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Chapter 32 Questions and Answers on Personal Injury Compensation Disputes (14)
Xu and Miao, a doctor from a certain hospital, are middle school classmates and have a good relationship.One day, when Xu went to the hospital to see a doctor, he was diagnosed with lymphatic tuberculosis and needed surgery.Xu found Miao and asked Miao to find a familiar doctor to perform the operation on him.At around 7:[-] after get off work that night, Miao asked Fan, a doctor in the hospital, to perform an operation on Xu, and Xu gave the money to Fan after the operation.As a result, a few days after the operation, Xu felt unwell. When he went to the hospital for examination, he found that the intra-abdominal infection was caused by the last lymphadenectomy.After identification, the doctor had obvious fault during the operation.Now Xu wants to seek compensation from the hospital, but the hospital argues that the hospital has not established a doctor-patient relationship with Xu, and that Fan's operation is a personal act.So, should the hospital be liable for compensation for Xu's damage?

Analysis according to law
In this case, the key point is to judge whether Fan's operation is a professional behavior of a doctor.Duty behavior refers to the job responsibilities confirmed by the unit's division of labor or activities entrusted within the scope of duties.If it is a doctor's professional behavior, the hospital should bear the responsibility for Fan's fault; if it is Fan's personal behavior, Fan himself should bear the responsibility.In this case, Xu found his acquaintance Miao, and Miao asked Fan for surgery. Xu did not register at the hospital, nor did he pay the operation fee to the hospital. Xu had no doctor-patient relationship with the hospital.Xu handed over the operation fee to Fan, and Fan used the hospital's equipment to operate on Xu during his off-duty hours. It should be Fan's personal behavior, and the hospital does not need to take responsibility for it.

tips

Personal behavior should not be confused with professional behavior.When the perpetrator performs duties on behalf of the unit, he must do so in the name of the unit, and if necessary, affix the official seal of the unit, so that in case of litigation, he can also provide himself with favorable evidence.

personality rights
60. How effective is the recording evidence for insulting and violating the personality rights of others?
In September 2006, Jiang's home was burglarized and 9 yuan in cash was lost.Jiang Mou suspected that his neighbor Fan Mou did it and reported the case to the public security organ.After the public security organ filed the case, the possibility of Fan committing the crime was ruled out.Jiang felt sad about the loss of a huge sum of money. He insulted him in the village every day, and repeatedly mentioned that the money was stolen by Fan, and quarreled with Fan for this.During the quarrel, Fan made a recording of Jiang's insults, and filed a lawsuit with the court based on this, demanding Jiang to make an apology.During the trial, the court played the evidence provided by Fan, and confirmed the validity of the evidence through cross-examination.

Analysis according to law
The Fafu (1995) No. 2 issued by the Supreme People's Court, "Reply Concerning Materials Recorded Without the Consent of the Opponent Party Cannot Be Used as Evidence" (hereinafter referred to as "Reply") established for the first time the exclusion of illegal evidence in civil proceedings in our country. Rules and Judgment Criteria.The reply pointed out: "Evidence must be obtained legally, and only evidence obtained through legal channels can be used as the basis for a verdict. It is illegal to record the conversation without the consent of the other party. use of evidence."

In a positive sense, the reply clearly confirms that evidence should be obtained legally, which is a full affirmation of the legal nature of evidence, and it is also the first time to reveal the specific connotation of the legality of evidence from an operational level. For the prevention of illegal evidence collection, It is of great significance to protect the basic rights of citizens and maintain social trust.The legality of evidence in the general sense in our country is usually regarded as the ability of evidence, and whether the evidence materials have evidence.Evidence capacity mainly depends on the provisions of the law. Only when it is legally allowed to be used as evidence can certain evidential materials have legal probative force.This reply is not a simple restriction on the qualification of evidence (evidence capacity), but in a negative sense, it establishes the admissibility rule in the evidence law of our country, that is, the rule of exclusion of illegal evidence.

From a negative point of view, the approval standard for judging illegal evidence is too harsh and severe, that is, the legality standard of audio recordings is limited to the consent of the other party, and the recording without the consent of the other party is not legal and cannot be used as evidence. Evidence used.Judging from the effects of trial practice over the past few years, adopting this illegal evidence standard is tantamount to excluding the existence value of audio-visual materials as a type of evidence in fact.Because in practice, it is extremely rare for one party to agree to the other party to record its conversation as evidence preservation.Even if it has been agreed in fact, if a dispute arises and is brought to the court, it will be flatly denied, and the other party's secret recording will be used as a defense to exclude its evidentiary effect.According to the "Reply", even if the judges are sure of the authenticity of the content of the evidence, they cannot protect the right holder.For example, in a loan dispute case in Hebei, the debtor never denied the fact that he owed money outside the litigation process, but after the creditor brought the lawsuit to the court, the debtor firmly denied it.The creditor was unable to provide relevant evidence because it was an oral agreement and it was delivered in cash.To this end, the creditor invited the debtor to settle outside the lawsuit, and privately recorded the debtor's on-the-spot confession of the fact of arrears.When the creditor submitted this piece of evidence to the court, the debtor invoked the provisions of the "Reply" to request that its evidentiary effect be excluded.According to the provisions of the "Reply", the evidence should be excluded, and the creditor cannot bear the consequences of losing the lawsuit because of the proof.From today's point of view, the creditor's private recording in this case is actually the evidence preservation of the debtor's confession outside the lawsuit.The exclusion of such form of recording evidence actually excludes the possibility of recording evidence as a type of evidence.

In view of the above, Article 68 of the "Regulations on Evidence" stipulates: "Evidence obtained by infringing on the legitimate rights and interests of others or violating the prohibitive provisions of the law cannot be used as the basis for determining the facts of the case."Criticism inherited the reasonable connotation of the "Reply" on the legality of evidence and the exclusion rules of illegal evidence, and re-defined the criteria for judging illegal evidence, that is, divided by infringement of the legitimate rights and interests of others (such as intentionally violating social public interests and social morals and infringing on the privacy of others) ) or evidence obtained by methods that violate the prohibitive provisions of the law (such as wiretapping), other circumstances shall not be regarded as illegal evidence.

However, the comprehensive analysis of the recording evidence in this case should be valid evidence.

tips

When using recording evidence in litigation, the following points should be noted: (1) The method of obtaining the recording must be legal.As long as the legitimate rights and interests of others are not infringed, especially the right to privacy, the probability that the court will support this type of recording evidence is very high; (2) There should be other evidence to corroborate it.Because, for a single recording evidence, the court will not use it as the basis for the decision; (3) The recording must directly point to the facts to be proved, and its statement should be clear and the tone should be positive.Assumptions, rhetorical questions, and interrogative sentences express and infer facts, and their evidentiary validity cannot be determined.

61. In a reputation infringement case, how does the victim prove the fact of the damage?

The first defendant, Gu Mou, because her husband Du Mou proposed a divorce to him, and believed that this was caused by the intervention of the plaintiff Che Mou. Returning it to her, the two sides quarreled and scuffled each other.Gu Mou was punished by the police station of the Municipal Public Security Bureau for this incident.The next day, Gu Mou went to her husband Du Mou's office to complain to him, but was injured by Du Mou.On the 2006th of the same month, Gu asked for help from the women's federation of the second defendant's district. With the help of the women's federation, Gu went to the evening newspaper of the third defendant and provided the reporter with the letter written by Che to Du and the note written by Du to his son. , Gu Mou and Du Mou's relationship and family life, and Gu Mou's divorce statement submitted to the district court.On July 5 of the same year, a reporter from the evening newspaper of the third defendant, based on the above-mentioned materials provided by the first defendant Gu and related materials provided by the District Women's Federation of the second defendant, wrote an article entitled "The Heartless Husband Wants to Marry the Mistress and Throw a Good Wife" News reports, published in "×× Evening News".The main content is to disclose that her husband Du Moumou lived with his mistress Che Moumou under a pseudonym for five years. When the mistress refused to abort and forced her to die, the husband confided the truth to his wife Gu Moumou who had been kept in the dark and forced her to divorce.The plaintiff, Che, believed that the first defendant, Gu, had fabricated facts and spread rumors to slander, the second defendant, the District Women’s Federation’s erroneous report, and the third defendant’s news report by a certain evening newspaper had seriously infringed on his right of reputation, and asked the three defendants to stop the infringement , Restoration of reputation, elimination of influence and compensation of 23 yuan for mental damage.

Analysis according to law
The focus of this case is whether this case constitutes a reputation infringement, and whether the victim should bear the burden of proof for the fact of reputation damage. The following analysis of the issues involved in this case is as follows:

1. Does the third defendant’s article contain any content that insults the personality of others and promotes the privacy of others?Infringing works that damage the reputation of a specific person are generally caused by inappropriate descriptions of a certain aspect or aspects of social performance of a specific person. The published content must have a specific direction. A specific reference is made when the address or manner of statement used in the work, or any other characteristics and background circumstances, are sufficient to allow a reasonable inference by an ordinary person to refer to a specific person.In the article "Cruel-hearted Husband Wants to Marry a Mistress and Abandon a Good Wife", although the real name of "Che Mou" is not used, the pseudonym "Che Moumou" with the same surname and similar name is used to describe the plot. A specific person, so that readers who are familiar with the plaintiff can tell at a glance that this person named Che is alluding to the plaintiff.It is wrong to think that the description without the real name does not constitute a specific point, but the victim's own identification.In this case, the article published by an evening newspaper of the third defendant was based on the oral and written materials of the first defendant Gu and the second defendant Zhendong District Women’s Federation. Reluctant to abort and force death, etc., these words and content objectively caused infringement on the plaintiff's right of reputation.It cannot be considered that as long as what is said and written is true, it does not constitute a reputation infringement.Whether the content is false or not is not a necessary prerequisite for reputation infringement.The key lies in whether the stated content is prohibited by the law, and whether it is detrimental to the personality and reputation of others.If the content is obviously illegal and detrimental to the personality and reputation of others, the facts involved may initially constitute reputational infringement, and even the more true the facts involved in such remarks, the more infringement will be, and the greater the damage may be.The third defendant, a reporter from the Evening News, wrote this article based on the materials provided by the first defendant Gu and the second defendant District Women’s Federation. Not only did it have the intention of insulting, but the content involved was the most likely to attract attention to personal privacy. .Therefore, the third defendant, a certain evening newspaper, published articles involving the privacy of others due to lax censorship, causing damage to the reputation of others, which constituted a reputation infringement.

2. The first defendant and the second defendant are news sources.The Interpretation of the Supreme People’s Court on Several Issues Concerning the Trial of Cases of the Right of Reputation stipulates that “those who voluntarily provide news materials and cause damage to the reputation of others shall be deemed to have infringed upon the right of reputation of others.” The article published by the third defendant is news in nature. .The first defendant, Gu, and the second defendant, the District Women's Federation, voluntarily provided the news materials to the three defendants knowingly and consciously, hoping to publish and disseminate them through a certain evening newspaper, so they should bear the responsibility for the resulting consequences.It was correct for the court of first instance to rule that the first and second defendants should bear the liability for reputation infringement.

3. The burden of proof for damage to the plaintiff's reputation and compensation for mental damage.The damage facts of news infringement reputation generally include reputation damage, mental damage and property loss.Reputation damage is the reduction of a specific person's legitimate social evaluation caused by the violation of the right of reputation.The fact of such damage does not exist independently of the presence or absence of subjective mental suffering of a particular person.Due to the special nature of the reputation infringement case, considering that it is difficult for the victim to prove the fact of the damage to the reputation, the burden of proof cannot be placed on the victim according to the general principle of civil liability, but the burden of proof for the fact of the damage to the reputation should be exempted from the victim. The presumption method is used to confirm the occurrence of the damage fact.For natural persons, as long as the infringement report is published, it shows that the damage has already occurred, and there is no need to present other facts and evidence of the damage caused by the infringement.The insulting and privacy-promoting article published by a certain evening newspaper has been known to most people, and it is even more difficult for the victim Che himself to prove the fact that his reputation has been damaged. Therefore, it should be presumed that the damage has occurred. A cannot provide these specific proofs, and denies the existence of the fact of reputation damage.As the three defendants, Gu, the district women's federation and a certain evening newspaper, they can only use the fact that the content of the article was not published, that the content did not point to the plaintiff, and that the content did not insult life and privacy as counter-evidence.

tips

How is mental damages calculated?

If the victim or close relatives of the deceased suffered mental damage, and the compensation obligee requests the people's court for compensation for mental damage, the "Interpretation of the Supreme People's Court on Several Issues Concerning Determination of Liability for Mental Damage Compensation in Civil Torts" shall be applied for determination.The right to claim compensation for mental damage shall not be assigned or inherited.However, except that the obligor of compensation has promised to pay monetary compensation in writing, or the obligee of compensation has filed a lawsuit in a people's court.

62. When and in what form should an application for a witness appear in court?

Zhou received a service notice from the court on a certain day because he had a quarrel with someone a few days ago, scolded the other party, and made the other party faint. Now the other party sued Zhou, and now Zhou only received a copy of the indictment , the court had no other evidence to show Zhou.Then, if the other party sues and submits evidence, will Mr. Zhou only receive a copy of the indictment? As for how to see the evidence, can a lawyer see it?If the application for witnesses to appear in court, when and in what form do they need to be submitted?

Analysis according to law
According to the provisions of the "Civil Procedure Law", after accepting the plaintiff's complaint, the people's court should send a copy of the complaint to the defendant within 5 days from the date of filing the case. What is sent to the defendant here is only the copy of the complaint and does not include the evidentiary materials of the case. If Zhou wants to see the evidence submitted by the other party to the court, he or his agent ad litem (could be a lawyer, of course) can go to the court to consult or copy the evidence in accordance with the provisions of Articles 50 and 61 of the Civil Procedure Law. The work of evidential material.

If Zhou wants to apply for a witness to testify in court, he can apply in accordance with Article 54 of the "Regulations on Evidence" 10 days before the expiration of the period for producing evidence. After the people's court approves, the witness can testify in court.

The legal provisions on which this case is based are as follows: Article 113 of the Civil Procedure Law: "The people's court shall send a copy of the statement of complaint to the defendant within five days from the date of filing the case, and the defendant shall submit a statement of defense within [-] days from the date of receipt. The defendant Where a statement of defense is filed, the people's court shall send a copy of the statement of defense to the plaintiff within five days of receipt. If the defendant does not file a statement of defense, it shall not affect the trial by the people's court."

Article 50: "The parties have the right to entrust an agent, apply for recusal, collect and provide evidence, conduct debates, request mediation, file an appeal, and apply for enforcement. The parties may consult the relevant materials of the case, and may copy the relevant materials and legal documents of the case. The scope and methods of consulting and copying relevant materials in this case shall be stipulated by the Supreme People's Court. The parties must exercise their litigation rights in accordance with the law, abide by the order of litigation, and perform legally effective judgments, rulings, and mediation documents."

Article 61: "Lawyers and other litigation representatives representing litigation have the right to investigate and collect evidence, and may consult relevant materials of the case. The scope and methods of consulting relevant materials of the case shall be prescribed by the Supreme People's Court."

Article 54 of the "Regulations on Evidence", "A party applying for a witness to testify in court shall submit the application ten days before the expiration of the period for producing evidence and obtain the permission of the people's court. If the people's court approves the application of the party concerned, it shall notify the witness to testify in court before the trial. And inform them that they should testify truthfully and the legal consequences of perjury.”

tips

Who bears the costs of witness appearances?

According to Article 54 of the "Regulations on Evidence": "A party applying for a witness to testify in court shall submit the application 10 days before the expiration of the time limit for producing evidence and obtain permission from the court. If the court approves the application of the party concerned, it shall notify the witness to testify in court before the trial , and informed them that they should testify truthfully and the legal consequences of perjury. The reasonable expenses incurred by the witnesses for testifying in court shall be paid by the party providing the witnesses in advance, and shall be borne by the losing party. "

63. Misprinted phone numbers and unreasonable interruptions to life constitute evidence of violation of privacy rights?
Due to a staff error, Company A mistakenly printed the phone number of a resident of the city, Su, as the switchboard number on the promotional materials of the unit, and distributed them to the public. These calls interfered with Su's normal life. After a period of time, Su could not sleep normally and often had headaches.Later, Su sued to the court, requesting Company A to stop the infringement immediately and compensate for medical expenses and mental loss.So, what kind of rights of Su has been violated by Company A?
Analysis according to law
To determine what kind of rights Su has been violated, one should first determine whether Company A's behavior has directly infringed on the property interests of the obligee, or infringed on the personal interests closely related to the obligee's spirit?

(End of this chapter)