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Chapter 23 Questions and Answers on Personal Injury Compensation Disputes (5)
According to Article 75 of the Civil Procedure Law, "the period includes the statutory period and the period designated by the people's court", the "Evidence Regulations" stipulates in Article 33 that the people's court can designate the time limit for producing evidence according to the circumstances of the case.The time limit for producing evidence belongs to the system of civil litigation period, which can be divided into statutory period and designated period according to its determination method.The so-called "statutory period for producing evidence" refers to the relatively clear limited period for producing evidence stipulated by law in criminal, civil and administrative proceedings.The determination of this statutory period is usually bounded by the end of a specific litigation stage, and is marked by the production of specific litigation effects in this stage. date. The "specified period for producing evidence" is based on the "statutory period for producing evidence", so it should be subordinate to the statutory period for producing evidence in terms of time. It is determined by the people's court or judge at the discretion of the individual case and is based on the objective needs of the trial of the case. Or a duty, power or function performed by one of the parties who needs to supplement evidence or present new evidence due to special reasons permitted by law.Since the "Evidence Regulations" allow the court to recognize the time limit for producing evidence determined through negotiation between the parties, the time limit for producing evidence in this case has the nature of an arbitrary period.When the court determines the time limit for producing evidence, it should not only pay attention to the frequent compactness and speed of litigation, but also must not damage the procedural rights of the parties. It should be determined under the premise of taking into account the principles of fairness and efficiency. Paragraph 33, Article 3 of the "Evidence Regulations" stipulates that for cases that are tried under ordinary procedures: "If the people's court specifies a time limit for producing evidence, the time limit specified shall not be less than 30 days. It shall be calculated from the next day of the date of the trial." This is a mandatory provision for the case where the court specifies a time limit for producing evidence in order to fully protect the evidentiary rights of the parties.Therefore, when a case is transferred from the summary procedure to the ordinary procedure, if the parties fail to agree on the time limit for producing evidence and the people's court approves it, the court must redesignate the time limit for producing evidence for the parties. The judge has no discretionary power on this issue. , As for how to designate the time limit for producing evidence, it should be dealt with differently according to different situations: (1) When it is transferred to ordinary procedure, the originally designated time limit for producing evidence has expired.Since the procedures that a case has gone through when applying the simplified procedure are all valid, the period for producing evidence enjoyed by the parties in the simplified procedure shall not be less than 30 days. Taking into account the time limit for producing evidence together, the re-designated time limit for producing evidence together with the time limit for producing evidence specified in the simplified procedure shall not be less than 30 days, and it is not necessary to re-designate the time limit for producing evidence not less than 30 days.If it is difficult for a party to collect and provide evidence within the time limit specified by the court, the party can also exercise the right to apply for an extension of the time limit for producing evidence, which not only maintains the procedural rights of the party, but also improves the efficiency of litigation.This case is based on the above considerations to determine the time limit for the parties to produce evidence after the procedure conversion. (2) When it is transferred to ordinary procedure, the originally designated time limit for producing evidence has not yet expired.Since the procedure is changed within the originally designated time limit for producing evidence, it is sufficient to directly extend the time limit for producing evidence to no less than 30 days on top of the already passed time limit for producing evidence.If the originally specified time limit for producing evidence is from July 7 to July 1, if the procedure is decided to be changed on July 7, the expiry date of the time limit for producing proof shall be directly determined as August 10 in the "Procedure Change Notice" .

In this case, when the summary procedure was converted to ordinary procedure, it also involved the parties changing their claims and the court adding the parties to participate in the lawsuit. How should the time limit for producing evidence be re-specified? Paragraph 35 of Article 2 of the "Regulations on Evidence" and the format of the "Notice of Procedure Change" and "Notice of Changing the Time Limit for Evidence Due to the Addition of a Party or a Third Party to the Litigation" stipulated in the "Forms of Documents" clearly stipulate that the above three situations occur In both cases, the time limit for producing evidence should be re-designated, but there is no clear regulation on the upper limit and lower limit of the time limit for producing evidence, especially when these three situations occur at the same time, how to determine the time limit for producing evidence is not involved.The author believes that the following points should be grasped: First, the time limit for producing evidence must be re-specified separately, and all parties involved must be notified, and the judge has no discretionary power on this issue.Second, it is determined according to whether the change of the litigation request of the parties involves a change in the factual basis and the specific circumstances of the case.No less than 30 days shall be given to the added party to produce evidence, and no less than 30 days shall be given to the original party to re-designate the time limit for producing evidence. Days, some give 30 days, otherwise, it is easy to make the parties feel unfair, which also violates the requirement of procedural fairness.

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Redesignation of time limit for proof documents

××× People's Court
Notice

(re-designate the period of proof)
(××××)×××word No.××

×××:

In the case of dispute between you and ×××× (the name of the other party and the cause of action), ××× (the name or title of the party who filed the request for modification or counterclaim) has... Fill in the specific circumstances of the modification of the claim or the filing of a counterclaim. If the situation in Article 30 of the Supreme People’s Court’s “Several Provisions on Evidence in Civil Procedure” No. [-] applies, it should be expressed as “××× has been notified by the court that the claim has been changed”).

You should submit evidence to this court before the date of ×××××××××××year.Failure to submit within the time limit shall be deemed as a waiver of the right of proof.

××××year××month××day

(Hospital seal)
Description:

① This notice is applicable to the circumstances of No. 30, Article 30, Paragraph [-] and No. [-], Article [-] of the Evidence Regulations.

② This notice is served on both parties.

18. If it is proved that the infringer was at fault for the damage, but the victim is also at fault, how should the liability for compensation be determined?

A villager named Wang contracted a piece of wasteland close to the village to raise fish.Wang first dug a large deep pit, but for some reason he did not use it immediately. Wang neither sent anyone to guard it nor set up obvious signs.At this time, it was catching up with the rainy season, and the pit soon filled with rainwater.One day after the rainy season, the 8-year-old son of villager Liu X went swimming in the big pit dug by Wang X. Unfortunately, due to the steep slope and deep water of the pit, he drowned and died.Liu appealed to the court and demanded compensation from Wang.So, how to determine Wang's liability for compensation?
Analysis according to law
Article 125 of the "General Principles of Civil Law" stipulates: "If digging pits, repairing, installing underground facilities, etc. in public places, roadsides or passages, without setting up obvious signs and taking safety measures and causing losses to others, the constructor shall bear civil liability."

In this case, the earth pit that Wang dug was very close to the village and was full of rainwater, posing a great safety hazard. However, Wang has not set up obvious signs and taken safety measures, and has not fulfilled the corresponding duty of care. There was an obvious fault, which eventually led to the drowning of Liu's son, and he should bear the main civil responsibility.Liu's son is only 8 years old and has no capacity for civil conduct. As a guardian, Liu should have performed his guardianship duties and managed and educated his son, but Liu's son went to the pit without the company of his guardian. Swimming, it can be seen that Liu obviously did not strictly perform his guardianship duties, and Liu also had certain faults and should bear corresponding responsibilities.For this kind of situation where both parties are at fault—that is, there is mixed fault, according to Article 131 of the General Principles of Civil Law: "If the victim is also at fault for the occurrence of the damage, the civil liability of the infringer may be reduced." Therefore, it should Liability is determined according to the degree of fault of both parties.

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The law refers to the situation of the above case as "negligence offset".As far as the court is concerned, when the victim is found to be at fault during the trial of the case, it must carefully use the negligence offset.It is necessary to judge whether the consequences caused by the wrongful act are identical with the tort consequences of the infringer, and at the same time, it is also necessary to judge whether there is a causal relationship between the wrongful act of the victim and the occurrence or expansion of the damage. If there is no causal relationship, even if the victim The existence of faults cannot be offset by faults.In practice, because some courts did not pay attention to this point, as long as the victim or the victim's guardian (in the case where the victim is a minor) is at fault, the victim's loss must be offset by negligence, thereby reducing the inflictor's burden. Compensation liability, for this approach, the parties can put forward their opinions during the trial, pointing out that the negligence offset should fully consider the causative power of the victim's fault for the damage, and it should not be offset if there is a fault.

19. If it is proved that the damage was caused entirely by the fault of the victim, will the infringer still be liable?
One day when Hao was driving home, when he passed an intersection, a pedestrian suddenly rushed out from a side alley. Hao immediately braked suddenly, but because the pedestrian rushed out of the alley too suddenly, the pedestrian was still knocked down by the car.Hao Mou immediately sent him to the hospital, where he died after rescue efforts failed.Later, it was found that the person was a resident named Lin who lived in the alley. Lin was desperate because he broke up with her boyfriend and wanted to end his own life.Now Lin's parents demand that Hao pay compensation for Lin's death.So, should Hao be liable for compensation for Lin's death?
Analysis according to law
Except for some special torts, personal injury compensation implements the concept of "one's own actions and one's own responsibility" in the civil law, and only when the infringer can correctly understand his own behavior against others and the consequences of the damage can he be called "self-injury". Behavior".Therefore, under normal circumstances, one of the constituent elements of personal injury tort is that the injurer has subjective fault, that is, only when the injurer has intentional or negligent mental state can he bear the responsibility for the damage consequences.If the damage is entirely caused by the victim's fault, the infringer shall not be liable for compensation according to the principle of "one's own actions, one's own responsibility"; The civil liability of the perpetrator.

However, because some behaviors in modern society are extremely dangerous to the person and property of others, the law stipulates that only the victim's intention can constitute the reason for the injurer's exemption from liability under such circumstances, and the injurer cannot rely on the victim's However, if the victim has gross negligence, the inflictor's liability for compensation may be reduced.For example, Article 123 of the "General Principles of Civil Law" stipulates: "Whoever engages in high-altitude, high-pressure, flammable, explosive, highly toxic, radioactive, high-speed transportation operations that are highly dangerous to the surrounding environment and causes damage to others shall bear civil liability; if If it can be proved that the damage was intentionally caused by the victim, no civil liability shall be borne.”

In this case, Lin deliberately hid at the corner of the alley and rushed towards the vehicle, with obvious intent for his own death.Hao had exercised his duty of care while driving, took emergency measures to brake in time, and sent Lin to the hospital immediately. It can be said that Lin's death was entirely caused by Lin himself. Don't take responsibility.

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If the damage is entirely caused by the victim's fault, the infringer shall not be liable for compensation; if the damage is partly caused by the victim's fault, the infringer's civil liability can be reduced.

20. As a victim, what evidence should be provided if claiming compensation for personal injury?

Zhang lived on the 15th floor. One day, a potted flower fell from his balcony and hit Liu on the head, causing Liu to be seriously injured.Question: What burden of proof should Liu bear when requesting compensation?
Analysis according to law
The burden of proof plays a key role in whether the case can be won.A high burden of proof means that the risk of winning the lawsuit is high, and on the contrary, it means that the possibility of winning the lawsuit is high.In different personal injury cases, the burden of proof borne by the victim is different: (1) When the principle of fault liability is applied, there are four constitutive elements of a tort, namely, damage facts, illegal infringement, causation, and subjective fault.The burden of proof for these four elements must be borne by the victim.That is to say, if the victim wants to obtain compensation, he must not only prove the fact of the damage, the illegal infringement and the causal relationship between the two, but also prove that the perpetrator has subjective fault, otherwise he will bear the risk of losing the lawsuit. (2) When applying the principle of presumption of fault, the constitutive elements of a tort are still damage facts, illegal infringement, causality, and subjective fault.The burden of proof is borne by the victim for the first three elements, while the last element, the element of subjective fault, implements the inversion of the burden of proof, that is, it is presumed that the injurer has subjective fault first, and at the same time, he is given the right to prove otherwise.If the infringer can prove that he is not at fault, he shall not bear the liability for compensation; if he cannot prove it, he shall bear the liability for compensation. (3) When the principle of no-fault liability is applied, there are three constitutive elements of a tort, namely, the fact of damage, the illegal infringement, and causation, and no fault is required for the infringer.Therefore, as long as the victim can prove these three elements, the infringer should bear the responsibility, and the infringer needs to bear the burden of proof for the legal exemption. (4) When the principle of fair liability is applied, there are three constitutive elements of a tort, namely the fact of damage, the illegal infringement, and causation. Both parties are not at fault for causing the damage, so the victim does not need to prove that the infringer has subjective fault.

This case belongs to the situation where objects left on the building cause damage to people, and the principle of presumption of fault applies, that is, Liu only needs to prove the existence of damage facts, illegal infringement acts, and the causal relationship between illegal infringement acts and damage facts. Fault; Zhang should prove that he is not at fault, otherwise he will bear the responsibility.This is the inversion of the burden of proof.

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When filing a lawsuit for compensation for personal injury, the following evidence should generally be provided according to the degree and result of the injury: (1) Evidence proving that the defendant is indeed the infringer or the person who should bear civil liability; (2) Evidence proving the process of the infringement, including Evidence such as the cause, time, place, and method of causing the injury; (3) Evidence proving the outcome of the injury, including hospital diagnosis certificates, medical records, forensic identification, witness testimony, audio-visual materials, etc.; (4) Evidence proving that personal injury, Evidence of compensation for economic losses, including documents such as medical expenses, transportation expenses, accommodation expenses, disability appliances, funeral expenses, etc., to prove necessary nursing expenses, nutrition expenses, lost work expenses, living allowances, and support for those who depend on the victim's support (5) Evidence proving that the name, reputation, portrait and other personal rights have been violated and caused mental damage, including evidence such as the behavior of the infringer, the degree of damage, the occasion of the infringement, the consequences of the infringement, and whether the infringer is making a profit; (6) Evidence of personal injury caused by unqualified product quality, including the invoice issued by the product seller, product name, instruction manual, qualification certificate, injury consequences, etc.; (7) Evidence proving compensation for medical malpractice or medical malpractice compensation, including identification Evidence such as the committee's appraisal conclusion, medical records, and medication prescriptions; (8) Evidence proving the compensation for traffic accidents, including the mediation statement or mediation conclusion statement, liability determination, and disability assessment issued by the public security organ; (9) Evidence that can prove that The facts and consequences of the injury or other evidence that the people's court deems should be submitted.

21. How to provide evidence to avoid compensation liability for neighbors injured due to typhoon?

One day, due to a sudden typhoon, a wooden stick Guan put in his yard was blown up by the wind and fell into the yard of Lu's house, injuring Lu who was grabbing items in the yard.After investigation, when the incident happened, Guan had been actively grabbing his belongings, but because of the sudden typhoon, it was too late to put the wooden stick into the room.Then, should Guan be liable for compensation for Lu's damage?

Analysis according to law
Article 107 of the General Principles of the Civil Law stipulates: "Where it is impossible to perform a contract or cause damage to others due to force majeure, civil liability shall not be borne, except as otherwise provided by law." Therefore, unless otherwise provided by law, force majeure may constitute the actor's exemption from liability. reason.The understanding of force majeure generally refers to unforeseen, unavoidable and insurmountable objective situations. If the consequences of the event cannot be avoided and cannot be controlled, the event is force majeure.

Force majeure includes: (1) natural disasters, which are caused by natural forces, such as typhoons, earthquakes, floods, etc.; (2) social events, which refer to events caused by unnatural forces, such as wars.Therefore, if damage is caused to others due to force majeure, the perpetrator shall not bear civil liability.However, the perpetrator should take corresponding positive measures to avoid further expansion of the damage, otherwise, the perpetrator should bear the liability for compensation for the expanded damage.In this case, Guan was unable to foresee, avoid and overcome the typhoon, which of course belonged to force majeure, and Guan’s behavior was not improper, so Guan was not liable for compensation for the damages caused thereby.

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Force majeure can exempt the infringer from the liability for injury, and the occurrence of the force majeure event can be proved by applying for notarization. So, how to apply for force majeure notarization?
(End of this chapter)