Liability for personal injury compensation in student injury accidents
law
Article 7 If schools, kindergartens and other educational institutions that are legally obligated to educate, manage and protect minors fail to perform relevant obligations within the scope of their duties, causing personal injury to minors or personal injury to others by minors, they shall be liable for compensation corresponding to their faults.
If a third party causes personal injury to minors, it shall be liable for compensation. If schools, kindergartens and other educational institutions are at fault, they shall bear corresponding supplementary liability for compensation.
Main idea
This article stipulates the liability for personal injury compensation for student injury accidents.
1. This article clearly stipulates that the obligations of schools, kindergartens or other educational institutions to minors are education, management and protection obligations, not guardianship obligations.
2. The school's responsibility for injury accidents is fault liability, and the school only bears corresponding liability for personal injury suffered by underage students or personal injury caused by minors to others.
3. Student injury accidents include two situations: minor students are damaged and minor students cause damage to others. The principle of fault liability applies to both cases.
4. There are two forms of school responsibility in student injury accidents: the first is vicarious responsibility, which is mainly summarized in the first paragraph of this article; The second is supplementary responsibility, which is stipulated in the second paragraph of this article. Among them, the second kind of liability conforms to the principle of supplementary liability for failing to fulfill the safety guarantee obligation.
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Before the introduction of the judicial interpretation of personal injury compensation, there was a great controversy in the trial practice about the determination of the liability for personal injury compensation in student injury accidents, but the relevant provisions in Article 7 of the judicial interpretation of personal injury compensation made the liability for personal injury compensation in student injury accidents unified and clear.
(A) the concept and characteristics of student injury accidents
There are many definitions of student injury accidents. 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 term "student injury accidents" as mentioned in these Measures refers to "accidents that occur in educational and teaching activities or extracurricular activities organized by schools, as well as in school buildings, venues, other educational and teaching facilities and living facilities with management responsibilities, resulting in personal injury consequences for students at school."
The definition of student injury accident can be analyzed from the legal characteristics of student injury accident. The legal characteristics of student injury accidents mainly include the following three points:
First, the extension of "student" should not be extended to deviate from the intention of legally identifying 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. But the consensus is that TV, correspondence and online schools are not included. 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, we 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 are infringed by minors studying at school.
Therefore, when defining the concept of "student", we should consider it from this basic idea. Students in student injury accidents should be underage students and children in primary and secondary schools and kindergartens. 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 not the objects of compulsory education, and most of them are adults. It does not need special protection and should not be included in the concept of student injury accidents.
Second, the scope of student injury accidents should be limited to education and teaching activities in schools and kindergartens.
The basic activities of the school are education and teaching activities. 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.
The third is the types of accidents, including students' own personal injury accidents and deaths, as well as others' personal injury accidents and deaths 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 our view, tort 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. As for accidents that cause students' property losses and accidents that students cause others' property losses, the treatment method should be consistent with student injury accidents, but since it is said that student injury accidents do not include such property loss accidents, they can not be included.
According to the above analysis, it can be considered that student injury accidents refer to accidents in which primary and secondary school students and kindergarten children participate in education and teaching activities organized by schools or kindergartens, causing personal injury or death to others, and schools should bear corresponding civil liabilities.
(B) the nature of the school's personal injury liability in student injury accidents
There are different opinions about the nature of school civil liability in student injury accidents. One theory is that according to Article 160 of 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) (for Trial Implementation), if a person with no capacity for civil conduct is injured or causes damage to others during his study, life or treatment in kindergartens, schools and psychiatric hospitals, because these units have certain guardianship responsibilities for these people with no capacity for civil conduct, the nature of the school's responsibility for student injury accidents is that the school undertakes guardianship responsibilities for underage students. When minor students are injured or cause injuries to others in education and teaching activities, the school fails to fulfill its guardianship responsibility and will bear civil liability for compensation. Another point of view is that the nature of the school's responsibility for student injury accidents is not the guardianship relationship between the school and the students, but the responsibility of the school to educate, manage and protect the students according to the provisions of the education law. Therefore, the relationship between schools and students is not a civil relationship, but an educational legal relationship. 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.
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. The reason for denying the existence of guardianship obligation is because:
First, 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. It is not established according to the civil law, but according to the education law, which is the basis of the legal relationship between primary and secondary schools and students. The legal relationship between schools and students belongs to quasi-educational administrative relationship, which is different from civil legal relationship and is the legal relationship of education, management and protection for students. 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.
Second, there is no exact legal basis for determining the legal relationship between schools and students and applying the legal relationship of guardianship to make adjustments. First, there is no legal recognition that the school has custody right after minor students enter school, and this recognition has no sufficient legal basis. Second, the establishment of detention is either legal or designated, and there is no basis for detention. Third, the transfer of custody requires a transfer procedure, that is, the parties have concluded a contract for the transfer of custody, which does not exist at all.
Finally, the school has failed to fulfill its obligations of education, management and protection for students, and should bear legal responsibility for the occurrence of damage. This kind of responsibility has the nature of both 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 nature of the school's civil liability for minor students' personal injury and others' injury 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.
(C) the composition of personal injury liability for student injury accidents and the principle of imputation
1. Composition of personal injury liability of student injury accident
The legal liability of school tort varies according to the different legal relationships damaged by tort. The legal responsibilities of schools mainly include the following three types:
(1) Civil liability. Civil liability refers to a kind of legal liability for violating civil law. For example, the Law on the Protection of Minors stipulates that those who infringe upon the legitimate rights and interests of minors and cause their property losses or other losses or damages shall compensate or bear civil liability according to law.
(2) administrative responsibility. Administrative responsibility refers to the legal consequences that schools, as the main body of administrative legal relations, should bear because of administrative violations. For example, Article 35 of the Teachers Law of People's Republic of China (PRC) stipulates that those who insult or beat teachers shall be given administrative sanctions or administrative penalties according to different situations.
(3) criminal responsibility. Criminal responsibility refers to the legal consequences that the actor must bear because of his criminal behavior. Article 52 of the Law on the Protection of Minors stipulates that those who violate the personal rights or other lawful rights of minors and constitute a crime shall be investigated for criminal responsibility according to law.
We focus on the elements of civil liability for personal injury compensation in student injury accidents:
First, students must have personal injury accidents during their school days, or students must cause personal injury accidents to others during their school days. This requirement defines several elements: first, the personal injury liability of student injury accidents is limited to student personal injury accidents; Second, student injury accidents should occur during the school period, which should be understood in a broad sense, that is, not only during the school period in the formal sense, but during the period when the school educates, manages and protects students; Third, student injury accidents not only refer to the injuries suffered by students, but also include 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.
Second, 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: First, the school neglects its management obligations in education and teaching activities, resulting in personal injuries to students and injuries to others. Second, schools have the obligation to protect the safety of students, especially underage students. 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 slackness. The school neglects this duty of care for students' safety, causing personal injury to students, and the school's behavior constitutes illegal. Third, the school's neglect of education means that in the education of students, students fail to fulfill their educational obligations, causing students to cause personal injury to others or suffer personal injury in teaching activities, and should be liable for personal injury compensation.
The above-mentioned behavior of the school includes the behavior of the school and the behavior of the teachers who bear this responsibility. 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).
Third, there is a causal relationship between the school's violation of the provisions of the education law on education, management and protection and the occurrence of accidents. There must be an objective causal relationship between the school's neglect of education, management and protection obligations and students' injury or students' injury to others. When the school's behavior is the only cause of the damage, the school should bear the tort liability. If the school's behavior is not the only cause of the damage, but is caused by multiple behaviors, it is necessary to seriously judge whether the school's behavior is the cause or condition of the damage. 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.
Fourth, the school has negligence or gross negligence in implementing education, management and protection. Schools should bear the liability for damages caused by students' injury accidents, and also have subjective faults. 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, and it is a kind of high-level duty of care, which is higher than the same attention as dealing with one's own affairs and that 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.
2. The principle of imputation
There are different legislative examples about the principle of campus responsibility in civil law system. One is the legislation of presumption of fault, such as Germany, Greece and Japan. Second, the legislation is not perfect, such as France, Belgium and Italy. Combined with the judicial interpretation of this article on personal injury compensation, it can be seen that on the one hand, this article stipulates two kinds of alternative responsibilities for personal injury compensation undertaken by schools in student injury accidents, namely, the personal injury compensation responsibility under the circumstances that minor students suffer damage and minor students cause damage to others, and the principle of fault liability applies to both responsibilities; On the other hand, it also stipulates the supplementary responsibility of the school, that is, the corresponding responsibility for personal injury caused by the third party's infringement, which is also the applicable principle of fault liability. This provision of judicial interpretation of personal injury compensation is to clarify the responsibility of educational institutions for student injury accidents, which is in nature a fault liability that violates legal obligations. After the judicial interpretation of personal injury compensation is implemented, the court should strictly implement the principle of fault liability for student injury accidents when trying cases of student injury accidents.
Starting from the above elements, with the help of this article, it can be determined that the nature of the liability for personal injury compensation in student injury accidents is fault liability, and the basis is as follows:
First, the Education Law clearly stipulates that schools (including kindergartens) are non-profit legal person organizations and institutions with independent legal person qualifications. Schools are not administrative organs, which makes the legal relationship between schools and students gradually change from the pure administrative legal relationship in the past to the civil legal relationship. In this way, there will be general infringement between schools and students rather than special infringement. Of course, there may be special cases of infringement in kindergarten accidents, such as: a large toy in kindergarten suddenly collapsed and killed a child. At this time, the kindergarten should bear the responsibility unless it can prove that it is not at fault. In this case, the nature of the responsibility undertaken by the kindergarten is the presumption of fault.
Second, Article 160 of the Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) stipulates that if a mentally ill person who has no capacity for civil conduct attends a kindergarten or school or is treated in a mental hospital is injured or causes damage to others, and the unit is at fault, it may order these units to give appropriate compensation. Therefore, according to the spirit of judicial interpretation at the present stage in China, the responsibility of the school in the injury incident can only be the fault responsibility. Specifically, in the school injury incident, when students infringe upon the rights and interests of others, the parents of students, as legal guardians, should bear the main responsibility according to the principle of presumption of fault. If the school is also at fault, it will bear the responsibility according to the fault responsibility.
So, how should we identify the fault of the school? We believe that the basis for determining whether a school is at fault is the provisions of existing laws and regulations, not people's subjective assumptions. As far as schools are concerned, the main legal basis is: Article 29 of the Education Law; Article 8 of the Teacher Law; Articles 16 and 17 of the Law on the Protection of Minors. If the school violates the above-mentioned laws, regulations and rules, it is considered that the school is at fault, otherwise it is considered that the school is not at fault. The relevant provisions of the above-mentioned laws and regulations clearly stipulate that one of the responsibilities of schools is the responsibility of education, management and protection, which generally includes two aspects. The first is the responsibility of direct management. The so-called direct management means that teachers come to the scene and directly control students' activities. The second is the responsibility of indirect management. The so-called indirect management means that the school only restricts and manages students through school rules and regulations. The actions of the school and teachers did not violate the above-mentioned laws and regulations, and the school and teachers were not at fault and should not be liable for compensation.
In judicial practice, there are also a large number of cases of student injury accidents, which deserve attention in the determination of school responsibility. For example, Pan and Huo are sophomores in a middle school. On the afternoon of June 1 2006, after they came home from school, Pan stole a homemade knife from home and returned to school, stabbing Huo twice in the abdomen, resulting in severe consequences of Huo's left kidney resection and seventh-degree disability. After learning the situation, the school immediately sent Huo to the nearest hospital for rescue, which made Huo out of danger. Afterwards, Huo filed a criminal incidental civil lawsuit with the court, listed the school as a co-defendant in the criminal incidental civil lawsuit, and demanded that the school compensate him for medical expenses, continuing treatment fees and mental damages totaling 500,000 yuan. The court finally ruled that the school was not responsible, which is correct. Because in this case, Huo was deliberately injured by Pan, the school could not foresee the accident that Pan injured Huo with a knife after school. In addition, after Huo was injured, the school immediately rescued him and did his duty to avoid serious consequences. Therefore, the school was not at fault in this accident and should not bear the responsibility. Pan, a sophomore who intentionally hurt Huo, has certain capacity for civil conduct and should bear civil liability for his actions. [ 1]
(four) the conditions and basis for the school to undertake supplementary responsibilities.
The second paragraph of this article stipulates a special school responsibility, that is, supplementary compensation responsibility, which is conducive to strengthening the management of schools, kindergartens and other educational institutions and protecting the personal rights and interests of minors.
In the student injury accident, the school shall bear the supplementary compensation responsibility. In addition to the constitutive elements, the personal injury liability in student injury accidents must also have the following two elements: personal injury liability; Second, school comes first. The personal injury of students is caused by a third party. If it is entirely the fault of the school, it means that the general student injury accidents, kindergartens and other educational institutions are at fault. If there is no fault, it will not be liable for supplementary compensation. The liability for damages should be entirely borne by the third party that caused the damage. It should be noted that the fault of schools, kindergartens and other educational institutions should be related to the damage caused by the third party. If there is no correlation, the school should not be held liable for supplementary compensation.
The principle of supplementary responsibility of the school in the accident of the third party infringing on minors is the same as that of failing to fulfill the responsibility of safety guarantee. The legal basis of the school's supplementary liability for compensation lies in the fault of the school, which makes the damage that could have been avoided or reduced occur or expand, and increases the probability of damage; Therefore, the school should claim compensation from the third party for the victim and cannot bear the risk responsibility. In terms of liability, if the victim claims compensation from the infringing third party, and the third party cannot or cannot fully bear the liability for personal injury, and claims compensation from the wrong school, kindergarten and other educational institutions, the requested school, kindergarten and other educational institutions shall bear the supplementary liability for compensation. It should be noted that the judicial interpretation of personal injury compensation stipulates "corresponding supplementary liability", and the "corresponding supplementary liability" here should not be considered as a certain part. Schools, kindergartens and other educational institutions should bear the part that the third party who bears the direct responsibility cannot bear. Of course, after the completion of supplementary liability, the corresponding share of liability can be determined according to the degree of fault and causality. The "corresponding supplementary responsibility" in judicial interpretation should be understood as the share at this time. If the school bears more responsibilities than its corresponding share, it has the right to recover from the third party.
In judicial practice, there are also cases in which schools assume supplementary responsibilities in student injury accidents. For example, on June 6, 2002, middle school student Lu was pushed down by his classmates in the pipeline ditch under construction in the school playground, causing multiple fractures of his left arm. Forensic identification is grade 10 disability. Lu's parents sued a student and the school to the court, demanding that the school bear part of the liability for compensation. Article 16 of the Law of People's Republic of China (PRC) on the Protection of Minors clearly stipulates: "Schools shall not allow underage students to engage in activities that endanger personal safety and health in school buildings and other educational and teaching facilities." The playground is a place for students' activities and should belong to educational and teaching facilities. Schools should take protective measures and set up protective facilities during construction to prevent students from being hurt. However, the school did not provide sufficient protective facilities for the excavated tunnel, so the school was at fault for the injury of Lu and should bear supplementary responsibilities.
(5) General principles for handling student injury accidents.
First, the responsibility for personal injury caused by student injury accidents should be borne by the school, and the school should be liable for compensation. The basic compensation subject of personal injury liability of student injury accident is the school. After determining the responsibility of the school, the school shall be liable for compensation in accordance with the method of personal injury compensation. The nature of the school's liability for compensation is the school's responsibility for education, management and protection of students. If the school fails to perform its duties and causes personal injury to students or others, it shall be liable for compensation.
Second, the school's responsibility for student injury accidents should be compensation for personal injury caused by underage students, compensation for personal injury caused by underage students, and supplementary compensation for personal injury caused by a third person. The school's responsibility for education, management and protection of students is mainly for underage students. Only minor students lack the ability to identify their own safety or behavior, or have no ability to identify, the school will be liable for compensation. However, if the school causes personal injury to adult students due to gross negligence, it shall bear the responsibility. Therefore, the principles that can be determined are as follows: first, students without civil capacity are injured or hurt others, and the school should be liable for compensation if it is at fault; Secondly, if students with limited capacity for civil conduct cause harm or harm to others, the liability for compensation should be limited, and only those with greater negligence in the school should bear the liability for compensation; Thirdly, for adult students, if the school has gross negligence in causing injury or hurting others, it shall be liable for compensation. Otherwise, the school will not take responsibility.
Third, the responsibility that belongs to students and their legal representatives (or students' living expenses providers) is borne by students' legal representatives or students' living expenses providers. Personal injury caused by students' own fault or improper supervision by their legal representatives shall be borne by the students' legal representatives who are at fault, and has nothing to do with the school. Adult students who suffer personal injury or other people's damage due to their own fault shall bear their own responsibilities. Unable to compensate, paid by its living expenses provider. This is the basic meaning of the principle of fault liability, and this responsibility cannot be passed on to the school.
Fourth, if a student is injured or a student hurts others due to the fault of a third person, the third person at fault shall be liable for compensation. According to the basic meaning of the principle of fault liability, the liability for compensation should be borne by the actor who is at fault. If a third person causes personal injury to a student through his own fault, or if a student hurts others, the third person shall be liable for compensation.
Fifth, the school is responsible for student injury accidents, and if others are also responsible, they should share the liability for compensation. If there are more than two reasons for the damage, their respective responsibilities shall be determined according to the different reasons of the fault and behavior of each responsible person. If the school, the students, their legal representatives and the third party are all responsible for the damage, they should compare the faults and causes and determine their respective liability for compensation. If it constitutes joint tort liability, it shall bear joint and several liability; If the joint tort liability is insufficient, it shall bear the joint tort liability.
Sixth, if the school insures the student injury accident, after the student injury accident occurs, the insurance company shall first bear the liability for compensation and deal with it according to the insurance contract. According to the insurance contract compensation is still insufficient, the school should bear supplementary responsibility for the insufficient part.