Legal risk management of traffic accident cases

A, all motor vehicles and the driver of the separation of compensation responsibility

       In real life, there are a lot of all motor vehicles and vehicle separation situation, so when a traffic accident occurs, who on earth is to bear civil liability?  
     Case 1: the employment relationship
       The owner and driver system of employment relationship, because there is a clear legal provisions according to the "civil litigation opinion" forty-fifth and "the Supreme Court on personal injury compensation case applicable legal interpretation" of article ninth "employees engaged in employment activities cause damage, the employer shall bear the compensation responsibility" provisions, directly determine the employer for the defendant actually, and bear the liability.
     Case two: the relationship between husband and wife
       If the relationship between husband and wife, the subject of liability to pay compensation or defined, "the Supreme Court on the application of the people's Republic of China marriage law explain two" twenty-fourth, twenty-fifth, twenty-sixth are provided: one of the couple in the marital relationship continues to exist in debt, the other party shall bear joint and several liability principle.

Example three: identity card loan purchase a car
       In real life, often because of the actual vehicle owner's domicile is not in the vehicle purchase, and it also hopes to purchase vehicles can have a license plate number to purchase in order to facilitate the operation or passage, then through the use of local people's identity card to purchase vehicles. Although there are some emotional factors, but the lender to make lending behavior, lenders should be aware of: when damage occurs, the borrower can by virtue of its domicile, residence is not in the local situation, take away. It can be said, even if the lender review the purchase of driving for such matters, there are still risks so that the victim can not get compensation, from another perspective, it still does not fulfill the duty of care enough. Therefore, lend ID unless it finds the borrower circumstances, do not assume liability to pay compensation, or to bear civil liability for compensation.
  Case four: lend, lease relationship

Rental, lending a motor vehicle accident how to bear civil liability, at present in our country is not directly applicable laws, administrative regulations or the existing judicial interpretation. Have abolished "approach to road traffic accidents" thirty-first has provided: traffic accident by the owners responsible for liability, but with the implementation of the new "traffic safety law", the owners responsible for liability has been abolished. Then the road traffic accident compensation cases who accepted in May 1, 2004 after the injury to the body of the owner's responsibility to bear, no legal basis. If there is no further provisions or explanation, according to their own responsibility principle of civil law, shall be borne by the infringer is traffic accident civil responsibility themselves to compensate the loss, but in the road traffic accident, the driver of the vehicle control, the infringer's accident (driver for vehicle), the vehicle owner if not traffic accident vehicle drivers, the general should not be regarded as tort, the people's court verdict traffic accident can be directly liable for civil compensation.

If the owner in what circumstances, it shall bear civil liability or joint liability? There are three specific cases:

One is the owner of all motor vehicles, in the lease, motor vehicles, as long as strict review of obligations, rental (borrow) to have the driving license and driving function with certain people, there is no fault in the subjective, it should not be used as the subject of compensation liability. Rent (borrow) car actual control, vehicle operation process, because of their own mistakes and accidents, violations of the legitimate rights and interests of others, rent a car (borrow) who is the actual infringement, should bear civil liability independently as a civil subject.

Two when it is the existence of motor vehicle safety defects, such as: motor vehicle due to negligence in the lease, lend the vehicle not to rent a car (by) the obligation, as rent (borrow) a car people because of carelessness not to all motor vehicles motor vehicle driving on understanding existing flaws and security, both existence fault behavior, all as a rental, lending a motor vehicle with the lessee, borrower as a common subject of compensation, are jointly and severally liable;

The three is the owner of motor vehicle or motor vehicles in the rental, deliberately not informed or assure the vehicle without blemish, and traffic accidents, shall be borne by the vehicle owner as a separate subject bear all the civil liability for compensation.

We can, based on Professor Liang Huixing's "the hermeneutics of civil law" to discuss the applicable legal basis. First we look at the "contract law" provisions of article two hundred and thirty-seven, the financing lease contract is the lessor according to the lessee, the lease item selection of the seller, the purchase of the leased object to the seller, provide to the lessee, the lessee to pay the rent contract. In this article we see not hard, is financing will be required to buy the lease lease to the lessee, the lessee pays the rent by the contract, the nature of the contract and lease, lend the vehicle contract is very consistent. From the "contract law" article 246th can be seen: the lessee while in possession of the lease item, third person personal injury or property damage caused by the lease, the lessor is not liable.

Secondly, in the judicial practice, China's legal system is based on the "operation control and operation benefits" principle to determine the case of compensation for traffic accident damage compensation, there are three judicial interpretation:

The Supreme People's court "about the purchase of people use installment purchases of vehicles in the transport because of property losses caused by traffic accidents others retained the approval shall not bear civil liability" vehicle ownership, the approved clearly pointed out: take the installment purchase a car, a seller in the purchaser paid car retains the ownership of a vehicle, buy Party in his own name and to enter into a contract of carriage of goods and the use of the car transport, due to traffic accidents caused by the loss of property of others, the Seller shall not bear civil liability.

Official Reply of the Supreme People's court made in June 25, 1999 clearly stipulates: "the motor vehicles using theft, cause material losses of victims, the party shall be liable for damages in accordance with the law, all the stolen motor vehicle is not liable for damages"

Reply of the Supreme People's court "about serial purchase a car did not handle the transfer procedures owners whether or not the original motor vehicle traffic accidents responsibility" ((2001) the people He Zi No. thirty-second) provides that: "the serial purchase a car not to transfer procedures, as vehicles have been delivered, the original owner can not control the vehicle operation, also do not profit from the vehicle operation, therefore, the original owner should not cause damage liability for motor vehicle traffic accident occurred, but not a purchase a car transfer procedures for the behavior, in violation of the administrative regulations, should be subject to the provisions of regulation."

"Contract law" provisions approved above and the Supreme People's court for trial use, the leased vehicle traffic accidents to determine the subject of civil compensation provides the legal basis for good.

Case five, link between

About the affiliated person in the responsibility of compensation in traffic damage, there are three views in general. The first view, the affiliated person is the owner of the vehicle, it shall bear joint and several liability; second kinds of opinions, in view of the affiliated person collect call management fee, should be in this range are jointly and severally liable; third kinds of opinions, the affiliated person does not assume liability to pay compensation. I agree with the second opinion.
      But some people think: the affiliated person shall bear joint and several liability without legal basis. Joint and several liability only in the law explicitly stipulated to bear, and the current law does not stipulate the affiliated person shall bear joint and several liability. Although the Supreme People's Court of some issues concerning the application of "Civil Procedure Law" article forty-third "opinions about individual industrial and commercial households, individual partnership or private enterprise the titular collective enterprise and engaged in production and business activities in the name of the collective enterprises, in the proceedings, the individual industrial and commercial households, a partnership or private enterprise and its affiliated collective enterprises provisions as the common litigants" of the spirit for the affiliated person. But this kind of understanding first confusion between the subject of litigation and the nature of liability. Litigation subject is the legal liability, but became the subject of litigation does not necessarily need to bear the legal liability.

Two, traffic accident, pedestrian, non motor vehicles in the traffic accident responsibility, or the primary responsibility, or equal responsibility, bear civil liability of motor vehicle.

First of all, the most important thing for us is to understand "road traffic safety law" article seventy-sixth, which determined the division of responsibilities, the road traffic accident compensation of the main and the imputation principle, the right to compensation according to the provisions of article seventy-six to exercise their right to. From "the spirit of the legislation of the law on road traffic safety" look, seventy-six division of responsibilities, the subject of compensation and liability principle is: one is the insurance company in the third party liability compulsory insurance liability within the scope of liability without fault. Two motor vehicles and pedestrians, non motor vehicle traffic accidents, motor vehicle liability without fault; the three is traffic accidents between motor vehicles, motor vehicles are fault liability.

1, the insurance company in the third party liability insurance liability within the scope of liability without fault, because the law is clear, there is no controversy, so do not detail. For traffic accidents between motor vehicles, motor vehicles are fault liability, this problem is very clear, is not discussed in detail. I want to introduce is the vehicle and pedestrian, non motor vehicle traffic accident liability and how to bear the problem.

2, motor vehicles and pedestrians, non motor vehicle traffic accident liability without fault. In the legal provisions in the past: traffic accident parties - motor vehicle and non motor vehicle party on traffic accidents has the same fault, the peccancy and traffic accident are the causal relationship, and the effect is equal in traffic accidents, according to the degree of the two sides of the fault to determine the responsibility of the parties, that the two sides shall bear the same liability. But "the imputation principles of traffic safety law" on the road traffic accident liability provisions different from previous traffic management laws, regulations.

"Traffic safety law" article seventy-six (two): the provision and non motor vehicle driving traffic accident occurs, between the pedestrian, the motor vehicle shall bear the liabilities; II. However, there is evidence of non motor vehicle drivers, pedestrians in violation of road traffic safety laws and regulations, motor vehicle drivers have to take the necessary disposal measures, to reduce motor vehicle liability side. The losses of the traffic accident is caused intentionally by the non motor vehicle drivers, pedestrians, motor vehicle shall not bear liability.

This provision has the following meanings:

1 cases, namely in the road traffic accident, because the implementation of the principle of no fault liability, the motor vehicle shall no matter whether the fault, should bear the responsibility:

2, in the implementation of the principle of no fault liability at the same time, if meet the statutory conditions, motor vehicle liability side can reduce. The statutory conditions include two aspects, one is "there is evidence of non motor vehicle drivers, pedestrians in violation of road traffic safety laws, regulations," two is the "motor vehicle driver has taken necessary measures". The liability for compensation, these two aspects must have at the same time can reduce a vehicle side are indispensable, only has one hand still can not reduce the motor vehicle liability side. It should be particularly pointed out that, even with the statutory conditions two aspects, drivers, pedestrians in the motor vehicle and non motor vehicle traffic accidents, motor vehicle liability side is still "reduce", not "exempt" or "negative" responsibility. But if the motor vehicle traffic accident on the side of the traffic accident in the violation behavior and its violation and traffic accidents have a causal relationship, it can not be applied to reduce the responsibility of the above-mentioned conditions, the motor vehicle shall have to prove itself to the no fault, fault and for others, to reduce its responsibility in accordance with law, otherwise, on the contrary to the original intention of legislation "road traffic safety law". This is the so-called "hits not free of charge", embodied in the people-oriented concept of justice, safeguarding the interests of the weak.

3, in certain circumstances, the motor vehicle shall completely exempted from liability. If the losses of the traffic accident is caused intentionally by the non motor vehicle drivers, pedestrians, the motor vehicle shall bear no responsibility, such as non motor vehicle drivers, pedestrians for Dutch act or illegal seek insurance compensation to intentionally cause the traffic accident, the motor vehicle shall complete exemption, all the consequences of a non motor vehicle traffic accidents caused by the drivers, pedestrians bear. But this exemption is the premise to the motor vehicle driver has no illegal behavior in road accidents, or there are violations, but the peccancy and traffic accident no causal relationship, otherwise it will bear the liability for civil compensation of certain. (for example: someone wants to borrow a traffic accident Dutch act, but the vehicle also has the violation behavior, speeding not paid attention to and results to avoid duty, so also should bear the responsibility for compensation of certain)

Three, traffic accident responsibility is not equal to the civil liability for compensation

Traffic accident responsibility is the traffic administrative department of the public security according to traffic accident severity of traffic accidents as well as the role of the fault, identified by the parties in the accident because of the size of the force of the Central Plains and the accident. It is different from the civil liability, civil liability is a kind of adverse legal consequences shall be liable according to statutory or contractual and conduct of tort fault. No accident responsibility is not necessarily less compensation (such as motor vehicle and pedestrian accident), bear full responsibility for the accident is not liable for compensation (unless the behavior intention). Such as: driving without a license in normal driving, the traffic accident, do not assume liability to pay compensation, while driving without a license is a kind of serious violations, but the peccancy and traffic accident no causal relationship, that is driving without a license is not inevitable factors in the accident itself.

For a long time, the people's court are used to determine the civil liability in traffic accident responsibility, which is affected by the original "approach to road traffic accidents" the thirty-fifth stipulation: "the traffic accident responsibility should be negative in accordance with the traffic accident responsibility to bear the corresponding liability for damages." Effect, but the new "the people's Republic of China Road Traffic Safety Law" promulgated after the implementation method that is abolished. According to the new law seventy-third, accident identification is to deal with traffic accidents is one of the important evidence, division of civil compensation is not a responsibility.

The new "traffic safety law" article seventy-third, "traffic safety law" article ninety-first, "traffic accident handling procedures" Fifteenth, 16 are provided for the traffic accident responsibility of party, from the following three standards:

(a) there is no causal relationship between the accident and the accident behavior. Determination of accident liabilities of the parties, the occurrence and the damage depends on the behavior and accidents have no causal relationship, if there is no causal relationship, even if the behavior is a serious violation of the law, should not have the responsibility for the accident.

(two) the action of the accident that contributed to the traffic accident, the accident happened because of the size of the force. Capacity refers to the common cause of the accident, forcing every reason to result in damage or expand the.

(three) the extent of the fault. After determining the causal relationship between the responsibility of the parties, determine the proportion, is mainly based on the degree of fault to determine.

   The traffic control department of the public security responsibility cognizance is actually the analysis of traffic accident causality, is a confirmation of the cause of traffic accidents. To avoid the traffic control department of the public security responsibility sharing equal to civil liability, should be identified as the party responsible or confirm the important evidence victim one party is at fault..

   But in practice, whether the traffic police or the people's court in dealing with traffic accident cases, still use the law the previous mode of many cases, non motor vehicle drivers, pedestrians are "illegal" as the main whether undertakes the responsibility (or even simply) basis, and thereby to determine the scope of compensation concrete and the amount, for example: driving without a license in normal driving behavior, causing a traffic accident; not according to the severity of traffic accident parties behavior for the accident as well as the role of the fault, to determine the responsibility of the parties ("Regulations for the implementation of" 91). This accident responsibility confirmation is not standardized, but also to a certain extent, the people's court in the partition induced by traffic accident parties civil liability for errors.

Four, suffered a traffic accident in work trip, in addition to enjoy treatment of inductrial injury insurance, whether in the request for civil damages, which can receive double compensation?

In 1996 the Ministry of Labor issued the "industrial injury insurance for enterprise employees trial practices" defined in article twenty-eighth, because the traffic accident causes injuries, should be handled in accordance with the "road traffic accidents approach" and the relevant provisions. The traffic accident compensation should be paid related compensation costs, enterprises no longer pay the corresponding treatment. The relevant costs of enterprises in advance advance of employees or their families, access, traffic accident compensation shall be paid. The meaning is clear regulations, namely: traffic accident injury insurance and civil compensation for personal injury is not repeated claims of.

But in May 1, 2004 promulgated the "on the trial of personal injury compensation case applicable legal interpretation" Twelfth but clearly stipulates: "in accordance with the law shall participate in the industrial injury insurance for workers in units, because inductrial injury accident suffers from a personal injury, the worker or prosecution request the employer to bear the liability for civil compensation to the people's court at their close relatives, told the press" Regulations "industrial injury insurance treatment. Due to the employer other than the third person tort workers caused personal injury, compensation for the right to the third party shall bear civil liability for compensation, the people's court shall support." the judicial interpretation is very clear, the road because workers commute from insurance benefits in accordance with the law, workers can enjoy the treatment of work-related injuries insurance though, but for the traffic accident responsibility third people still shall be liable for civil compensation.

To sum up, to suffer from traffic accident in work trip, in addition to enjoy treatment of inductrial injury insurance, can then request the civil damage compensation, which can receive double compensation.

Five, experience: in traffic accident cases, how to provide the other party lost wages that objection?

In civil process, whether the investigation or trial cross examination process, often find each other to provide the delay costs that provide only a cover letter with the official seal of the unit, and the unit exists or not unaware, which easily false ingredients, but no relevant evidence to refute, finally the court also tend to adopt the delay costs prove as decision delay costs basis.

In the process of handling a case, I found that the insurance company in the vehicle insurance claims, time-consuming in the verification of delays, it be perfectly logical and reasonable. The insurance company is time-consuming in victim delays, not only required to provide proof of the original work, but also for its victims and income annual unit labor contract and a proof (income exceeds the amount of tax shall submit tax certificate). Only these, can really, accurately reflect the delay costs of victims. After hearing all this, can learn about.

By six, the new 'traffic safety law', the victim should agree with the need for the traffic management department?

The original 'approach to road traffic accidents' thirty-ninth has stipulated that: "the traffic accident the injured and disabled need hospitalization, hospital, nursing, medical certificate and shall be agreed to by the public security organs. Unauthorized hospitalization, transfer, use of nursing staff, since the purchase of drugs, more than the hospital or date of notice of refusal to discharge, the cost of which is borne by the injured and disabled persons." From the provisions of this article, regulations prohibit traffic accident victims to hospital treatment. But now this provision has failure. '' interpretation of the Supreme People's Court on certain issues concerning the application of law in the trial of personal injury compensation case also did not make clear provisions.

From the above legal provisions, 'explained' seems to be cancelled without the consent of the law about the hospital treatment for medical expenses not to make compensation, but I am in the process of handling a case, indeed there are traffic management departments on referral to agree

    Seven, the traffic accident not how to do?

     1, the administrative relief: "traffic accident treatment work norms" sixty-second: Traffic Department of the public security organs at all levels shall set up a calendar with traffic accident processing senior qualified traffic accident treatment expert group, responsible for the traffic accident audit, review. Traffic management departments of public security organ at a higher level to the undertaker of traffic accident identification work inspectors check, inspection or the masses complaints after review found that "traffic accident" erroneous, shall make a decision to revoke the "traffic accident" decision, by the office units produced "the traffic accident report shall be within the prescribed time limit within the". The units are refusing to implement the decision to the traffic control department of public security organs, repealed or modified in accordance with the "Supervision Regulations", and "the public security organs in accordance with law enforcement fault accountability provisions" of the misjudged case investigation.

    2, the judicial relief: "the Supreme People's court, the Ministry of public security on treatment of road traffic accident cases related issues notice" fourth: if only the public security organs to make the road traffic accident responsibility identification and assessment of disability may, bring an administrative lawsuit and civil lawsuit to the people's court, the people's court shall not accept the. The parties to the administrative punishment made against administrative litigation or litigation damage compensation issues, as well as the people's court trial of criminal cases of traffic accident, the examination of the people's court to think that the responsibility for public security organs, disability evaluation is improper, it shall not be accepted by the people's court, as the facts of the case as the verdict on the basis of.

Eight, in the owner of the vehicle and the driver isolated circumstances, the victim can implement the vehicle?

In real life, we in order to interpersonal relationships, often lease, lend the vehicle behavior, such as after a traffic accident, the vehicle owner in the absence of fault, do not bear the liability for civil compensation cases, the victim can implement the vehicle?

Although in practice, after a traffic accident, the public security organs for evidence will be temporarily detained vehicle, seized during the public security department will notify the victim has to apply for the preservation of property rights, but the action after the end, in the vehicle owner shall not bear civil liability, the perpetrators and no economic ability to pay, the victim or auction vehicle? At present there is no legal basis.

I think, the driver driving the vehicle traffic accident is one kind of tort, the vehicle as a tort tool of traffic accident, has a direct relationship with the driver. The driver no economic compensation ability, the victim may perform the vehicle. Between the driver and the vehicle all people on the vehicle is what kind of civil relationship based on, is another kind of civil cases, there is no direct interest in the case. The implementation of the vehicle, the vehicle all people suffer economic losses, can have recourse to the driver. According to the relativity of contract and tort fact establishment decision. But this Is it right? And belongs to a kind of "owners responsible for finance" legal relationship?