Focus: traffic accident criminal incidental civil litigation in two

He Yongdong : today, we discuss in our "Commission" QQ group and professional title: traffic accident criminal incidental civil lawsuit can insurance companies will be listed as the common incidental civil defendant to trial? You can dive, welcome to watch, more welcome to actively speak.

The Bandung: May, according to the criminal and civil provisions, as the defendant is liable to compensate. Secondly, the practice has been the case.

Zhang Zhanhong: we do not accept the incidental civil litigation, insurance company as a defendant here, the reason is that the insurance company is not a criminal case.

Zhang Zhanhong: a lot of foreign court judgment will be the insurance company as a defendant in a criminal case with civil, in conjunction with the trial. Your hand, our Huanggang area has such judgment?

Bandung: insurance company in accordance with the law, civil liability, which belongs to the defendant.Http://www.chinacourt.org/public/detail.php? Id=206817How to determine the scope of defendant?   1, defendant not only contains the common perpetrator, incidental civil lawsuit is not only include the relationship between tort law. According to "the Supreme People's Court on some problems in the implementation of" the people's Republic of China Criminal Procedure Law > interpretation "(hereinafter referred to as the" interpretation ") eighty-sixth, defendant contains common tort, the guardian, the heir, other bear civil liability person (units and individuals, the same below), in addition, according to the above seventy-third interpretation, including criminal procedure guarantee. Therefore, incidental civil action does not only include the relationship between tort law. It contains the civil liability such as generated employment legal relationship, legal relationship of agency, management and legal relationship, inheritance law, civil liability bear the joint liability, joint and several liability, vicarious liability etc.. For example, in the traffic accident criminal cases, in general the vehicle owner is the defendant, although no tort legal relationship between the owners and the victim, but the owner is the motor vehicle ownership and management responsibility and obligation of compensation, and not because it is not common offender is not involved in incidental civil action.   2, the insurance company according to law, civil liability, which belongs to the defendant. as mentioned before, according to the "road traffic safety law" seventy-sixth and "insurance law" provisions of article fiftieth, the insurance company is based on Law shall bear civil liability based on Xianxingpeifu, not with the victims of the third have a contractual relationship with the insured or the agreed performance of the contract. Even in the insurance contract have not agreed to pay the third direct insurance, the insurance company should be in accordance with the law directly to the victims of the third pay compensation insurance, to avoid the insured before the insurance compensation third decamp. Therefore, cross strong insurance and third party insurance company, belongs to the interpretation of article (five) behavior rule "other crime on the criminal defendant units and individuals shall bear civil liability for compensation". The injured third party shall have the right to ask to pay compensation for the accident of motor vehicle insurance company owners rights. The injured third party to the insurance company to file an incidental civil action, the court shall accept the case.

Liu Jianwu: Lawyer of Beijing also expressed an opinion to this http://huanyui117.blog.163.com/blog/static/139362145201021810503625/ traffic criminal incidental civil action can be listed by the insurance company for the defendant

Since the implementation of the law on road traffic safety, in the case of traffic accident damages listed insurance the insurance company as a joint defendant has not in dispute, the insurance company shall be liable for compensation in insurance liability limit. However, recently, we incidental civil cases in the proxy traffic accident criminal, in the two district court disagreed spate of listed insurance company as a defendant. The court is the reason: in the insurance the insurance company as a defendant has no legal basis for the column in civil suit collateral to criminal proceedings, or withdrawal of insurance company to prosecute, or give up incidental civil lawsuit, civil lawsuit otherwise. In this regard, we believe that, in the traffic accident criminal supplementary insurance the insurance company as a defendant has legal basis, listed in the civil litigation for the following reasons: a "Supreme People's Court on the implementation of the < > some of the people's Republic of China Criminal Procedure Law Problems in the interpretation of" eighty-sixth stipulates: " incidental civil action legally liable for compensation include: (a) the criminal defendant (citizens, legal persons and other organizations of other common cause) and not be held criminally responsible person; (two) the underage criminal defendant's guardians; (three) has been executed criminals inheritance (four common crime); in the case of the defendant, the conclusion of the case before death the heir; (five crime) other criminal defendant behavior in accordance with the law and shall bear civil liability for compensation." This shows, supplementary civil action in criminal proceedings the defendant is not only limited to the defendant in a criminal case, also includes other shall bear the liability for compensation. TwoIn accordance with the provisions of the road traffic safety law "article seventy-sixth, motor vehicle traffic accidents caused casualties, property loss, the insurance company in the motor vehicle third liability compulsory insurance liability limits the scope of compensation;" judicial accident civil compensation in traffic cases in practice, underwriting the risk of strong column the insurance company as a defendant by the insurance liability limit of liability is no longer being. On the criminal incidental civil, there have been many cases. On the one hand, the victim can get part of the compensation, to the corresponding comfort; on the other hand, can also reduce the perpetrator's civil compensation burden, so as to realize the social value and function of compulsory insurance. In addition, compared with other citizens and legal persons, insurance companies generally have full executive ability, which is difficult for the implementation of the criminal supplementary civil case implementation, has a positive meaning.

Therefore, we think, listed insurance company as a defendant has a clear legal basis, which will help to the victims and their families comfort; there are civil liability to pay compensation to reduce crime, make it more peace of mind to accept the transformation; is conducive to the people's court execution, maintaining social stability and the dignity of the law, the construction of harmonious social better. In practice, most courts are trial and decision. Therefore, the insurance company as a defendant has listed the legal basis. -- Beijing city and firm Zheng Huanyu lawyers

Zhang Zhanhong: from the final judgment of the Jiangsu Province, Jiangsu is the insurance companies will be listed as a adduceral civil litigation.Http://www.110.com/panli/panli_300591.html

"The appellant (the incidental civil defendant) Peoples Insurance Company of China Copper Mt. branch traffic accident incidental civil litigation case a final ruling"

Zhai Baoguo: at present, in the judicial practice in our country is not very consistent. Data show: a kind of viewpoint thinks, the insurance company is a statutory co defendant, even if the plaintiff is not listed as the defendant, the court should also be in accordance with the terms of reference of the tort litigation in addition, unless the insurance company has fulfilled the "traffic law" the 76 regulation compensation obligation in the compulsory insurance liability limits. Several issues concerning the applicable law cases of compensation for traffic accident damage of views on the introduction of the high court of Jiangsu Province, in 2005 February the "(a)", "guidance" provisions of the Anhui Provincial Higher People's court hearing personal injury compensation cases, namely adopt this view. The trial, Zhejiang District of Wucheng province Jinhua city court case using this view. Another view is that the insurance company can do the defendants in a tort action in the traffic accident, but should be the plaintiff's request. If the plaintiff insisted not to sue the insurance company, the insurance company shall be listed as the third party without independent claim. Guangdong Provincial Higher People's court, Guangdong Province Public Security Bureau "about road traffic safety law '' after the implementation of road traffic accident case certain questions opinions", Beijing City, the first intermediate people's court two court applies the "traffic law" of the seminar on this point. Data sources: "see the insurance company accident case criminal incidental research in traffic status in civil litigation"

Http://www.jyqfy.org/wy/dcyj-jtzsaxs.htmlAuthor Sun Lihua

Bandung: Well, this problem has said more clearly. Besides, whether it is proper defendant, is hearing problems, rather than the inadmissibility issue. Now the question is how we convince our judge accepting area, we proposed, insurance companies will be listed as a adduceral civil litigation claims.

Zhang Zhanhong: there is a new issue. Before we consider even if the insurance company as a joint defendant column came in, because of the spirit of the solatium treatment adverse, don't insist, but otherwise in the civil court prosecution; if it is the mental solatium should be supported, it should insist on a parallel to the incidental civil action litigant trial, so, the case handling more for the benefit, save litigation resources. Then, in the supplementary civil action in criminal proceedings, to advocate the spirit conciliate gold?

Zhang Zhanhong: according to the relevant judicial interpretations, the criminal supplementary civil action without spiritual solatium. In civil litigation, the insurance company can claim mental solatium.

Bandung: judicial interpretation of criminal incidental civil action is not the decision to support mental solatium is defined, if you don't deny the effect of this judicial interpretation, in fact, to civil court sued separately, is still unable to claim mental solatium.

The Bandung: haven't seen, but think, according to the provisions of the tort liability law, the judgment shall be.

The Bandung: after all, later method is better than the former method, and the so-called "before the law" is only a judicial interpretation. Taking July 1st as demarcation line, should apply the tort liability law. Validity and time has determined may advocate the spirit conciliate gold.

I think in July 1st after the case, the court shall mental solatium.

Zhang Zhanhong: agree with you.

Zhang Zhanhong: Huanggang area I do not know whether this decision as precedent?

The Bandung: Here I do not, have a look the other committee members have no lawyers.

He Yongdong: have a look there is no legal provisions of the latest.

Zhang Zhanhong: in accordance with the provisions of the new release (2012) 21, the Supreme People's Court on the application of "the people's Republic of China Criminal Procedure Law" interpretation of article 138th, because of the crime of infringing, file an incidental civil action or take a mental compensation requirements of civil proceedings, the people's court shall not accept.

The Bandung: provisions of this one, does not make sense.

Zhang Zhanhong: oh. The eleven National People's Congress Sun Xiaomei lawyers proposed four session of the eleven National People's Congress 6039th suggestions, topic is "on the revision of the Supreme People's court

"Interpretation (2000) No. 47" and "law interpretation (2002) No. 17" advice ", I think it is very good, for good reason, but was not accepted. New judicial interpretation or the provisions of this.

He Yongdong: recommendations of the text?

Zhang Zhanhong.Http://blog.sina.com.cn/s/blog_4b4aa6e101018hib.html

On the revision of the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" proposal

Criminal cases especially the victim of sexual crime in the criminal acts of the defendant suffered mental damage can request the issue of compensation, has been a focus of public disputes, we think we should get support. According to the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" will be the current interpretation of the excluded, we think the actual development needs this explanation has lagged far behind the market economy of our country, should be amended accordingly, for the following reasons:

One, current situation analysis

"General rule of the civil law" 120th article and the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" clear legal protection of our citizens personal injury compensation, initially established in our civil brought within the domain of compensation system of spiritual damage.

However, the system of compensation for spiritual damages in the field of criminal compensation in China has not been established, it was totally rejected legislation. The most serious crime against women are the most common sexual abuse -- the crime of rape as an example, since twentieth Century 70 time end, incidence rate in all kinds of crime has been in the forefront. In 2007 the national public security organs filed rape cases is 31883, 30248 in 2008, ranked fifth of all kinds of crime. [1] according to statistics, the victims of China's minors under 18 years of age accounted for the majority, the proportion is 29.5%; the highest proportion of unmarried, accounted for 76.6%; the number of victims by violent means to do the most, accounting for 61.1%, which accounted for 18%, gang rape, robbery and rape by turns 25%, rape murder (due to the victim die not from the suspect passion kill) accounted for 3%. [2]

Such a serious sexual assault crime not only caused serious negative influence to the social order, the victim suffer bodily injury to the victim, it brought great suffering and trauma mental and spiritual, a serious violation of the dignity of the human person, criminal responsibility shall be investigated for criminal victims and their families in addition to the requirements of molecules, but also very concerned about their to get the civil compensation. But the current judicial practice rarely court support mental damage compensation for victims appeal case emerged, investigate its reason, besides the limited to the provisions of China's "criminal procedural law" in article seventy-seventh, the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" the two judicial interpretation is the biggest stumbling block:

(1) the Supreme People's court in December 4, 2000 issued "on the criminal incidental civil litigation scope rules" (France - [2000]47, hereinafter referred to as the "Regulations" provisions of the second paragraph of Article 1), "for crime victims by the spirit of losses suffered an incidental civil action, the people's court shall not accept the."

(2) the Supreme People's Court on July 11, 2002 issued the "people's Court on whether or not to accept the criminal victim of civil litigation issues concerning" (France - [2002]17, hereinafter referred to as the "reply") clearly stipulates: "for the criminal victim because of the defendant's criminal acts and mental losses brought the incidental civil litigation, or concluded in the criminal case, the victim shall claim for compensation for mental damages in civil proceedings, the people's court shall not accept".

The introduction of the two judicial interpretations of criminal cases, especially sexual abuse victims to request the spirit damage compensate the door has been closed, spirit damage compensate completely reduced to legal penalty. But in recent years, with the development of the society, strengthen the legal system and the improvement of citizen's right consciousness, more and more people into the "Regulations" and "reply" wave after wave of official accusation against the team, emerge in large numbers but sexual assault case has been the impact of "Regulations" and "approval", practice requirements for the modification of rising.

Two, analysis of the causes of

Establish and support criminal cases especially sex infringement spirit damage of compensation in incidental civil action, is to adapt to and protection of human rights development and maintain the objective need of social harmony and stability, but also the inevitable demand of the development of legal system of our country and international integration, is also the inevitable trend of the development of the times. China is "the elimination of all forms of discrimination against women, the Convention" and "Convention on the rights of the child" the United Nations of the parties, have the responsibility, obligation to protect women's basic human rights guarantee. And the protection of criminal victims compensation for spiritual damage is the requirement of the development of the right of privacy, is the inevitable result of the rights based legislation.

Therefore, the "Regulations" and "reply" revision is represent the general trend, the popular sentiment, is fully consistent with the needs of social development:

First of all, from the point of coordination and unification of law and judicial remedies, "general principles of civil law" and the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" to determine the victims and their close relatives have the right to compensation for spiritual damages claims, while the infringement, subjective malignant, infringement means, and general civil tort infringement consequence is more intense sexual assault, "Regulations" and "reply" but the spirit damage compensate excluded out of the protection of the law, conflict of laws is very obvious, the criminal law ultra vires rules conflict with the civil law clearly undermines the unity and coordination of justice the legal relief method.

Secondly, from the jurisdiction of judicial interpretation of the "Regulations", "replied" there are provisions and illegal and legal. Although "be avoided criminal procedure law" with the spirit of damages in civil procedure of criminal compensation, has not made the explicit stipulation to it, but the "Criminal Procedure Law" does not deny the crime victims by the defendant suffered mental damage may file an incidental civil action, also did not deny in criminal cases can be concluded a separate claim for compensation for mental damages in civil litigation. "Criminal procedural law" the mental injury suffered by crime victims compensation behavior whether and how to compensate the space, it does not deprive the victim's lawsuit right and substantive right in the aspect of mental damage compensation. The "Regulations" and "approval" is the right to justice deprives the criminal procedure law does not deprive the victim's rights and substantive rights. This is contrary to the judicial interpretation should be subject to the law of this law, has violated the "law is prohibited without the law proverb, enjoy the" judicial power beyond the legislative power. At the same time it also violates the law, the most prominent is the "reply" through the lawsuit brought against a citizen not take procedure accepts the way, deprived of the constitution, civil law, civil procedure law gives the relevant substantive rights, litigation rights of citizens.

Once again, from the analysis of legal justice perspective, "Regulations" and "reply" contrary to the original intention of legislation, judicial justice and draw further apart. In theory, there is damage there is a remedy. Due to crime victims and their close relatives and lead to mental damages is actual, damage occurred, should have judicial relief. On the tort, the victim can request compensation for moral damage, and the serious criminal offenses, the mental injury compensation request but not mention, deprived of the right to judicial remedy, the victim, was a double injustice a substance and form.

Criminal cases, especially sexual abuse cases not only to the victim serious personal injury, but also bring great spiritual damage, especially when the victim is a young girl, the damage will be with the passage of time and the growth of the age is more and more serious, it will cause a great impact on the victim to social life, the freedom of marriage and so, if the victim is unable to get rid of the pain of life. In 2009, a national of Henan Pingdingshan primary school teacher statutory rape case, 6 of the biggest 8 years old, the youngest 5 years old, many of them raped repeatedly, and therefore suffered from serious mental disorders, but eventually each receive a supplementary civil compensation only district 2000 yuan, how such a law fair and reasonable? According to foreign experts in psychology in 1981 - 1995 years for 25367 people in 37 studies, confirm the effect, they use element method for analysis of childhood sexual abuse caused by: sexual abuse can lead to fear, depression, posttraumatic stress disorder, Dutch act tendency serious personality disorder on children's psychological trauma. Monetary compensation to victims of sexual assault is an effective means to reduce or eliminate pain.

In addition, the analysis from the angle of economic benefits, when the sexual assault case, in the current law does not support the premise of compensation for mental damage, the victim and the offender -- often take private choose the "benefits" of the "reconciliation" solution, by the victim some compensation payment criminals or their family members, the victim does not report to the public security organs; what is more, the court withdraw or change the presentation, accused of helping to avoid legal accountability; the defendant to certain economic compensation as the commutation of the chip, and the victim's bargain, which left money can buy a sin for the illusion to the defendant, lead directly to crime again, hurt more innocent women. Blank and the contradiction between legislation and the traditional ideas and the social conflict of fairness and justice, is the leading cause of the "Regulations" and "reply" questioned by many.

Finally, from the perspective of international law, in most western countries, respect and protection of the rights of victims are established based on, the legitimacy of the spiritual compensation in the civil depended criminal. As the French law of criminal procedure third paragraph second, the loss of all range of supplementary civil action in criminal proceedings include as a charged object crimes caused by substances, flesh, spirit. In American, because of damage to the body and cause mental anguish and demand compensation for the injury, except the part can get compensation, but also to request compensation for moral damage.

Three, countermeasures and suggestions

Firstly, according to the "Regulations" and "approval", change, need the clear criminal case because the defendant's criminal acts and mental loss to file an incidental civil action within the framework of the law, or in the case after the criminal case, the victim separately bring spiritual damage compensation in civil proceedings, the people's court shall accept the case.

Secondly, in the existing legal framework, first proposed in the form of judicial interpretation of the modified to fill gaps in the law, when conditions are ripe, and then to the criminal law, criminal procedure law was amended, and finally to the legal form of spiritual damages in the scope of compensation. Considering the current can not be generally the case, we suggest that the Supreme People's court for a typical case of the form of judicial interpretation provisions, less material loss and spiritual damage to some particular crime, the victim may request compensation for moral damage, such as crime, infringement of citizen's right to life and health, right of reputation, the right of honour the criminal act.

Once again, on the amount of compensation problems, suggestions according to the Supreme People's court "about the problems of defining the civil liability for infringement spirit damage interpretation" provisions of article tenth, determine the integrated the following factors: criminal subjective malignant; criminal means, occasions, behavior specific circumstances; criminal consequences; profit crime; criminal liability of economic capacity and the average standard of living of court location etc.. At the same time is proposed according to the characteristics of the level of economic development between the area is not balanced, set limits on criminal cases of compensation for mental damage, and earnestly safeguard the legitimate rights and interests of the criminal victims.

Beijing Zhongze women's Legal Advisory Service Center

March 3, 2011

In the eleven session of the National People's Congress on behalf of Sun Xiaomei

He Yongdong: a reply of the Supreme People's Court on NPC proposal?

Zhang Zhanhong: the reply of the supreme law of incidental civil action for damages the spirit motion

       The Supreme People's court office prosecuted ﹝ 2011: No. 159 issued by: Zhang Jun

The four session of the eleven National People's Congress 6039th suggests the answer

Sun Xiaomei representative:

   You put on the revision of the Supreme People's court "interpretation (2000) No. 47" and "law interpretation (2002) No. 17" proposal received, reply as follows:

   Whether the scope of incidental civil litigation compensation should include the question of compensation for spiritual damages, the judicial practice is controversial, the parties have different opinions. Incidental civil trial work for the specification, our hospital has issued four judicial interpretations. With the development of the situation, the perfection of criminal policy, the parties should pay more attention to the maintenance of civil rights. However, due to the development of economy, society and the parties around the imbalance, economic situation is different, the court of criminal incidental civil cases appeared "law enforcement of different standards, compensation, empty sentence phenomenon is serious" and other new issues. These problems seriously affect the lenient and severe criminal policy implementation, caused a lot of litigation petition issues, local people's courts at all levels and the community reacted strongly, as soon as possible to solve the. In order to regulate the incidental civil action and do work, solve the existing problems in the judicial practice, my courtyard in 2007 started the specification incidental civil compensation standard of judicial interpretation of the drafting work, but because of the differences of opinion, judicial interpretations are not issued, the questions under study.

   About the scope of compensation for civil litigation incidental, our opinion is: incidental civil litigation cases according to law should only be compensation for direct losses, the actual damage caused to the victim compensation in accordance with the crime, generally does not include compensation for death and disability compensation, but after mediation, the defendant shall have the ability and willingness to pay compensation the greater the amount, the people's court shall support; if the mediation fails, the defendant does not have the ability to compensate the victims or their close relatives, and adhere to the outside of the material loss claim damages, the people's court shall not support; for they have difficulty to the victim, to give the necessary state aid. The main reason is that:

(1) according to the seventy-seventh law of criminal procedure "the victim has suffered material losses as a result of the defendant's criminal act, in criminal proceedings, shall have the right to file an incidental civil action and the criminal law" the first paragraph of article thirty-sixth "where the victim has suffered economic losses as a result of a criminal act, the criminal received criminal punishment according to law, and shall be sentenced to economic loss" according to the situation, here the "loss" and "economic loss" refers only to the material property losses, not including the spiritual loss. At the same time, the criminal cause property loss and simple civil tort compensation, resulting in the loss should be able to compensate and jurisprudence is obviously different in. On the basis of law, the incidental civil cases and simple civil cases should not apply the same standard of compensation.

(2) in the judicial practice, the accused in criminal cases is the vast majority of farmers, the unemployed and migrant workers, the very poor, almost no what property for compensation, if beyond the law ruled high compensation, is bound to lay a legal "program". Unable to get the actual implementation, not only affect the authority of the referee, more often lead to the victim appeal, make visit problems, can not guarantee the legal and social effects.

(3) apply mechanically "on certain issues concerning the application of law in the trial of personal injury compensation case explanation", the amount of compensation standard up to several hundred thousand, covers yuan, often make the victim have unrealistic expectations of huge compensation, if the defendant cannot be full compensation, is that the absence of sincerity and repentance, lead to civil mediation at unable to carry out, and then in the penalty appeals insisting on the defendant sentenced or even the death penalty, even to appeal, make visit threat, blackmail, seriously affect the criminal policy of combining punishment with leniency and "retaining the death penalty, strict control, careful application of the death penalty" policy implementation, seriously affect the construction effectively resolve social contradictions and a harmonious society.

(4) the high compensation seems to protect the legal rights of the victims, this is some scholars and departments that incidental civil action shall be mainly considered simple and civil compensation uniform standards, but because the criminal defendant actual compensation ability is very low, not even, and the victim "asking price" too high, many defendants family practice that, with its dongjiexicou generation paid several million yuan to the victim is not satisfied, simply no longer in compensation, resulting in the victim but get no compensation. This situation is particularly prevalent in the homicide case, as a direct result of the victim's situation more miserable, is not conducive to protect the victim's rights and interests, is not conducive to the timely repair of social relations.

(5) this problem should be solved based on the actual, full consideration of the actual conditions in China, the trial strictly according to law, the actual effect and focus on the case, and promoting social harmony.

Thank you for your concern and support the work of the people's court!

Contact unit: the Supreme People's court's supervision office 010-67556254

Two, one one May 28th

Zhang Zhanhong: the Supreme Court and Zhang Jun Dean is the first station in the overall stability to the interpretation of the law. Ha-ha.

The Bandung: see, this is the judicial interpretation of the past and present and "legislative origin".

Zhai Baoguo: Sun Xiaomei is mainly about the compensation of sexual assault, we talk about the road traffic accident compensation issues. Now some judges, in criminal incidental civil action, not only the spirit solatium no, even the death compensation, disability compensation are not, therefore, the Yao Jiaxin case, just sentenced to more than fifty thousand dollars. The judge so understanding?

Zhang Zhanhong: they say basis or explain the new criminal procedure law 155th:"Make a judgment on the incidental civil action, should be based on criminal behavior caused by loss of material, combined with the specific circumstances of the case, the defendant shall determine the amount of compensation. Crime victims caused personal injury, shall pay the medical fees, nursing fees, transportation fees and other reasonable expenses for treatment and rehabilitation of payment, as well as the lost wages. If the victim is disabled, should also be compensation for disability AIDS fees; causing death to the victim, should also be compensation for funeral expenses." There is no compensation for death and disability compensation.

Zhang Zhanhong: because the defendant can not afford to pay, all the defendants have need not compensation, the law cannot give justice, even a written on paper of equity and justice, because of stability and refused to give, not the people and moral support stability, not true stability.

Zhang Zhanhong: but, "motor vehicle traffic accident compensation", according to a new judicial interpretation seems to have great progress, however, the judge may not think so, ha ha.

Zhang Zhanhong: because the judicial interpretation in this article and a driving motor vehicles: "causing death or causes heavy losses to public or private property, which constitutes a crime, to determine the compensation responsibility in accordance with the" Regulations of the people's Republic of China Road Traffic Safety Law "article seventy-sixth." That is to say, "the provisions of the people's Republic of China Road Traffic Safety Law" seventy-sixth article can obtain what compensation, can be incidental civil compensation required by which damages in the traffic accident case. According to the traffic law can obtain compensation for death or disability compensation, mental solatium, in incidental civil action can also get the support of the court. I think we should be in accordance with the provisions of this law, a, boldly, firmly safeguard the legitimate rights and interests of victims.

The Bandung: "the people's Republic of China Road Traffic Safety Law" provisions of article seventy-sixth, motor vehicle traffic accidents caused casualties, property loss, the insurance company in motor vehicle compulsory third party liability insurance liability limits the scope of compensation; lack of parts, shall bear the liability for compensation in accordance with the following provisions: (a) the traffic accident of motor vehicle in between, the party at fault shall bear the responsibility for compensation; if both parties are at fault, in accordance with their respective proportion of fault responsibility. (two) motor vehicle and non motor vehicle traffic accidents, pedestrians, non motor vehicle drivers, pedestrians have no fault, the motor vehicle shall bear the responsibility for compensation; there is evidence of non motor vehicle drivers, pedestrians have fault, appropriate to reduce the liability of motor vehicle party according to the degree of fault motor vehicle shall not at fault;, bear the responsibility of compensation does not exceed ten percent. The losses of the traffic accident is a non motor vehicle drivers, pedestrians deliberately collision caused by motor vehicles, the motor vehicle shall not bear the liability of compensation. The concept for the provisions of article seventy-six of the casualties, property losses, "on the trial of the law applicable to a number of road traffic accident damage compensation cases to explain" the 14Road traffic safety law seventy-sixth stipulation "property damage", is the result of motor vehicle traffic accident against infringement of property rights caused by the loss of. Road traffic safety law seventy-sixth stipulation "casualty", refers to a traffic accident is tort infringement right of life, right of health and personal rights and interests of the damage, including the tort liability law article sixteenth and the provisions of article twenty-second. "Tort liability law" provisions of article sixteenth, infringement of personal injury is caused due to the reasonable expenses, shall pay the medical fees, nursing fees, transportation fees and expenses for treatment and rehabilitation, as well as the lost wages. The cause of disability, should also be compensation for disability living allowance and disability compensation. Cause of death, should also be compensation for funeral expenses and death compensation. The provisions of article twenty-second, infringement of personal rights, causing serious mental damage, the victim may claim compensation for mental damage. Therefore,The traffic accident range. The range of supplementary civil compensation and civil compensation is the same, the traffic accident cause crime, victim can request the spirit damage compensate, and get the support of the court. From the perspective of fairness and justice, legislative principle and law of insurance, compulsory insurance compensation for damage is also in line with the law of tort, can not make the insurance companies in the more serious than ordinary traffic accident crime occurred, but the insurance company takes less than ordinary accident or lighter duty.

Zhang Zhanhong: in fact, has been investigated for criminal responsibility of crime are also likely to civil liability for compensation for spiritual damages bear. The judicial interpretation of the Supreme Court has been broken through the judicial practice of the district court. In January 30, 2013, "approved by Guangdong Provincial Higher People's Court on criminal responsibility of the crime has been the party should bear civil liability of compensation for spiritual damages"Yue high Famin a complex [2012]3 words, replied as follows:" the Guangzhou City Intermediate People's Court: "whether you Institute has been investigated for criminal responsibility of the crime shall bear civil liability for compensation for mental damage" receipt. The request of the Supreme People's court, the answers are as follows: about the civil liability for compensation for mental damage is assumed to have been investigated for criminal responsibility of crime should be problems, according to "the people's Republic of China Tort Liability Act", the Supreme People's court " about determining the spirit of tort liability for damages if the issues of interpretation", "on the trial personal injury compensation case applicable legal interpretation" and other relevant provisions of the people's court , the parties should about spirit damage compensate lawsuit requests substantive hearing, and shall be subject to the determination of whether to support. This complex. Guangdong Provincial People's high court in one three years in January 30th two Http://blog.sina.com.cn/s/blog_4b4aa6e10101at1a.html

He Yongdong: these issues should be said has been discussed much, Zhang lawyers and lawyers to collect million good materials, published a very good advice.

Zhai Baoguo: today the discussion concludes, traffic accident cases in criminal incidental civil action, the insurance company as a co defendant, but also can claim for death compensation, disability compensation and spiritual solatium. The question now, or what we do, to be further explored in practice, in order to create in the region related cases, the judge is well accepted, theoretically more useless.

The Bandung: so, we have a lawyer, specific affairs, is to the local case. Ha-ha.

The Bandung: if there is such a case, is called the family filed a complaint. No or appeal. Committee members if they have related case, circulated.

     (this is my "Huanggang civil and commercial communication" phase second "hot topic" the topic planning: Hubei Jin Mei law firm Zhang Zhanhong)