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The appellant: Wang mou,

Respondent: Lee,

Respondent: chen,

The appellant and appellee because of the traffic accident damage compensation dispute case, the Guangzhou Liwan District Court (2011Li people) method at the beginning of the word no.1041Civil judgement, to appeal

The appeal

Revoke the original judgment,And to support the appellant's claim.

The facts and reasons

A, National industrial injury insurance fund compensation liability in any case can not become a traffic accident tort

Party liability reasons, if so to deal with the legal consequences and social benefits can only be"Have the order reversed"---Defend the interests of protection against infringement, damage the interests of the national social security fund and the accident victim benefit.

1, the tort compensation and industrial injury insurance compensation overlapping concurrence in the traffic situation, the spirit of law of any country in the world could not exist economic liability because of national industrial fund payment and the corresponding exemption or deduction of infringement of legal spirit, could only be due to infringement of economic compensation and the corresponding exemption or reduce the economic compensation responsibility of national industrial fund existence.

2, Chinese industrial injury insurance for enterprise employees 96 years of "Trial Measures" (repealed) the spirit of the provisions of article twenty-eighth, in the traffic accident compensation and the national compensation when competing, and tort compensation priority, national compensation to assume additional liability in the post, assuming the compensation than the added responsibility of national industrial fund may request the accident injured repayment, but may not be economic liability with the national industrial fund interest to reduce or exempt the infringing party, simply impossible"Go for the illegal infringement service with the interests of the state".

3, since January 1, 2004 the implementation of the national "industrial injury insurance regulations" abolished 96 years "workers industrial injury insurance pilot mental regulations" article twenty-eighth, "the Supreme People's Court on Several Issues concerning the application of law in the trial of personal injury compensation case explanation" article twelfth stipulates that the compensation liability and the third person tort liability concurrence two liability for compensation shall be governed by the law.

4, the national social security fund departments around the common practice: regardless of any accident, the social security fund department does not require the injured party (traffic accident) infringement have made any proof material compensation or compensation, straight to pay compensation in accordance with the provisions of the calculation. The national social security around the Department to follow"Tort compensation and industrial injury compensation in parallel, and do not influence each other"Principle,The appeal of the national social security fund of inductrial injury compensation liability sector that is so operation.(The appellee like that is wrong,Please provide the proof to the court of second instance;Or the court of second instance considers it necessary to verify,Please your hospital of Guangzhou city social security department advisory letter)

The liability for compensation, medical expenses that 5 national fund of inductrial injury insurance has been paid can be exempted from infringement, traffic accident, may appear ridiculous:For example, a traffic accident hurt someone, this also constitutes inductrial injury accident, only someone took medical costs 2000 yuan, the national industrial fund has paid for sb 2000 yuan for medical expenses, if the traffic accident to tort party as hit a dog? A penny"Dog"Money should not pay?

6, traffic accident compensation and the "insurance law" meaning of commercial insurance overlapping concurrence, the infringing party not to unrelated commercial insurance and defense refused to appropriate economic compensation; only may the Business insurance company at"The principle of compensation for the loss"Defense refused to the corresponding insurance compensation.

To make a long story short,If the trial court the judge which have abolished 96 years "workers industrial injury insurance pilot scheme""The old ideas"To award,"The aggrieved party, infringement, National Industrial Fund"The interests of the three phase comparison, even if the injured party's not worth mentioning, it should at least have the national industrial fund public interest ranks first, the judgment of the first instance should be ordered the appellee according to laws and regulations of compensation for traffic accident the appellant total loss,And then to the Guangzhou City Bureau of Social Security Bureau of social security of delivery proposals to the injured recover losses judicial proposal.

In this case the original judgment made by the appellant(The infringer)"The sky dropped a forest sister",The appellee this proposal fails to pay the cost to the National Social Security Department,The traffic accident hit a five level and ten level disability,The court because of injury compensation liability and social security departments are exempt from compensation liability, The appellee shall shout"Guangzhou Liwan District people's court, long live"

Even if the economic liability China court because of inductrial injury compensation liability part of national industrial fund exempt infringement of traffic accident,On the vast land of traffic accident tort should conscience to court for delivery"Long live people 's Court,Million years old"The multicolored silk banner.

Two, the traffic accident victims after prosthetic forensic nursing level, without legal basis; the other

In practice, identification of the labor department or other judicial departments are not alone accept this identification, that is identification without the door. The trial court"Unwarranted"To blame the appellant not judicial identification corresponding.

(a) whether GB186672002 "injured in road traffic accident", "evaluation of GB / T161802006 labor ability identification of work-related injuries and occupation disease disability scale", or GA / T8002008 "personal injury dependent care assessment" and so on the national standard, no crutches, wheelchairs, artificial limbs disability AIDS associated with disability nursing the specified degree of traces.

1, In the realistic society, traffic accident disability nursing appraisal departments or labor ability disability nursing

Having the force of law, judicial identification book science appraisal departments, no"For preparation of nursing degree crutches, wheelchairs or limb injured for how, or preparation of the words, don't care why nursing degree degree prepared and why"The expert opinion.

2, Due to current national mandatory standards for the preparation of disability nursing no wheelchair, limb disabilities such device

With the provisions may be all or as a percentage of reduction or replace corresponding nursing degree, labor ability appraisal department or other departments shall not accept the judicial identification of a wheelchair or prosthesis after separate identification of nursing level application.

3, "Tort liability law" sixteenth and "the Supreme Court on the trial of personal injury compensation

Some issues of applicable law cases the interpretation of "seventeenth of the disability AIDS fees and nursing Fei Pinghang compound, is caring for the weak, such as installation of assistive devices, shall be installed at the same time and humanity to improve the quality of life.

The spirit of the law not to let the weak selection disabled appliances fees or care, not a choice between a weak, not in the end"Select the object or person nursing care; choose mute (matter) nursing or non dumb (people) nursing"Dilemma.

(two) the traffic accident disability nursing identification and the casualty is acquired disability AIDS do.

GB18667 2002 "road traffic accident classification for injured evaluation" appendix A disability classification based on 1 - 6 class disable the first item is the ability of daily life of the wounded need corresponding nursing; in short, according to the "injured in road traffic accident assessment" GB evaluation of 1 - 6 level disability itself connotation inherent need of daily life care of others.

Now the country failed to produce any document:"The preparation of a walking stick, a wheelchair or prosthesis, a corresponding reduction in degree of nursing care were 10%, 20% or 50% etc."Content.

(three) the current work-related disability nursing assessment and the casualty is acquired disability AIDS do.

1, Abolished GB / T161801996 workers "labor ability identification

Injuries and occupation disease disability disability classification "in the criteria related to install artificial limb (including5.2.3 the provisions"High amputation refers to the humeral or femoral defects of the 2 / 3 above, cannot install artificial limb or install artificial limb activity is still very difficult"), the national standard:"Appendix B d) 24) side elbow deletion (non benefit side), cannot install artificial limb; 25) side of the knee following deletion, can not be installed prostheses, the other side before the absence of foot; 26) side of the knee that deficit, cannot install artificial limb"Here, 24, 25, 26))) case, cannot install artificial limb was rated four disabled, can install artificial limb was rated five disabled.

2, the current GB / T161802006 "labor ability identification of work-related injuries and occupation disease disability grade""Preface"Part of his name"The degree of disability of injury or suffer from occupation disease of the workers to make technical appraisal more objective, scientific, on the basis of summarizing and analyzing10Years of work-related disability evaluation on the basis of practical experience, on theGB/T16180-1996The revision and perfection. Matched with regulations and labor ability assessment system in our country, the primary standard was renamed the "labor ability identification of work-related injuries and occupation disease disability level", and the technical principle for adjustment:--Cancel statement aids such as the installation of prosthesis;"

The current injury working disability grade national standard GB in 1996 involving prosthetic content thoroughly scored at the bottom of the hell.

Four, Now the national government departments and judicial departments no one will accept artificial life

Or repair fee item appraisal application, the trial court"Unwarranted"To blame the appellant not judicial identification corresponding.

Five, The first instance court procedural unconscionability justice.

In the case of the appellant provides Guangdong Pearl River clinical forensic forensic judicial authentication opinions as the real level of disability and nursing dependency, the appellee retort, the trial court does not oblige the appellee provides counterevidence or apply for re identification.

In the case of the appellant provides Guangdong Province the highest level of work injury rehabilitation hospital of Guangdong Province is work-related injury rehabilitation hospital limb proof, the appellee retort, the trial court not to be provided to the appellant or for identification.

In the case of the appellant provides Guangdong Province inductrial injury rehabilitation hospital medical expenses and other documents, the appellee to refute of injury insurance, the trial court does not oblige the appellee provides counterevidence or the application of investigation and evidence collection, or to provide specific provisions of the law or the people's government documents etc..

The appellant reply the trial court after identification, no prosthesis nursing departments of Civil Affairs identification prosthesis life repair matters not door; the court without authority were identified, nor make any investigation or research; all are rejected the appellant appeals.

To make a long story short, the appellant(Plaintiff)A lawsuit in the court, as the monk Buddhist sutras to experience nine nine to eighty-one; and by the appellant(Defendant)Without experiencing a difficult (except for the traffic accident hit this difficult).

The judgment of the first instance court in Liwan District continue to use (2010) Li method people first No. 1759th contains the verdict"No human"The spirit, 1759 decision"The left leg was amputated when for the four disability level, the sentence above v. no provision of hospital must justify buying a wheelchair and dismissed claims wheelchair fee 568 yuan litigation request, the appellant in this case also personally attended the hearing, the judge of the naked eye only a leg sit wheelchair over it? Also need the injured to hospitals to buy a wheelchair or doctor diagnosis prove it?".

In the judgement of the lower court's eyes"The health of the human body can be measured by money,The compensation principle of the civil law can be used to weigh the material loss..."If the original judgment in addition to the application"Material damage compensation principle of civil law"The chastity memorial arch to award,There may be other laws and regulations do?

If the people's Court of second instance upheld, the people's court for the tort liability of the appellant, the appellee conscience should not be bitten by the dog, should be to the Liwan District people's court and the Guangzhou City Intermediate People's court delivered from the bottom of my sincere gratitude"Million years old"Pennant.

For justice, justice.

Yours sincerely

Guangzhou City Intermediate People's court

Appellant.

2011 NovemberDay