Vehicles linked units in the roadTraffic accidentAssume responsibility

[case] for reconsideration man (person): three Langxi County Xin Automobile cargo transport services Limited (hereinafter referred to as the three Xin company).

The person applying for enforcement: Zong Dingbao.

The person applying for enforcement: Rui Dingfeng.

The person applying for enforcement: Zong Yuting.

Execution: Zhang Guangchang.

On July 14, 2009, Zhang Guangchang driving Anhui P14816 heavy dump trucks and other spring driving a vehicle collision, resulting in residual spring driving the car ride Zong Jiancai death, Yu Chun injury, damage to the vehicle. The license plate number of Anhui P14816 heavy dump trucks for Zhang Guangchang actually all, the car anchored in three Xin company name, and in three Xin company in the name of the Chinese peopleProperty insuranceLimited by Share Ltd Langxi branch C referred to the insurance company, insurance compulsory insurance and commercial insurance, the insured is three Xin company, the insurance period from July 2, 2009 to July 1, 2010. After the accident, the legal heir Zong Jiancai Zong Dingbao (father), Rui Dingfeng (mother), Zong Yuting (daughter) by the people's court to accident in Liyang city.

In September 21, 2009, a court in Liyang (2009) at the beginning of the word no. 3116th Li people of civil judgment decision: the insurance company compensation for the 3 people such as Zong Dingbao 1 1 million; 235174.50 yuan compensation for the 3 people such as Zhang Guangchang Zong Dingbao, 108360.50 yuan more than the spring compensation for the 3 people such as Zong Dingbao; Zhang Guangchang, Yu Chun bear joint and several liability, three Xin company compensation some held jointly and severally liable for Zhang Guangchang. After the verdict, Zhang Guangchang compensation part of themselves that is 235174.50 yuan to fulfill the obligation of compensation, but Yu spring did not fulfill the obligations of judgment.

In October 21, 2009, 3 people were Dingbao jointly and severally liable to cope with Chun Yu Zhang Guangchang grounds to the Liyang court for execution of Zhang Guangchang, three Xin company, and provides three Xin company in the insurance business insurance clues, request the court in the Liyang three Xin company commercial insurance in the insurance company claims to take enforcement measures. Liyang court ruled in October 27, 2009 that frozen three Xin company commercial insurance in the insurance company claims 121608 yuan.

In this regard, three Xin company to the Liyang court execution objection said, according to the court, three Xin companies only to Zhang Guangchang should be part of the compensation to bear joint and several liability, Chun Yu should bear the part does not bear joint and several liability, in the Zhang Guangchang of the person applying for enforcement are jointly and severally liable for the share, three Xin company of the person applying for enforcement is not liable for compensation, three Xin company in the insurance indemnity belongs to the outsider's property, the court can not this property to take enforcement measures, to request the court to lift the freeze on the insurance indemnity.

[run]

Jiangsu province Liyang County People's court review that: on the one hand, this case involved the vehicle is a three Xin company names, but the actual insured Zhang Guangchang, according to the rights and obligations of the principle of consistency, the vehicle insurance interests should be enjoyed by Zhang Guangchang. On the other hand, Zhang Guangchang, Yu Chun jointly and severally liquidation responsibility for their union should compensate for execution of money. Zhang Guangchang, more than in the spring did not perform the obligation of compensation under the circumstances, the range of compensation includes not only should undertake compensation share, also contains more than spring should bear the compensation share. So the three Xin company of Zhang Guangchang compensation part bear joint and several liability should be understood as the spring, more than the joint compensation share held jointly and severally liable for the negative of Zhang Guangchang and Zhang Guangchang share their. To sum up, Liyang court thinks, the frozen Guangchang to the three Xin company name of insurance insurance indemnity, in accordance with the principle and spirit of law. Hence made (2009) Li hold No. 2519th civil verdict, ruling dismissed the objection: three Xin's objection request.

After the service, three Xin company appealed the ruling to the Jiangsu Province, Changzhou City Intermediate People's Court of Shen Qing reconsideration.

Jiangsu province Changzhou City Intermediate People's court review of that: the case involved the vehicle insurance companies insurance business is based on three Xin company name of insurance, insurance contract relationship between the insurance company and the three Xin company, the insured three Xin company, insurance interests should belong to the three company. The person applying for enforcement of the vehicle owner is the real Zhang Guangchang, three Xin company is the vehicle linked units, insurance indemnity should belong to all of Zhang Guangchang's ideas, not in conformity with the contract. Zhang Guangchang and Yu spring bear each other in compensation for the loss of joint and several liability, joint liability system, more than the consequences of damage of existing fault and the bear. Compensation part three Xin company of Zhang Guangchang should be shared jointly and severally liable, line accident vehicles linked operation based on the fact that in the unit. And more than three Xin company between spring and there is no link between the three, Xin company should not assume the joint and several liability Yu spring should bear the compensation share. Therefore, three Xin company to assume the joint and several liability shall be limited to the scope of Zhang Guangchang should bear in the accident compensation share, should contain more than spring should bear the compensation share, three Xin company shall compensate the share is not liable for more than the spring. To sum up, in fulfilling its obligation of compensation after Zhang Guangchang, Liyang court to perform three Xin company commercial insurance in the insurance company claims there is no legal basis. Put forward three Xin company's request for reconsideration, argument; a Liyang court ruled properly, should be corrected. According to the 140th law of civil procedure in the first paragraph (eleven) the provisions of item, ruling: withdrawal (2009) Li Zi No. 2519th civil ruling.

[comments]

Case was a vehicle accident caused by compensation problem of enforcement cases, the focus of the case that vehicle is anchored into the link joint and several liability scope in common responsibility undertaken in. Notable is, the case involved the problem although occurred during the execution of program. But the study of its content, to judgment, it is in the implementation of the trial. The problems began in the trial, but can not go back to the judicial process to solve, it should be resolved only through the execution of the program. Although the merits of the case is solvedThe traffic accidentThe issue of compensation, but the legal relationship involved is not simple. Analysis, disputes arising out of, directly related to the case, there is relationship between the tort liability insurance contract (especially the joint tort liability, joint and several liability), link between the relationship between the four kinds of legal relationship. Sorting and filtering these legal relationship, is the key to solve the case where.

• The insurance contract and its stakeholders

Contract of insurance the insured and the insurer agreed contents insurance rights and obligations of the agreement. Insurance contract is divided into the contract of life insurance and property insurance contract.Property insuranceThe subject matter of the insurance contract refers to the contract "to property and related interests.Property insuranceA significantly different from general civil contract is a civil contract, the parties often is made for their own interests, andProperty insuranceThe contract is to be concluded between the interests of the insurer ". The insured may be insured themselves, also can be the applicant to any third person. The insurance act twelfth provisions of the fifth paragraph: "the insured refers to the property or person is protected by the insurance contract, who enjoys the right to insurance claims."

This case involved the vehicle insurance companies insurance business is based on three Xin company names, the insured three Xin company, entitled to claim for the insurance benefits shall be three Xin company, Zhang Guangchang is not insured, not entitled to claim for the insurance benefits. Although Zhang Guangchang was the actual owner of the vehicle, but because it is not the Party of insurance contract, is not insured, so its not over three Xin company and the relationship with the insurance company.

• Joint and several liability of tort and the

The civil liability of tort caused by common tort liability, tort liability above single one implementation produces and two implementation of the resulting. Obviously, this is a case of the common liability for tort. In our civil law about the joint act of tort and its liability is the general principles of the civil law of 130th, more than two joint tort; damage, he shall bear joint and several liability. "The Supreme People's Court on the trial of personal injury compensation case applicable legal interpretation", made a more detailed explanation of the problem. The judicial interpretation of article third to Article fifth of the joint tort can be divided into four types: common intent; joint negligence; no joint intent, joint negligence, but the infringement occurred directly with the same damage; joint dangerous act. The judicial interpretation that often result in dispute is directly combined with indirect combination. Some scholars think, the so-called direct infringement, the biggest problem is the abstraction of the concept, in theory, experts and scholars are not clear, in the judicial practice of course is not operating. The viewpoint thinks, direct binding index is very close to the degree of behavior, harm consequence, cause and harm of respective cannot distinguish. Although the combination has the accidental factor, but its tight degree makes several behavior condenses into a joint tort caused damage to the victim. And the point of view, should be the unity of time and space and perspective to distinguish between direct and indirect combined with, if several tort in space and time is the same, constitute direct binding; if several tort is not consistent in time and space, is a combination of indirect.

In this case, Zhang Guangchang driving a vehicle with Yu spring driving a vehicle collision killed three people, Zhang Guangchang and Yu Chun were not intentionally or joint negligence, but the two tort combination degree very closely, the harm consequence, their causes and harm of non distinction; and two damage behavior in space and time is the same. Therefore, should belong to no joint intent, joint negligence, but the infringement occurred directly with the same damage case, constitute the common infringement, shall bear joint and several liability in accordance with the provisions of the general principles of the civil law 130th.

• It co infringement: affiliated person should bear joint and several liability

1. Analysis of the affiliated person with the affiliated people responsible for the

It is not a legal concept, understand the general sense, vehicles linked is the actual owner of car owners signed agreement with that, it has the qualification of transport enterprises, engaged in the transportation business behavior to transportation enterprise name. The owner called it, transportation enterprises is referred to as the affiliated person. From the perspective of administrative law, engaged in the transportation business shall have the corresponding qualifications shall be the administrative license, the relevant administrative departments, vehicles linked behavior is essentially a rental behavior of a transport qualifications, in order to circumvent the law, so that no administrative license, do not have to from the main industry qualification in the transport industry. In 2004 the State Council promulgated the "Regulations" article sixty-seven road transport can be said to be similar to the illegal punishment according to the provisions. The Ministry of Communications "road transport industry development plan (2001-2010 year)" (Highway No. [2001]698) article three (three) Xiang Zaiming resolutely liquidation and associated transport vehicle management.

A link between the affiliated vehicles caused in vehicleTraffic accidentProblems of responsibility, China's current law does not clearly defined, can find the most direct legal basis is the Supreme People's court "about the actual owner Zhao after its affiliated units should bear the responsibility of the letter" (2001) a twenty-third date in the people: "complex: actual owners after the accident, the link from the affiliated vehicles operation achieved benefits are linked units shall bear the appropriate civil liability." But the judicial interpretation of what is appropriate civil liability, not an understanding in judicial practice, it is very difficult to determine.

At present, the trial practice issue mining view are the following: first, the responsibility to advance said. The theory holds that, by being affiliated to it the tortfeasor to assume responsibility, and then by the affiliated person according to affiliation agreement affiliated person to exercise the right of recourse. Second, limited liability said. The theory holds that, the affiliated person shall bear joint and several liability only in charge management fees within the. Third, the joint and several liability said. The theory holds that, the affiliated person and the affiliated person shall bear joint and several liability for tort. The author agrees with the joint and several liability said. Because the affiliated person to the volume of business to expand their operations. Enjoy more business interests, let do not have the qualifications of persons engaged in the transport industry in its own name, but also has a high risk of transportation tool itself, so the affiliated person responsibility scope should be expanded, should bear the risk of the affiliated person operating activities. According to the responsibility to advance, the affiliated person that does not have the qualification of engaging in dangerous transportation industry in its own name, but for its own fault not liable for non final, was wrong; and it acts in violation of mandatory provisions of the law, the affiliated person can according to affiliation agreement affiliated person recovery, without doubt. The essence of joint and several liability is that the victims of joint tort debtors one or several or all, simultaneously or successively request for payment in whole or in part, the provisions of the victim is very favorable, the legislative intention is to protect the victim. What 100 according to limited liability, because the management costs relative to the tort damage, often very large gap, the affiliated person shall bear joint and several liability only in charge management fees, the victim's right to be protected, the so-called limited liability joint and several liability against the original design of the system, is the name falls short of the reality.

2, the affiliated person shall bear joint and several liability scope

A person who commits a tort to direct others violations shall be jointly and severally liable in tort liability under the circumstances , law in every country and region is not accounted for in accordance with the provisions of China's existing laws and the relevant judicial interpretations, with the following four types: those Internet users and Internet service providers of the joint tort liability; animal the keeper or manager and third person of joint tort liability; employer and employees of joint tort liability: its employees to help workers joint tort liability: help workers and workers of joint tort liability. In the first and two kinds of situations, the network service provider or animal breeders, management did not commit a tort, but violations of others shall bear joint and several liability, their common point is that, the network service provider or animal breeders, management to others engage in tortious acts by virtue of the tool, with supervision, care duty to fulfill this obligation, they may result in damage to a part of the force. In third, fourth cases, employers or expand their scope of activities are helper slaving others, and enjoy the benefits, the scope of responsibility should be expanded, should bear employees or workers in hazardous duty or helper activity behavior; and the employer or to help workers to employees or workers in the execution of his duty or helper activity are the guidance and supervision of the obligations.

As can be seen, the infringement shall be jointly and severally liable liability for tort behavior is not a person who commits a tort to direct others, lies in the common cause, the end of a person who commits a tort is a specific legal relation and direct the implementation of the tort person and enjoy the benefits, and the person who commits a tort or infringement by virtue of the instrument with supervision, care, guidance, supervision and other obligations. If it is properly to make these obligations, it can avoid the infringement behavior in a certain extent. The speak from the law method, this is by analogy, and analogy in the general analogy, analogy is also called the regulations prescribed by the law, that the majority of induction pumping, general principles, and apply the law does not specify the matters in.

In this case, for the three Xin company and Yu spring, there is no legal relationship between the two, Xin company did not get any benefit from the driving behavior more than spring, no driving behavior of Yu spring guide and supervise duty and students. No factual reasons together with the analysis of the above jointly and severally the case of responsibility. The base is not similar, for different treatment, the two should not bear joint infringement fees.

In addition, this case is worth pondering, Zhang Guangchang as the actual vehicle all people, can get the insurance company of business insurance indemnity by three Xin company? The court can therefore the indemnity to take enforcement measures? The answer is no.. Because, the insurance company has been sentenced to undertake the compensation in this case, even if the three Xin company from insurance companies in addition to obtain indemnity, will eventually determined to Zhang Guangchang, perhaps many uncertain factors, and in accordance with the purpose of insurance claim, to resolve through litigation or arbitration to. So, the implementation of the court in the face of such a situation, cannot take enforcement measures against the commercial indemnity.

(the author unit: Jiangsu Province, Changzhou City Intermediate People's Court of article / Yan Guorong)Jin Ruibin