be exempted.
The above-mentioned behavior of the school includes the behavior of the school and the behavior of the teachers who bear this responsibility. Schools should take responsibility for their dereliction of duty. School teachers neglect to perform their duties in education and teaching activities, and the consequences of their actions belong to duty behavior. When its behavior is improper and violates the obligations stipulated by law, resulting in students' injury or students' injury to others, the school shall bear the responsibility of transfer (substitution).
When judging the illegality of school behavior, it should violate the provisions of the education law and the civil law. The standard stipulated in the education law is the obligation of education, management and protection undertaken by the school, while the standard stipulated in the civil law is the obligation not to infringe on students' personal rights. Violation of these laws and regulations constitutes an illegal element of personal injury compensation liability for student injury accidents.
(three) the school's violation of the provisions of the "Education Law" of education, management and protection has a causal relationship with the accident.
The school's neglect of education, management and protection obligations must have an objective causal relationship with the fact that students hurt or students hurt others, that is, the former is the cause and the latter is the result. There is a causal relationship between the two.
Generally speaking, there is only one causal relationship between the school's behavior and the damage consequences, that is, the school's behavior is the cause of the damage consequences and there is no other reason. Such behavior is the only reason for this result. With such a causal relationship, the school should bear the tort liability.
In many cases, the school's behavior is not the only cause of damage, but because of multiple behaviors, and the school's behavior is only one of the reasons. At this time, it is necessary to seriously judge whether the behavior of the research school is the cause or condition of damaging the results. If it is the reason, it will constitute the common cause of the damage with other reasons, and the school should bear its own share of responsibility for its own behavior, or bear joint and several liability. If it is only a condition, not a reason, then the school will not bear the responsibility.
If the school neglects education, management and protection, but its behavior is not the cause of the damage and has no causal relationship with the damage result, the school will not bear the responsibility.
(four) the school has negligence or gross negligence in the implementation of education, management and protection.
Schools must be responsible for the consequences of student injury accidents, and must also have subjective faults. Only if the school is subjectively negligent will the school take responsibility for its own actions. If it is not subjectively negligent, it will not take responsibility.
It is the school's duty of care to determine the standard of school negligence. The duty of care of schools is the duty of education, management and protection stipulated in the education law. The nature of this obligation should be the attention of kind managers, which is a high sense of attention, higher than the same attention as dealing with their own affairs and the attention of ordinary people. As a cautious person, the school pays close attention to the safety and health of students to prevent injury accidents. Violation of this duty of care is negligence. If there is such a fault in the school, it shall bear tort liability for the damage caused.
Third, the nature of students' personal injury liability for injury accidents.
Student injury accidents are common and frequent types of infringement cases accepted by people's courts in recent years. To study student injury accidents, the most important thing is to study the personal injury compensation liability of student injury accidents. There is a great controversy about the liability for personal injury compensation in student injury accidents in trial practice. Article 7 of the Judicial Interpretation of Personal Injury Compensation stipulates: "If a school, kindergarten or other educational institution that has the obligation to educate, manage and protect minors according to law fails to fulfill its relevant obligations within the scope of its duties, causing personal injury to minors, or if a minor causes personal injury to others, it shall be liable for compensation corresponding to its fault." "A third person who infringes upon a minor and causes personal injury shall be liable for compensation. If schools, kindergartens and other educational institutions are at fault, they shall bear corresponding supplementary liability for compensation. " This makes the personal injury compensation liability of students' injury accidents unified and clear.
There are two most important problems when studying the personal injury responsibility in student injury accidents. One is the basis for the school to bear the liability for personal injury in student injury accidents, and the other is whether the liability for personal injury in student injury accidents is fault liability or no-fault liability.
(A) the basis for the school to bear the responsibility for personal injury caused by student injury accidents
There are different opinions on what the school should bear the civil liability for student injury accidents.
One view is that people without civil capacity are injured or do harm to others when they study, live or treat in kindergartens, schools and mental hospitals. Because these units have certain guardianship responsibilities for these people without civil capacity, they can decide to bear appropriate liability for compensation according to the situation. The direct source of this claim is the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (Trial). The content of the regulation is: "If a person without civil capacity who lives and studies in a kindergarten or school or a mental patient who is treated in a mental hospital is injured or causes harm to others, and the unit is at fault, these units may be ordered to make appropriate compensation." This view holds that the school's responsibility for student injury accidents is based on the fact that the school is the guardian of underage students and has the responsibility of guardianship for underage students. When minor students are injured in education and teaching activities or cause harm to others, the school will bear civil liability for compensation.
Another view is that the school's responsibility for student injury accidents is not based on the guardianship relationship between the school and the students, but on the responsibility of education, management and protection that the school undertakes to the students according to the provisions of the Education Law. Therefore, the relationship between school and students is not a civil relationship, but a special educational legal relationship in the process of educating people. Only by following the laws of education and the norms of education law can we correctly understand and deal with such accidents. According to the provisions of the Education Law on the responsibility of education, management and protection of students, schools that fail to fulfill their responsibilities of education, management and protection will bear civil liability for compensation.
What is the legal relationship between schools and students? You can choose, first, the guardianship relationship in civil law, and second, the education, management and protection relationship in education law.
The first thing to confirm is that we are not studying the relationship between schools and students in the general sense, but the relationship between primary and secondary schools, including kindergartens and underage students. In this relationship, most of them belong to the category of national compulsory education, not other educational relations. It is true that among other educational relations, some educational relations are contractual and belong to civil legal relations. For example, some "noble schools" establish the relationship between schools and students based on the contract of entrusted education, some establish some professional training and education relationships based on contracts, and other similar education relationships. In these relationships, both parties determine their rights and obligations by signing a contract, and both parties enjoy contractual rights and perform contractual obligations according to the contract. For these educational relations, civil law adjustment should be applied. In university education, the state enrolls students according to the enrollment plan. After being admitted as a college student, students can enjoy university education at school, which has both the nature of educational relationship and contractual relationship. These are different from the relationship between primary and secondary schools (including kindergartens, the same below) and students that we have studied. What is worth studying is the legal relationship between adult students in middle schools and their schools. In these relationships, although students have grown up, they have not exceeded the scope of compulsory education, and their basic nature has not changed fundamentally, which can still be treated as the basic legal relationship of compulsory education.
Secondly, the relationship between primary and secondary schools, including the relationship between kindergartens and students in school, is basically an educational relationship established according to the education law. Its foundation is not based on civil law, but on education law, which is the basis of the legal relationship between primary and secondary schools and students. The legal relationship between schools and students is not based on contracts, but on the education law. The basic nature of this legal relationship belongs to quasi-educational administrative relationship, which is different from pure educational administrative relationship and civil legal relationship, and is the legal relationship of education, management and protection of students by schools. Education, management and protection constitute the basic content of this legal relationship. Schools have the right to educate and manage students, but also have the obligation to protect students. Students have the obligation to receive education and management and the right to be protected.
Thirdly, the legal relationship between schools and students is adjusted by the guardianship legal relationship, and there is no exact legal basis. There are two theories to determine the legal relationship of guardianship between schools and students. One is the theory of natural acquisition of custody, that is, after parents send their students to school, the school automatically acquires custody of underage students, and they should be supervised. One is the theory of custody transfer, which holds that after parents send their students to school, the custody of parents will be transferred to the school, and the school will assume the custody responsibility of underage students during their school days. Both views have no exact legal basis. First, there is no law that the school has custody right after underage students enter school. This determination has no sufficient legal basis. Second, the establishment of detention is either legal or designated, otherwise there is no basis for detention. It is considered that the school has custody of underage students, which is neither legal custody nor designated custody. How to determine that the school has custody of underage students? Third, the transfer of custody requires a transfer procedure, that is, the parties conclude a custody transfer contract. At this point, there is no such contract between schools and students, and between schools and parents of students. Therefore, there is no exact basis to determine the nature of custody transfer.
Finally, in the educational relationship, if the school fails to fulfill its obligations of education, management and protection, causing personal injury to students or injuries to others, the school will bear civil liability. Primary and secondary school students suffered personal injuries during their school days, which is that the school failed to fulfill its protection obligations; In primary and secondary schools, when students hurt others in school, it means that the school has failed to fulfill its education and management obligations to students and should bear legal responsibility for the damage. This kind of liability has the nature of education law and civil law, and should be based on the nature of civil liability. This point, similar to the tort liability of administrative organs, belongs to private law in the field of public law and should be adjusted by civil law.
Therefore, it can be confirmed that the nature of the legal relationship between primary and secondary schools and students in school is the legal relationship of education. The basis for the school to bear civil liability for personal injury of underage students and injuries caused by others is the right and obligation of the school to educate, manage and protect students according to the education law. If the school fails to fulfill this obligation, it shall bear civil liability.
Article 7 of the Judicial Interpretation of Personal Injury Compensation stipulates: "If a school, kindergarten or other educational institution that has the obligation to educate, manage and protect minors according to law fails to fulfill its relevant obligations within the scope of its duties, causing personal injury to minors, or if a minor causes personal injury to others, it shall be liable for compensation corresponding to its fault." "A third person who infringes upon a minor and causes personal injury shall be liable for compensation. If schools, kindergartens and other educational institutions are at fault, they shall bear corresponding supplementary liability for compensation. " An important role of this provision in theory and practice is to clarify whether the obligation of school proofreaders is the obligation of guardianship or protection, that is, educational institutions have the obligation to educate, manage and protect minors according to law. If a student injury accident occurs due to his fault, the school shall bear the civil liability corresponding to his fault, rather than the guardian liability stipulated in Article 133 of the General Principles of the Civil Law. This is of great significance, which can calm the debate on the nature of the school's obligation in student injury accidents and guide the court to correctly treat the school's responsibility in the trial of student injury accidents in judicial practice.
(B) the nature of personal injury liability for student injury accidents
The nature of personal injury liability of students' injury accidents can be divided into fault liability and no-fault liability, with fault liability as the main one. Some people think that the nature of personal injury liability in student injury accidents should include fair liability and fault presumption liability.