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Chapter 25 Questions and Answers on Personal Injury Compensation Disputes (7)
1. The plaintiff should first prove that it is a citizen, legal person or other organization that has an interest in the alleged omission.For administrative litigation cases of inaction, the plaintiff has the burden of proof to prove that he has a legal interest in the inaction of the defendant in the administrative agency.In addition, according to Article 41 of the "Administrative Litigation Law", when a plaintiff believes that a specific administrative action has violated its legitimate rights and interests and brings a lawsuit to the people's court, it must bear the burden of proof for the existence of the specific administrative action.The people's court can only accept the case if the evidence presented by the plaintiff can prove the existence of the specific administrative action in question and meet other conditions for prosecution.If the evidence presented by the plaintiff fails to prove the existence of the specific administrative action being sued and meets other conditions for prosecution, the people's court will rule to reject or dismiss the lawsuit.Therefore, in an administrative litigation case where the plaintiff is prosecuting the defendant's omission, the plaintiff should bear the burden of proof to prove that the defendant's administrative agency's omission existed.The plaintiff must provide evidence to prove that the application has been made to the administrative agency, and the administrative agency did not perform its statutory duties within the statutory time limit.

2. To prove the fact that it has filed an application with the defendant. Paragraph 4 of Article 2 of the "Provisions on Evidence in Administrative Litigation" clearly stipulates: "In the case of suing the defendant for inaction, the plaintiff shall provide evidentiary materials that he has filed an application in the administrative procedure. Except for the following circumstances: ([-]) ([-]) The plaintiff is unable to provide relevant evidentiary materials and be able to make a reasonable explanation due to legitimate reasons such as the incompleteness of the registration system for accepting applications by the defendant, if the defendant should take the initiative to perform statutory duties according to his authority." In cases where the applicant has filed an application in the administrative procedure, he shall provide evidence and bear the burden of proof.At the same time, it stipulates the exemption of the plaintiff from the burden of proof for filing an application.

3. In a lawsuit for claiming administrative compensation for damages to rights caused by inaction, to prove the fact that the party suffered losses due to the injury caused by the specific administrative inaction being sued.According to the provisions of the Administrative Procedure Law, the administrative compensation lawsuit is subject to a separate procedure, which is basically the same as the civil procedure.The trial of administrative compensation cases, whether it is a joint trial or a separate trial, should be based on the confirmation that the specific administrative act accused is illegal in advance.Therefore, no matter whether the plaintiff files an administrative compensation lawsuit alone or jointly, the plaintiff must bear the burden of proof for the fact that he has suffered losses due to the division of the specific administrative act being sued. Article 5 of the Provisions on Evidence for Administrative Litigation clearly stipulates: “In an administrative compensation lawsuit, the plaintiff shall provide evidence for the fact that the specific administrative action in question has caused damage.” If the defendant’s administrative omissions have caused losses, an administrative compensation lawsuit may be filed in accordance with the law. , but no matter whether it is a separate lawsuit or an incidental administrative compensation lawsuit, it must bear the burden of proof for the fact that the loss caused by the omission.

In this case, the policeman was responsible for fighting the gangsters to protect the safety of citizens. After Shen asked him for help, he not only refused to help him, but fled the scene. Family members have the right to demand compensation from the Public Security Bureau.As for how to deal with the policeman's illegal dereliction of duty, the discipline inspection, supervision and cadre personnel departments of the public security organs will handle it in accordance with relevant regulations.

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How is the amount of administrative compensation calculated?

1. For violations of citizens' right to life and health, compensation shall be calculated in accordance with the following provisions.

(1) If bodily injury is caused, medical expenses shall be paid and compensation shall be paid for the loss of income due to missing work.The daily compensation for the reduced income shall be calculated according to the average daily wages of employees in the country in the previous year, and the maximum amount shall be five times the average annual wages of employees in the country in the previous year; The method of calculating the number of legal working days in a year.The annual average salary is subject to the figures published by the National Bureau of Statistics.

(2) If partial or total loss of working ability is caused, medical expenses and disability compensation shall be paid. The disability compensation shall be determined according to the degree of loss of working ability. times, the total loss of working ability is 10 times the average annual salary of the country's employees in the previous year. If the total loss of working ability is caused, living expenses should also be paid to the incapable people they support.

(3) If death is caused, death compensation and funeral expenses shall be paid, the total amount of which shall be 20 times the average annual salary of employees in the country in the previous year.Living expenses shall also be paid to the incapacitated persons supported by the deceased during his lifetime.

(2) and (3) The distribution standard of living expenses shall be handled in accordance with the provisions of the local civil affairs department on living relief.If the person being supported is a minor, the living expenses shall be paid until the age of 18; for other people who are unable to work, the living expenses shall be paid until the time of death.

2. For those who infringe on the personal freedom of citizens, the daily compensation shall be calculated according to the average daily wages of employees in the country in the previous year.

27. If the gift given is defective and causes personal injury, how should I prove it and demand compensation?

Zhu Moumou's son celebrated his birthday, and Li Mou, Zhu Moumou's colleague, gave him a bicycle.Zhu Moumou's son went out to play by bicycle, but because the bicycle was a substandard product and there was a problem with the brakes, Zhu Moumou's son bumped into a big tree and injured his right hand, which cost him a lot of medical expenses when he went to the hospital for treatment .Now Zhu Moumou believes that the car was given by Li Mou, and Li Mou should bear the liability for personal injury.So, should Li be liable for the personal injury of Zhu's son?

Analysis according to law
In a general paid contract, one party pays the consideration to obtain the subject matter, and the party providing the subject matter is obliged to ensure that the subject matter is free from defects. liability or tort liability.However, the gift contract is a gratuitous contract, so the obligations of the donor are different from those of the paid contract.

Article 191 of the "Contract Law" stipulates: "If the donated property is defective, the donator shall not be liable. For a gift with obligations, if the donated property is defective, the donator shall bear the same responsibilities as the seller within the limit of the attached obligations." If the donator intentionally fails to disclose the defect or guarantees that there is no defect, and causes losses to the donee, he shall be liable for damages.” Talent should take responsibility.In this case, Li gave the bicycle to Zhu's son, but Li himself did not know that the bicycle was a substandard product, so he was not responsible for the damage caused to Zhu's son.

So, in this case, is there no remedy for the personal injury suffered by Zhu's son?of course not.Zhu Moumou's son caused the damage by using a substandard bicycle. Therefore, the bicycle producer and seller should be liable for compensation for Zhu Moumou's damage. Article 43 of the "Product Quality Law" stipulates, "Where the defect of the product causes damage to the person or property of others, the victim may claim compensation from the producer of the product, or from the seller of the product." Therefore, in this case, , Zhu Moumou's son can claim damages from the manufacturer or seller of the bicycle.

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The tort liability for damage caused by defective products refers to a special tort liability that the producer of the product bears for the damage to property or personal injury of others caused by the defective product.For product quality cases, the victim's burden of proof should be mainly on the causal relationship between the damage he suffered and the use of the defective product.

However, if the producer can prove any of the following circumstances, he shall not be liable for compensation:
([-]) Not putting the product into circulation;

([-]) The defect causing the damage does not exist when the product is put into circulation;
([-]) The level of science and technology when the product is put into circulation cannot detect the existence of defects.

28. What evidence should the plaintiff and the defendant provide in the lawsuit if the child was injured due to a product defect?
When Tang's son, Xiao Ming, was watching TV, the picture tube of the TV suddenly exploded, and Xiao Ming was injured.Tang Mou, as the guardian, requested compensation from TV manufacturer A.Question: What burden of proof should the victim Tang and Factory A bear?
Analysis according to law
If a product defect causes damage to a person, the product producer applies the principle of no-fault liability imputation. Therefore, when the victim as the plaintiff seeks compensation from the product producer, there is no need to prove that the producer is at fault.However, the victim still needs to provide the following evidence to prove the constitutive facts of product liability: (1) It can prove that the producer's product is defective.For example, in this case, Tang should first provide the original product (or leftovers or photos) and the production and sales certificates of the product manufacturer (or seller), such as product receipts, credit cards, warranty certificates, etc., to prove that the TV The TV is produced by Factory A; secondly, Tang should prove that the TV is defective, that is, there is an unreasonable risk of endangering the personal and property safety of others, such as providing a quality appraisal certificate issued by the relevant department. (2) To prove the existence of damage facts.It is relatively easy for the victim to provide evidence in this regard, but it should be noted that the victim must not only provide evidence to prove the occurrence of the damage, but also provide evidence to prove the amount of the loss (such as incurred medical expenses, etc.) At the same time, proof of continuing treatment expenses, other organ function training expenses and appropriate plastic surgery expenses should be provided; if compensation for mental damage is requested, proof of mental suffering should also be provided. (3) To prove that there is a causal relationship between the fact of damage and the defect of the product, that is, the defect of the product directly caused the damage.

Due to limitations in professional knowledge, financial resources, etc., it is difficult for the victim to prove product defects and causality. Therefore, in judicial practice, the victim is often recognized to adopt some flexible proof methods. After the proof reaches a certain level, the judge will make a fact Presumption, to determine the existence of product defects and causality.For this determination, the producer may submit counter-evidence.In product liability, if the producer claims exemption from liability, he must bear the burden of proof for the reasons for exemption stipulated in Article 41 of the "Product Quality Law": (1) not putting the product into circulation; (2) causing damage when the product is put into circulation (3) The level of science and technology when the product is put into circulation cannot yet detect the existence of the defect.In this case, Factory A can achieve the effect of exemption from liability by proving the above reasons for exemption.In addition, in practice, if the victim has intentional or gross negligence when using the product, abnormal use of the product or wrong use of the product, Factory A can also claim to be exempted from all or part of the liability.

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Consumers, when purchasing goods and receiving services, should pay attention to asking for and keeping four types of complete and important evidence.

1. Invoice.Invoices are the primary condition and important evidence for administrative, judicial and consumer association departments to accept consumer complaints and prosecutions.The invoice shall include the real name of the operator, the time of issuing the invoice for the purchase of goods (or the provision of services), product specifications (or service content and types) and quantity, unit price, as well as the official seal of the operator, the signature or seal of the person in charge, etc. .For non-special invoices such as white slips and simple receipts or invoices without official seals, the evidence will be greatly reduced or even invalid.

2. Instructions.Commodity instruction manuals or service reminder manuals are normative written materials that specify the method of using the product or the matters that should be paid attention to when receiving the service.When purchasing goods and receiving services, consumers should pay attention to searching, checking and keeping them in time, so as to serve as strong evidence in future disputes or lawsuits.

3. Certificate of Conformity.Commodity qualification certificate is a certificate that proves that a certain commodity meets the requirements of design and manufacturing standards and has passed the quality inspection.

According to the relevant laws and regulations of the country, all commodities sold should be accompanied by quality certificates, especially household appliances and other commodities that are related to the personal and property safety of consumers.If there is a quality problem with the purchased product, consumers can negotiate with the irresponsible manufacturer by virtue of the certificate of conformity.

4. Warranty card.The warranty card is the certificate and basis that the manufacturer provides to the consumer when repairing the product. Once the purchased product has quality problems during the warranty period, the manufacturer refuses to provide service or is perfunctory in terms of service quality, the consumer can rely on the warranty card to contact the manufacturer. or go to court.However, the warranty card should truthfully fill in the repair items, time and the signature of the maintenance personnel, otherwise it will lack evidence.

29. The victim was harmed by stealing electricity. As the owner of the power facility, can the power supply bureau use this as evidence to exempt from civil liability?

In order to steal electricity, Xiao wanted to connect a wire that passed through his village to his home, but unexpectedly the wire was a 10 kilovolt (KV) high-voltage line, and he was electrocuted to death.Now that Xiao's relatives are asking for compensation, will the court support their request?

Analysis according to law
The 10 kilovolt (KV) transmission line is a high-voltage line, so it is a highly dangerous operation, and the principle of no-fault liability applies. Although the operator has no subjective fault, he must also be liable for the damage caused, but the operator also has some legal exemptions reason. The "Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Cases of Compensation for Personal Injury due to Electric Shock" stipulates the grounds for exemption from liability for personal injury caused by high-voltage electricity.According to the regulations, the exemptions for personal injury caused by high-voltage electricity include: (1) force majeure; (2) the victim commits suicide or self-injury by electric shock; (3) The victim engages in acts prohibited by laws and administrative regulations in the protected area of ​​electric facilities.Therefore, in this case, Xiao caused his own damage due to stealing electricity, and the property owner of the power facility shall not be liable for compensation.

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The principle of no-fault liability refers to the principle of imputation that does not take fault as an element of civil liability, that is, regardless of whether the perpetrator is subjectively at fault or not, he should bear civil liability for the consequences of the damage. Article 106, paragraph 3, of the General Principles of the Civil Law stipulates, "If there is no fault, but the law stipulates that civil liability should be borne, civil liability shall be borne." , environmental pollution, product quality, etc.

30. How is the burden of proof allocated to the parties involved in the event of damage caused by highly dangerous operations?

A villager named Lu was hit by a speeding train when he was walking by the railway late at night in order to take a shortcut.After investigation, safety warning signs have been set up along the railway, and corresponding emergency measures were taken when the train found Lu.How, then, is the burden of proof allocated to the parties?

Analysis according to law
Railway transportation is a highly dangerous operation, and no-fault liability is implemented. Therefore, the victim does not need to prove the fault of the infringer, but only needs to prove the existence of highly dangerous operation behavior, damage consequences and causality; It is necessary to bear the burden of proof for the existence of force majeure and the occurrence of damage caused by the victim's own reasons.

However, it should be noted that the provisions of the "Railway Law" on the reasons for the exemption of railway transport enterprises are different from the provisions of Article 123 of the "General Principles of the Civil Law". If personal injury or death is caused by other railway operation accidents, the railway transportation enterprise shall be liable for compensation; if the personal injury or death is caused by force majeure or the victim's own reasons, the railway transportation enterprise shall not be liable for compensation." The victim's own reasons include "violation of regulations Pass level crossings or pedestrian passages, or walk, sit and lie on railway lines.”That is to say, according to the provisions of the "Railway Law", as long as it is the victim's own reasons, whether it is intentional or negligent, the railway transportation company can be exempted from liability.According to the principle that special law is superior to common law, the provisions of the "Railway Law" should be applied when handling personal injury cases in railway transportation, and the provisions of the "General Principles of Civil Law" should not be applied.In this case, Lu, as the victim, only needs to prove that there are three elements: the highly dangerous behavior of train operation, his own injury, and the injury he suffered was caused by the highly dangerous behavior of train operation. Subjective fault, the perpetrator can not claim to be exempted from liability by proving that he is not at fault.However, if the railway transport party can prove that the damage was caused entirely because Lu violated the provisions of the "Railway Law" by walking on the side of the railway, the court should no longer order the railway transport party to bear the liability for compensation.

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Highly dangerous operation means that under the existing technical conditions, people cannot completely control natural forces and certain material attributes. Although they are operated with extreme caution, there is still a high possibility of causing people's lives, health and property damage. dangerous work.Article 123 of the current "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.”

31. Noise, dust and exhaust gas cause damage, what evidence should the victim provide for compensation?
(End of this chapter)