Lenders to lend to others caused by driving the vehicle traffic accident should bear or bear compensation responsibility

Jiang Xianzheng

(2011Years2Month28Day)

Case:2010Years4Month10On the evening of22When the defendant Li, a drunken driving the defendant Wang small cars a lent bumps stood by the road, Huang, as of the same year6Month10Total cost of medical expenses, lost income, nursing fees, transportation fees altogether23Million yuan. Lee all responsibility for traffic accidents. Huang in the same year7Month20For Li, the liability; liability insurance companies in the insurance liability limits; to "after the traffic accident by the traffic police department on the vehicle identification for vehicle is not qualified, the defendant Wang failed to properly maintain their own vehicles, there are significant fault, for traffic accident can not shirk its responsibility, as and Lee joint tort claims," Wang are jointly and severally liable.

The first instance court in accordance with the "general principles of civil law" 119th, "road traffic safety law" article seventy-sixth, "motor vehicle traffic accident responsibility compulsory insurance regulations," the provisions of article eighth, judgment: A, the insurance companies in the compulsory insurance liability limits of the plaintiff Huang bodily harm shall bear the responsibility for compensation; two, in part by inadequate the defendant Li bear the responsibility for compensation; three, the defendant Wang on the defendant Lee compensation payments are jointly and severally liable. In fact is not that the plaintiff Huang sued "traffic after the accident by the traffic police department on the vehicle identification for vehicle unqualified" fact. The reason that Wang on the damaging consequences associated with Li Mou shall bear the liability for compensation, the reason is "the defendant Wang as the registered owner of the vehicle, failed to do to care duties a good administrator, the Lee driving vehicles will lend a drunken, also has fault, should cause jointly and severally liability losses to others on Lee driving the vehicle".

The author thinks, the decision take yellow sb no liability for damage. Lee and the insurance company shall be. But the ruling Wang and Lee are jointly and severally liable, in accordance with applicable law and legally questionable.

A trial application of "road traffic safety law" 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. More than some of the limits of liability, shall bear the liability for compensation in accordance with the following methods: (a) the traffic accidents between motor vehicles, the faulty party shall bear the liability; if both parties are at fault, in accordance with their respective proportion of fault responsibility. (two) motor vehicle and non motor vehicle traffic accidents, between the pedestrian, the motor vehicle shall bear the liabilities; 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 measures to reduce the disposal, 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." Provisions, but no specific reference to the first paragraph of article (item two). Combined with the case, the article (a) and second paragraph are not applicable to the case. The first paragraph of article (two), only as the insurance company and the driver Lee bear the traffic accident liability according to law. As for Wang as the lender should bear the responsibility for compensation and shall bear much responsibility, the "general rules of the civil law" 119th, "road traffic safety law" article seventy-sixth, "motor vehicle traffic accident liability compulsory insurance regulations" article eighth have no corresponding regulations. Therefore, according to the court, the court of first instance can be said of the Judge Li Mou are jointly and severally liable, the corresponding legal basis is not found.

Whether the party should bear the responsibility for compensation and liability much lending vehicle traffic accident, there is no corresponding law.The legal adjustment of motor vehicle traffic accident liability, except by special method"Beyond the road traffic safety law" adjustment, but also by the"Tort liability law" adjustment. The traffic accident happened in "tort liability act" in the2010Years7Month1The day before the implementation, but the damage continued to implement. This case is "tort liability act", it is necessary to compare before and after the implementation of the law ofNon car owners driving the vehicle traffic accident caused the law whether the owner shall bear the liability for compensation problem.

Elegant"Prior to the implementation of the tort liability law" the relevantVehicle traffic accidents lend the law should bear the responsibility for compensation:First, the vehicle vehicle loan borrowing contract relationship between man and the borrower,Borrowing contract belongs to nameless contract in the contract law of our country. Generally, borrowing contract was that lenders will use of delivery the borrower, the borrower negative return borrowed obligations of the contract. If the lender intentionally or through gross negligence did not inform the loaner defects, lenders to borrowers so the damage should be liable, in contract liability, the lender shall also be caused to the borrower for the tort liability for damage. Conversely, if lenders in lending behavior and no intention or gross negligence, the lender to the borrower therefore suffered damage should not assume liability to pay compensation, the contract violations of course also should not assume liability to pay compensation. Visible, according to borrow the theory of contract law, vehicle lending between man and the borrower for use in fabric defects caused the borrower damage, the borrower can according to the lender if there is intention or gross negligence to pursue the lender's contractual liability or tort liability. As for the tort liability of the borrower to use flawed borrowed and causes damage to others, do not belong to"Contract law" adjustment category. Second, as a special law of "motor vehicle traffic accident liability of road traffic safety law" the responsibility of this lending no provisions. Third, "explain" personal injuryThe common tort outlining lists four situations: common intentional damage; direct combination of more than two people negligence cause damage; more than two fault combination of indirect damage; damage caused by the common dangerous behavior of more than two people. Lend the vehicle causing damage to people caused by traffic accidents, if the lender has the fault, which belongs to the third kind of situations, namely the owner and driver negligence indirect combination lead to the occurrence of the damage. TheThe second paragraph third the provisions of this explanation for "more than two people have no common intention and negligence, but were implemented several behavior indirectly with the same damage results each shall bear corresponding responsibility for compensation according to the error size or cause proportion." Accordingly, should the following lending behavior to the owners themselves are analyzed: one is the owner's lending behavior have no fault? If there is no fault, the owner will not be liable for compensation; if there is a fault, the owner should bear the corresponding liability according to the fault size. The two is how to judge the vehicle the lender has no fault? "Tort liability law" before the implementation of the law has not stipulated, but the trial business guidance document some province high court according to the trial experience formulation has made the corresponding provisions. Such as "the Chongqing Higher People's court guidance" on the trial of the law applicable to a number of road traffic accident damage compensation cases prescribed in article seventh: "the use of borrowed motor vehicle road traffic accident damages to others, the borrower shall bear the responsibility for compensation. But one of the following circumstances, the lender shall bear joint and several liability:(A)The lender knows or ought to know that the motor vehicle loan has defects, and the defects of road traffic accidents;(Two)The borrower has no driving qualification;(Three)In the circumstances the borrower can not drive a motor vehicle." Among them third cases belonging to the general provisions, including the borrower for some diseases can not drive a motor vehicle, the borrower drinking or drinking was not driving situations, lenders will lend the vehicle caused by traffic accident.

"Tort liability law" forty-ninth of the motor vehicle rental and use two kinds of circumstances specified in together, apply the principle of fault responsibility, namely "by motor vehicle leasing, borrowing situation all people and use are not the same person, after a traffic accident belongs to the motor vehicle party responsibility, by insurance companies in the compulsory motor vehicle compensation insurance liability limit. Part of the problem, by the user of the motor vehicle shall bear the responsibility for compensation; the owner of the vehicle is at fault for the damage, assume corresponding responsibility for compensation." Provisions of the imputation principle and the "personal injury" to explain the principle of fault liability third the provisions of the second paragraph of the same, and require joint tortfeasors bear corresponding responsibility for compensation, but the interpretation of "personal injury" second paragraph third stipulates the judgment of joint tort shall bear the corresponding liability, according to the "fault size or cause proportion". For the "tort liability act" motor vehicle forty-ninth stipulation all shall bear the corresponding liability for the damage, Yang Lixin understood as "is the owner of the vehicle for the occurrence of damage, according to their degree of fault or cause, bear the corresponding liability proportion, rather than the full compensation. In practice,...... Can also be the infringer to the court, indicting the borrower or the lessee and the owner of the vehicle, the court according to the proportional liability rule, define the liability of each "(Yang Lixin:" 'the people's Republic of China Tort Liability Act' fine ", intellectual property press2010Years1Vol.1Version, the220Page).

To sum up, "tort liability law" before the implementation of the judicial interpretation of the "personal injury to explain" third section second and the "tort liability act" stipulates that the forty-ninth vehicle all people that lenders for vehicles to use the vehicle causing personal damage compensation liability is the principle of liability for fault, not the fault presumption the principle of. In accordance with the provisions of the Supreme People's Court of law[2010]23"On the application of No.<The people's Republic of China tort liability law>Some problems of notice "first" caused by the implementation of the tort liability law of tort of civil dispute cases, provisions of the tort liability law. The civil case dispute occurred before the implementation of the tort liability law of tort caused, under the law applicable at the time of the." The provisions of the case before the implementation, can be used "tort liability law" law, which can be applied to explain the "personal injury" provided for in the second paragraph third, at the same time reference trial business guidance outside the court, determine Wang vehicle loan when there is no fault and fault through the effect size the accident happened in pay, to determine the liability size. In this case, the plaintiff Huang according to the principle of fault liability, "after the traffic accident by the traffic police department on the vehicle identification for vehicle unqualified for the prosecution of" fact, Wang for lenders to assume joint responsibility for compensation. But the court of first instance in the prosecution not identified based on the fact, path, "the defendant Wang as the registered owner of the vehicle, failed to do to care duties a good administrator, the Lee driving vehicles will lend the drunk, there is fault" on the grounds (according to the literal understanding, Wang knows Lee drunk, will Lee driving cars, lend but the facts of the case is not so), the so-called facts and legal basis instead of the plaintiff Huang for Wang to assume liability to pay compensation, decision surnamed Wang of driving the vehicle causing loss bear joint liability, obviously is the application of the presumption of fault liability principle. Because in the judgment, do not see the plaintiff Huang has evidence to prove that Wang Mou on loan before the car knows or should know Lee dinner drink, or drink Wang Lee to borrow the car waiting for the facts. Yang Lixin thinks, "such as the breach of duty of care a good administrator, for negligence; duty of care of ordinary people, for gross negligence" (ibid., No.211Page). "The owner of the vehicle or the lender is at fault for the damage, assume corresponding responsibility for compensation. This fault, shall be the gross negligence. The reason is, because of the special Chinese social structure, friendship lending vehicle does not exist running material interests, and the vehicle is the main lenders to motor vehicle operation no dominance "(ibid., No.219Page). According to his view, only the lender has gross negligence, to borrow a person liable for damages. But in this case, the verdict to Wang "failed to take careful attention obligation" good management of human judgment standard of negligence, even Wang, negligence, is also the general negligence, does not belong to the major fault, according to Yang Lixin's opinion, should not judge Wang are jointly and severally liable. Step back and say, "lenders bear the corresponding liability" understanding as compensation liability should be compatible with the owner of the degree of fault, liability may be a secondary responsibility may also be a major liability, even all the responsibility. Even if Wang, fault, also should see the fault size, decision whether bear or bear much responsibility. Examine the lender has no fault method, for example, verification the owner Wang Mou will car lent out no license Lee traffic accidents, if Lee fraud or concealment methods themselves without the license, diddle borrowing vehicle owners, Wang has done strictly examine obligation can not be found, there is no fault of the subjectively, it is not liable; if not review obligations, or the general review can be found but when reviewing negligence can not be found, with the subjective fault is certain, negative secondary responsibility; knowing that if the other party does not have a driver's license will still car to each other, the degree of subjective fault, should bear equal even the main responsibility (in this case the verdict was not recognized accused Lee of driving without a license). For example, the motor vehicle owner Wang Mou for negligence in lending is not to borrow the car Lee defective performance of the duty of disclosure, and Lee also because of carelessness not surnamed Wang to understand safety related defects exist in the car, so Wang may be negative secondary responsibility; if Lee to the query condition, and Wang Mou still failed to inform the vehicle defects, then Wang may be equal or even negative main responsibility; if Wang intentionally hide, don't tell the vehicle defects or assure the vehicle without flaw caused the accident damage, it may have to bear the main responsibility (or even all of this case verdict was not found the car is defective. If the confirmation by both parties shall review the duty of care to vehicle defects violation degree determine their size and number of fault responsibility).

According to the analysis, the author thinks, the court of first instance verdict lenders Wang for automobile use Lee driving cars cause shall bear joint and several liability yellow someone hurt, missing shall be applicable laws, the motivation is not specific, not comprehensive, because of this, there are improper, i.e. whether to apply the presumption of fault liability principle; whether or ought to know that the defendant Li drunk know not that the defendant Wang lending vehicle; can exceed the plaintiff Huang sued the facts and reasons of judgment; considering the responsibility judgment and recognition of the fault and the cause force proportional to size.

According to the reason of judgment can be inferred: those who borrow borrow drunk people vehicle traffic accidents, all that the lender has the fault and assume joint and several liability. This conclusion is a danger to the society, be unbearable to contemplate, lending a kitchen knife to steal, kill, used as the tools for committing crimes is discussed through people, regardless of whether the lender has subjective fault, will determine the sword and crime shall bear joint and several liability or joint crime, apparently in accordance with current law does not match, it will the corrupt society "one disaster after another". In the judgment of misleading, once after others have difficult, the public will lend a helping hand of friendship?!

(the author unit: Nanning City Intermediate People's court)