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Chapter 27 Questions and Answers on Personal Injury Compensation Disputes (9)
This case involves civil liability for damage caused by ground construction.During the construction period, although the defendant set up safety signs at the intersections, he temporarily dug pits on the road to be repaired, and failed to set up obvious signs and take safety measures, causing damage to the plaintiff. According to Article 125 of the General Principles of Civil Law of our country: "If digging pits in public places, roadsides or passages, repairing and installing underground facilities, etc., without setting up obvious signs and taking safety measures and causing damage to others, the constructor shall bear civil liability." Digging in public places, roadsides or passages Pit, repair and installation of underground facilities is generally called ground construction, which does not include aerial construction (such as erecting high-voltage transmission lines), nor pure underground construction (such as underground mining, tunnel construction, etc.).

For general torts, the principle of fault liability is implemented, and whoever makes the claim must provide evidence; however, damage caused by ground construction is a special tort that infringes on the rights of others. It can prove that it has set up obvious signs and taken safety measures, and these signs are sufficient for anyone to avoid damage with ordinary attention, otherwise they should bear civil liability.

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For ground construction, if the constructor has set up obvious signs or taken necessary safety measures, the constructor shall not be responsible for any damage caused by the negligence of the victim.Generally speaking, the ground constructors can prove that the safety measures they have taken include: demarcating the construction site, setting up horizontal rails, hanging red lights or setting up other signs according to industry construction practices or taking other measures, such as setting up special personnel to direct traffic to avoid heavy construction sites Wait.The constructor must fulfill the due diligence duty of a good manager, and the signs set up or measures taken must be sufficient to prevent accidents from happening.The level it should reach is not only sufficient to identify normal pedestrians and vehicles and take preventive measures, but also ensure the safety of blind people and minors passing by.Where safety measures are not taken or obvious signs are set up, or the measures taken and signs set up do not reach the level of preventing damage, thus causing damage to others, the constructor shall be liable for compensation.In the event of a major liability accident, criminal responsibility shall be borne.

37. Is it necessary to bear the consequences of losing the lawsuit if the evidence is not presented within the time limit?

On September 2005, 9, the villagers committee of a certain village posted a list to announce the situation of land contracting, and arranged for the plaintiff, Mr. Shi, to read the list.During the process of reading the list, Shi discovered that someone was tearing up the list and stopped him. He had a dispute with the defendant Liu and then fought, and both parties hurt each other during the tearing.After being injured, the plaintiff went to the hospital for treatment and was discharged after 22 days.Then appealed to the People's Court.During the trial of the plaintiff's request for damages from the defendant, the defendant Liu raised objections to the authenticity of the medical bills submitted by the plaintiff Shi, and the court ordered him to submit an appraisal application within the specified time limit.Later, Liu neither submitted a written application and prepaid the appraisal fee within the specified time limit, nor did he explain the reason to the court.The court held that the defendant Liu raised objections to the authenticity of the medical bills submitted by the plaintiff Shi, but failed to submit the application and pre-pay the appraisal fee within the limited time, and did not explain the reasons to the court afterwards, which resulted in the disputed case. If a fact cannot be determined through an appraisal conclusion, the legal consequences of not being able to prove the fact should be borne.

Analysis according to law
The time limit system for producing evidence refers to a law that the subject of proof should submit corresponding evidence to the court to prove the validity of its claim within the time limit specified by law or specified by the court. system.It mainly includes two meanings: one is the time limit.This includes both legally mandated and court-appointed periods.The party bearing the burden of proof must use its best efforts to provide evidence in support of its claim within this period.The second is the consequences.If the party bearing the burden of proof fails to provide or is unable to provide relevant evidence within the time limit specified by the law and the court, unless otherwise stipulated by the law, the relevant evidence will lose its probative force and the court will not accept it, and the party will bear the disadvantages. legal consequences.As a complete litigation system, the time limit system for producing evidence must have both time limit and consequences.

Article 34 of the "Regulations on Evidence" stipulates: "The parties shall submit evidence materials to the people's court within the time limit for producing evidence. organize cross-examination of evidence, except where the other party agrees to cross-examination. If a party adds or changes a claim or files a counterclaim, it shall submit it before the expiration of the time limit for producing evidence." At the same time, it has played a positive role in promoting the parties to fully exercise their litigation rights and realize the theme of judicial justice and efficiency.

The time limit system for producing evidence stipulates that if the parties fail to produce evidence within the limited time limit, they will lose the right to submit evidence and the right to prove, that is, bear the burden of proof and risk losing the lawsuit, so that the burden of proof can be truly implemented and implemented.Therefore, in this case, Liu did not present contrary evidence to deny the plaintiff’s claim within the time limit specified by the court. Therefore, in the absence of other more favorable evidence, Liu should bear the resulting adverse consequences, that is, lose the lawsuit. .

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The following is a sample of the "Notice of Approval/Disapproval of the Party to Change the Time Limit for Evidence" in the format of evidence documents in civil proceedings.

××× People's Court
Notice

(approval/disapproval of the party's application for changing the time limit for producing evidence)
(××××)×××word No.××

×××:

In the case of dispute between you and ×××× (the name of the other party and the cause of action), this court issued a notice of proof to you on ××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××). Year ×× month ×× is currently submitting evidence to this court.Now you have negotiated with ××× (the name of the opposing party) to confirm that the two parties have completed their proofs by ××××××month××××year, and applied to this court for approval.

Upon review, this Court grants (or "denies").

××××year××month××day

(Hospital seal)
Description:

Notice of permission shall be served on both parties.The people's court may orally notify the applicant of the notice of disapproval, and record it in the record, which shall be signed by the party or the agent.

38. How to use evidence preservation in personal injury compensation disputes?

A 30-hour-old baby boy died suddenly. The family members sued a Maternal and Child Health Hospital on the grounds that the medical staff accidentally dropped the baby and caused intracranial hemorrhage.The court accepted the personal injury compensation case.Before the trial, the family members applied to the provincial notary office for notarization of evidence preservation of the baby's remains.

Analysis according to law
Evidence preservation is a special procedure based on objective needs to fix and preserve the content and form of evidence.The essential requirement for notarization of evidence preservation is the possibility of loss of evidence or the hidden danger of hindering its use, or the consent of the other party.The procedural requirement for notarization of evidence preservation is that the application should generally be filed before the lawsuit.

It is generally believed that any application for notarization of evidence preservation to a notary institution shall meet the following conditions:
1. Evidence may be lost or difficult to obtain.

Evidence may be lost, distorted or difficult to obtain due to the passage of time or other reasons.For example, if the patient suffers from a disease and may die; the relevant unit needs to apply for a notarization of evidence preservation due to demolition; the items used as evidence will rot and deteriorate, and may lose their role as evidence at any time, the appearance, characteristics, etc. of the items should be promptly reported. Records are made and items are processed.

In addition to the above objective conditions, there are also human factors.If evidence may be destroyed, defaced, buried, transferred, etc., it will affect the correct trial of disputes by people's courts or administrative law enforcement agencies in future litigation or investigation.Therefore, in order to effectively use evidence to determine the facts of the case and protect the legitimate rights and interests of the parties concerned, relevant agencies and individuals should apply for notarization of evidence preservation in accordance with the law.

2. The current situation of the facts involved in the case must be determined, and the applicant has an interest in the case.

Due to the passage of time, changes in natural conditions or other reasons, some evidence itself may disappear or be difficult to obtain.Therefore, the notary institution should guide and urge the parties concerned to use the methods permitted by law to preserve the evidence in the process of preserving evidence.Such as the statement of the parties, the on-site inspection process, etc., cannot be kept in people's memory accurately for a long time. If the evidence preservation is not notarized in time, it will be recorded in words or recorded by audio or video, and it may be forgotten afterwards; It is impossible for the traces to remain unchanged for a long time, such as the location of the house, four locations, the nature of the house, structure, level, area, new and old procedures, layers and ground texture, auxiliary facilities, etc., if you do not take pictures or draw and use words to describe their original conditions in detail For the record, once a house has been demolished, there is no way to know its current state.

This case belongs to the notarization of remains which is extremely rare in people's life.There are many items to be identified in the body notarization, such as determining whether the body is the person, the degree of corruption, where it is kept, the site of the autopsy, and strange features, etc., as legal evidence for litigation and compensation.Since the deceased lost his or her life, the "notarization of the remains" is different from the notarization of other objects. The "notarization of the remains" depends on conditions, such as shape, time of death, how to find the body, etc., including time, space and other elements. , is a relatively complicated process, and it has a different sensory perception than other object notarization, and "remains notarization" is only for evidence preservation.

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The following is a reference sample of an application for preservation of evidence.

Application for Evidence Preservation

Applicant: name, gender, age, nationality, place of origin, occupation or position, unit or address.

The applicant and (the name of the opposing party) filed a lawsuit with your court on the date of year, month, and date, and now the case (name of evidence) is about to be lost (or it will be difficult to obtain it in the future), so we apply for preservation of evidence.The facts of the case, the reasons and the specific purpose of the request are as follows:

Facts and reasons

Purpose of request
Sincerely,
People's court
applicant:
(signature or seal)

date

39. What evidence should be provided to claim compensation for mental damage due to noise pollution?
In April 2006, Hu purchased a 4-kilowatt air conditioner and installed the outdoor unit of the air conditioner on the outer wall below the window of the north bedroom.Uncle Liu and his wife live in the north bedroom downstairs. One has diabetes and high blood pressure, and the other has heart disease. The noise when the air conditioner is turned on makes them unbearable.In December last year, the Liu family sued the court, demanding the removal of the two air-conditioning outdoor units and claiming 5 yuan in compensation for mental damage.

After testing, the court found that the noise of the 5kw air-conditioning external unit did affect Mr. Liu and his wife when it was started, and it should be removed.As for compensation for moral damage, the court did not support it due to lack of evidence.

Analysis according to law
The court ordered Hu to dismantle the outdoor unit of the air conditioner because Hu's behavior hindered Mr. and Mrs. Liu.Mental damage refers to damage to spiritual interests.It is generally believed that non-property damage or mental damage is mainly mental pain and also includes physical pain.Mental pain is mainly manifested as anxiety, despair, resentment, frustration, sadness, and lack of interest in life.

Uncle Liu’s compensation for mental damage was not supported by the court, and there may be the following problems: (1) Uncle Liu failed to prove the causal relationship between the mental damage he claimed and Hu’s tort. (2) Even though Uncle Liu proved the first point, he failed to prove the "proven mental damage" through evidence.The fact that the victim received psychological counseling, the diagnosis of a psychologist or doctor, etc. can usually be used as evidence to prove that the victim has mental damage and the degree of damage.

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According to Article 10 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Determination of Liability for Mental Damage Compensation in Civil Torts: “The amount of compensation for mental damage shall be determined according to the following factors: ([-]) The extent of the infringer’s fault, unless otherwise specified by law; ([-]) Specific circumstances such as means, occasions, and behavior of the infringement; ([-]) Consequences caused by the infringement; ([-]) The profit of the infringer; ([-]) The economic capacity of the infringer to bear responsibility; The average standard of living in the place where the court of appeal is located. Where there are clear provisions in laws and administrative regulations on disability compensation and death compensation, the provisions of laws and administrative regulations shall apply.”

40. What is a minor injury?How are minor injuries identified?
Hong is a middle-level cadre of a certain factory. After getting acquainted with Hua, an employee of a certain company more than ten years ago, the two divorced their original spouses and then got married.After marriage, the two often quarreled over trivial matters, and sometimes fought with each other, and the family conflicts continued to escalate. On November 2003, 11, during the "Family War", Hua had four broken ribs and was slightly injured.Later, Hua sued Hong, demanding compensation for personal damages.Hong refused to accept it and asked the court to organize an injury appraisal.

Analysis according to law
Minor injury refers to the physical, chemical, biological and other external factors acting on the human body, resulting in a certain degree of damage to the structure of tissues and organs or partial dysfunction, which has not yet constituted a serious injury and is not a minor injury.

The identification of the degree of injury should be based on the primary damage and consequences directly caused by external factors to the human body, including the injury at the time of the injury, the complications and sequelae caused by the injury, etc., comprehensive analysis and comprehensive assessment.

根据《人体轻伤鉴定标准（试行）》的规定，下列肢体损伤属于轻伤：（1）肢体软组织挫伤占体表总面积6％以上。（2）肢体皮肤及皮下组织单个创口长度达10厘米（儿童达8厘米）或者创口累计总长度达15厘米（儿童达12厘米）；伤及感觉神经、血管、肌腱影响功能的。（3）皮肤外伤性缺损须植皮的。（4）手损伤：①1节指骨（不含第2至5指末节）粉碎性骨折或者2节指骨线形骨折；②缺失半个指节；③损伤后出现轻度挛缩、畸形、关节活动受限或者侧方不稳；④舟骨骨折、月骨脱位或者掌骨完全性骨折。（5）足损伤：①2节趾骨骨折；②缺失1个趾节；③蹠骨2节骨折；跗骨、距骨、跟骨骨折；踝关节骨折或者蹠跗关节脱位。撕脱骨折除外。（6）四肢长骨骨折；膑骨骨折。（7）肢体大关节脱位、关节韧带部分撕裂、半月板损伤或者肢体软组织损伤后瘢痕挛缩致关节功能障碍。

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If you have any objection to the appraisal of the injury, you can apply to the court for re-appraisal. The following is a sample of the People's Court's "Notice of Approving Application for Re-appraisal".

××× People's Court
Notice

(Permission to apply for re-accreditation)
(××××)×××word No.××

×××:

Due to a dispute between ××× (the name or title of the party applying for re-appraisal) and ××× (the name or title of the other party and the cause of action), the ××× Court entrusted ××× (the name of the identification institution or the identification personnel) Name) disagrees with the appraisal conclusion made, and believes that ... (reason for re-appraisal among the parties), and applied to this court for re-appraisal on ×××××××××年××月××日.

After review, the application of ××× (name of the applicant) complies with the provisions of Article 20 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures" No. [-], and this court approves it.

××××year××month××day

(Hospital seal)
Description:

① This notice applies to the circumstances specified in Article 20 of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures" No. [-].

② This notice is served on all parties.The content of the notice may be orally informed to the parties in court by the adjudicator, and shall be recorded in the record and signed by both parties or their representatives.

41. What is a judicial appraisal document review opinion?
At 2006 o'clock on March 3, 23, when Hu dug the door on the wall of her living room and was about to move into an empty room next door, he had an argument with the defendant, Ye. During the dispute, Ye threw Hu to the ground , Ye's legs were pressed on Hu's legs, and he pressed Hu's chest with one hand.Hu was injured and was taken by his husband to a district people's hospital for treatment at about 5 o'clock that night.Since then, Hu's left half of his body was paralyzed, and his left palm was in the shape of a monkey's palm.

Analysis according to law
Judicial appraisal documentary evidence review opinion is a review opinion issued by the judicial authenticator through analysis and comparison of the written materials entrusted to review.The basic condition for issuing a judicial appraisal review opinion is: Generally, no direct inspection of specific objects is carried out, but an objective review of written materials.

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The following is a sample of judicial appraisal documentary evidence review opinion.

×× Judicial Appraisal Center Judicial Appraisal Documentary Evidence Examination Opinion

×× Secretary Jian Center [20××] Clinical Certificate No. ×
Special seal for forensic identification technology (steel seal)
Entrusting unit: ×× City Intermediate People's Court
Date of entrustment: 20××year×month×day

Entrusted matter: Forensic documentary review of Hu's injury
Materials for review: 1. A power of attorney;
2. One pre-trial file of the Public Security Bureau, two files of the procuratorate, and three files of the court;
3. Twenty x films, five CT films, and eight MRI films.

Date of submission for review: 20××year×month×day

Person under review: Hu, female, 49 years old, Han nationality, Anhui, married, illiterate, farmer, living in × Town × Village × Group, Hefei City, Anhui Province, currently working in Beijing, temporarily living at × Road × No., Beijing.

Review date: 20××year×month×day
Review site: ×× Judicial Identification Center

[-]. Summary of the case

According to the criminal and civil judgment of a district people's court on ××month××20××year: At 2006:3 on March 23, 5, when Hu dug the door on the wall of her living room and was about to move into an empty room next door, There was a quarrel with the defendant Ye Mou. During the dispute, Ye Mou threw Hu Mou to the ground, Ye Mou's legs pressed on Hu Mou's legs, and he pressed Hu Mou's chest with one hand.Hu was injured and was taken by his husband to a district people's hospital for treatment at about 6 o'clock that night.Since then, Hu's left half of his body was paralyzed, and his left palm was in the shape of a monkey's palm.

[-]. Excerpts from Documentary Evidence

(End of this chapter)