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Chapter 24 Questions and Answers on Personal Injury Compensation Disputes (6)
The notarization of force majeure events is under the jurisdiction of the notary office in the place where the event occurred.When the parties apply for notarization, they should explain the purpose, purpose, and place of use of the certificate, and submit the following certification materials: (1) The identity and qualification certificates of the parties, such as "Business License", the identity certificate of the legal representative, and the agent's authorization (2) News reports, investigation reports, inspection reports, etc. of force majeure events by relevant departments; (3) Other relevant certificates and materials, such as the parties and other people handling force majeure notarization should pay attention to: ( 1) Where possible, the notary office should conduct on-site inspections and make records. (2) If the force majeure has reached a certain scale and has great social influence, the notary office should pay attention to the reports of the state authority, so that the notarial certificate has a reliable basis. (3) The laws of different countries have different regulations on force majeure events, and the notarial certificate issued by the notary office should meet the requirements of the country of use as much as possible.

22. Although injuring others, but it can be proved that it is self-defense, can the responsibility for injuring others be exempted?

Feng has always been domineering in the village.One day, Feng Mou yelled at the villager Jiang Mou again because of trifles.Jiang couldn't bear it anymore, so he refuted a few words.Feng Mou was furious, picked up the hoe beside him and threw it at Jiang Mou's head.In desperation, Jiang picked up the bench next to him to protect himself, but the bench injured Feng's head.Feng went to the hospital and had 8 stitches.Now Feng Mou requests Jiang Mou to compensate for his personal injury.So, should Jiang be compensated for Feng's damage?
Analysis according to law
Article 128 of the "General Principles of Civil Law" stipulates: "Whoever causes damage due to legitimate defense shall not bear civil liability. If legitimate defense exceeds the necessary limit and causes undue damage, appropriate civil liability shall be borne." That is to say, justifiable defense Defense is one of the exemptions for personal injury tort.

The so-called justifiable defense refers to a defensive measure taken by the perpetrator when the public interest, the personal and other legal rights of the person or others are violated by ongoing illegal acts.To constitute a justifiable defense, the following conditions must be met: (1) the existence of an unlawful infringement must be the premise, that is, only when the unlawful infringement is in progress, can a justifiable defense be implemented; (2) a justifiable defense must be necessary and urgent, If you have the conditions and ability to use other legal means to effectively stop the illegal infringement, you should not implement justifiable defense; (3) Justifiable defense must be implemented against the illegal infringer himself; (4) The purpose of justifiable defense is to protect public interests, personal Or the personal and other legal rights of others are protected from illegal acts; (5) Justifiable self-defense cannot exceed the necessary limit.

In this case, Jiang Mou injured Feng Mou with a bench, which was a defensive measure taken by Feng Mou when he hit Jiang Mou's head with a hoe to cause serious injury to Jiang Mou, which met the conditions of legitimate defense.Therefore, Jiang Mou's injury to Feng Mou's head is a legitimate self-defense, and he does not need to bear the liability for compensation.

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Excessive defense means that the defender exceeds the necessary limit when carrying out defensive acts, causing undue harm to the unlawful infringer.Generally speaking, milder means or lesser intensity can be used to stop unlawful infringement, and drastic means or greater intensity are not allowed to defend.If more moderate measures or less intensity are not enough to stop the unlawful infringement, drastic defensive measures or greater defensive intensity can be adopted.In order to protect smaller interests, defensive actions are not allowed to cause major damage.For illegal infringements that do not immediately endanger personal safety or the major interests of the country and the people, it is not allowed to resort to serious injury or killing to defend.

23. Instructing others to injure the victim, how to provide evidence to make the instigator bear legal responsibility?
Chang and Yuan (female) are lovers.Yuan Mou had been in love with Huang Mou before, but later Huang Mou proposed to break up. Yuan Mou was very dissatisfied with Huang Mou and asked Chang Mou to vent her anger for her.Chang beat up Huang according to Yuan's instructions, resulting in multiple injuries on Huang's body, which were identified as minor injuries.Now Huang is requesting compensation for personal injury.So, who should be liable for compensation for Huang's personal injury?
Analysis according to law
Instigated behavior refers to the wrongful act of using words to enlighten others, persuade others, or induce the instigated person to act according to the instigated intention through methods such as instigation, stimulation, and temptation.Therefore, in order for Yuan to bear the liability for damages in this case, it is necessary to prove the existence of Yuan's instigation.In this case, Chang, as the instigated person, is himself a witness for the existence of the instigated behavior.However, since Chang has an interest in the case, his testimony is less effective.Therefore, Huang also needs other evidence, such as applying to the court for investigation and evidence collection.

In this case, Chang beat Huang because of Yuan's instigation. Therefore, in the personal injury to Huang, Yuan was the instigator and Chang was the instigated.According to Article 148, Paragraph 1 of the "Civil Tong Opinions", "A person who instigates or assists others to commit torts is a joint tortfeasor and shall bear joint and several civil liabilities." Bear joint and several liability for compensation.Huang can request compensation with either Yuan or Chang as the defendant, or list the two as co-defendants.It should be noted that if a minor or other person with no capacity for civil conduct or a person with limited capacity for civil conduct is instigated to commit torts, the instigator shall be liable in accordance with the following principles: (1) Instigate and assist a person without civil capacity to commit torts (2) A person who instigates or assists a person with limited civil capacity to commit an infringing act is a joint tortfeasor and shall bear the main civil liability.

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This case involved the recognition of minor injuries.

The "Appraisal Standards for Minor Human Injuries" promulgated by the Ministry of Public Security of my country stipulates that minor injuries refer to slight damage or temporary dysfunction in the structure of local tissues and organs of the human body.

The appraiser shall be forensic personnel entrusted by the public security organs and relevant law enforcement departments or trained part-time forensic personnel.The appraiser shall have the right to learn about the relevant case details, on-site investigation and access to the case files when conducting the appraisal.Relevant departments must provide assistance.

The identification of minor injuries should be assessed before the injury disappears.Moreover, this standard is the lower limit for minor injuries, and the upper limit is connected with the identification standards for minor injuries, and those that do not meet this standard do not constitute minor injuries.

24. Who should be liable for compensation for injuries caused by keeping items for others?
One day, Zhu took a bottle of sulfuric acid to school for an experiment. On the way, he received a call saying that he had to go to the hospital as soon as possible, so Zhu planned to temporarily store the sulfuric acid in Zheng's grocery store by the roadside.Since Zhu Mou often went to the grocery store, the owner Zheng Mou agreed to keep it for Zhu Mou.Later, Zheng accidentally broke the sulfuric acid bottle when picking up the goods, and Zheng's right hand was burned.Now Zheng asked Zhu to be liable for compensation for the damage caused by the sulfuric acid.However, Zhu believed that Zheng's burn was caused by Zheng's accidental breaking of the sulfuric acid bottle. It was good that he did not ask Zheng for compensation for sulfuric acid, and Zheng's injury should be borne by himself.So, who should be liable for compensation for Zheng's personal injury?Zheng asked to delay work and time, should he support it?How to calculate?

Analysis according to law
This case involves the issue of who should bear the responsibility for the damage caused by the stored items in the storage contract.

Safekeeping contracts are divided into paid safekeeping contracts and free safekeeping contracts.A paid storage contract is a contract in which the depositor pays fees to the custodian and the custodian keeps the items for the depositor. In the paid storage contract, the custodian’s obligations are heavier. The custodian shall be liable for compensation.A free storage contract is a contract in which the depositor entrusts the custodian to store the item without paying the fee.In a gratuitous storage contract, the custodian’s obligation is lighter. According to Article 374 of the Contract Law, “during the storage period, if the deposit is damaged or lost due to improper storage by the custodian, the custodian shall be liable for damages, but Storage is free, and the custodian shall not be liable for damages if he proves that he has no gross negligence.” That is, in a gratuitous storage contract, if the custodian has no major negligence, he does not need to bear the liability for compensation.In this case, Zheng Mou kept Zhu Mou's sulfuric acid free of charge, and Zheng Mou had no major negligence for the broken sulfuric acid bottle. Therefore, Zheng Mou does not need to bear the liability for compensation for the loss of sulfuric acid.

In addition, the depositor Zhu Mou failed to fulfill his duty of notification when the depositor kept sulfuric acid as a dangerous item.According to Article 370 of the "Contract Law", "If the deposit delivered by the depositor is defective or special storage measures need to be taken according to the nature of the deposit, the depositor shall inform the depository of the relevant situation. If the depositor fails to notify, the depository If the depository suffers loss, the depository shall not be liable for damages; if the depository suffers loss as a result, the depositor shall be liable for damages unless the depositary knows or should know and has not taken remedial measures.” In this case, sulfuric acid has It is very corrosive and is a special item. When Zhu entrusted Zheng to keep it for him, Zhu did not inform Zheng that the stored object was sulfuric acid, which caused Zheng to be damaged. Zhu should be liable for compensation for Zheng's personal injury.Moreover, Zheng also has the right to choose to require Zhu to bear the liability for breach of contract or tort liability according to the provisions of Article 122 of the "Contract Law".

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In a personal injury case, how is the compensation for loss of wages calculated?

The date of the victim's missed work shall be determined according to the actual degree of damage, recovery status and with reference to the forensic identification or the certificate issued by the treatment hospital.

If the actual date of absence from work of the victim is less than the leave certificate, the actual date of absence from work shall be determined; if the actual date of absence from work is more than the leave certificate, it shall generally be determined according to the leave certificate.

If the victim really needs to recuperate but does not have a leave certificate, it can be dealt with according to the circumstances after seeking the opinions of the forensic doctor or the treatment hospital.

If the victim has a fixed income, the compensation for lost wages shall be calculated according to the actual loss of his income.

Fixed income, including wages, funds, subsidies and allowances stipulated by the state, but excluding subsidies for special types of work.

The bonus is calculated based on the per capita bonus of the victim in the previous year, and if it exceeds the bonus tax calculation threshold, it is limited to the calculation threshold.If the victim has no bonus income due to his own reasons before being injured, his bonus will not be calculated.

If the victim has no fixed income, or the victim is a contracted business or an individual industrial and commercial household, the compensation for lost wages may be determined by referring to the average income of the victim in the previous year or the average income of the same industry, type of work, and equivalent labor force in the local area.If tax should be paid to the tax authority according to law, the tax bill should be used as proof.

If the victim engages in a second job in accordance with the law, the actual reduced income shall be compensated.

If the victim is a retired or retired person who seeks another job, the compensation for lost wages may be handled differently in the following situations:

(1) Compensation should be made for the actual reduced income if it complies with policies and laws;
(2) In case of violation of policies and legal provisions, the claim for compensation shall not be supported.

If the victim has no labor income and claims compensation for lost wages, it will not be supported.If the victim is the main undertaker of housework, if the victim is really unable to perform housework and the burden on other family members is too heavy, economic compensation may be given as appropriate.

If the actual income of the victim is more than three times higher than the average living expenses of local residents, it shall be calculated as three times.

25. I was disfigured after doing beauty treatment. Can I provide evidence and file a lawsuit on the grounds that my body rights have been violated?

Ms. Fang felt that her eyebrows were not beautiful enough, so she decided to have eyebrow tattoo surgery after seeing a beauty advertisement in a beauty salon.One day, Ms. Fang went to the beauty parlor for eyebrow tattooing surgery. Unexpectedly, due to the poor skills of the beautician, the equipment was not thoroughly sterilized, and the operation was not standardized. The postoperative wound not only did not heal, but began to fester. problem, and instead left a visible scar where the eyebrows fell out.Every day when she puts on makeup in the mirror, Ms. Fang always sees that obvious scar.Ms. Fang, who was doing beauty treatment and was disfigured, couldn't bear the pain and wanted to seek legal help.So, how should Ms. Fang request compensation?

Analysis according to law
Body right is one of the basic personality rights, and its important content is to maintain the integrity and completeness of the body. Anyone other than the obligee is an obligor and has the legal obligation not to infringe the obligee's body right. The act of destroying the integrity or completeness of the obligee's body constitutes a violation of the right of the body. Ms. Fang's body integrity has been violated, so she can file an infringement lawsuit on the grounds that the right of the body has been violated.

In addition, Ms. Fang can also sue on the grounds of breach of contract by the beauty salon based on the contractual relationship she established with the beauty salon.This kind of situation where you can choose to sue for infringement or for breach of contract is called competing right of claim in legal theory.The parties can choose how to sue according to their needs and the convenience of litigation proof. Article 122 of the "Contract Law" makes specific provisions on such situations: "Where the breach of contract by one party infringes the other party's personal or property rights and interests, the injured party has the right to choose to require it to bear the liability for breach of contract in accordance with this Law or in accordance with other The law requires them to bear tort liability.” Moreover, Article 1 of the Interpretation of the Supreme People’s Court on Several Issues Concerning Determination of Liability for Mental Damage Compensation in Civil Torts also stipulates that if the victim’s mental damage is serious due to the infringement of physical rights, the mental damage may be requested. Compensation for damages, in the form of compensation for mental damage; however, according to the current laws and regulations of our country, compensation for mental damage is not applicable to damages caused by breach of contract in principle.Therefore, from the perspective of fully protecting her own legitimate rights and interests, Ms. Fang's request for compensation for mental damage is best to file an infringement lawsuit on the grounds that her physical rights have been violated.In addition, it should be noted that no matter which right of claim the parties choose, it should be determined before the hearing of the first instance.

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In personal injury cases, how to compensate for medical treatment expenses?
The compensation for medical treatment expenses should generally be determined based on the diagnosis certificate of the local treatment hospital and the receipts or medical records and prescriptions for medical expenses, treatment expenses, and hospitalization expenses.When necessary, a forensic doctor may be entrusted for identification.

The local treatment hospital generally refers to the hospital that is relatively close to the victim's residence or the place where the infringement occurred.

If the victim went to several hospitals with basically equal distances for treatment successively, the medical expenses of the first hospital should generally be recognized, unless the hospital made a medical error or had other special circumstances.

Generally, no compensation will be paid for the expenses of finding another hospital for treatment without the approval of the medical department.

If the victim repeatedly checks the same subject and the result is the same, in principle, only the initial examination fee should be recognized, except for cases where the treating hospital really needs to conduct another examination.If the test results are inconsistent, the cost of the test before the diagnosis should be recognized.

If the victim purchases medicines unrelated to the damage or treats other diseases without authorization, the expenses shall not be compensated.

If the victim really needs hospital treatment or observation, the expenses should be compensated.However, if the hospitalization period is prolonged after the discharge notice is issued, or the hospitalization period is prolonged due to treatment of diseases unrelated to the damage, the hospitalization expenses during the extended period shall not be compensated.

The victim shall be compensable for the costs of necessary remedial treatment in connection with the damage.

In the process of litigation, if the treatment has not been completed, in addition to the compensation for the expenses already treated, the expenses that still need to be continued can be paid in one lump sum if certified by the relevant medical institution or reached an agreement between the two parties through mediation; According to the relevant provisions of the law, inform the victim to sue separately after the treatment is over.

26. If the victim was killed by criminals because the public security organ did not issue statutory administrative duties, how to provide evidence to make the public security organ bear the responsibility for administrative compensation?
One day, Shen was withdrawing money from the bank. On the way back, he was robbed by gangsters. Shen fought hard, but there were many gangsters, all armed with murder weapons. When the situation was urgent, Shen saw a policeman walking across the road. , hurriedly shouted at the policeman, "Help, someone is robbing!" But the policeman did not take any measures, but fled the scene.Later, Shen was killed by gangsters, and the money he raised was also taken away.Now Shen's relatives are requesting that the policeman's Public Security Bureau be liable for compensation for Shen's death.So, does the Public Security Bureau need to bear the liability for compensation for Shen's death?
Analysis according to law
The public security organs are responsible for maintaining social order, combating criminal offenses, and protecting the personal rights and property rights of citizens, legal persons and other organizations from illegal infringement.If the public security organ fails to fulfill its statutory obligations and causes personal injury to citizens, it constitutes a passive infringement of the citizen's personal rights, and it should fall under Article 3 ([-]) of the "State Compensation Law" "Others that cause bodily injury or death to citizens". unlawful conduct”.

The Supreme People's Court stipulated in the "Reply on Whether the Public Security Organs Should Be Responsible for Administrative Compensation for Failure to Perform Statutory Administrative Duties" stipulated: "Where public security organs fail to perform statutory administrative duties and cause damage to the legitimate rights and interests of citizens, legal persons, and other organizations, they shall bear administrative compensation. Liability. When determining the amount of compensation, factors such as the role played by the failure to perform statutory duties in the process and results of the damage should be considered.”

This case is a case of administrative omission.The so-called administrative omission refers to those cases where the plaintiff should apply to the administrative agency to act or the administrative agency should take the initiative according to its authority, but the administrative agency failed to perform its duties.If the plaintiff wants to sue the administrative agency for omission, it must prove that it has a legal interest relationship with the defendant's omission and the fact that the omission exists.It is mainly reflected in the following aspects:

(End of this chapter)