legal master

Chapter 30 Questions and Answers on Personal Injury Compensation Disputes (12)
On the evening of August 2006, 8, Mao and You met at the gate of a certain community, and they quarreled because they were not speculative. Since it was off-duty time, the fierce quarrel attracted many neighbors to watch.Since then, Mao has posted a notice twice at the location of the incident. The notice stated that at about 28:8 on August 28, there was an incident of blocking the road and beating people here, and he was beaten in public by a woman in her 17s. , abuse, and personal attacks, I will take legal means to seek justice for this, and I will never allow this kind of domineering behavior to run rampant. I implore the neighbors present to report what they have seen and heard to the court, and I will reward you.

Soon, Mao Mou took You Mou to court and issued a witness statement.But You Mou believes that Mao Mou's posting notices in the community is blatantly buying witnesses and interfering with judicial justice.

Analysis according to law
my country's Civil Procedure Law stipulates that litigants have the responsibility to provide evidence for their own claims, which is commonly referred to as the principle of "the one who claims shall provide evidence".In this case, in order to win the case, the plaintiff, Mao, offered rewards to find witnesses.Legally speaking, her approach seems to be justifiable, because she must meet the burden of proof required by law.But the crux of the problem is that if she just uses the form of ordinary announcements to find witnesses, then things will run completely on the track of the law, and there is nothing particularly worth discussing in this case; She used a special way to find witnesses to fulfill the burden of proof, so she was not only criticized by the other party, but also the legal profession believed that whether this way of gathering evidence was legal was a "new topic".

As long as the facts of the case can be proved in court and the evidence reflects the objective facts of the case, it can be used as valid evidence in court.The author believes that in a civil lawsuit to confirm the effectiveness of evidence obtained through offering rewards for evidence, the court only needs to provide evidence in court by both parties and cross-examine the evidence by both parties, and the court will verify and verify it through legal procedures. If it is an objective fact, The validity of the evidence should be confirmed.

tips

Evidence and basis for a verdict are two concepts.Evidence sometimes refers to evidentiary materials, and sometimes specifies the basis for a case.What has not been cross-examined by the court is only evidentiary material, which may be qualified as evidence, but the evidence that has been cross-examined by both parties in court and finally accepted by the judge is called the basis for a verdict.What you get from offering a reward is only evidence, not necessarily the basis for a verdict.

Accident liability
50. In a student injury accident case, how should the victim claim compensation for mental damage?

He was a student of a certain school. One day, three men broke into the school and beat He to serious injury. He became mentally ill during the treatment process.He sued the court and asked the school to pay compensation for mental damage.The evidence submitted by the school for the defense is as follows: (1) The school guards stopped them at the school gate, but the three men had a tough attitude and used alcohol to force their way in. Injured and not blocked again.However, the old man followed the three into the teaching building, but due to the age difference, the old man couldn't keep up.Can this reduce or exempt the school from its management responsibilities? (2) As the victim's mental illness identification has not yet come out, if the victim has a history of mental illness, can the school be exempted from liability, otherwise what are the legal provisions based on it? (3) Mental illness can be hereditary, and the victim's family members have such medical records, should it be evidence in this case?
Analysis according to law
1. The age of the gate guard is too old, which only shows that the school has obvious omissions in arranging security work, and cannot be a reason for the school to exempt itself from responsibility.What we want to ask now is why the school doesn't arrange strong security guards?Why didn't the old man call the police after the attempted arrest?Therefore, the evidence and reasons mentioned by the school are not sufficient at all, and cannot be used as a basis for reducing or exempting the school from responsibility.

2. If the victim has a history of mental illness, it may indicate that the victim is still unable to bear the usual shock, which leads to serious consequences.This can be a basis for reducing the responsibility of the school, but it is a factual basis rather than a legal basis.No need to look for the letter of the law.

3. This may be a medical issue rather than a legal issue, because many aspects of evidence law need to be supplemented by knowledge from other departments.The school can check the family members of the victim, consult the hospital about the situation, and invite experts to testify. If there is indeed a fact that the victim is mentally ill, this can be the factual basis for the school to reduce its responsibility.

tips

General knowledge and skills in psychiatric identification.

Forensic psychiatric appraisal, also known as psychiatric judicial appraisal, refers to the activities in which a certain organ, organization or unit uses the knowledge of legal psychiatry to make an objective judgment on the mental illness of the appraised person in litigation activities.

With reference to the regulations on procedures for handling administrative cases by the public security, the medical appraisal of mental illness should be carried out by a hospital designated by the provincial people's government.If the suspected violator or the victim disagrees with the appraisal conclusion, he may file an application for re-appraisal, and the re-appraisal will be carried out after approval by the person in charge of the public security organ at or above the county level.The application for re-appraisal is limited to one time, and the public security organ shall appoint or hire another appraiser or appraisal agency.According to regulations, the identification costs shall be borne by the public security organs.For re-appraisal, if the appraisal conclusion has changed, the appraisal fee shall be borne by the public security organ; if the appraisal conclusion has not changed, the appraisal fee shall be borne by the applicant for re-appraisal.

51. Can minors be qualified witnesses in student injury accident cases?
Plaintiff: He Mou.

Defendant: Zheng Mou.

Defendant: Xinghua School.

The plaintiff, He, and the defendant, Zheng, were both 4 or 5-year-old children, and they both studied in the preschool class of Xinghua School. On the afternoon of December 2005, 12, the third class was the outdoor activity time of the preschool class. He and Zheng went to the school playground to play together.At around 6:4 p.m., Zheng accidentally hit He in the face with a branch he was waving during the play, and He fell to the ground and cried.Wang, a preschool teacher, heard the sound and came to help He. Considering that He had scratches on the corners of his eyes and chin, he asked why. He said that it was Zheng who hit him.Wang Mou wiped the sand from He Mou's face with a towel, and He Mou stopped crying.Just when it was time to leave school, Wang asked the students to go home.Afterwards, Wang learned about the situation from the children who were present at the time.Fan said that when she came to the playground, He had fallen to the ground crying, while Zheng was standing beside him with a branch in his hand.Since He Mou failed to explain clearly the circumstances of the eye injury, the injury on his face did not attract the attention of the teacher and his parents. On the afternoon of December 30, 2005, He's left eye was red and swollen, and the pain worsened. His parents took him to the hospital for examination.He Mou was hospitalized for 12 days, and underwent penetrating scleral injury and traumatic cataract surgery successively.The cause of He’s left eye injury and the degree of disability have been appraised by the court, and the traumatic cataract of He’s left eye due to trauma can be identified; the left eye has aphakia left after the operation, referring to the provisions of the “Appraisal Standards for the Disability Degree of Workers’ Work-related Injuries and Occupational Diseases”. He's disability is grade ten.The loss of He Mou's injury includes medical expenses, disability subsidies, etc., totaling 9 yuan.

He's parents failed to claim compensation from Zheng's parents and Xinghua School, and filed a lawsuit with the Municipal People's Court on April 2006, 4, demanding that defendant Zheng's guardian and defendant Xinghua School jointly compensate He for all losses.

The legal representative of defendant Zheng Mou argued that Fan Mou was young and easily induced by others to make untrue statements. If it is, it belongs to adjunct evidence, and a single adjunct evidence cannot be used as evidence for concluding a case.In short, no eyewitness saw Zheng stabbing He's left eye with a branch while playing with He, and the plaintiff's claim lacked factual basis.And even if the court finds that He's left eye was stabbed by Zheng, and He's parents didn't send him to the hospital in time, causing the injury to worsen, his parents should bear most of the responsibility.

The defendant, Xinghua School, argued that the possibility that He injured his left eye due to other accidents during the weekend holidays on December 2005 and 12, 7 could not be ruled out. The plaintiff claimed that he was stabbed in the left eye by Zheng during school hours, but the evidence was insufficient , should bear the legal consequences of insufficient evidence and request the court to dismiss the defendant's claim.

市人民法院于2006年8月22日作出一审判决：被告郑某的监护人赔偿给原告何某全部损失的70％计18047.05元，被告兴华学校赔偿给原告何某全部损失的30％计7734.45元。

Analysis according to law
Article 70 of the "Civil Procedure Law" stipulates: "All units and individuals who know the circumstances of the case are obliged to appear in court to testify. The person in charge of the relevant unit shall support the witness to testify. If the witness cannot appear in court due to difficulties, he may Submit written testimony. Those who cannot express their will correctly cannot testify." According to this provision, in our country, the scope of witnesses is quite wide: any natural person who knows the circumstances of the case and can correctly express his will can testify in court.As long as they are insiders of the case, even close relatives of the parties or have other interests in the parties, they can also serve as witnesses.However, when evaluating the testimony of such witnesses, the interest relationship with the case should be considered, and caution is required when adopting the testimony.At the same time, this article adopts exclusionary provisions on the qualifications of witnesses, excluding those "people who cannot express their will correctly" from witnesses.What is a person who cannot express his will correctly?It mainly refers to those mental patients who cannot distinguish right from wrong or lack the necessary understanding and judgment of things when they are young.According to the relevant provisions of the "General Principles of Civil Law", minors under the age of 10 and mental patients who cannot identify their own behavior are persons without capacity for civil conduct, and minors over the age of 10 and mental patients who cannot fully identify their own behavior are restricted for civil conduct. people.It is generally believed that a person without capacity for civil conduct cannot be a witness.A person with limited capacity for civil conduct may engage in civil activities commensurate with his age, mental development and police status, and thus may be a witness in principle.However, whether to allow him to testify in court in a specific case should be determined according to his behavioral capacity and the complexity of the relevant characteristic facts.It is precisely because of the ambiguity of the meaning of "unable to correctly express will", that people who cannot correctly express their will are often equated with persons without or with limited capacity for civil conduct in judicial practice, which narrows the scope of witnesses.In fact, the behavior of witnesses to testify is different from civil legal acts, and a person who cannot correctly express his will cannot be equated with a person without civil capacity or with limited capacity.For this reason, Paragraph 53 of Article 2 of the "Regulations on Evidence" clearly stipulates the qualifications of persons without civil capacity and persons with limited capacity for civil conduct to testify in judicial practice: Persons with no capacity for civil conduct or persons with limited capacity for civil conduct that are compatible with their mental health conditions can serve as witnesses." In addition, except for those who are completely incapable of testifying and do not have the qualifications of witnesses, anyone who has the qualifications to testify should also have the same qualifications as he Provide testimonial competence commensurate with the testimony. Article 69 of the "Regulations on Evidence" stipulates that testimonies made by minors that are not suitable for their age and mental state cannot be used alone as evidence for determining the facts of the case.It can be seen that the certification of witness qualifications should be based on the complexity of the case, the degree of testimonial ability required for the witness's intellectual development, and in combination with the witness's physiology, psychology, personality, habits, education conditions and degree, and the time when the testimony was formed. Objective environmental factors should be judged according to the situation.

In this case, Wang Mou, the teacher in charge of the class, is qualified as a witness.However, Fan, a classmate of He and Zheng, is only 6 years old, but he has the basic ability to express the facts of the case he has heard and witnessed, and can make objective statements, so he is also a qualified witness.

tips

Approved parties in the form of evidence documents in civil proceedings

Notice of application for witnesses to testify in court

××× People's Court
Notice

(Allow parties to apply for witnesses to testify in court)

(××××) ××× character No. ×× No. ×××:
Due to the case of dispute with ××× (the name of the other party and the cause of action), you applied to this court for witness ××× (the name or title of the witness) to appear in court on ×××××××××××××××××××(the name of the witness) to… ...(matter of which the witness testifies) A ​​statement of the matter.

After review, your application complies with the provisions of Article [-] of the Supreme People's Court's "Several Provisions on Evidence in Civil Procedures", and this court approves it.

××××year××month××day

(Hospital seal)
Description:

① This notice applies to the circumstances of Article [-] of the Evidence Regulations.

② This notice is delivered to the applicant, but the application for witnesses to testify in court shall be recorded in the evidence catalog or evidence receipt.

52. In the case of a student injury accident, if the student does an experiment at home and causes personal injury to others, should the school be held responsible?How to provide evidence?

Liu is 16 years old this year, a high school student.One day, after the chemistry get out of class, Liu took a bottle of sulfuric acid, a bottle of hydrochloric acid and some other chemical reagents home, and did experiments at home according to the methods in the textbook.Zhao, an 8-year-old neighbor, felt curious and dipped his hand into the sulfuric acid, resulting in severe burns to his left hand.Now Zhao's parents require Liu's parents to be liable for compensation for Zhao's damage.Liu's parents believed that the school should bear the responsibility for Zhao's damage, because the sulfuric acid was taken from the school.So, who should be liable for the damage to Zhao?
Analysis according to law
According to the "Law on the Protection of Minors", in addition to various forms of social activities that are conducive to the healthy growth of minors, the personal protection of minors is mainly reflected in family protection and school protection.That is to say, outside the scope of the school's responsibilities, guardians of minors should earnestly perform guardianship duties, protect minors' personal and property from infringement, and educate minors not to commit illegal acts that infringe others.At this time, if a minor without civil capacity or with limited capacity for civil conduct causes damage to others, the guardian shall bear the civil liability; The compensation fee shall be paid in the middle, and the insufficient part shall be properly compensated by the guardian, except that the unit acts as the guardian.

In this case, Mr. Liu was 16 years old and a minor. Zhao was burned when he was doing chemical experiments at home. The damage occurred outside the scope of school management responsibility. The damage caused by his behavior should be mainly borne by his guardian.That is to say, regardless of whether the guardian is at fault in the damage caused by the minor, or whether he has fulfilled the duty of guardianship, he must bear the responsibility, but part of the responsibility can be reduced when the duty of guardianship is fulfilled.Therefore, Liu caused Zhao to be burned, and his parents should bear the main responsibility for compensation.It should be noted that the school is not without any responsibility for the incident of Liu causing harm.According to the "Education Law", "Law on the Protection of Minors" and with reference to the "Measures for Handling Student Injury Accidents", the school does not undertake guardianship duties for minor students, except as otherwise provided by law or when the school is entrusted to undertake corresponding guardianship duties according to law , the school is responsible for the education and management of the students' study and life during the school period, and protects their personal from harm, and the school assumes the responsibility for fault.In this case, due to the lack of strict inspection by Liu's school, it was the fault of the school that Liu took the dangerous chemical reagent home.Therefore, the school should also assume appropriate responsibility for Liu's behavior.

tips

How to calculate the medical expenses in the student injury accident?

The medical expenses are determined according to the medical expenses, hospitalization expenses and other payment vouchers issued by the medical institution, combined with relevant evidence such as medical records and diagnosis certificates.If the obligor of compensation has any objection to the necessity and rationality of the treatment, he shall bear the corresponding burden of proof.

The amount of compensation for medical expenses shall be determined according to the amount actually incurred before the end of the court debate of the first instance.For the necessary rehabilitation expenses for organ function recovery training, appropriate plastic surgery expenses and other follow-up treatment expenses, the compensation obligee may sue separately after the actual occurrence.However, according to the medical certificate or appraisal conclusion, the expenses that must be incurred can be compensated together with the medical expenses that have already occurred.

53. In the case of a student injury accident, if the student leaves the school without authorization and suffers injury while studying at the school, can the school provide evidence to exempt from the liability for compensation?
Xiao Ming is in the third grade of a certain elementary school.One day during recess, Xiao Ming and a few classmates sneaked out of the school and went to the mountain behind the school to play for a long time. When descending the mountain, Xiao Ming accidentally fell and injured, and the treatment cost more than 1000 yuan.Now Xiao Ming's parents require the school to bear the medical expenses.After investigation, after Xiao Ming and others skipped class, the head teacher searched the school, but couldn't find it, and didn't take it to heart later.So, should the school be held responsible for the damage suffered by Xiao Ming?

Analysis according to law
(End of this chapter)