□ Wang WeiguoYin Yanbin

■ case review

In October 30, 2009 6 when the left and right sides, Ms. Chen as usual morning walk the dog, the dog dog home slide open car, parked in the area across the street from the side of the parking lot. When the door of her open, the dog from the rear seat and ran off, a flash across the road, a car and a car killed on the spot.

Then, Ms. Chen will drivers and owners to court, claim compensation for feeding the dog feed costs, labor costs, the spirit of damages totaling RMB 95000 yuan, among them, buy a dog costs 5000 yuan, 30000 yuan fee of artificial feeding, costs 20000 yuan, and 40000 yuan for the loss of spirit.

■ court

In September 8, 2010, Hangzhou City, Zhejiang Province, Jianggan District people's court made a judgment against the defendant for vehicles: Ms. Si Jicheng the compulsory traffic accident liability insurance (hereinafter referred to as "pay strong risk"), the insurance company direct payment within limit the plaintiff Ms. Chen 500 yuan. In addition, the accused Ms. Cheng voluntary compensation the plaintiff Ms. Chen mental injury solatium 500 yuan request, the court shall support.

■ case analysis

1 cars hit the dog is not a traffic accident

"Road traffic safety law" article 119th (five) provides: "the traffic accident is caused by the fault or accident vehicle on the road to personal injury or property loss events." In this case, the traffic police department finally recognized the traffic accident because of traffic accidents caused by.

Then, the car killed the dog Is it right? Traffic accident, there is great controversy. In 2006 May, Tianjin Municipal Public Security Traffic Management Bureau issued a new explanation says, the car collided with a pet dog, should according to the traffic accident to accept. In 2007 January in Shandong province Qingdao city issued "on the treatment of traffic accident vehicle and canine opinions" provisions, vehicle collision, and dogs on the road roller, scratch, cause the dog killed or wounded case belongs to the traffic accident.

"Road traffic safety law" second stipulates: "the people's Republic of China vehicle drivers, pedestrians, passengers and the activities relating to road traffic related units and individuals, shall abide by this law." Therefore, the road traffic participants is the vehicle (including motor vehicles, non motor vehicles) drivers, passengers and pedestrians, the animal is not a road traffic participants. Generally, the traffic accident is refers to the car and car, between cars and people accident. We think the car killed the dog should not belong to the traffic accident, should not apply to "road traffic safety law", cross strong insurance should not claim.

2 on the "property damage" should be restrictive interpretation

(1) the scope of "property damage" definition

According to the interpretation of the different scale, the interpretation of law can be divided into restrictive interpretation (also known as the "reduktion"), extended interpretation and literal interpretation of three. Restrictive interpretation refers to the legal provisions of the literal meaning than the broad legislative intent, made narrower than the literal meaning interpretation; expand the interpretation, this refers to the legal provisions of the literal meaning than the legislative intent of narrow, literal meaning than to make broad interpretation; literal interpretation, which is strictly in accordance with the law literally the ordinary meaning of the interpretation of the law, not shrink, do not expand.

We think, the "road traffic safety law" seventy-sixth article "property damage" should be given a restrictive interpretation, should be interpreted as the victim to carry goods, the motor vehicle or a non motor vehicle and vehicle necessary appendages loss, should not be included from the master control of property and the victim's car property. In this case, the pet dog as a kind of livestock, belong to personal property, but was not under the host's control, so do not belong to the "road traffic safety law" provisions of the "personal property" in the column. The pet dog killed by motor vehicle similar cases should be in accordance with the general civil tort cases to handle, but not as a traffic accident case. These cases should apply for the "tort liability act", instead of "road traffic safety law".

(2) define "property damage" the scope of the reasons

The reason for the "road traffic safety law" seventy-sixth article "property damage" should be given a restrictive interpretation, mainly based on the following considerations:

First, from the master control property, the vehicle on the property into the traffic insurance compensation, will make the business of the insurance company greatly increases the risk of.

Practice in the insurance, compensation for personal injury can be predicted, but the loss of the goods and other property loss but not predict. This makes the insurance payment risk is difficult to accurately estimate. In addition, the property loss has great randomness, make the insurance business risks. In order to stabilize the insurance company's order, the property should be excluded from the scope of compulsory insurance.

Second, the parties should be care of their property, every effort should be made to protect their property in a reasonable way.

Reduce the "property damage", will greatly improve the management of their property's attention and sense of responsibility, establish a sense of responsibility. This has a positive effect on the cultivation of good habits. In the long run, is beneficial to the society.

Third, considering from the legislative purpose, be restrictions on "property damage".

A main objective set interchange insurance is effectively solve the problem of traffic accident compensation. To reduce social conflicts, promote social stability, protect the citizen's life, it is scientific and reasonable fill victim in traffic accident injury. Expand the "property damage", and the legislative aim of compulsory insurance is different. If does not divide the weight to the unity of personal injury and property loss to be protected, in the face of limited funds, cross strong insurance goal difficult to achieve.

Fourth, must balance the interests of all parties, cannot let the insurance companies to cover what he should not burden the obligation.

Insurance companies in the insurance contract is the strong body, but if the insurance company to assume the risk should not bear, will not only increase the insurance company's operating costs, but also to the insurance company is not fair. We adhere to the principle is, let the insurance company burden reasonable, legal obligation, make it really become the stabilizer economy "booster" and social "".

3 drivers and owners should not be compensation

"Tort liability law" sixth article: "who is at fault for infringement of civil rights, he shall assume the tort liability." From the standpoint of tort law, in this case, the driver need not to need to bear the responsibility, the key to see whether subjectively in fault. The normal traffic drivers, 20-30 km per hour speed, drivers do not have any illegal behavior in driving, the dog suddenly jumped out, was hit by a car. The driver could not foresee the dog will get under the car, and the car crashed into the dog away from the location of the dog owners parking position only 1 meters. In such a close distance, a moment of things, even see also too late reaction. Plus the dog is from the rear door drill into, the driver could not see the dog. So, more difficult to avoid. In summary, we think, the driver does not have any fault, should not assume liability to pay compensation.

On the contrary, the owner did not try to take good care of the pet dog obligations, not a good dog, let the dog to run across the road, which leads to the dog was killed. According to the Hangzhou dog restriction provisions, small watch dogs to beam dog chain allows households in time, and lead by adults, the time is not allowed to walk the dog in time. Ms. Chen illegal dog accident consequences, she shall bear their own. In short, the dog owner without proper time, no place, no comply with local dog rules, to lead a dog killed consequences in the street, a dog owner should bear full responsibility.

Court that, collided in the car accident in dogs, the driver in the driving, not careful security attention obligation, avoidance measures are not in place, resulting in the pet dog was killed, caused property damage to the owner, the driver should bear secondary liability accident. We do not agree with this view. What is the careful driving there is no statutory standard, as long as the accident is not cautious is unreasonable, unfair. Just imagine, if the animal walk on the road, so the vehicle can not pass. If you ask the driver to look right and left when driving, there will be a distraction, would be more dangerous! In that case, the driver has to do the duty of care, the responsibility for pushing on the driver is not fair.

4 the spirit of damages should support

The dog owner raised 40000 yuan mental damages compensation claims, whether should get the support of the court? In the words of the dog: "the dog with us for 10 years, we always take it as their own child, every day to buy beef and mutton. It is very good very good." Ms. Chen is already 49 years old this year, her 52 year old husband, two people had been unable to have children, 10 years old, is this dog accompanying the couple spent. Undeniable, Ms. Chen couples do have feelings for the dog. However, her request must have a legal basis, in order to get the support of the court.

"The Supreme People's Court on some issues of determining civil right infringement spirit damage compensate responsibility to explain" (hereinafter referred to as the judicial interpretation stipulates: ") fourth special commemorative items with personality symbolism, due to violations and permanent loss or damage, the owner of infringement on the grounds, to request the people's court for compensation for mental damage, the people's court shall accept according to law." The dog does not belong to a particular Memorial, with personality symbolism and claim compensation for moral damage, no basis in law. In addition, 40000 yuan in damages is impossible. "Judicial interpretation" the tenth stipulation: "the amount of compensation for mental damage is determined according to the following factors: (a) the degree of the infringer's fault, except as otherwise stipulated by law; (two) against the means, occasions, behavior specific circumstances; (three) caused by the consequences of violations; (four) profit the infringer; (five) the infringer to assume responsibility for economic capacity; (six) the average standard of living of court location. Legal, administrative regulations have clearly defined the compensation for disability, death compensation, applicable laws, administrative rules and regulations." "Judicial interpretation" the eleventh stipulation: "the victim to the facts of damage and damage is at fault, according to the mental damage to their degree of fault waive or reduce the liability of the infringer."

In this case, the driver has no responsibility, therefore, should not bear the compensation for spiritual damage. Even if there is a responsibility, but also to see whether it meets the relevant provisions of the "judicial interpretation", motionless on the compensation for mental injury approach is not desirable.

5 court decisions debatable

The court in this case is very careful, therefore carried out a series of proposal solicitation activities, there are more than 200 members of the public to call or write to reflect the personal views. At the same time, the court also invited legal experts launched a consultation, most legal experts believe that in accordance with the traffic accident to identify, can according to the actual economic loss caused by the appropriate compensation. Based on the contradiction of the original intention, made by the insurance company direct payment in the insurance to pay strong limit the plaintiff Ms. Chen 500 yuan of judgment. We think, this decision is likely to cause a series of problems.

(1) against the spirit of the legislation of compulsory insurance

We think the car hit the dog should be dealing with civil disputes. The reason is: a traffic accident vehicle, road, traffic violations and fault, damage of these four elements. The road is obviously not a dog free activities, the car hit the dog is basically no dog chain caused by owner. In addition, in some cases, the driver does not exist fault, is also not exist any offence, but normal driving. So the vehicle on the road in the normal operation of the hit the dog does not belong to the traffic accident, also cannot apply cross strong insurance.

The initial design of compulsory insurance, is for traffic accident casualties timely, necessary assistance, the core is to save. A law professor even proposed property loss traffic law out of compensation without liability provisions shall be.

(2) may cause moral risk

If that car hit a pet dog is the traffic accident, and the compulsory insurance liability, then the future car and pig, cattle, horses, cattle, chicken, duck, goose collided with domestic poultry, should be dealt with according to the traffic accident, are required to deliver strong insurance to pay it, it will induce a some people rush into danger. This not only hinders the road traffic order, but also a violation of the owners and the interests of insurance companies, insurance to pay strong purpose will be for naught. So, such judgment or stop for good.

(3) practices may be broken

In practice to deal with traffic accidents, often do the following. If the driver hit a stray animal, causing the vehicle loss, the police usually according to unilateral accident treatment, by the driver directly to insurance company claim for compensation. If it is in the highway closed path, serious loss caused by impact or from the wild animal, the traffic control department will issue the certificate of the accident, the driver to the insurance company or the highway all claim, until the legal proceedings.

However, if the driver killed the dog, and caused no other personnel loss of vehicles, traffic police do not usually produce legal documents, not according to the traffic accident treatment, but the case went to the local police station, the police station mediation, such as mediation fails, both parties may file a civil lawsuit directly to the court. The traffic control department is generally believed that, according to "road traffic safety law", the three elements of traffic are human, vehicle, road, the relation between law is only responsible for the coordination of the three, was not related to animal.

Normal driving killed others pet dog, does not constitute a traffic accident. So, what kind of situation will constitute a traffic accident? Usually think, that pet car accident case responsibility, to see the driver has no illegal behavior, such as red light running, reverse driving and so on, in addition, pet owners have a pet to hold in the hand, and also an important basis for determining the liability ratio. However, in the specific responsibility judgment, the owner whether compensation, the compensation, mainly by both parties through consultations, negotiations fail may bring a lawsuit to the court.

(author: Wang WeiguoEconomic and Trade College of Agricultural University of Hebei; Yin YanbinThe China United Property Insurance Company Hebei Qian'an branch)