Insurance law's delicate and touchingTheThe essence of (8)

Offset of motor vehicle traffic accident liability of the victim fault

Even the accident victim fault, which bear the liability for damages of the premises have been identified in the tort of the offender, if the victim is also at fault for the occurrence of damage and expand, may reduce injures person's compensation responsibility. Contributory negligence is an important principle in the law of tort, it has been widely used in fault liability,In the no fault liability for motor vehicle traffic accident, the applicable provisions of wrongdoing by the victim or other third person of contributory negligence is and embody the basic principle -- the principle of fairness in our civil law requirements, application of contributory negligence not only legal basis, is also in line with international practice, the application of fault offset, is not the fault of victim and perpetrator of contributory negligence, but the fault of the victim is in addition to part of the damage injures person's compensation, fault or not relates to the offender. But how to reduce, to human error size according to the motor vehicle driving (i.e. the breach of duty of care business degree) and the victim's fault to determine the size of the.

The scope of application, the contributory negligence

The author thinks, from the actual situation of our country, the scope of contributory negligence should be appropriate, not too large, in order to fairly protect the accident parties, for funeral expenses, treatment costs should be excluded from the balance on the list, other costs such as the injury was healed after subsequent treatment rehabilitation costs, loss of business, loss, compensation for mental damage, damage to the property can be offset on the list, but in order to ensure the victim's funeral costs, treatment fees could be realized, must let one motor vehicle insurance compulsory insurance.

Rule two, negligence offset

    (a) the burden principle

In road traffic, motor vehicle and pedestrian, non motor vehicle drivers, whether in speed, motion energy inertia, to control risk and avoidance ability are strong, motor vehicle. When a man driving a motor vehicle on road, the law gave him as a dangerous object manipulation treatment, asked him to fulfill the duty of safety care is higher than the general level of reasonable attention obligation. In contrast, when considering the weak position of the non motor vehicle Party of the victim's fault, the law does not give the non motor vehicle driver or pedestrian prescribe the duty of care is higher than the motor vehicle driver, reason is that the non motor vehicle shall not operate risk tool, but also as a common pedestrian or bicycle people can not always in a highly nervous state. Motor vehicle drivers and education, improve their duty of care to avoid accidents can maximize the social cost savings. Judging the motor vehicle drivers and pedestrians negligence negligence, the duty of care must be their obligation should undertake their requirements on the fault judgment as reference No. Motor vehicle driver, judge the fault to him, to make judgment in accordance with the traveling road conditions, vehicle condition, regulations etc.. The duty of the motor vehicle driver, is asked him to fight with danger. China's bicycle, pedestrian, people's safety awareness and traffic legal concept is not strong enough, if the motor vehicle driver processing is not good, very easy to cause traffic accidents, traffic accidents in China has a very high frequency[3]. Therefore, in the traffic accident both fault situations, infringement by the vehicle side than the non motor vehicle shall bear the heavier liability is fair and reasonable. In this regard, there have been judicial precedents to follow.

[31] A case of Hangzhou city Xiaoshan District People's court recently concluded for reference. The plaintiff Zhejiang Dengfeng transport group Qingsong automobile repair Co. Ltd., theIn 2005 May, the company all a minibus to the Peoples Insurance Company of China Hangzhou branch Xiaoshan against the third party liability insurance and other insurance. In September the same year, Chung company employees driving this car and a bike collided with other people, after the rescue invalid death. The Traffic Police Department identified, each bear the same liability. In November, the family of the deceased to the court, asked Chung company and its employees compensation. The court judgement: 23.4 yuan material loss caused by traffic accident, the family of the deceased, pine company should bear the 65% of them, namely 15.2 yuan. After the judgment comes into effect, pine company claims to the insurance company, but on the basis of the court judgement to determine more than 15.2 yuan of insurance company claims are not, but according to the traffic police department of the accident, to pay all the pine material loss of 50%, that is 11.7 yuan. Therefore, the pine company to court, require the insurance company in accordance with the court verdict on the ratio of increase compensation 3.5 yuan. But the insurance company argued, the family of the deceased reasonable material losses amounted to 23.4 yuan, the insurance company according to the insurance clauses, and on the basis of equal responsibility, pine, negative in the accident in 50%, the company claims to the pine, pine, therefore, there is no basis for increased compensation. The court concluded that, the traffic police accident liability and court decision of infringement liability is not the same concept. According to the judicial interpretation of the Supreme People's court, traffic accidents between motor vehicles and non motor vehicle drivers, not only in accordance with the size of the fault to determine liability, in both case of fault, but also on the basis of the principle of burden of contributory negligence in our responsibility to adjust the size, and therefore, the motor vehicle shall bear the liability for compensation not only according to the accident responsibility, but also to take care of the non motor vehicle party. Accordingly, the court requires insurance companies to pay not to pine company claims more than 3.5 yuan indemnity[4].

    The author thinks, this kind of ask the victim fault severity will be offset, it is not in line with the basic spirit of China's "general principles of civil law" and the "road traffic safety law" and other laws. Because of the motor vehicle traffic accident compensation should adopt no fault liability principle, the duty of the legislative purpose is to increase a vehicle side to protect the interests of the victim of traffic accident, so the contributory negligence rule applicable conditions should be strictly limited. Only when the victim has gross negligence shall apply contributory negligence, when the offender has gross negligence and the victim only minor or general fault, not the application of contributory negligence. We can not because the victim a slight negligence, just apply contributory negligence. Because the pedestrian a slight negligence may not cause serious harm to others instead, motor vehicles, a slight negligence, the enormous inertia and energy will often give pedestrians cause serious injury and even death. Therefore, in the application of contributory negligence, should reflect the principle of equitable burden more losses, in order to realize the principle of civil law.

   There is a need to explain, for victims of gross negligence standard can not use the degree of negligence negligence degree the victim and offender were compared, to determine whether the victim negligently, and shall comply with the standards according to the degree of attention as an ordinary pedestrians or non motor vehicle drivers should bear the obligations prescribed by him and pass "road traffic safety law" the severity of reference to determine the fault.

     (two) the victim fault risk-taking

   The assumption of risk, refers to the victim has some risks by consciousness, or knowingly will suffer some risk, but still risks, it made him suffered damage[5]. Highway and road closed for motor vehicle driving fast on the road, according to civil law "principle of trust", as long as there is no special circumstances, the motor vehicle driver can rely on other traffic participants to comply with traffic order is[6]. Motor vehicle driving in such way for pedestrians and non motor vehicle is almost not negative foreseeable obligations. Pedestrians and non motor vehicle drivers as a normal rational person, knowing that most likely accidents while still unauthorized access, is the assumption of risk. Dangerous liability is based on risk control in general case if no negligence may still damage and other conditions, while "the victim that are dangerous and can avoid unexpectedly so dance, Shu and risk responsibility system protection the victim will not, so the assumption of risk should be effective in eliminating the risk responsibility."[7]

For pedestrians and non motor vehicle drivers from risk-taking and traffic accident, should apply the contributory negligence principle, borne by the adventure itself most or even all of the responsibility. In this case, in addition to the funeral expenses or grab the treatment cost by appropriate take part of motor vehicles, the loss shall be borne by the victims of their. As for the victim intentionally causing traffic accidents, according to "road traffic safety law" seventy-sixth and "general principles of civil law", the motor vehicle shall not bear any liability.

(three) does not apply to special groups of contributory negligence

Some scholars believe that, for the victim is at fault in the accident, should according to the specific situation of human behavior rather than by its identity to apply the principle of fault offset[8].

The author of this special group of beg to differ, the traffic accident victims (mostly children, the elderly and disabled people) should be particularly care, even if this particular group had serious negligence, it shall not apply negligence is the international practice. Because the child is in development period, more vulnerable to[9]. Therefore, children at leastHigh risk before the age of 10 may not know the traffic, and recognizing that the risk and take consistent action, 10 of the children could not have foreseen the inter vehicle distance and speed of. In addition, the elderly and disabled action over the age of 65 is not agile, pay attention to ability and the strain capacity is insufficient, the identification ability has declined significantly, difficult to avoid sudden danger. According to China's 2002 national motor vehicle traffic accident statistics as an example, for a total of 109381 people were killed in the traffic accident, including 12 children under the age of 6322 deaths, accounting for 5.8% of the total deaths; people over the age of 65 with 10708 deaths, accounting for 9.79% of the total deaths; in 2002 a total of 56207404 people were injured, accounting for 5% of the total number of injured[10]. As can be seen, children under the age of 12 in China and 65 years of age or older in the traffic accident death rate is about 16%, and the injury rate is about 10%, they are a group of susceptible to injury in traffic accident of motor vehicle. Therefore, for the purpose of legislation to protect the victims of traffic accidents, for vulnerable children, elderly and disabled without the application of contributory negligence. In this regard, the legislation in developed countries can be draw.

    The author believes that, in order to legislative aim of the protection on the weak implementation of the "road traffic safety law", we can not rigidly as long as the victim fault immediately to offset, and should learn from the experience of Germany, forChildren under the age of 10 is not applicable to contributory negligence. For more than 65 year old elderly or disabled while having the responsibility, but because suffer accident risk in traffic greatly, also should be given special protection, not negligence, in order to better reflect the "road traffic safety law" and the "people-oriented" concept.

/P>?

/P>?Excerpted from:Delicate and touching: "motor vehicle traffic accident liability compulsory insurance system research"TheThe fourth chapter second section, Chinese People's Public Security University press2007Years1Month version. (the book ofEditor: Liu Yue)