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Chapter 31 Questions and Answers on Personal Injury Compensation Disputes (13)
During the period of students' study and life at school, the school's obligation is to manage and educate students, and to protect them from personal injury.According to the judicial interpretation of the Supreme People's Court, if a school, kindergarten or other educational institution that is legally responsible for the education, management and protection of minors fails to fulfill the relevant obligations within the scope of their duties, causing minors to suffer personal injury or not Adults have harmed others, and these institutions should bear the liability for compensation corresponding to their fault.Therefore, we believe that what the school bears should be fault liability, that is, to determine the civil liability it should bear according to the degree of fault, and it should reach such a degree that it can provide sufficient relief to the injured minors without Affect the orderly progress of the school's normal education and teaching work, so as to effectively safeguard the legitimate rights and interests of both the school and the students.With reference to the provisions of the Ministry of Education's "Measures for Handling Student Injury Accidents", the school should bear corresponding responsibilities according to law for the following situations that cause student injury accidents:
1. The school buildings, grounds, other public facilities, as well as the learning tools, education, teaching and living facilities and equipment provided by the school for students’ use do not meet the standards stipulated by the state, or there are obvious unsafe factors;

2. There are obvious omissions in the school's security, fire protection, facilities and equipment management and other safety management systems, or the management is chaotic, and there are major safety hazards, but no timely measures are taken;
3. Medicines, food, drinking water, etc. provided by the school to students do not meet the relevant national or industry standards and requirements;

4. The school organizes students to participate in educational and teaching activities or off-campus activities, fails to provide corresponding safety education to students, and fails to take necessary safety measures within the foreseeable range;
5. The school knows that the teacher or other staff suffers from a disease unsuitable for education and teaching, but fails to take necessary measures;
6. The school violates relevant regulations by organizing or arranging minor students to engage in labor, sports or other activities that minors are not suitable for participating in;

7. The student has a specific constitution or a specific disease, and is not suitable for participating in certain educational and teaching activities. The school knows or should know, but fails to pay necessary attention;

8. The school finds out that the student is suddenly ill or injured during school, but fails to take corresponding measures in time according to the actual situation, resulting in aggravated adverse consequences;
9. School teachers or other staff punish students physically or in disguised forms, or violate work requirements, operating procedures, professional ethics or other relevant regulations in the course of performing their duties;

10. School teachers or other staff who, during their duties of organizing and managing underage students, discover that the behavior of the students is dangerous, but fail to conduct necessary management, warning or stop;

11. The school discovers or knows about the information directly related to the personal safety of the minor students, such as leaving the school without authorization, but fails to inform the guardian of the minor student in time, causing the minor student to be injured due to leaving the protection of the guardian;

12. The school has other circumstances in which it fails to perform its duties according to law.

In this case, after Xiao Ming and others left school and skipped class without authorization, the head teacher only searched for it symbolically at the school, and did not get in touch with Xiao Ming's guardian through appropriate channels in time, which finally caused Xiao Ming to be injured without the protection of the guardian. He failed to perform the corresponding management duties and was at fault, so he should bear the main responsibility; Xiao Ming's guardian also lacked corresponding education for Xiao Ming in normal times, and he should also bear part of the responsibility for failing to fulfill his guardianship duties.

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Although in this case, Xiao Ming left the school without authorization and was injured, the school should still bear certain liability for compensation.At first glance, it seems unreasonable, but in fact, in law, children like Xiao Ming are regarded as persons without capacity for civil conduct, that is to say, the law regards them as persons without self-protection ability and judgment ability. important responsibility for the protection of minors.

54. In the case of a student injury accident, if the teacher's body combined work and rest to cause personal injury to the student, should the student prove that the teacher himself or the school should bear the liability for compensation?

Shang is a first-grade student in a certain elementary school, and Qu is a physical education teacher in Shang's class.During his teaching period, Qu beat students many times for violating discipline.One day, because of Shang's naughtiness, Qu slapped Shang's eardrum, which damaged Shang's eardrum, resulting in hearing loss, and cost a total of 5000 yuan in medical expenses.Now Shang's parents are going to ask for compensation.So, who should Shang's parents ask for compensation?

Analysis according to law
The school is a legal person of a public institution, and it is an occupational act for teachers to engage in teaching activities according to the arrangement of the school. If a teacher infringes on the personal rights of students in the course of performing their duties, it should be regarded as a tort by a legal person. In this way, special tort damages are formed between the school and the students. Therefore, the school should bear the civil liability as the tortfeasor.

In this case, in the process of performing his duties, Qu violated the relevant provisions of the "Law on the Protection of Minors", "Teacher Law", "General Principles of Civil Law" and "Measures for Handling Student Injury Accidents", punished student Shang and There is a causal relationship between Qu's illegal behavior and the damage caused by Shang's personal injury; at the same time, it can also be seen from this case that the school usually has obvious management omissions and is not effective in restraining teachers' misconduct. There is a fault, so Shang's parents can file a personal injury lawsuit against the school.After the school takes responsibility, it can give Qu an administrative sanction or dismiss him in accordance with the provisions of the "Teacher Law".

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There are more than 2 million students in our country's universities, middle schools and primary schools, which is a very large social group. Ensuring the personal safety of students in school is an important aspect of safeguarding the legitimate rights and interests of students and ensuring the normal order of school education and teaching. The attention of schools, education departments and all walks of life. The "Student Injury Accident Handling Measures" promulgated in 2002 is an important part of promoting the legal system construction in the field of education and constructing a legal and institutional framework related to school safety.

The "Student Injury Accident Handling Measures" is divided into 6 chapters and 40 articles including general principles, accidents and responsibilities, accident handling procedures, compensation for accident damage, handling of accident responsible persons, and supplementary regulations.The main purpose is to guide and help education administrative departments and schools at all levels to actively prevent and properly handle student injury accidents.

55. In a traffic accident case, how to prove the existence of a dangerous situation and whether it should bear the liability for damages caused by emergency avoidance?

One day, Song drove a van with several passengers to the Civil Affairs Bureau. When he passed an intersection (at a green light), a large Dongfeng truck suddenly rushed through the red light from the right and came towards Song's van.In order to avoid a collision between the two vehicles, Song turned the steering wheel hastily, but because the turn was too sudden and violent, the van squeezed down the cyclist Fan who was outside the vehicle, causing Fan's head injury.Fan Mou now requires Song Mou to be liable for compensation for his personal injury.So, should Song be liable for compensation for Fan's damage?
Analysis according to law
In this case, to determine whether Song is liable for compensation, it is necessary to clarify the nature of Song's behavior.When the driver Song was facing the Dongfeng truck that was coming suddenly, in order to avoid the collision and cause greater casualties, he had to make an emergency turn. This behavior should be regarded as emergency avoidance.

The so-called emergency avoidance refers to the act of sacrificing small interests that the perpetrator has to adopt in order to avoid greater damage in the face of urgent and real danger. Article 129 of the "General Principles of Civil Law" stipulates: "Where damage is caused by emergency avoidance, the person who caused the danger shall bear civil liability. If the danger is caused by natural causes, the emergency avoider shall not bear civil liability or bear appropriate civil liability. Responsibility. If undue damage is caused due to improper measures taken for emergency avoidance or beyond the necessary limit, the emergency avoider shall bear appropriate civil liability.”

Therefore, if the actor causes damage to others due to emergency avoidance, and the danger is caused by human factors, the actor shall not bear civil liability, and the damage shall be compensated by the person who caused the danger.Therefore, in this case, Song does not need to be liable for compensation for Fan’s personal injury, and Fan’s loss should be borne by the person who caused the danger—that is, the Dongfeng truck driver who violated traffic rules and ran a red light.

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Danger occurs in a very short period of time. To enable bus drivers to take emergency avoidance measures correctly within this short period of time, it is necessary to strengthen the education and training of drivers in this regard.The traffic police department should strengthen the assessment in this aspect when issuing the passenger car driving license, and should provide necessary guidance when dealing with traffic accidents involving passenger cars; Carry out requirements and checks; transportation companies must also strengthen the training of drivers in their daily work, and if necessary, establish a plan and conduct drills to ensure that drivers can correctly avoid emergencies.

56. In a traffic accident case, if the injury is caused by emergency avoidance, if the danger is caused by natural causes, can the victim request the beneficiary to make appropriate compensation?

Lu is a bus driver of a taxi company.One day, under the instruction of the company, Lv Mou transported more than a dozen foreign tourists to the mountains for fun. On the way, a big rock suddenly rolled down the mountain. Seeing this, Lu Mou hurriedly avoided, but the bus squeezed a small car that was driving next to him. The driver of the car, Gao Mou, was injured.After investigation, the stone rolled down due to the sun and rain and the loose soil on the mountain, and the measures taken by Lu were not inappropriate.So, can Gao Mou request the taxi company to give compensation?

Analysis according to law
In order to prevent the bus from hitting a rock, Lu overturned the car and caused Gao to be injured. This was an act of sacrificing small interests in order to avoid greater casualties, and it was an emergency avoidance.According to Article 129 of the General Principles of Civil Law, the person who caused the danger shall bear the civil liability for the damage caused by emergency avoidance; civil liability.

Regarding the danger caused by natural causes, Article 156 of the "Mintong Opinions" further clarifies: "If the emergency avoidance causes losses to others, if the danger is caused by natural causes and the measures taken by the perpetrator are not improper, the perpetrator shall not be liable. Civil liability. If the victim requests compensation, the beneficiary may be ordered to make appropriate compensation.”

In this case, the rolling of the rocks on the mountain was caused by the sun and rain, and the soil was loose. There was no human factor, and the measures taken by Lu were not inappropriate. As a staff member of the taxi company, Lu transported tourists to perform his duties. The behavior of the taxi company will bear the consequences, so the taxi company is not liable for compensation, and Gao cannot demand compensation from the taxi company.However, as a victim, Gao can request appropriate compensation from the beneficiary of emergency avoidance.So, who is the beneficiary in this case?Is it a tourist?The beneficiary of this case should actually be the taxi company, because according to the relevant provisions of the contract law, the taxi company, as the carrier of the transportation contract, is obliged to guarantee the safety of passengers, and the taxi company should bear the liability for damages after the passengers are injured. Therefore, Lv Mou took emergency avoidance measures to avoid the taxi company from being liable for damages, and the beneficiary should be the taxi company.Therefore, Gao can ask the taxi company to give appropriate compensation.

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For drivers, it is especially important to ensure that the risk avoidance behavior is appropriate and does not exceed the necessary limit.Necessary limit requires that the damage caused by hedging behavior should be less than the possible damage caused by the danger.This involves the measurement of interests. The basic principle is that personal rights are greater than property rights, and property rights can be measured by the value of property.Therefore, a bus carrying a dozen to dozens of passengers often has a greater advantage in weighing interests. When losses are unavoidable, the bus driver should choose to preserve the greater legitimate rights and interests.

57. Another person hitches a ride for free, and a traffic accident later causes the other person to be injured. Can the owner of the car provide evidence to exempt him from liability?

Mei operates an individual minibus in a certain city, and is responsible for the passenger transport business from the railway station to the municipal government line.One day, when Mei was waiting for passengers at the train station, he saw Dong, a colleague from his former unit, and signaled Dong to get on the train.The place Dong went to happened to be where Mei's small public route passed, so Mei asked Dong to get on the bus and said that he would not accept Dong's fare.At a turning intersection, due to brake failure, the vehicle couldn't slow down when turning and crashed into a utility pole, causing Mei, Dong and three other passengers to be injured.After being sent to the hospital for treatment, Mei, Dong and the three passengers were all out of danger, but some medical expenses were spent.Mei paid medical expenses, nutrition expenses, nursing expenses and other expenses for the three passengers, and Dong also asked him to pay, but Mei refused.Mei believed that she should not compensate Dong for her losses since she let Dong take a car for free.So, should Mei be liable for damages to Dong?
Analysis according to law
This case involves the issue of whether the carrier should be liable for compensation in case of a traffic accident caused by taking another person's vehicle for free.Regarding free rides in other people's cars, Article 302 of the Contract Law stipulates the carrier's liability for compensation: "The carrier shall be liable for damages for the casualties of passengers during transportation, but the casualties are caused by the passengers' own health or the carrier proves Casualties are not caused by intentional or gross negligence of passengers. The provisions of the preceding paragraph apply to unticketed passengers who are exempted from tickets, hold preferential tickets, or ride with the permission of the carrier." In the event of a traffic accident, the carrier shall still be liable for compensation for the personal injury of the free rider.Therefore, in this case, Mei should be liable for compensation for Dong's damage.

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Note that both the passenger and the car owner have formed a passenger transportation contract.As a passenger, it is the responsibility to ensure the safety of the passengers in the car. Even if the collision accident has nothing to do with the car owner, it does not exempt the car owner from the liability for compensation to the passengers.This is the difference between the contract relationship and the tort relationship in law.

58. Is technical appraisal of medical malpractice a prerequisite for prosecution?
Zhang, as the legal representative, sued a hospital for injecting an overdose of drugs to Zhang's son, which caused severe auditory nerve damage; the hospital argued that Zhang had not been technically appraised for medical malpractice, and the court should not accept the case.So, is the hospital's statement correct?Under what circumstances should medical malpractice technical appraisal be carried out?
Analysis according to law
In the past, in lawsuits related to medical malpractice disputes, the judiciary has long relied on the medical malpractice appraisal conclusion provided by the plaintiff. If the plaintiff did not have a medical malpractice appraisal conclusion at the time of the lawsuit, the people's court generally would not accept it. The promulgation and implementation of the "Regulations on the Handling of Medical Malpractice" has changed this situation.According to the regulations, whether it is a dispute over the identification of medical malpractice or a dispute over civil liability for compensation for medical malpractice, it can be brought to the people's court.

At the same time, in the "Regulations on Evidence", the burden of proof of causality and the absence of fault of the medical institution has been transferred to the medical institution; It stipulates that the people's court may conduct judicial appraisal of medical malpractice according to the application of the parties or ex officio decision in civil trials, but the appraisal institution is still the medical association stipulated in the regulations.Therefore, the medical malpractice appraisal conclusion should no longer be a prerequisite for filing a civil lawsuit.The hospital's statement is of course incorrect.

According to the "Regulations on Handling of Medical Malpractice" and the "Notice of the Supreme People's Court on Hearing Civil Cases of Medical Dispute with Reference to (Regulations on Handling of Medical Malpractice)", in any of the following situations, the medical association responsible for the technical appraisal of medical malpractice shall organize the appraisal : (1) If the health administrative department of the local people's government at or above the county level considers that a medical malpractice technical appraisal is necessary after receiving a report from a medical institution on a major medical negligence or an application from a party involved in a medical malpractice dispute, the health administrative department shall The department shall hand over in writing to the medical association responsible for the first technical appraisal of medical malpractice; (2) If the medical malpractice dispute is resolved through consultation between the doctor and the patient, if technical appraisal of medical malpractice is required, both parties shall entrust in writing the place where the medical institution is located to be responsible for the technical appraisal of medical malpractice (3) The court entrusts the medical association to conduct the appraisal.

根据《医疗事故技术鉴定暂行办法》第13条规定，有下列情形之一的，医学会不予受理医疗事故技术鉴定：（1）当事人一方直接向医学会提出鉴定申请的；（2）医疗事故争议涉及多个医疗机构，其中一所医疗机构所在地的医学会已经受理的；（3）医疗事故争议已经人民法院调解达成协议或判决的；（4）当事人已向人民法院提起民事诉讼的（司法机关委托的除外）；（5）非法行医造成患者身体健康损害的；（6）卫生部规定的其他情形。

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对于医疗诉讼，原告起诉时应当准备的材料包括：（1）原告的身份证明；（2）被告的主体证明；（3）起诉状；（4）医疗病历资料；（5）损害后果的证明资料；（6）原告发生各种经济损失的证据材料。

59. Medical malpractice disputes. Hospital doctors use hospital equipment to perform operations on patients without permission and cause disputes. How can the hospital provide evidence to avoid liability for compensation?

(End of this chapter)