First, the characteristics of road traffic accident damage compensation cases.
(1) The number of personal injury compensation disputes in road traffic accidents is increasing rapidly.
After the implementation of the Road Traffic Safety Law of the People's Republic of China on May 1 2004, the number of cases of personal injury caused by road traffic accidents brought to the people's courts increased significantly. The two-level courts in Hezhou accepted 93 cases of traffic accident compensation in 2003, and accepted 174 cases in 2004, up by 87. 1%, of which 139 cases were accepted from May to February 2004, up from 62 cases accepted in the same period in 2003.
The reasons for the sharp increase in such cases are mainly as follows:
1, "Road Traffic Accident Safety Law" recognizes and encourages the practice of "reconciliation", and the number of parties who choose to directly sue the court without going through the traffic control department increases. According to the provisions of Article 74 of the Road Traffic Safety Law, the parties may request the traffic department of the public security organ to mediate the dispute in traffic accident compensation, or directly bring a civil lawsuit to the people's court. That is, as long as the prosecution of the parties meets the conditions stipulated in Article 108 of the Civil Procedure Law, the court can accept it, and the mediation of the traffic police department is no longer the pre-procedure for bringing a lawsuit.
2. The traffic police department's mediation procedure for traffic accident cases is restricted, and the mediation function is weakened. According to the Implementation Regulations of the Road Traffic Safety Law of the People's Republic of China, which came into effect on May 1 2004, the traffic police department will mediate the dispute only if the parties to a traffic accident unanimously request the traffic management department of the public security organ to mediate, and the parties' application for traffic accident mediation should be made in writing within 10 days after the service of the traffic accident responsibility letter, and the traffic police department will no longer take the initiative to organize mediation between the two parties. In this way, as long as one party does not agree to mediation, the traffic police department will no longer organize mediation, resulting in some cases where one party is unwilling to mediate or fails to submit a written mediation application in time within ten days, and directly goes to court without mediation by the traffic police department. At the same time, the new regulations stipulate that the mediation procedure can be terminated if the traffic police department fails to mediate once, instead of having to mediate twice in the past, and the number of cases in which the traffic police department reached an agreement through mediation has dropped significantly. According to the statistics of Hezhou Accident Handling Squadron, only 35 cases reached an agreement in May-June 2004, while in the same period of 2003, 1 16 cases were successfully mediated, a decrease of 23 1%, and these failed cases also flowed to the court.
3. The Interpretation of the People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases has greatly adjusted the compensation standards for some personal compensation items. For example, the compensation period of death compensation and disability compensation has been increased from 10 year stipulated in the Measures for Handling Road Traffic Accidents to the current 20 years, and the parties can request both death compensation and mental damages at the same time, so the compensation amount has been greatly increased. Therefore, some parties involved in traffic accidents before May 2004 1 deliberately chose to bring a lawsuit to the court after the implementation of the new regulations in order to obtain more compensation.
(2) The subject matter of litigation is relatively large.
Because traffic accidents have caused many deaths and serious injuries, and the judicial interpretation of personal injury compensation has improved the compensation standard, the amount of litigation requests by the parties is relatively large. The subject matter of most cases ranges from tens of thousands to hundreds of thousands. In 2003, the total amount of litigation objects in such cases was 2 122032 yuan, and the average amount of each object was 22800 yuan. In 2004, the total amount of litigation objects of such cases was 604 1605 yuan, with an average amount of 34,700 yuan, an increase of 52 19% compared with 2003.
(3) There are many parties and the legal relationship is complicated.
At present, people do not strictly follow the transfer registration procedures in motor vehicle transactions, and the management of vehicles, leasing and use is not standardized. After a road traffic accident, the responsible subjects often involve registered owners, actual owners, borrowers or lessees, employers and other personnel. Article 75 of the Road Traffic Safety Law stipulates that "those who have not participated in compulsory motor vehicle third-party insurance or escaped after an accident shall be paid in part or in whole by the social assistance fund for road traffic accidents ...", while Article 76 stipulates that after a motor vehicle traffic accident, the insurance company shall make compensation within the liability limit of compulsory motor vehicle third-party liability insurance. Therefore, in some current cases, insurance companies also directly participate in litigation as co-defendants or third parties. In the future, there may be cases in which the social assistance fund for road traffic accidents is the main body of litigation. The subject of litigation is more complicated.
Most cases are closed by judgment, and the mediation settlement rate is low.
In 2003, 83 road traffic accidents were concluded, of which 64 were concluded by judgment and 3 by mediation, with a mediation rate of 15.66%. In 2004, 17 1 case was concluded,1/6 cases were judged, and 3 1 case was mediated, with a mediation rate of 18. 13%. The main reason for the low mediation rate of cases is that some parties do not know enough about the identification and division of responsibilities, and the applicable compensation standards are wrong or do not take into account the other party. In the process of prosecution, huge compensation claims are often made, and the expectations of litigation are too high. However, some perpetrators are unable to pay compensation due to financial difficulties or deliberately refuse to appear in court to participate in litigation. The parties to the lawsuit have great differences and it is difficult to reach an agreement. In addition, traffic accidents usually cause heavy losses, such as casualties. The injured party bears a grudge against the injured party, hoping to get reasonable compensation through litigation, and is unwilling to make big concessions psychologically and emotionally, which also leads to great difficulty in mediation and high judgment rate in such cases to a certain extent.
(5) Property preservation has greatly increased.
According to Article 42 of the newly promulgated Regulations on Handling Procedures of Traffic Accidents, "The accident vehicles detained by the traffic administrative department of the public security organ shall not be used except for inspection and appraisal. Notify the parties to receive the accident vehicle and motor vehicle driving license within five days after the inspection and appraisal is completed. " The purpose and time limit for the traffic management department of public security organs to detain accident vehicles and motor vehicle driver's licenses are strictly limited, and it is no longer possible to detain accident vehicles as in the past. In order to ensure the smooth execution of future cases, the plaintiff will often apply to the court for property preservation at the time of prosecution or before prosecution, so as to prevent the defendant from hiding and transferring the property, which will cause difficulties in execution.
Two, the current problems faced in the trial of road traffic accident damage compensation dispute cases.
(1) It is difficult to identify the responsible subject.
In traffic accident damage compensation cases, it is the most important issue to determine the subject of liability for damage compensation. Only by distinguishing the different relationships between the vehicle owner, the driver and the actual controller and determining the subject of responsibility can we determine how to bear the liability for compensation. In the trial of specific cases, as a car owner who should bear civil liability, there are often relationships such as vehicles, contracting, leasing, borrowing and employment, as well as repeated sales and subcontracting. The actual owner and the nominal owner are often inconsistent, or there are multiple owners who bear the responsibility, involving many subjects, and it is difficult to divide the responsibility.
(two) how to identify the accident certificate of the traffic police department.
The Road Traffic Safety Law changed the expression of the original "responsibility certificate" to "accident certificate", and defined the accident responsibility certificate as evidence for handling traffic accidents. The parties may not file a reconsideration, and the court will finally review and confirm it. However, there are still some difficulties in practice. First of all, whether to adopt accident identification depends on the judge's discretion. Due to the differences in individual cognition, there may be deviations in the cause of accidents and the sharing of responsibilities. In addition, the court thinks that there is something wrong with the accident after review. What should be done? Requesting the traffic police department to re-identify that there is no legal basis; If the court directly changes the accident identification of the traffic police department, because the judge is not a professional accident handler, it is difficult to identify the original responsibility only by the written materials of the case file. At the same time, because the identification of the responsibility of the traffic police department is not equal to the sharing of civil responsibility, the sharing of responsibility in the final judgment of the court may be inconsistent with the identification of responsibility, which often causes dissatisfaction or misunderstanding of the parties.
(3) The litigation status of insurance companies is difficult to determine.
Article 75 of the Road Traffic Safety Law stipulates: "If an accident vehicle participates in compulsory motor vehicle third-party liability insurance, the insurance company shall pay the rescue expenses within the liability limit"; Article 76 stipulates: "If a motor vehicle accident causes personal injury or property loss, the insurance company shall make compensation within the liability limit of compulsory motor vehicle third party liability insurance". However, in traffic accident compensation's case, there are no clear provisions on whether the victim can directly ask the insurance company to bear the liability for compensation and the litigation subject of the insurance company. From the legal point of view, it is theoretically difficult for the victim to directly ask the insurer to bear the responsibility. If the victim directly sues the insurance company, or applies to the court to enforce the insurance premium of the accident party in the insurance company first, it is difficult to grasp how the insurance company participates in the lawsuit, whether as a third party and the defendant, or whether there is no independent claim. On the other hand, insurance companies still pay claims according to the old standard for accidents before May 1 2004, while the court adopts the new standard when calculating the compensation amount. There is also a big gap between them.
(D) There are great differences on the understanding of the motor vehicle full liability compensation clause.
Article 76 of the Road Traffic Safety Law stipulates: "In the event of a traffic accident between a motor vehicle and a non-motor vehicle driver or pedestrian, the motor vehicle party shall bear the responsibility; However, there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and motor vehicle drivers take necessary measures to reduce the liability of the motor vehicle side, which is the "full liability for motor vehicles" clause that has aroused widespread controversy in society. This clause adopts no-fault liability or strict liability. In judicial practice, some people think that from the literal understanding of this clause, one side of the motor vehicle must have no fault at all, and the other side has illegal behavior, in order to reduce the responsibility. If the pedestrian has a major fault and caused an accident, but the driver of the motor vehicle fails to take necessary measures, the motor vehicle party will still be fully responsible. However, those who hold the opposite view think that this is too harsh on the motor vehicle side and advocate the application of the principle of fault offset.
(5) There is no unified basis for applying to urban residents or rural residents.
The judicial interpretation of the court's personal injury compensation stipulates that the disability compensation, the living expenses of the dependents and the death compensation should be calculated according to the corresponding standards according to whether the compensation holder is an urban resident or a rural resident. There is a big gap between the two different compensation standards. However, it is not clearly defined whether to identify rural and urban residents on the basis of household registration or permanent residence. In today's society, there are many migrant workers and the population flows frequently. Some farmers have gone out to work in cities for more than one year or settled in cities for many years, and their income is not lower than the average level of local urban residents. If compensation is made only according to the standards of rural residents, it will cause obvious unfairness.
(six) the application for litigation preservation is not timely.
According to Article 42 of the Procedures for Handling Traffic Accidents, the traffic police department detained the car according to the appraisal inspection, not to ensure the realization of the liability for compensation, but to return it to the parties within five days after the inspection and appraisal. The value of the vehicle itself is huge, which is an important guarantee for the execution of the judgment documents in the future. Because the traffic police department will hand over the vehicle to the parties to the accident after making the accident identification, some parties lack legal knowledge in this field and fail to apply to the court for pre-litigation property preservation measures in time. When the parties bring a lawsuit to the court, it will be very difficult for the court to take protective measures, and sometimes even go to other provinces to seal up and detain vehicles, which is very passive.
Third, the way to solve the problem.
(1) Determination of the subject of compensation.
The main body responsible for traffic accident compensation's case involves the following aspects. 1. Those directly responsible for the accident include the owner, actual controller and driver of the motor vehicle. 2. Insurance companies that bear the liability for alternative compensation. This kind of compensation is based on the provisions of the insurance contract, and the insurer shall bear the vicarious liability. 3, bear the responsibility of social assistance fund for road traffic accidents. It is mainly the first case that is difficult to identify in practice. Pay attention to the following points: First, distinguish the vehicle owner from the actual controller. The vehicle owner refers to the unit or individual registered in the vehicle management authority. The actual controller includes several situations: the buyer who has not gone through the ownership transfer registration in automobile sales (if the car has not been transferred continuously, it is the buyer of the last sale relationship), the buyer, the contractor, the lessor, the borrower, the buyer who has purchased by installments but has not gone through the transfer formalities, etc. Secondly, when the owner of the vehicle is inconsistent with the actual controller, the determination of the subject of liability for damages should be based on the ownership of the vehicle and the ownership of operating interests. Specific to each case, we should follow the general principles and combine the division of tort liability and different case facts in the Interpretation of People's Courts on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases. If the parties only sue the driver, owner or actual controller of the vehicle, they shall explain to them the responsibilities of other relevant personnel. If the parties insist on suing only a part of the subjects, it is generally allowed. If they are embarrassed to sue, they will be regarded as giving up their rights.
(2) The litigation status of insurance companies.
There are two different views on this issue: one holds that road traffic accidents are tort lawsuits, and insurance companies' performance of insurance payment obligations is contract lawsuits, which belong to different legal relationships. Therefore, it is not appropriate to list the insurance company as a co-defendant in the trial of traffic accident damage compensation cases, but because it has a legal interest in the outcome of the case, it should apply to participate in the litigation as a third party without independent claim or be added by the people's court. Another point of view is that Article 76 of the Traffic Safety Law stipulates: "If a motor vehicle accident causes personal injury or property loss, the insurance company shall compensate it within the liability limit of compulsory third-party liability insurance for motor vehicles". At the same time, the first paragraph of Article 50 of the Insurance Law stipulates that "the damage caused by the insurer to the third party by the insured of liability insurance may be in accordance with the provisions of the law or the contract. The above-mentioned law clearly stipulates that the victim has the direct right to claim compensation from the insurance company within the amount of the third liability insurance insured by the insured (that is, the vehicle side), so the insurance company should be the direct defendant and bear the liability for compensation within the liability limit according to the liability ratio and compensation amount determined by the court. If a party applies for the advance payment of insurance premium, it shall be allowed. If the victim only sues the insurance company for compensation, the people's court shall add the insured (vehicle owner, actual controller or driver) as a third party to participate in the proceedings. After the people's court determines their respective responsibilities according to law through trial, the insurance company may, at the request of the injured party, bear the liability for compensation for the part that does not exceed the liability limit, and the excess part shall be borne by the motor vehicle owner, actual vehicle controller or driver who should bear the liability for accident compensation; Or the latter shall be liable for compensation, and the insurance company shall be jointly and severally liable within the limit of liability, which will help to reduce the litigation cost, save judicial resources and solve the insurance compensation problem in the road traffic accident damage compensation litigation. At present, most courts tend to take the second view, and there are many cases in this regard.
(3) The imputation principle of traffic accident damage compensation.
According to Article 76 of the Road Traffic Safety Law, different liability principles apply to traffic accidents between motor vehicles and traffic accidents between motor vehicles and non-motor vehicle drivers and pedestrians. For traffic accidents between motor vehicles, the principle of fault liability is adopted, that is to say, motor vehicle drivers are only liable for accident compensation if they are intentional or negligent in traffic accidents. If both sides of the motor vehicle are at fault, they should bear corresponding responsibilities according to the role of the fault in causing all the losses in the traffic accident. The losses here include all the losses of both sides of the motor vehicle. For traffic accidents between motor vehicles and non-motor vehicle drivers and pedestrians, the principle of no-fault liability or strict liability should be adopted, that is, the motor vehicle side should bear civil liability for the losses caused by its own actions, regardless of whether it is at fault or not, unless there is evidence that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and the motor vehicle driver has taken necessary measures, the responsibility of the motor vehicle side can be reduced. Only under certain circumstances, the loss of traffic accidents is intentionally caused by non-motor vehicle drivers and pedestrians, and motor vehicles are completely exempted from liability. The legal basis of this principle comes from the reward theory of beneficiaries taking risks, the strict liability theory of high-risk damage, the risk burden theory of superiors and so on. It emphasizes the duty of care of motor vehicle drivers as a high-risk operation party, which embodies the respect for basic human rights and the protection of vulnerable groups. In order to reduce the accident liability, the motor vehicle side must meet two statutory requirements. First, "there is evidence that non-motor vehicle drivers and pedestrians have violated road traffic safety laws and regulations", and second, "motor vehicle drivers have taken necessary measures". At present, the understanding of what "necessary disposal measures have been taken" is not consistent in the legal field, but in the trial practice, it tends to see whether the motor vehicle side has taken appropriate disposal measures when the accident occurred, thus avoiding the occurrence of traffic accidents. If the motor vehicle is completely at fault, it shall be liable for compensation according to the minimum proportion and amount stipulated by the state. If a motor vehicle party is at fault, it shall be liable for compensation according to the degree of fault, that is, when determining the proportion of liability for compensation, the degree of fault is still considered to reflect the fair protection of law-abiding. However, as long as the consequences of the damage are not intentionally caused by non-motor vehicle drivers and pedestrians for suicide or illegal insurance compensation, even if the non-motor vehicle party bears all the responsibility for the accident, it cannot exempt the motor vehicle party from all the responsibilities.
(4) Compensation items and standards.
1. Compensation standards for rural residents and urban residents. According to the Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, the calculation standards of disability compensation, living expenses of dependents and death compensation should be calculated according to the identity of the compensation obligee determined through examination and according to the relevant standards of urban residents and rural residents respectively. At present, a large number of migrant workers enter cities and towns to work or settle down. They have become a special group of urban residents. In some areas, the actual average annual income of rural residents has been equal to or even higher than that of urban residents. If we ignore this objective reality, it is unfair to pay compensation according to the standards of rural residents just because the victims are rural residents. Therefore, the principle of household registration should be adopted when confirming the identity of the compensation obligee, except for the habitual residence. Although the right holder of compensation is a rural resident, but there is evidence that he lived in the town for more than 1 year at the time of the traffic accident, and his fixed income is not lower than the annual average disposable income of urban residents announced by the Statistics Bureau of the autonomous region, the amount of compensation shall be treated according to the standards of urban residents, and "treatment in the same city" shall be implemented to reflect equality before the law and fair protection for rural residents.
2. On the scope of compensation for mental damage. On the issue of compensation for mental damage, the judicial interpretation does not stipulate a clear compensation standard and minimum amount, which is mainly decided by the judge according to the specific circumstances of the case and the local economic development level. However, when judges exercise their discretion, they should try their best to keep the judgment standards of similar cases in the same area relatively consistent, and the discretion of the judges in the two trials should not be too different to maintain judicial unity. For the damage caused by the mixed fault of the infringer and the victim, if one party requests mental consolation money, according to the provisions of Article 1 1 of the Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts, firstly, whether the mental damage has caused serious consequences should be considered, and secondly, it should be determined in combination with the fault degree of both parties. If the victim is at fault for the occurrence of damage facts and damage results, the infringer's liability for compensation for mental damage may be reduced or exempted according to the degree of his fault. In the trial practice, we should pay attention to distinguish several different situations: when the infringer takes full responsibility for the damage facts and results, he should bear the responsibility of compensation for mental damage. The infringer is mainly responsible for the damage facts and results. If the victim is at fault but bears secondary responsibility, the principle of fault offset can be applied to reduce the infringer's liability for compensation for mental damage according to the degree of the victim's fault. If the victim is at fault and bears major or equal responsibilities, the infringer may be exempted from the liability for compensation for mental damage because the victim's fault behavior is equivalent to or more effective than the infringer's fault behavior.
(5) About accident confirmation.
Huang Songyou, vice president of the people's court, pointed out at the national symposium on civil trial on March 26th, 2003: "When trying cases of traffic accident damages, the court should correctly treat the responsibility determination of the public security traffic management department. The identification of the responsibility of the public security traffic management department is actually an analysis of the causal relationship of traffic accidents and a confirmation of the causes of traffic accidents. It is necessary to avoid equating the identification of the responsibility of the public security traffic management department with the sharing of civil liability, and it should be used as an important evidence that the parties bear the responsibility or the victims are also at fault. " The accident identification made by the traffic control department according to the investigation results should be used as important evidence for the people's court to hear traffic accident cases, but it cannot be used as the basis for the court to allocate civil damages. When trying a specific case, the court shall, according to the facts of the case, combine the on-site investigation, technical analysis and appraisal made by the traffic management department of the public security organ and the investigation record made to the parties at the first time after the accident, and comprehensively examine and determine the accident confirmation. If the people's court considers that the identification of traffic accidents made by the public security traffic management department is inconsistent with the facts or inaccurate, it shall solicit the opinions of the public security traffic management department before deciding not to accept the letter, strengthen communication and coordination with the traffic police department, and properly handle it.
Fourth, suggestions.
(a) to strengthen communication and cooperation with the traffic police department, to take timely litigation preservation.
The court should take the initiative to contact and cooperate with the public security traffic management department at ordinary times, and inform the accident victims in the form of public notice of the parties. If they need to bring a civil lawsuit to the people's court, especially for vehicles that are not covered by compulsory motor vehicle third party liability insurance or are covered by compulsory motor vehicle third party liability insurance, the amount of compensation for traffic accident damage may exceed the liability limit of compulsory motor vehicle third party liability insurance. The people's court shall timely apply for pre-litigation property preservation of the accident vehicle and detain the vehicle originally detained by the public security traffic management department from the day after the termination of mediation or the expiration of the performance period agreed in the mediation. If a party applies for property preservation, the court shall immediately examine it and take timely measures according to law. For example, Zhongshan County Court has made an innovative attempt in this regard, opening the "President's Hotline", leaving the office telephone number and the president's mobile phone number of the people's court and the People's First and Second Courts of the hospital to the accident handling squadron, so that the parties can get legal help in the accident handling stage, and remind the victims with the traffic police department that they can apply to the court for pre-litigation preservation measures or apply to the court for litigation preservation measures after prosecution. In 2004, the hospital concluded 27 such cases.
(two) the correct exercise of the judge's right to interpret.
There are many litigants in traffic accident cases, the subject matter of litigation is large, and there are many compensation items and evidence materials. However, most of the parties involved in traffic accident cases have low cultural quality and weak legal awareness. In litigation, there are often cases of changing the litigation request, adding parties, and repeatedly giving evidence and cross-examination, which is also difficult to implement. The court should intensify its interpretation, guide the parties to clarify the subject, items, standards, requirements and time limit of compensation, and ensure the exercise of litigation rights and the realization of the legitimate rights and interests of vulnerable groups.
(3) Strengthen court mediation.
The people's courts should actively explore and constantly improve the new ways and methods for the courts to do a good job in mediation of compensation cases under the new situation. For the victims of traffic accidents, we should not only calm the excitement of the parties through patient and meticulous mediation, but also explain the legal provisions to the party who caused the accident, point out its faults and strive to create mediation conditions. Try to take all kinds of effective ways to urge the parties to understand each other and reach an agreement, so as to reduce the execution pressure of future cases.
(four) in view of the large number of traffic accident cases, we can consider setting up a special collegial panel for traffic accident damage compensation.
Equipped with senior judges who are proficient in laws related to traffic accident damage compensation, have excellent business and are good at mediation, intervene in pre-litigation preservation, litigation preservation and vehicle sale in advance, and apply summary procedures to traffic accident compensation's case, simplifying litigation links and improving handling efficiency.
(5) Expand judicial assistance.
The subject matter of traffic accident compensation's case is relatively large, and most of the victims' families are in difficulties. In order to prevent the parties from exercising their litigation rights because they can't pay the litigation fees in time, the victims who have suffered heavy losses due to traffic accidents and have real financial difficulties should be given judicial relief measures of deferring, waiving or reducing the litigation fees according to law, so as to ensure their timely exercise of litigation rights and safeguard their legitimate rights and interests according to law.
(six) improve the legislative work, unified law enforcement standards.
It is suggested that the legislature and relevant departments issue relevant judicial interpretations or supporting laws and regulations as soon as possible, and make clear provisions on specific issues such as the compulsory insurance system for third party liability in the trial of personal injury compensation cases in traffic accidents, the statutory conditions and compensation limits for reducing the liability of motor vehicles, the victim relief fund, and the liability recovery of insurance companies, so as to ensure the authority and unity of law enforcement.
(seven) to strengthen legal publicity, to prevent and reduce the occurrence of road traffic accidents.
At present, the main reason for the high incidence of traffic accidents is that motorists and pedestrians have weak legal concepts. The people's courts should do a good job in road traffic safety laws and regulations and traffic safety publicity and education through case reports, popularization of law and other forms, strive to improve people's awareness of traffic law, traffic safety and self-protection, create a good traffic legal environment, eliminate all kinds of traffic violations, prevent and avoid traffic accidents from the source, and ensure the safety of state property and people's lives and property.