In the cases of traffic accident damages the limitation of action

One, the limitation of action

Aging refers to the legal system of a state law that through the legal time and produce certain legal consequences. Aging law system is divided into two kinds, one for the acquisitive prescription, also known as the acquisitive prescription; two is the limitation of action. Provisions of the limitation of not made in our country law.

    The concept and legal characteristics of two, the limitation of action

The limitation of action is a civil rights have been violated human rights exercised during the statutory period, after the expiration of the limitation period, lost to request the people's court according to the procedure of mandatory obligations shall fulfill the obligations of the right system.

It is necessary to pay attention to the expiration of the period of limitation of action, the right people lose, is the right to claim, it is right to win a lawsuit, but the claim procedure does not lose, and the exercise of the right to. That is to say, during which even exceeded the limitation of action, the right person may bring a lawsuit to the people's court, the people's court should accept, but if the respondent period obligations exceeded the limitation of action to the right people, and refuses to perform the obligations, the court will sentence the obligee lost.

 The establishment of the legal system of limitation of action to promote the rights of people, to exercise their rights, to prevent the right of "sleep", avoid the obligee to exercise the right time is too long, the situation changes, the court is hearing; also prevent because time is too long, the obligations of the difficulties of proof, resulting in the legal consequences of their own adverse.

 The law of compensation for traffic accident damage, two

  1China's "general principles of civil law," article136Provisions, bodily injury claims for compensation, the limitation of action for a year.

Article137The period of limitation of action from knows or should know that his rights have been infringed upon. However, from the rights have been infringed on the more than twenty years, the people's court shall not protect. There are special circumstances, the people's court may extend the limitation of action. 

Article139In the period of limitation of action for the last six months, due to force majeure or other obstacles cannot exercise his right of claim, litigation limitation suspension. The grounds for the suspension are eliminated from the date, the period of limitation of action to continue the calculation.

     Article140A prescription for litigation, a party demands or agrees to interrupt obligations. From the time of the interruption, the period of limitation of action re calculation.

   2, "the Supreme People's Court on the implementation of the general principles of the civil law '' opinions on several problems of" article196Article(The original168Article):

  Personal injury compensation for damage limitation period, obvious, starting from the date of injury; the damage was not found, after diagnosed and can prove that is caused by the violation, calculated from the date of injury diagnosis. 

3, "the people's Republic of China Road Traffic Safety Law"

Article74The damages to a traffic accident dispute, may request the traffic control department of the public security organ mediation the parties, may also file a civil lawsuit directly to the people's court. 
Mediation by the traffic control department of the public security organ, the parties fail to reach an agreement or mediation effect fails, the parties may bring a civil lawsuit to the people's court.

4, "the people's Republic of China Road Traffic Safety Law"

  Article94Where the parties have disputes on compensation for damage in traffic accident, the parties agreed the request mediation traffic administrative department of the public security organ shall, on the date of the book received traffic accident10Days to submit written application for mediation.

      Died of traffic accidents, for the funeral of mediation from the beginning of the end date; to traffic injuries, mediation or from the end of the treatment residues start date; of property losses caused by traffic accidents, mediation and start from the date of loss.
Article95The traffic control department of the public security organ mediation traffic accident damage compensate dispute for a period of10Day. Conciliation agreement, the traffic control department of the public security organ shall make a mediation book communicated to the parties, mediation by the parties shall jointly sign; if no agreement is reached through conciliation, the traffic control department of the public security organ shall make a mediation to the parties to the end of the book.
Traffic accident damage compensation items and standards in accordance with the provisions of the relevant law enforcement.

     The starting time for the limitation of action, three personal damages in the traffic accident

  In accordance with the provisions of the law, traffic accident personal injury compensation for the limitation of action1Years, not any dispute in the judicial practice, but for the traffic accident parties not to the public security organs to apply for conciliation, the time when the limitation of action is more complex, the dispute also is very big.

   The first view, in strict accordance with the provisions of the law, damage obviously, starting from the date of the damage; damage was not found, after diagnosed and can prove that is caused by the infringement, starting from the date of injury diagnosis. Hurt significantly, the time when the day is hurt; at that time had not been discovered, the starting time is the date of injury diagnosis, looks very clear, but in practice in the trial, there are two different points of view.

  The second view, the limitation of action for self treatment end date or the date of loss. Day or injury diagnosis injury, people just know, right infringement, but the specific amount of loss of rights holders are also constantly occur and increase, also can not be determined, according to the follow-up treatment and whether a disability situation can be determined, therefore, to "hurt," and "diagnosis" can not be simply understood as the incident or confirmed that day, to broaden the interpretation, namely the end of the treatment to determine the date of loss or.

The author thinks, the limitation of action for self treatment end date or the date of loss, first of all, according to the legislative intent of the legal system of limitation of action, to urge the obligee to exercise their rights, to avoid the right people for a long time does not claim the rights, to cause unnecessary trouble. The victim in the treatment before the end of treatment, has been in a state of loss, has been increased, the specific amount to the other party to exercise the right can not be sure, not all conditions to exercise their rights. So, in this case, the right is not exercised, but do not possess all the conditions to exercise their rights.

Secondly, to better protect the legitimate interests of the victim, in many cases, a victim during treatment can be very long, one or two years or even longer time are, if the day or injury diagnosis of limitation of action from the date of injury occurred, it will cause the victim in the treatment process, over a period of limitation of action, not the protection of the law.

Again, if the statute of limitations from harm, or confirmed date, so in many cases will be in the period of limitation of action is about to expire, the victim is still in treatment, the loss has not yet all occurred; the victim in order not to exceed the limitation, to initiate proceedings, but the claim is only have incurred costs, on the follow-up treatment costs incurred to sue, so, will result in a traffic accident, the prosecution of two times to three times or more times, the rights and obligations of people, is a great burden; for judicial resources, but also a great waste of.

If the limitation of action from the end of the treatment of date, there is also a problem, is how to define the "end of the treatment, the injured in road traffic accident disability evaluation standard" in the explanation is: the clinical effect is stable clinical medicine in general principle that. It is very difficult to define, the parties will benefit to the direction of their own understanding, too strong subjectivity; the judge is also difficult to judge. But now there is no any medical institution or forensic appraisal institution may issue whether treatment end, when the treatment ended, so the treatment of the end of the day it is difficult to determine.In many cases the victim's injuries were not a operation therapy can cure, also must be two times operation (such as the inner fixed steel nail, screw etc.). The two operation from the first treatment time is usually very long, six months, one year, two years or even longer have. The two time after the operation, the inevitable costs, also is the follow-up treatment costs, it should also be the loss of the victim, the follow-up treatment expenses occurred, then all the victims of the loss was determined, if the limitation of action from loss determined, only starting from the accident, may have exceeded the limitation of action, this apparently lost objective and significance of the legal system of limitation of action.

  According to the legal provisions of understanding, combined with the characteristics of traffic accident cases, combined with the business time, summarize the computation methods are as follows, for the reference. 　　

The traffic accident caused personal injury, the period of limitation of actions is1Years. Litigation prescription starting time is:

1Compensation for damage. The dispute negotiation, but did not reach agreement.

(1) negotiation, but no agreement, calculated from can not reach an agreement on the date of;

(2The traffic police on the spot) the summary procedure applies to mediation, but no agreement of the calculated from the police on the spot, making traffic accident mediation book end date;

(3Applying the general procedure) the traffic police mediation, but no agreement, the date of the end of the calculation from produced by traffic police mediation.

2Damages dispute, consultation, to reach agreement, but the party fail to execute the contract agreement, calculated from the date of expiration of the time.

3Without consultation, damage compensation dispute.

(1) did not reach the disabled, calculated from the date of expiration of the medical end time;

(2) to disable, calculated from the date of disability appraisal conclusion;

(3The calculation of death), from handling organ shall notify the cremation time date;

4, escapes from traffic police, produce traffic accident on the day or from the vehicle owner, the actual control people and the people from the date of.

5, no alarm at the scene of the accident, after the request of the traffic police team, traffic police team decided not to accept, calculated from the received traffic police brigade served notice of not accepted.

6, in need of rehabilitation therapy, follow-up treatment, calculated from the rehabilitation and follow-up treatment costs of the actual date of.

7, other not listed, calculated from the receipt of the relevant legal instruments from the date of.

Combining with the above discussion, given the current relevant laws and regulations on traffic accident litigation prescription starting time is not perfect, for the protection of the victim's legitimate rights and interests, to disabled victims, or suggest the right people in the "hurt," or "the date of diagnosis" over a year ago, brought a lawsuit against the.