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Chapter 20 Questions and Answers on Personal Injury Compensation Disputes (2)
Combined with the case involved in this article, both parties have cited contrary evidence to determine whether the wolfhound that collided with the car was raised and managed by Factory A, and each side insists on its own opinion.The evidence provided by the plaintiff proves that there were wolf dogs in Factory A, and that the wolf dogs escaped from Factory A at the time of the incident, and their whereabouts were unknown after the incident. The evidence provided by the defendant can also prove that there were wolf dogs in Factory A before the incident. However, as to whether the wolf dog was the wolf dog in the course of the incident, since the witness testimony provided by it has a certain interest relationship with Factory A, the testimony of this fact itself is weak. The court based on the evidence provided by both parties The evidence confirmed the basic fact that factory A had wolf dogs before the accident, and using free evidence and rules of experience, the probative force provided by the plaintiff was far greater than that of the defendant, and it was determined that the wolf dog that collided with the car The factual existence of Factory A is highly probable, and the judgment conforms to the legal provisions of presumption of fact.

tips

The rule of thumb in litigation is the rule or knowledge about the causal relationship or the state of nature of things that human beings inductively obtain in their daily life.In the long-term production, life and scientific experiments, people have obtained a lot of knowledge and information about the relationship or influence between objective things and the development and changes of objective things themselves. Through rational analysis and induction, they have formed experience.According to this experience, people can infer the existence or state of another thing from the existence or state of one thing, or infer the past and future of the thing from the present state of the thing.

5. How to judge the authenticity of emails in personal injury cases?
丁某与闵某曾为夫妻，于2005年7月离婚。2006年4月1日，闵某向法院起诉丁某。

The plaintiff stated that on March 2006, 3, the defendant sent an e-mail to my boyfriend at the time, Mr. He, who used a lot of insulting language and portrayed the relationship between me and my boyfriend as extremely dirty.The behavior of the defendant has seriously violated my right of reputation, causing adverse effects and serious losses, so I appeal to the court to order the defendant to apologize and compensate for the losses.The defendant argued that the e-mail received by He was not sent by me.

On May 2006, 5, the court entrusted the Municipal Public Security Bureau Public Information Network Security Supervision Division to investigate the registration information and login records of the e-mail involved in the case.Based on evidence such as the contents of the e-mail, the statements of the parties, and the investigation results of the Public Information Network Security Supervision Office of the Municipal Public Security Bureau, the court found that the ID number of the applicant in the e-mail was consistent with the ID number of the defendant, and that the phone number used by the sender of the e-mail was Ding. A had dialed the number and talked with the plaintiff, and the defendant believed that the details of life and the content of the conversation described in the email were basically true, so it was presumed that the email received by He was sent by the defendant's editor.

Analysis according to law
In this case, the e-mail is undoubtedly relevant and legal, and the plaintiff and the defendant have no objection on these two points; All kinds of circumstantial evidence were presented, and the defendant also made a strong rebuttal.For a while, the authenticity of the e-mail became the focus of cross-examination by both parties.

Some people may say, what's so difficult about it, can't it be done by an expert?In the judicial practice of our country, the authenticity and falsification of paper evidence are all resolved by handwriting identification, writing time identification and document authenticity identification, etc.?Since the e-mail itself is a kind of documentary evidence, it is of course possible to seek an identification solution.

But it is not.Since electronic evidence such as e-mail is generated or stored by computer, all normal or abnormal changes in it appear as the result of computer binary operations, and it does not have obvious handwriting characteristics like handwritten written materials, so The identification of their producers is a particular challenge.

In this way, if the court blindly emphasizes that the proving party must prove that the e-mail has not been altered in any way in the lawsuit, it is very unrealistic, or even impossible, so the determination of the authenticity of electronic evidence can only be the next best thing.Judging from the advanced experience of foreign countries, the common practice is not to adopt the direct method—identification to solve the problem, but to resort to the indirect method—presumption, admission and recognizance to deal with it.Among these indirect identification methods, the so-called alternative measures and systems, the presumption method is the most widely used, so it is also regarded as the first rule for adopting electronic evidence.

Presumption refers to the method of inferring the existence or non-existence of some other unknown facts based on some known facts.The former fact is called basic fact, and the latter fact is called presumed fact.On the surface, the presumption is based on the normal connection or accompanying relationship between the basic facts and the presumed facts; in essence, the presumption is based on the consideration of opportunities, justice, and policies.For example, under normal circumstances, most letters sent by normal post will reach their destination, so the law or judge can presume that a specific normal post letter has reached its destination.Admittedly, most of these presumptions are rebuttable presumptions.The principle of presumption can also be used to judge the authenticity of electronic evidence.

Therefore, if the e-mail can prove the facts of the case, its evidentiary effect cannot be doubted.However, whether the process of e-mail extraction from the computer is fair, objective, and legal is the main basis for judging whether the e-mail has evidentiary effect.

tips

Before the lawsuit, the parties may ask the notary office to issue a notarized document, and may also adopt methods such as witnessing by lawyers, certification by diplomatic agencies, certification by industrial and commercial administrative departments, and use of advanced electronic equipment to make audio-visual materials, etc., to preserve evidence, or apply to the people's court for pre-litigation Evidence preservation.

For evidence collection, it is best to view the source code and copy and paste all the content into a word processing software for editing and printing, so that all the content in the email can be obtained; the content in the attachment should be as undistorted as possible according to different file formats Use high-end equipment to print out; if it is a sound file, it can be recorded into text and printed out, and the original sound file should be kept for cross-examination in future court trials.

6. In personal injury cases, when should forensic identification take place?

In a campus accident, He’s daughter was unfortunately punched suddenly by another classmate. The resin spectacle lens she was wearing was shattered, and the fragments were deeply embedded in the face, bleeding profusely. However, because of its young age, it is not known whether it will affect the vision of the eyes and the development of the ophthalmic nerve in the future.After reporting the case to the police station, a power of attorney for forensic identification was issued for identification.

So, when should this type of injury assessment be done?
Analysis according to law
For those with eye injuries, there is no explicit provision in my country's injury appraisal standards for how long it takes for the appraisal to be appropriate. In fact, it cannot be generalized in practice.According to the knowledge of forensic science, generally speaking, for those whose consequences cannot be expected at the time of the injury, identification should be made within 3 to 4 months after the injury.Of course, if there are more serious consequences after the appraisal, if there is a direct causal relationship with the injury, you can re-appraisal, but the difficulty of appraisal will increase a lot.

For this case, please refer to Article 9 of the "Appraisal Standards for Minor Human Injuries (Trial Implementation)": "Eye injuries: (0.7) eyelid injuries that affect the face or function; (0.2) simple orbital fractures; (0.5) partial damage and function of the lacrimal organ (0.3) partial structural damage to the eyeball, which affects the face or function; (1) loss of visual acuity caused by the damage, the corrected visual acuity of both eyes decreased to less than [-] (compared with the visual acuity decreased by more than [-] before the injury), and the corrected visual acuity of one eye decreased to less than [-] ( Compared with pre-injury visual acuity decreased by more than [-]); the original monocular low vision, post-injury visual acuity decreased by [-] level. Mild visual field defect; ([-]) Traumatic strabismus.

Article 19 of "Human Severe Injury Appraisal Standards": "Vision loss caused by various injuries refers to one of the following situations: (2) after the injury, one eye is blind; (20) after the injury, both eyes have low vision, and the low vision of one eye is 10 level.” Article [-]: “Vision defect caused by eye injury or craniocerebral injury (the radius of vision is less than [-] degrees).”

tips

Forensic medical identification is an important part of the judicial identification system.Forensic identification in a broad sense refers to a set of identification systems that use forensic theory and technology to solve legal problems such as personal injury and death; forensic identification in a narrow sense usually refers to forensic identification of a certain case, that is, forensic identification. , use their own expertise to analyze and study the forensic issues involved in the case, and draw scientific conclusions.Forensic medical identification is a kind of legal evidence, which is an indispensable objective basis for finding out the whole case when relevant medical problems are encountered in a case.

7. How should forensic doctors deal with perjury?
In May 2005, due to a dispute over the homestead, Liu, a middle-aged woman next door to Zhang's house, wrestled with Zhang's mother, and both were slightly injured. At that time, Zhang's mother did not go to the hospital to get medicine, but Liu went. Not long after, Liu went to the Municipal Public Security Bureau to find a Liang forensic doctor for an appraisal, and the appraisal result was "slight injury."Later, Zhang's mother was arrested by the Public Security Bureau on the charge of "intentional injury".With the efforts of Zhang's father, he went to the Higher People's Court for a new forensic examination: the result was a minor injury.There is still a big gap between minor injuries.Later, the Higher People's Court acquitted him and released him, believing that he did not constitute a crime.So, if the forensic doctor gives perjury, how should he be held accountable?

Analysis according to law
If the forensic doctor deliberately gave perjury, he may be suspected of committing a crime of perjury, and his criminal responsibility should be investigated according to law.The crime of perjury committed by state agency staff is under the jurisdiction of the procuratorate, and Zhang can go to the procuratorate to file a complaint and demand that he be held criminally responsible.

If the appraisal error is due to negligence, the law enforcement fault responsibility should be investigated according to the regulations of the Ministry of Public Security.Zhang can go to the legal department of the public security organ to file an application or request to investigate his responsibility for law enforcement mistakes, and it is best to write an application.At the same time, an application for state compensation can be made.

Article 305 of the "Criminal Law" stipulates: "In criminal proceedings, witnesses, appraisers, recorders, and translators who intentionally provide false certificates, appraisals, records, or translations for circumstances that are important to the case, with the intention of framing others or concealing criminal evidence , to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are serious, to fixed-term imprisonment of not less than three years but not more than seven years."

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The subject of forensic medical appraisal must be an authenticator with specialized knowledge in forensic science. The basic conditions are: (1) having received professional education or training in forensic science; Appraisal agencies are engaged in appraisal work.

8. Can the criminal police team's forensic identification be used in civil litigation?

李某于2005年的6月29日被人打伤，在刑警大队作出的法医鉴定结果是：轻微伤，出结果的日期是7月3日。不构成刑事案件，当地的派出所只能调解。李某在2006年的6月28日在本地区的法院要求立案，在这期间曾经间断的到法院近20次。法院一再的要求李某在法院重新作法医鉴定，原因是他们只认可本单位出的法医鉴定。2006年7月11日（左右），法院的法医鉴定结果是：轻微伤偏重。李某的疑问是：刑警队的法医鉴定在法院是否可以通用？

Analysis according to law
Forensic identification is a science that applies medicine, biology, chemistry and other natural disciplines to solve legal problems with theory and technology, provides materials and evidence for prosecution and trial cases, and studies and solves problems encountered in judicial practice. All abnormal deaths.

The task of forensic clinical science is to judge the degree of injury, level of disability, clinical diagnosis, nature of injury (self-injury, other injury, accidental injury, etc.), inference or determination of the injury, etc., to provide a scientific basis for the investigation, arrest, prosecution, and trial of criminal personal injury cases.After the medical treatment time is over, determine the degree of disability, loss of labor ability, and life dependence of the injured, review medical expenses, causal relationship between injury and disease, etc., and provide scientific evidence for injury compensation in civil cases.

Forensic identification, injury identification, forensic pathological identification, and forensic physical evidence identification are all common and important contents in judicial identification.Therefore, as long as it is legally qualified forensic identification, it can be used as evidence in the trial.When the people's court holds a trial, if after cross-examination, the appraisal conclusion is considered doubtful and cannot be used as the basis for a verdict, it may conduct additional appraisal or reappraisal.Therefore, in this case, if the criminal police team's forensic doctor has the legal appraisal qualification, it can be used in civil cases.

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Only forensic identification institutions with statutory qualifications can conduct forensic identification.

A legal person or other organization applying for engaging in judicial authentication business shall meet the following conditions:

([-]) Having its own name and domicile;

(20) Have funds of no less than RMB 100 to RMB [-];

([-]) Having a clear scope of judicial authentication business;
([-]) Having the necessary instruments and equipment for judicial identification within the scope of business;
([-]) Having a testing laboratory that has passed metrology certification or laboratory accreditation, which is necessary for judicial identification within the scope of business;

(3) There are more than [-] judicial authenticators for each judicial authentication business.

9. Who can be a witness?

An old teacher was injured for no reason, and was identified as a Grade [-] disabled person.The teacher's mother and the other party's mother were also present at the time.There are now hospital appraisals, and the court trial went relatively smoothly some time ago, but after the Spring Festival, the other party insisted that it was the other party's mother who hurt the teacher.All work has to be overturned and the court requires the teacher to find witnesses, and if there is no witness, it will be sentenced to lose the case.

So, can the teacher's mother be a witness?

Analysis according to law
First of all, the teacher can report the case to the public security organ, and the public security organ will file the case for investigation and investigate the legal responsibility of the perpetrator according to law.The teacher's injury has constituted an eighth-grade disability, which is likely to constitute a serious injury according to the injury appraisal standard. Even if it does not constitute a serious injury, it will constitute a minor injury.Whether it is a serious injury or a minor injury, the perpetrator can be held criminally responsible.

In this way, if the public security organs are under the jurisdiction, the public security organs will conduct investigations and collect evidence according to their powers, and the parties have no obligation to provide evidence.In this way, while the criminal responsibility of the other party is investigated, the civil compensation part is resolved through the criminal incidental civil lawsuit.

Article 234 of the "Criminal Law" stipulates: "Whoever intentionally injures the body of another person shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance. Whoever commits the crime in the preceding paragraph and causes serious injury shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; Whoever causes serious injury or serious disability by particularly cruel means shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, or death. If there are other provisions in this law, the provisions shall be followed."

Paragraph 77 of Article 1 of the "Criminal Procedure Law" stipulates: "Where the victim suffers material losses due to the criminal behavior of the defendant, during the criminal procedure, he has the right to initiate an incidental civil lawsuit."

Secondly, if you want to go directly to the court to file a civil lawsuit, it is also possible.However, in civil litigation, the parties bear the burden of proof for their own claims.If the party bearing the burden of proof cannot provide sufficient evidence to prove its claim, it will bear the consequences of losing the lawsuit.

Regarding the qualifications of witnesses, the law mainly stipulates the following points:
1. Anyone who knows the circumstances of the case and has the ability to testify can be a witness, regardless of gender, age, ethnicity, origin, cultural status, property status, ideological awareness, performance, or social status.

2. People who are physically or mentally deficient or young, unable to distinguish right from wrong, or unable to express themselves correctly, cannot serve as witnesses.Physiologically or mentally deficient or young are only relative conditions for disqualification to testify. Whether these people can serve as witnesses depends on whether they can distinguish right from wrong about objective affairs and whether they can express themselves correctly.

3. Witnesses can only be people other than the parties who know the circumstances of the case.The parties to the case cannot be witnesses because they have a direct interest in the case.

So the teacher's mother can of course be a witness.

tips

Witness testimony belongs to verbal evidence. Compared with physical evidence, it has the advantages of vividness and concreteness, but it is less objective in terms of probative force and is easily affected by various objective factors.At the same time, the situation of each witness is different, and there are thousands of differences in the ability to perceive, remember, and express the facts of the case. Even the information provided by an honest person may be distorted.

10. For the appraisal of minor injuries, can the accumulative injuries of several people be counted as serious injuries to demand double compensation from the perpetrator?
Ding is a rural woman. On August 2006, 8, she was injured by her neighbor (soft tissue injury ten times) because she stopped her neighbor from building in front of Ding’s house (after the building was completed, it would affect the lighting and ventilation of Ding’s house). multiple places). On the 7th, Ding's parents-in-law were again injured by neighbors. On the 8th, Ding, who was the most seriously injured, was preparing to go to the county with the police station for forensic examination, but was injured again by a neighbor. On the 13th, I went to the county seat for forensic examination. Since the medical records were not clear, the appraisal department asked the police station to come back and reorganize the materials, and asked for another examination on Monday of the second week. Accompanied by the police station, Ding came to the county again on the 80th. During the forensic examination, Ding felt that the time since the first injury was too long, and that the injuries were improving and the area of ​​the injury was shrinking.

Then, when and what standard should forensic identification determine whether a minor injury has been reached?Three members of Ding's family were injured, can the calculation of injuries be accumulated?
(End of this chapter)