Liaoning Provincial Higher People’s Court and Liaoning Provincial Public Security Department

Liao Bus (2001) No. 62

Opinions on Handling Several Issues in Road Traffic Accident Cases

In order to correctly handle road traffic accidents and traffic accident compensation cases, protect the legitimate rights and interests of the parties in accordance with the law, promote the legalization and standardization of traffic accident handling work in our province, and maintain economic development and social stability, according to the "China The General Principles of the People's Republic of China and the Civil Law and the State Council's "Measures for Handling Road Traffic Accidents" (hereinafter referred to as the "Measures") and other laws and regulations, on the basis of summarizing practical experience and combining with the actual situation of our province, are now dealing with road traffic accidents. The following suggestions are put forward to deal with several problems encountered in the work.

1. Acceptance of Guanzi road traffic accidents

1. After receiving the report, the public security and traffic management agency should carefully register and accept the case.

If it is a non-road traffic accident after on-site investigation, the public security and traffic management agency shall refer to the relevant provisions of the "Road Traffic Accident Handling Measures", and serve it to the parties or their agents in accordance with the law, and notify the relevant competent authorities. Apply for settlement or file a civil lawsuit with the people's court with jurisdiction.

2. The following situations are non-road traffic accidents

(1) Accidents occurring within railway crossings and ferries;

(2) Vehicles have not yet started moving Casualties caused by crowding and falling;

(3) Special roads built by factories and mines that are not accessible to public vehicles, mechanized plowing roads used for field farming and agricultural machinery, in the compounds of government agencies and units, trains Accidents that occur on the roads in stations, bus terminals, and loan yards;

(4) Accidents that occur with vehicles participating in military exercises, sports competitions, and road construction;

(5) Accidents that occur on inter-city, urban-rural, or rural roads that have not been inspected and approved by the highway authorities;

(6) Occurrences in trade markets established with approval (except public parking lots) Accidents;

(7) Accidents caused by irresistible natural disasters;

(8) Other non-road traffic accidents.

II. Prepayment of damages for road traffic accidents

3. When dealing with road traffic accidents, the public security and traffic management agency shall order the person responsible for the traffic accident or the driver's unit, The owner or actual possessor of the motor vehicle prepays road traffic accident damages. If the prepayment is refused or the prepayment amount is insufficient, the vehicle involved in the traffic accident may be temporarily detained until the full amount is paid.

The amount of prepaid road traffic accident damages shall be limited to the determined liability for the road traffic accident and the losses caused by the road traffic accident.

4. With the consent of the public security and traffic management agency, the compensation can be used to pay the medical expenses of the injured in advance.

3. Responsibility determination and liability assumption for road traffic accidents

5. When handling road traffic accidents, the public security and traffic management organs shall promptly handle road traffic accidents in accordance with the "Measures" and other relevant laws and regulations. The cause of the accident shall be ascertained, liability determination shall be made on time, and the report shall be served to the parties or their agents in accordance with the law.

The public security and traffic management agencies and the people's courts should correctly determine the subject of liability for compensation based on the ascertained facts and determination of liability. ,

6. If a driver is responsible for a traffic accident while driving a motor vehicle owned by himself, the driver shall bear the liability for compensation.

7. If a driver is responsible for a traffic accident while performing the duties of the unit or performing activities stipulated in the employment contract, the unit or employer where the driver performs the duties shall bear the liability for compensation.

8. If a driver is responsible for a traffic accident while driving a vehicle owned by his or her unit or employer and is responsible for a traffic accident during non-duty activities or non-employment activities, the driver shall bear the liability for compensation. If the driver is temporarily unable to make compensation, the driver's unit or employer will be responsible for the advance payment.

9. The owner of a motor vehicle refers to the unit or individual registered with the vehicle management authority in accordance with the law. The actual owner of a motor vehicle refers to the borrower in the loan relationship, the lessee in the lease relationship, the contractor in the contracting relationship, the affiliated person in the affiliation registration, the final purchaser after the transfer of ownership of the vehicle transaction, and the vehicle transaction adopts the installment payment method. person or other legal actual possessor.

When the owner of the motor vehicle is different from the actual possessor of the motor vehicle, the liability may be determined according to the following different situations.

(1) If the borrower or lessor is responsible for a traffic accident and is held responsible, the borrower or lessor shall bear the liability for compensation. If the borrower or lessor is temporarily unable to compensate, the owner of the motor vehicle shall bear the liability. Responsible for advance payment. However, if the lender or lessor fails to perform its obligation to examine whether the borrower or lessee has the qualifications and skills to use and drive the vehicle, both parties to the borrowing and leasing relationship shall bear joint and several liability.

(2) If the contractor is responsible for a traffic accident, the contractor shall be liable for compensation, and the contractor or vehicle owner shall bear joint and several liability.

(3) If the final purchaser of a vehicle transaction without transfer of ownership is involved in a traffic accident and is responsible, the final purchaser shall bear the liability for compensation. In the end, if the buyer is temporarily unable to compensate, the vehicle owner will be responsible for advance payment.

(4) If a traffic accident occurs during the purchase of a car using the installment payment method, and the installment payer is responsible, the installment payer shall bear the liability for compensation.

(5) If a traffic accident occurs and the affiliated person is responsible for the accident, the affiliated person shall bear the liability for compensation. If the affiliated unit charges the affiliated person management fee, the affiliated unit shall collect the management fee. Bear limited joint and several liability within the total amount.

1 O. When the actual owner of the motor vehicle and the driver are not the same person, and the driver is responsible for a traffic accident, the liability for compensation shall be determined in accordance with the provisions of Articles 8 and 9 of this opinion. and advance liability. However, when applying the provisions of Article 9 of this opinion, if the actual possessor is temporarily unable to make compensation, the owner of the motor vehicle shall still be responsible for advance payment.

IV. Regarding the scope and standard of compensation for road traffic accident damages

1 1. The scope of property loss in traffic accident compensation should include: vehicles and other property damaged by the accident; Costs incurred in dealing with accident victims, vehicles and other property, and vehicle storage fees incurred due to the temporary impoundment of vehicles.

1 2. The period from the end of hospitalization to the month before the determination of disability, as well as the period after the end of the first period of hospitalization before the disability has been determined, and the period of discharge and waiting for the next period of hospitalization, should be based on the actual situation and in accordance with the "Measures" 》Item (3) of Article 37 stipulates that the food subsidy shall be calculated based on 50% of the standard.

13. If the disability level of a disabled person is rated as level three or above (including level three), the nursing fee after treatment and discharge should be taken into account. It will be calculated based on the average living expenses in the place where the traffic accident occurred. Starting from the month of discharge, a compensation of 20 Year. However, for those over 50 years old, the age will be reduced by one year for every additional year, with a minimum of not less than 10 years; for those over 70 years old, the calculation will be based on 5 years. At the same time, according to the disability level, level one is calculated as 100%, and it is reduced by 10% for each level reduced.

1 4. If the party concerned needs to be hospitalized for staged treatment after being discharged from the hospital, although the disability assessment cannot be carried out before the end of the treatment, the diagnosis by the medical department proves that the degree of disability complies with the Ministry of Public Security's "Road Traffic Accident Injuries" Personnel Disability Assessment Standard Level 3 or above (including Level 3) shall be determined to be hospitalized from the end of the first period of treatment to the next period in accordance with the provisions of Article 37 (4) of the "Measures" Nursing fees for the period before treatment.

15. The living allowance for the disabled is determined according to the assessed disability level. Level I is calculated as 100%, level II is reduced by 10%, and so on for others.

1 6. For persons with more than two disability levels (including two), the living allowance for the disabled should be increased as appropriate on the basis of the severe degree of disability, and the amount should not exceed the above. Limited to first-level standards.

1 7. The disability of the disabled includes total and partial loss of working ability. The calculation of the living expenses of the dependents is determined according to the disability level assessed by the disabled person. The calculation is 100% for level I, 10% for level two, and so on for the others.

1 8. If the deceased or disabled person is not the sole dependent, the living expenses of the dependent shall be calculated based on the share of the deceased or disabled person.

1 9. The average living expenses are classified according to the per capita living expenses expenditure of urban households or the per capita living expenses expenditure of rural households published by the statistics department of the people's government of the place where the traffic accident occurred (province, autonomous region, municipality directly under the Central Government) in the previous year. The different identities of the rights subjects are calculated accordingly.

20. The living difficulty subsidy standard for residents shall be based on the living difficulty subsidy standards for urban residents or farmers’ living difficulty subsidy standards for the previous year announced by the civil affairs department of the people’s government of the place where the traffic accident occurred (province, autonomous region, or municipality directly under the Central Government). Distinguish the different identities of rights subjects and calculate accordingly.

21. Damage compensation for foreigners, stateless persons, overseas Chinese and compatriots from Hong Kong, Macao and Taiwan shall be calculated according to the compensation standards for Chinese citizens in the place where the traffic accident occurred.

V. Mediation in Handling Road Traffic Accidents

2 2. The public security and traffic management agencies should actively mediate the damage compensation for road traffic accidents, and within the mediation period for statutory damage compensation, If an agreement cannot be reached after mediation, the mediation should be terminated, and a "Road Traffic Accident Mediation Termination Letter" should be prepared in a timely manner and served to the parties or their agents in accordance with the law. The parties concerned shall file a civil lawsuit with the competent people's court with the mediation termination letter of the public security and traffic management agency.

After an agreement is reached through mediation, if either party fails to perform the mediation letter after it becomes effective, the public security and traffic management agency will no longer mediate. The parties concerned shall file a civil lawsuit with the competent people's court with a mediation letter from the public security and traffic management agency.

2 3. If all parties involved in a road traffic accident are willing to reach an agreement on compensation for throwing injuries, the case handling personnel can record it in the case. The agreement will take effect after it is signed or stamped by all parties and the case handling personnel. If either party fails to perform after the agreement comes into effect, there will be no mediation and the parties shall file a civil lawsuit with the competent people's court with the agreement.

2 4. If no agreement is reached after mediation, the parties involved in the traffic accident shall not file a lawsuit with the People's Court within one year (personal injury claim) or two years (property loss claim) from the date of delivery of the mediation conclusion letter. In civil litigation, the public security and traffic management agency shall return the prepaid compensation or the temporarily impounded vehicle to the party concerned.

2 5. After the liability for a road traffic accident is determined, the damage compensation should be mediated in accordance with the "Measures" and the damage compensation standards. Unless the responsible party agrees, no additional compensation items or higher compensation standards are allowed. .

2 6. After a road traffic accident, although the driver escaped, the owner of the motor vehicle or the actual possessor or driver of the motor vehicle is known only because the public security and traffic management agency has been investigating for 30 days. If there is really no way to find the owner of the motor vehicle, or if the owner of the motor vehicle is found, the owner refuses to bear the responsibility for advance payment, so that the case cannot be resolved according to the relevant regulations on accident handling, the public security and traffic management agency shall issue a "Road Traffic Accident Liability Determination Letter" and Relevant certificates shall be provided and the parties shall be informed to file a civil lawsuit in the People's Court.

6. Delivery of legal documents regarding the handling of road traffic accidents

2 7. The public security and traffic management agency shall serve the traffic accident liability determination letter or the liability re-determination letter to the parties involved in the road traffic accident. , mediation letter, mediation termination letter, written notice to participate in mediation, non-road traffic accident notice and relevant certificates, etc., should be delivered directly to the recipient, and there must be a receipt of service, which must be delivered by the recipient and the person delivering it. The date of receipt, signature or seal must be recorded on the arrival receipt. If it cannot be served directly, it shall be served according to law with reference to the relevant provisions of the Civil Procedure Law.

7. Prosecution and Acceptance of Road Traffic Accident Compensation Cases

2 8. When any party files a civil lawsuit in the People's Court due to road traffic accident damage compensation, in addition to complying with the following requirements: In addition to the conditions stipulated in Article 108 of the Civil Procedure Law, the "Road Traffic Accident Liability Determination Letter" and the "Road Traffic Accident Damage Compensation Mediation Letter" or the "Road Traffic Accident Damage Compensation Mediation Ending" issued by the public security and traffic management agency should also be submitted. Book". Otherwise, the People's Court will not accept the case. ·

2 9. When the public security and traffic management authority confirms that the road traffic accident was not caused by any party’s violation of regulations, when the party files a civil lawsuit in the People’s Court, he or she shall submit an unspecified certificate prepared and issued by the public security and traffic management authority. The People's Court shall accept written conclusions resulting from any party's violation of regulations.

3 O. After a road traffic accident occurs, if the parties fail to report the case in time, or make a private agreement without reporting the case, fail to reach an agreement, or regret after reaching an agreement, and file a civil lawsuit with the People's Court for compensation, the People's Court shall The case will not be accepted directly, and the party concerned will be notified to apply to the public security and traffic management agency for handling, and then the case will be brought to the People's Court in accordance with the provisions of Articles 28 and 29 of this "Opinion".

3 1. After a road traffic accident, the person involved abandoned the car and fled. After investigation by the public security traffic management agency, it was found that the vehicle involved in the accident did not have a license plate, and there was really no way to know the owner of the motor vehicle or the actual possessor or driver of the motor vehicle. For whom, the party concerned may bring a lawsuit to the People's Court with a certificate issued by the public security and traffic management agency. The People's Court may accept this case in accordance with the relevant provisions on "cases of determining ownerless property" in the special procedures. The vehicle involved in the accident shall be sold or auctioned in accordance with the law, and the sale or auction price shall be used to compensate the parties for the losses they deserve.

3 2. When the party concerned files a civil lawsuit in the People’s Court for a damage compensation dispute caused by an accident involving vehicles or pedestrians that occurred off-road, as confirmed by the public security and traffic management authority, it shall be submitted to the public security and traffic management authority. If the relevant legal documents produced meet the conditions for prosecution stipulated in Article 108 of the Civil Procedure Law, the People's Court may directly accept the case.

3 3. After the People's Court accepts the case, it shall comply with the Tenth Notice of the Supreme People's Court and Public Security Bureau (Fafa (1992) No. 29) on Issues Concerning Handling Road Traffic Accident Cases. According to the provisions of Article 1, the case file shall be requested from the public security and traffic management agency.

8. Regarding property preservation and advance execution in road traffic accident compensation cases

34. After accepting a road traffic accident compensation case, the People’s Court shall temporarily suspend the operation of the road traffic accident compensation case involving the public security traffic management agency. If the vehicle and compensation are impounded, a property preservation ruling may be made in a timely manner in accordance with the provisions of Article 92 of the Civil Procedure Law, and the transfer procedures for the temporarily impounded vehicle and compensation shall be completed with the public security and traffic management agency. When handing over the temporarily impounded vehicle, The vehicle owner and actual possessor should be notified to be present.

3 5. After the People’s Court accepts a road traffic accident compensation case, the party who is not responsible or has a minor liability in the road traffic accident applies to the People’s Court for the main compensation for medical treatment or urgent needs in life. If the responsible person's vehicle or other property is subject to enforcement first, the People's Court shall promptly make a ruling on prior enforcement in accordance with the provisions of Articles 97 and 98 of the Civil Procedure Law.

9. Litigation parties in road traffic accident compensation cases

3 6. The litigation status of the defendant shall be determined in accordance with the following principles.

(1) If the situation stipulated in Article 6 of this opinion is met, the driver shall be the defendant;

(2) If the situation stipulated in Article 7 of this opinion is met, the unit or employer shall

(3) If the circumstances specified in Article 8 of this Opinion are met, the driver is the defendant, and the unit or employer is the third party.

(4) If it is met with Article 9 of this Opinion, Article 1 stipulates that the actual possessor of the motor vehicle in cases (1) and (3) is the defendant, and the owner of the motor vehicle is the third party. In case (2). In case (5), the actual possessor of the motor vehicle and the owner of the motor vehicle are the defendants, and in case (4), the installment payer of the motor vehicle is the defendant;

(5) In accordance with paragraph 1 of this opinion In the circumstances specified in Article 1 O, the driver is the defendant, and the actual possessor of the motor vehicle and the owner of the motor vehicle are the third parties.

3 7. In traffic accident compensation, the heirs of the deceased (except those who have given up their inheritance rights) and dependents during his lifetime should be parties to the lawsuit, and one of their representatives can be entrusted as the litigation agent.

10. Others

3 8. If the party concerned fails to apply for a disability assessment when handling the traffic accident case at the public security traffic management agency, and requests a disability assessment during the hearing of the People's Court, the People's Court shall The court may entrust relevant departments to conduct disability assessment.

3 9. For compensation cases caused by non-road accidents related to vehicles and pedestrians, the people's court still determines the cause of the case as "traffic accident compensation", and may refer to the "Measures" and this opinion To handle. The public security and traffic management agencies should provide active assistance in determining accident liability.

4 O. The People's Court calculates the acceptance fees for road traffic accident compensation cases according to the charging standards for personal injury non-property cases and property cases respectively.

4 1. If the contents of this opinion are contrary to relevant national laws and regulations, the relevant national laws and regulations shall prevail.

4 2. This opinion will be implemented on a trial basis from the date of publication.