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Chapter 29 Questions and Answers on Personal Injury Compensation Disputes (11)
During the trial of cases, judicial organs sometimes encounter witnesses who should appear in court under special circumstances but cannot testify in court.The special circumstances are as follows: the witness has died or his whereabouts are unknown; the witness has lost memory or unconsciousness; the witness is suffering from mental illness or other serious diseases or is extremely inconvenient to move; the witness is an infant or juvenile who cannot testify in court according to law; Witnesses are unable to appear in court due to natural disasters or force majeure; one party's witnesses fail to appear in court with the permission of the other party; witnesses have other reasons.Witnesses who have legitimate reasons and have not appeared in court with the permission of the court but have issued written testimony, and the court cross-examines that the plaintiff and the defendant have no objections, and if it is verified to be true, their witnesses are allowed not to participate in the proceedings in court.With regard to the testimony of witnesses before the occurrence of special circumstances, the court shall allow both the plaintiff and the defendant to read their testimony in court for cross-examination. After cross-examination, the witness testimony that the plaintiff and the defendant have no objection and is verified to be true can be used as the basis for deciding the case.

45. Can the medical certificate be used as an appraisal conclusion?
The defendant, Tong, quarreled with Si over house repairs, and then got into a fight, and Tong severely injured Si.Diagnosed by County People's Hospital: skull fracture; traumatic right facial nerve peripheral paralysis.Based on the county hospital's medical certificate, the court of first instance determined that Tong's actions had caused Si to be seriously injured, sentenced Tong to 5 years in prison, and compensated Si for 1 yuan in treatment expenses and other losses.Tong refused to accept the appeal and filed an appeal, arguing that the county hospital's medical certificate could not be used as an appraisal conclusion, and requested a re-appraisal of Si's injury.The second-instance court conducted a new forensic medical appraisal on Si, and concluded that Tong's behavior had only caused minor injuries to Si. Tong was sentenced to 3 years in prison, suspended for 5 years, and Si was compensated for 5000 yuan in damages.So can the medical certificate be used as an appraisal conclusion?

Analysis according to law
The medical certificate issued by a doctor is different from the appraisal conclusion used as evidence.

Article 119 of the "Criminal Procedure Law" stipulates: "In order to ascertain the facts of the case, when it is necessary to solve some specialized problems in the case, a person with specialized knowledge shall be appointed or hired to conduct an appraisal." Article 120, paragraph 1: "The appraiser After the appraisal, the appraisal conclusion shall be written and signed.” According to this regulation, the appraisal conclusion is a written report submitted by the appraiser after the appraisal of a special issue in the case according to the requirements of the judicial authority.The appraiser is a participant in the litigation, who enjoys litigation rights and undertakes litigation obligations according to law.However, the behavior of diagnosis performed by doctors is only a pure medical behavior, not a litigation behavior.Therefore, a general disease diagnosis certificate cannot be used as an appraisal conclusion. It can only be mutually confirmed with the appraisal conclusion and serve as documentary evidence, and cannot replace the forensic medical appraisal conclusion.

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This case involves the litigation method of criminal incidental civil litigation.Victims who suffer material losses (including material losses of personal injury) due to the defendant's criminal acts have the right to file an incidental civil lawsuit during the criminal case proceedings to demand compensation from the defendant for the losses suffered by the victim.If the defendant illegally possesses and disposes of the victim's property, and the recovery by the people's court is still not enough to make up for the victim's losses, after the criminal case is over, the victim can still file a civil lawsuit with the civil court of the people's court to continue to seek compensation for damages caused by the defendant's behavior. material loss.

If the behavior of the defendant in a criminal case causes damage to state or collective property, the people's procuratorate should initiate an incidental civil lawsuit when initiating a public prosecution to ensure that the state or collective property is not damaged.

46. ​​Are aliens obliged to testify?Can an alien testify as a witness?
Gangster Zhang Mou held a dagger and forced the victim to the home of a foreigner. When the victim asked for help from the foreigner, he was stabbed in the chest by Zhang Mou and died on the spot. In this case, the foreigner was the only witness.After the gangster was captured, the family members of the victim demanded compensation for death and mental damage from the gangster, and the foreigner was required to testify.So, is the alien obliged to testify?
Analysis according to law
The alien is obliged to testify and is able to testify.According to Article 70 of the "Civil Procedure Law", "All units and individuals who know the circumstances of the case are obliged to testify in court." Therefore, under normal circumstances, no matter whether they have an interest in the case, anyone who knows the circumstances of the case can Be a witness.However, the court must be cautious when reviewing the testimony of interested parties, and it can be adopted if it is true and reliable.

In addition, according to the "Vienna Convention on Diplomatic Relations" and my country's "Regulations on Diplomatic Privileges and Immunities", those who enjoy diplomatic privileges and immunities are exempted from the obligation to testify as witnesses.As long as the alien is not a person entitled to diplomatic privileges and immunities, he is not relieved of the obligation to testify.

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It is an undisputed rule of international law that diplomats and representatives of certain foreign organizations and international organizations enjoy diplomatic privileges and immunities.Diplomatic privileges and immunities include: inviolability of the person, inviolability of residence and property, immunity from jurisdiction, and exemption from donations and customs duties.The exercise of civil jurisdiction over foreigners, foreign organizations or international organizations enjoying diplomatic privileges and immunities involves the issue of judicial immunity of diplomatic personnel.Judicial immunity means that the diplomatic representatives of a country or an international organization stationed in another country are exempt from the criminal, administrative and civil jurisdiction of the country in which they are stationed.

47. In forensic identification, how to determine the causal relationship between the harm behavior and the damage result?
Chen was stabbed in the abdomen with a fruit knife on October 2006th, 10, and underwent abdominal exploration in the local county hospital. He was diagnosed with "mesenteric rupture, No. 19 cartilage rupture" and was admitted to the hospital for treatment. One month later, his condition worsened. Then it was considered as "duodenal fistula", and it was recommended to transfer to another hospital.On November 11 of the same year, he was transferred to a municipal hospital for abdominal cavity exploration. He found obvious intra-abdominal adhesions and pus cavity formation. He was diagnosed as "abdominal knife stab wound, duodenal fistula". On the 11th, he became listless and his symptoms worsened.The family members asked to be discharged from the hospital due to financial difficulties, and Chen died six days later.Forensic pathology autopsy report: mild cerebral edema, severe pulmonary edema, right ventricular wall thrombus, coronary artery and atherosclerosis, mild fatty heart, autolysis of liver, kidney, pancreas, fatty liver, rupture of small intestine and surrounding areas Extensive tissue adhesions combined with biliary inflammation.Analysis explanation: Mr. Chen was stabbed in the right abdomen with a sharp instrument, resulting in the rupture of the duodenum and the rupture of the mesocolon.The first exploratory laparotomy was performed after the injury. During the operation, duodenal rupture was not found, and a duodenal fistula was formed. Due to long-term duodenal fistula complicated with electrolyte imbalance, severe abdominal infection, and severe malnutrition, multiple Organ failure and death.The failure to find a duodenal rupture in the first surgical exploration, and the subsequent improper treatment of the intestinal fistula were important factors in Chen's death.From this case, it can be seen that trauma caused duodenal fistula, and trauma was the direct cause; severe abdominal infection, severe malnutrition, leading to multiple organ failure and death were the result.

Analysis according to law
In the forensic identification of damage cases, sometimes the identified person may suffer from a certain disease before the injury, and induce the disease after the injury; or even though he was healthy or unconsciously sick before the injury, the disease and sequelae may occur after the injury, etc. .At this time, the appraiser needs to solve the causal relationship between the damage and the disease and others, so as to provide a basis for the lawsuit.

([-]) Principles for judging the causal relationship between injury and disease and others

1. The causal relationship between injury and disease is a connection between objective phenomena: it is a phenomenon that is caused by injury, produces or causes disease, that is, injury is the cause and disease is the result. This is the objectivity of causality.Therefore, to determine whether there is a causal relationship between the injury and the disease, we must go deep into the objective things for investigation and research, that is, to understand the case and the physical condition of the victim before the injury.

2. The difference between injury as the cause and disease as the result is relative, not absolute: only by extracting a part of the chain between injury and disease for study can the causal relationship be clearly shown, which is called direct causation.

3. The manifestations of injury and disease have a sequence in time: the injury comes first, and the disease appears later. Therefore, it is necessary to find the cause from the injury that occurred before the disease appeared.

4. If the injury is caused by many people, the degree of injury should be individually identified for each person and each time, and the cause of the disease should be distinguished which is the main cause and which is the secondary one.So as to determine the primary and secondary issues of a certain person, a certain time, and a certain part of the injury that caused the disease.

([-]) Types of causal relationship between injury and disease: There is no causal relationship between injury and disease; there is causal relationship between injury and disease, which can be divided into direct and indirect causal relationship.At this time, both have the distinction of necessity and contingency.

1. Direct causation: This refers to the direct action of external force on healthy tissues and organs of the human body, which accelerates the destruction of the integrity of the anatomical structure of tissues and organs, and clinical symptoms such as dysfunction.For example, traumatic epilepsy occurs after craniocerebral injury, that is, craniocerebral injury is the cause and traumatic epilepsy is the result. There is a direct causal relationship between the two.

2. Indirect causality: This refers to the external force acting on the original diseased part of the human body, and under normal circumstances, it may not destroy the continuity and integrity of tissues and organs and cause dysfunction, but there are potential lesions On the basis of this, the lesions are superficial or worsened.The basic form of indirect causality: (1) Incentive: the aggravation of potential lesions induced by injury.For example, congenital or existing aneurysm and other vascular lesions rupture after head injury, resulting in subarachnoid hemorrhage, that is, head injury is the cause of subarachnoid hemorrhage. (2) Co-cause: Injury only plays an auxiliary role in the disease process.For example, the right thigh was kicked by others. After the injury, the right thigh continued to suffer from pain accompanied by fever. X-rays showed osteosarcoma, that is, lower extremity injuries were the co-cause of osteosarcoma. (3) The injury intervenes in the behavior of a third party, or in the victim's own behavior, or in natural factors to cause further damage.For example, A was injured by B, and the injury was not serious. However, during the diagnosis and treatment in the hospital, because Doctor C used unsterilized instruments to expand the wound, A's wound was infected and complicated with sepsis.Another example is that certain A wounded certain B, and the wound caused tetanus due to bacterial infection.There is an indirect causal relationship between the above two primary injuries and sepsis and tetanus. (4) The damage caused by the victim affects the third party.For example, a car kills a child, and the child's mother suffers from a relapse of an old disease or concurrent mental disorder due to severe mental stimulation.

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Methods for judging the relationship between injury and disease:
1. Carefully and conscientiously collect and observe the victim's own condition, the time and place of the injury, the magnitude, direction, character, injury location, and severity of the external force, so as to determine the cause of the injury.

2. Carefully observe the time of the secondary disease, clinical symptoms and various medical examinations to correctly diagnose the existence of the disease.

3. Apply the theory and technology of medicine and forensic science to explore the regularity of the time interval from injury to disease and the continuity of pathological phenomena; the accidental and inevitable connection between injury and disease.In short, according to the specific analysis of the specific circumstances of the case, when necessary, seek the cooperation of professional physicians to diagnose the direct causal relationship between the injury and the disease.For example, whether late intracranial hemorrhage is indeed caused by some kind of external force should be based on (1) a definite history of head injury; craniotomy, lumbar puncture), etc.; (2) There must be a short interval between head injury and cerebral hemorrhage, generally no more than 3-6 weeks, but when a longer interval is encountered, it is necessary to (8) The cause of cerebral hemorrhage (cerebral arteriosclerosis, hypertension, cardiovascular system diseases, etc.) was not found in the previous medical history.

4. When there is indeed a direct causal relationship between the injury and the disease, the extent of the injury shall be assessed in accordance with the relevant provisions of the "Appraisal Standards for Human Serious Injury", and the disease is determined to be caused by the injury by referring to the relevant content of the Appraisal Standards for Incapacity to Work Due to Injury or Disease. And assess the loss of all or part of the ability to work.

5. When there is an indirect causal relationship between the injury and the disease, the relevant clauses of the "Appraisal Standards for Serious Injury of Human Beings" are generally not invoked.

6. When there is no causal relationship between the injury and the disease, the "Standards for the Identification of Serious Injuries of Human Beings" shall not be invoked.

48. How is evidence exchange used in personal injury cases?

A catering company in a certain city opened in October 2006.At 10:11 p.m. on November 1 of the same year, Hua and his friends came to the second floor of a catering company for a meal.On the way, Hua walked out of the private room to answer a phone call, pushed open the fire door on the second floor of the restaurant of a catering company, entered the area under construction and fell, and died on November 8 of the same year after rescue efforts failed.After the incident, a catering company posted a sign of "fire escape" on the fire door.The death certificate of the Public Security Bureau of the city reads: Hua fell to death from a high altitude.

After the court accepted the case of a personal injury compensation dispute filed by a relative of Hua against a catering company, the plaintiff and the defendant exchanged evidence before the court chose a date for the hearing.

Analysis according to law
Evidence exchange is an important system of our country's civil evidence law.Relevant legal provisions are mainly the provisions of Articles 37-40 of the "Regulations on Evidence".The main purpose of the legislation is to urge the parties to provide all the evidence to the court before the first-instance trial through evidence exchange, so that the court can sort out the focus of disputes between the two parties, thereby fixing the focus of disputes and evidence between the two parties, ensuring the smooth progress of the trial, and improving the efficiency of the trial.

Civil procedure mainly includes two major contents, that is, pre-trial preparation and court hearing. The former is mainly the presentation of evidence and the formation of the focus of disputes, while the latter is the review of evidence and judgment of facts.Usually, after the case is accepted, a specific procedure prescribed by the law is carried out, and the parties and their litigation representatives, under the auspices of the judge, put forward claims to each other to form disputes, and collect evidence around these disputes.Through the investigation and exchange of evidence, the points to be disputed have been fixed, and the method of attack and defense has been determined, such as which evidence to present, and the case is finally brought to the court trial stage.If the above is dominated by the parties, it is called party doctrine; if the above content is dominated by the court, it belongs to authority doctrine.

Evidence exchange is the core system of the pre-trial preparation procedure for civil litigation, and an integral part of the time limit system for producing evidence.The functions of evidence exchange mainly include: collation and clarification of disputes, court trial preparation, evidence preservation, prevention of raids, creation of fair debate among litigants, promotion and settlement, and convenience for filing and proceeding of lawsuits, etc.The primary function of evidence exchange lies in the pursuit of objective truth, allowing the facts themselves rather than evidence raids or litigation skills to determine the final fate of the case.The exchange of evidence is not only to discover the truth in substance, but also to promote and promote judicial justice in procedure and improve the efficiency of litigation.

During the process of evidence exchange, the facts and evidence that the judges have no objection to the parties shall be recorded in the file; the evidence with objection shall be classified and recorded in the file according to the facts that need to be proved, and the reasons for the objection shall be recorded.Determine the main issues of dispute between the parties through the exchange of evidence.

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The People's Court's Approval of the Evidence Document Style in Civil Procedures

Notice of party applying for organization of evidence exchange

××× People's Court
Notice

(The people's court organizes the exchange of evidence upon the application of the parties)
(××××)×××word No.××

×××:

In the case of dispute between you and ×××× (the name of the other party and the cause of action), upon the application of ××× (name or name of the applicant), this court shall, in accordance with the Supreme People’s Court’s “Several Provisions on Evidence in Civil Procedures” No. .30 According to Article [-], it is decided to organize the parties to exchange evidence at ×××××××××月××日×××年×××年××月××日 ××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××.The time limit for producing evidence expires on the date of evidence exchange, and those who provide evidence after the time limit shall be deemed to have waived their right to produce evidence.

××××year××month××day

(Hospital seal)
Description:

① This notice applies to the situation in the first paragraph of Article 30 of No. [-] of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures".

② This notice is served on both parties.

The people of the civil procedure evidence document style

Notice of the court ex officio organizing the exchange of evidence

××× People's Court
Notice

(The people's court organizes the exchange of evidence ex officio)

(××××)×××word No.××

×××:

In the case of dispute between you and ×××× (the name of the opposing party and the cause of action), due to... Article 30 of No. 40 of Several Provisions on Evidence in Civil Procedures (if evidence exchange is to be organized again, it shall be in accordance with the provisions of Article [-] of the "Provisions of Evidence"), it is decided to organize the parties on ××××year××month××day×× Evidence will be exchanged at ××, and you should come to ×× (the place where the evidence is exchanged) on time to participate.The time limit for producing evidence expires on the date of evidence exchange, and those who provide evidence after the time limit shall be deemed to have waived their right to produce evidence.

××××year××month××day

(Hospital seal)
Description:

① This notice applies to the circumstances of Article 30, Paragraph 40 of No. [-] and Article [-] of the Evidence Regulations.

② This notice is served on both parties.

49. How is rewarding evidence different from buying witnesses?

(End of this chapter)