The facts of the case review:2009Years6Month23DayA high and good friend Xu, Wang three people together to Nissan 4S shop hall to see, the staff proposed to test drive, a license to drive after registration, by a high straight to the car test drive, not even see a high is driving, but did not inform the test matters needing attention.Accompany drive member sits in the copilot position, high two friends a sitting in the back row. A high along the road running from east to west, during a drive member according to the instructions, one by one to experience the Sylphy car starting speed, braking performance, then, a high drive member by consent, to experience the speed80Km situation emergency lane change (also known as high speed line reset) control and safety performance, because the test at home and abroad, many models have the highest emergency lane change limit speed records (such as domestic car Chery car three EditionA31.8L Hua Guixing, test the emergency change line limit speed:120.4Km/Hours). When a high speed at80Km, with straight driving emergency change lanes (assuming the obstacle), on line change instant vehicle serious sideslip, a high return repair efforts direction also be of no avail, the vehicle is out of control, slip into isolated the middle of the road with tilting and sliding a few meters before coming to a stop. The accident occurred after.

After the accident, 4S shop forced a high purchase the car accident, and delayed repair, for the timely resolution of disputes, a high was forced to agree to sign the "memorandum", and bear the trailer, parking fees, was forced to promise to vehicle repair after consultation purchase a car or compensation scheme. A few months later, the vehicle repair, 4S is still on the basis of test protocols to a high price, the purchase of the car, a refusal to perform the terms of overlord.

After confirmed, the carStill have to provide drive service, indicating that the vehicle has the performance which tries to drive, has not led to depreciate in value.

Two, about the 4S file for the loss of vehicle depreciation reply

1Vehicle depreciation loss, no legal basis, although individual case, but is not legally binding, and the case is different. The theory of devaluation loss is uncertain, the restored car does not necessarily lead to performance or reduce the price, whether in the actual depreciation should result in damage to claim rights. The so-called devaluation loss 4S shop has not yet occurred, is not determined by whether the actual damage. According to the "tort liability law" nineteenth article: "infringement of property. Property losses calculated in accordance with the loss occurred when the market price or other means." The specific property loss followed the "punitive damages", namely "close" principle. The 4S store get full insurance claims, namely to "fill" property loss. Therefore, 4S v. loss does not exist.

2If there is a vehicle depreciation, loss, also belongs to the indirect losses, the existence of both test contract relationship, according to the "contract law" article113Provisions, has exceeded the high of a test the predictability of the loss, should not assume liability to pay compensation. In contrast, 4S is that a new car from its first day as a test drive of means "price" depreciation.

3Indeed, such as depreciation loss, 4S should claim compensation from the insurance company. 4S insurance is insurance, insurance claims include depreciation loss by the courts.

44S, for devaluation loss is beyond the scope of judicial identification authentication institution, even if the identification conclusion depreciation amount, also just a loss results, and the resulting force causes the many, not only is the result of an accident, also includes the market, vehicle condition and other additional factors. 4S still need to do a causal relationship identification, to determine whether a high behavior led to the devaluation loss and force coefficient, if not, the 4S file for the lack of evidence to support.

5In the car, 4S new listing price as the basis that loss of vehicle depreciation is improper, the car is currently of great price, and a high drive has also belongs to "second-hand car", to provide drive service for nearly a month, driving nearly2000Km, not in the legal sense "car".

 6, there is evidence that the 4S continue to provide service in the test drive the car in good repair, and shows that the car has all the performance of normal, 4S called depreciation loss can not talk about.

7The car accident is, after 4S's own repair, fifty thousand yuan cost of repairs must contain a certain amount of interest, this point, 4S benefited from income. Enough to make up what is called the depreciation loss.

Three, 4S's own fault

1The duty of care, not to inform the drivers' before the test. 4S as to provide drive services vendors, should inform the test the matters needing attention in the test drive, such as what is allowed to do the test action, which is not allowed. Unfortunately, 4S ignores the informing obligation.

2, security attention obligation not to test drive. Can test drive in the city on the road, although the law does not prohibit, but 4S also should choose the safe place. Test drive on public roads, should formulate and improve test measures, such as drive notice notify in writing the book, with personnel qualified training, but 4S apparently ignored this obligation.

34S, not properly qualified to accompany. Accompanied by a drive member while sitting in the co pilot position, but to drive considerations and requirements are not informed, to a high experience emergency lane change also did not give guidance or refuse. Even a high suspicion to accompany clerk doesn't even have a license, such as it is, 4S arrangements, no driver's license personnel engaged in the work of accompany, belong to fault.

4A test of emergency, high variable line, from 4S to accompany members agree, drive member does not stop changes the line test behavior.

5, speed80Km emergency lane change, in real driving is likely to encounter situations, take emergency change the line to avoid is the first choice for most drivers. In this case the Sylphy car but serious sideslip, out of control, the new Sylphy has been declared the safety, comfort, handling of the family car, can not be said to regret and disappointment. Therefore, this is 4S on the performance of the car that exaggerate. Also on the subjective fault. We use a Chinese car CheryA3For example, in the emergency lane change test limit the speed per hour120Km. However, Sylphy car but at80The accident km, a high security to design the car question. A high retention in this question statement to the Dongfeng Nissan and news media rights.

64S drive, drive member violates the registration procedures in a high, without registration case allows the test drive. Even at 4S in the complaint said, a high is to drive, it is enough to explain the drive member is no longer registered the respondent driving license information, let the car midway drive, 4S fault obviously.

4S fault, by their own responsibility.

Four, accident report the views of nature

The traffic accident report is issued by the Public Security Traffic Police Department of administrative decision, the unilateral accident, are often identified responsible drivers, but this does not entirely as fault according to law. In the different angles have different conclusions unilateral accident station. The traffic administrative point of view, the driver take full responsibility for the accident; then take the civil law perspective, causing the accident may be caused by other factors, like car leading force drivers or guide the wrong instruction etc.. Civil law behavior analysis of the parties fault is identified, and the traffic accident only driver party behavior analysis. Therefore, the simple basis accident that full responsibility for the driver in the civil law is wrong.

In reply.2010Years7Month23Day

 

 

 

 

Case finally entered the judicial expertise procedure, but the identification conclusion was major problems exist, the appraisal conclusion devaluation loss of 15000 yuan, the court machinery to be admissible. The agent in written form, for discussion.

　　　　Several objections to the Gao Sylphy car depreciation loss of judicial authentication opinions

Yu Zhicheng machine evaluation value limited company to the Henan Zhicheng old vehicle identification[2010]Reference No.059Qualification, the judicial authentication opinions and appraisal institutions put forward as follows to objection:

A,    Identification of the price objection:

The price is based on the new car price and second-hand car trading market. Then, the expertise report is based on the new car price: according to the manufacturer (factory price guide135800Yuan). Why not consider the car price market cash discount and the national energy-saving allowance3000Yuan? Identification of car price135800Yuan is the new price or the ex factory price? The new price is not uniform, is on the basis of which the Seller pricing?

Objection reason:The new car price is not equal to the actual sales price. Manufacturers often ex factory price on the high side, preferential prices to leave adequate leeway. Since the vehicle identification to determine the price before the accident, in addition to considering the use value depreciation, must also be deducted from sales market price discount rate. If in accordance with the appraisal institutions (hereinafter refers to Zhicheng appraisal company) without deduction should be reduced costs and direct reference to the new car price guide price of words, there will be such an unbelievable: automobile manufacturers deliberately will guide price set two times, the actual sale price in the normal price. The benefit of this is that, once the accident, the owner asked depreciation loss, identification guide price price, it will cause the depreciation particularly high. Benefit is the purchase of the car owners, in this way, people are willing to buy this car. Manufacturers also benefit from. This is not possible, just because of appraisal institutions into many unjust cases.

In addition, identification of the car is1.6LModels, the state announced the second batch of energy-saving subsidies models already contains the identified models, subsidies3000Yuan shall also be deducted from the assessed value. Therefore, the expertise report said "if no accidents value", if the new guidance price by deducting the value of necessary project (the market preferential amount, energy subsidies, the use of depreciation charges), should be in accordance with the principles and standards of evaluation coefficient refers to.

Two, accident repair theory value objection:

The accident was not the key vehicle parts (core component frame, chassis, engine, gearbox and so on) damage, just car glass, car parts and easy to damage the appearance parts damaged, after the repair, enough to achieve the same situation as before the accident, although in theory there is value decreased, but its adjustment factor shall be not less than0.95. Then, the adjustment coefficient identification of bodies identified0.85What is enough basis? To determine the coefficient of justice, appropriate standards on the basis of "the car accident and its impact on the performance of the car accident acceptability," why is only based on the identification of subjective and decide?

Objection reason:Not all the car accident, people will oppose to buy or not to accept, to actually consider the extent of the damage and site accident, accident is big is small, the core damage and not different. If the accident did not damage the key component of the vehicle, people can ignore the effects of the accident. But the appraisal institutions to unilaterally determine adjustment coefficient0.85, is not consistent with the identification of objective, fair, fair. Contrary to identification of neutrality.

Three, the appraisement opinions about the vehicle status according to express objection:

This part of the presentation of several vehicle status, such as the body more corrosion, there is deviation phenomenon. Identification of the car there are many doubts, as a cost fifty thousand yuan to repair the car why phenomenon of doors and windows damaged and other obviously don't have the characteristics of good repair. Identification of institutions on the basis of what to eliminate these factors?

Objection reason: imagine, spend huge sums of money to repair the car (all risks), but there are still not normal signs of damage, can not be ruled out for identification is all ready, intended to replace defective components and deliberately do for identification because, by the identification of people is a4SStore, complete with the "fake" ability and condition. I wish, appraisal institutions will not be deceived by these surface phenomena and deception.

And as the problem of vehicle deviation, this is a completely correct things, not what fault and loss. Have a professional instrument can be corrected, but can also be deliberately straightening crooked. If the problem is included in the scope of "depreciation", it is improper.

Four, about the appraisal opinions of assessment method of objection:

The assessment methods "replacement cost method", but the basic requirements of the minus the difference is not in conformity with the replacement cost method. According to the asset appraisal "replacement cost method" calculation formula is:

The value of the assets evaluation=Replacement cost-Substantive obsolescence-Functional obsolescence-Economic obsolescence or the value of the assets evaluation=Replacement cost*New rate.

But obsolescence deduct this identification but why not include economic obsolescence? "Why not use the market comparison approach"?

Objection reason: replacement cost method, based on the new car price guide price reset is not equal. But the appraisal institutions replacement cost directly referenced vehicle factory guided price135800Yuan, the price is not the actual replacement cost, replacement cost calculation formula should be:

The replacement price=The new car price guide-Sales price-Energy subsidies (3000Yuan).

In accordance with the replacement cost is determined by the expert opinion is inconsistent with the facts. For example, if the authentication institutions are willing to come up135800Yuan, can even less Sanliangqian element. I can provide a brand-new car and was identified as configuration Xuanyi brand car identification mechanism. But I do not know whether the right price appraisal institutions that reset.

According to the calculation method for the identification of institutional basis, I did a hypothesis calculation. In the replacement cost less than135800Meta case, concluded that "no accidents value" minus "accident repair after the theoretical value must be less than the amount," "opinion" is given15000Element. Therefore, our objection that reset prices led directly to the so-called high depreciation is justified.

Five, about the identification of intelligence agencies:

Provide check identification mechanism "of judicial authentication licenses" identification of the scope of business and "business license" enterprise legal person business scope, appraisal agencies do not have "car devalues loss identification" business scope. If the license of the "assets assessment of judicial identification" to expand understanding to include "car devalues loss identification", what is used to expand understanding basis?

Objection reason:Range evaluation license is "asset evaluation, asset" in law corresponding "liabilities" or "profit and loss". Assets belongs to property rights and interests, and "depreciation" belongs to the "gains and losses, liabilities" class ", does not meet the statutory object assets assessment". Identification of personnel also does not have the "downgraded" qualification. We reserve this objection to reflect, to the Henan Provincial Department of judicial authentication department and other departments of complaints. We also noticed, appraisal organizations2006Years3Month1By the Henan Provincial Department of Commerce awarded the "second-hand car appraisal institution approval certificate", the scope of business: second-hand car appraisal, also does not have the value identification of qualification. But valid until2009Years2Month28Date.

These few objection, please reply appraisal institutions, and make a formal, impartial appraisal opinion.

 Agent: Qin Yongmin, lawyer

2010Years8Month31Day