● The families of the victims of the Malaysia Airlines incident can claim compensation from commercial insurance and be liable for compensation.
● Whether it is the place of departure, stop, destination or the carrier's domicile, the families of the victims can choose as the place of prosecution.
● If the cause of the accident is unknown, the family members can exercise the right of special drawing, and obtaining the special drawing will not affect the responsibility determination, and continue to make additional compensation afterwards.
It has been more than 30 days since Malaysia Airlines Flight MH370 lost contact on March 8. At present, black box search is in progress.
On March 24th, the Malaysian government announced that the plane crashed in the South Indian Ocean, no one lives. Providing legal support for the families of compatriots killed in the Malaysia Airlines incident has become the common goal of our legal workers. On April 10, at the symposium of experts on the liability for compensation for the Malaysia Airlines incident sponsored by China Consumer Protection Law Research Association, the experts and scholars attending the meeting expressed their opinions on the subject of liability, claim procedure, applicable law and compensation standard for the Malaysia Airlines incident.
Query 1
Responsible subject: Who do you claim for compensation from?
Who should the families of the victims of Malaysia Airlines claim their rights? Malaysia Airlines, Malaysian government, insurance company, Boeing Company of the United States or the hijackers suspected by "hypothesis" at present?
Heshan, president of the China Consumer Protection Law Research Association, said that from the current situation, the black box has not been found, and the main body of legal responsibility is Malaysia Airlines. If the black box is found and it is confirmed that someone hijacked or planted a bomb, then there is a relative responsible person. If it is a plane quality problem, Boeing of the United States also has some responsibility. Even in the event of natural disasters and dangerous aircraft operations, Malaysia Airlines cannot be exempted.
Zhou Qihua, a professor at the National Prosecutor's College, believes that Malaysia Airlines should be the first person responsible for the incident, since it is impossible to determine whether the incident was caused by natural disasters, mechanical failures or deliberate acts, and the families of the victims can claim compensation from Malaysia Airlines.
Wu Yanping, a professor at China University of Political Science and Law, also believes that Malaysia Airlines should be liable for compensation. Whether the plane disappeared accidentally or politically, because the facts have not been ascertained, it is still impossible to draw a conclusion. If it is for political reasons, then the country will come forward to negotiate with Malaysia. If it is an accident, it can be solved through litigation. Malaysia's Prime Minister announced that the plane crashed in the South Indian Ocean, leaving passengers with no possibility of survival. If we admit this conclusion, we will admit that the plane had an accident and we can lodge a claim with Malaysia Airlines. Because Malaysia has announced that the plane crashed and people died, Malaysia Airlines should bear the corresponding liability for compensation.
Feng, a senior judge of the Xicheng District Court in Beijing, believes that if there is evidence to prove and confirm that the pilot hijacked the plane, or that the pilot has other faults, in addition to normal insurance claims, airlines and related responsible parties will also face personal injury claims. In addition, people who travel can also get travel reimbursement.
Zhang Yanfang, an associate professor at China Youth University for Politics, believes that Malaysia Airlines should be held responsible for fraud. As a carrier, Malaysia Airlines should disclose information to family members in time, but Malaysia Airlines "knew not to report" and lost the best search and rescue time. For this kind of aggravated fault behavior, we should also investigate the responsibility. After the facts are ascertained, you can claim compensation for extortion from Malaysia Airlines.
Some scholars believe that the Malaysian government also has the responsibility of not reporting information, but whether the government can become the subject of civil compensation involves some cutting-edge international legal issues and needs in-depth study.
"There are three legal relationships in the Malaysia Airlines incident: the transportation contract relationship between passengers and Malaysia Airlines, the relationship between Malaysia Airlines and the aircraft manufacturer Boeing Company of the United States, and the commercial insurance contract relationship between passengers, Malaysia Airlines and their respective insurance companies. Different legal relationships have different responsibilities. " Xu Haiyan, a professor at university of international business and economics, believes that there is a contractual relationship between China Southern Airlines CZ748 and Malaysia Airlines (Malaysia Airlines Flight MH370 and China Southern Airlines CZ748 are * * exclusive flights). What is the role of China Southern Airlines in the Malaysia Airlines incident, and whether it bears joint and several liability is worth considering.
Wei, former director of the Economic Law Office of the the National People's Congress Standing Committee (NPCSC) Law Commission, said that we should broaden our horizons and sort out the reasons for the Malaysia Airlines incident, what problems will occur in each case, who will be responsible, and how to claim compensation for the families of the victims in order to obtain the maximum benefits.
Question 2
Claim procedure: What are the more convenient ways?
How to protect the legitimate rights and interests of victims' families with relatively convenient procedures is a problem that scholars and practitioners are considering.
"The families of the victims of the Malaysia Airlines incident can claim compensation from commercial insurance and liability compensation." Feng said that the claim should pay attention to the following issues.
First, insurance companies. In addition to tort liability compensation, in terms of insurance claims, China citizens in passenger planes who are insured at home or abroad shall make claims according to the insurance amount agreed in the insurance contract. Of course, we should pay attention to the exemption clauses proposed by insurance companies, and determine whether the exemption clauses are applicable according to the contents of the insurance contract and the relevant provisions of the law. If the Malaysia Airlines incident is finally identified as a terrorist attack, the insurance company will not be liable for compensation according to the relevant exemption clauses.
Second, the issue of jurisdiction. According to Article 27 of China's Civil Procedure Law: "A lawsuit brought for a dispute over a railway, highway, water, air transport and combined transport contract shall be under the jurisdiction of the people's court of the defendant's place of origin, destination or domicile." As far as the Malaysia Airlines incident is concerned, if you take out insurance with a domestic insurance company, our court has the right to exercise jurisdiction over it, and your family members can choose to sue in our court.
Third, the statute of limitations. The families of the victims should file a liability lawsuit within two years from the date of arrival of the plane. However, the statute of limitations of insurance law is different. The limitation of action for life insurance beneficiaries to claim compensation from insurers is five years. If the cause of the Malaysia Airlines incident cannot be ascertained, the Montreal Convention can be applied. If the investigation results show that the airline is responsible, the Montreal Convention cannot be applied. If Boeing can be found to be responsible, it can be solved through judicial procedures according to American case law.
How to choose the place of prosecution? Xu Haiyan pointed out, "Articles 27 and 265 of China's Civil Procedure Law are about the jurisdiction of cases, and Article 33 of the Montreal Convention also clearly stipulates the place of prosecution. In a nutshell, the departure place, stopover place and destination of the flight, as well as the domicile of the carrier, the location of the airline or the country with a company representative office can be used as the place of prosecution. " For the families of China passengers, the simplest and most convenient way is to file a lawsuit in China, on the basis that Malaysia Airlines has an agency in China. Due to the large number of people, family members can entrust lawyers to form a lawyer group.
Zhang Yanfang said that if a passenger engages in business activities in a certain place, he can bring a lawsuit in his habitual residence, that is, the place where his business premises are registered is his final residence. Maybe it's Canada, maybe it's Britain, and it's still uncertain. These possibilities need to be clarified one by one.
What procedures should the families of the victims pay attention to when claiming their rights? Zhou Qihua suggested that the procedure for victims' families to apply for compensation is divided into three steps. In the first step, the family members should go to the place where the passengers bought the tickets and ask for the air ticket and aviation insurance policy, and then take the Malaysian government's statement on the plane crash and death, write down the compensation opinions and send them to the competent court. In the second step, family members should find Malaysia Airlines or its representatives to negotiate with Malaysia Airlines, preferably collectively, or by sending representatives to negotiate, or by the relevant state departments to cooperate with representatives to negotiate, so as to solve the compensation problem in this step, because there are fewer procedures, less expenses and more compensation. Step 3: If the family members are dissatisfied with the amount of compensation paid by Malaysia Airlines, they can bring a lawsuit to the court. Before bringing a lawsuit to the court, an application must be made to the basic court where the victim lives to declare the victim dead or missing.
Question 3
Applicable law: how to choose more favorable
In addition to choosing where to sue, transnational claims also need to choose which country's laws and which laws are applicable.
Cao Sanming, executive vice president of China Consumer Protection Law Research Association, said that the choice of prosecution place depends on where the compensation standard is higher and where the law is more conducive to safeguarding the interests of victims' families.
Heshan said that according to the principles of private international law, there is a lot of room for choosing the place of prosecution and applying the law. You can choose the airline's destination law and your country's domicile law, but the choice of applying our country's law and the amount of compensation are limited. Malaysia has developed rapidly in recent years, and its salary should be generally higher than that of China.
"The Malaysia Airlines incident is very special and complicated. In the process of compensation, at least the contract law, aviation law, civil procedure law, private international law and various international conventions, especially the Montreal Convention, need to pay special attention to the application of the law. " Wu Yanping warned.
Zhu Yuanyuan, a lawyer of King & Wood Law Firm, said that according to the Civil Aviation Administration of China's Regulations on the Limitation of Liability of Domestic Air Transport Carriers, the current legal limit of compensation for domestic air crashes is only 400,000 yuan, which has become the biggest unfavorable factor for the families of the victims to claim compensation. Relevant departments should revise relevant regulations as soon as possible, cancel the upper limit of air crash claims and improve relevant systems.
Zhang Yanfang said that if the plane finally decides to land in Australia, perhaps the amount of compensation in Australia is much higher than that in Malaysia; If the cause of the accident is found to be the failure of Boeing 777, the compensation of the United States will of course be higher than that of Malaysia. In an ideal state, choosing a convenient place of prosecution and applying laws with high compensation standards will undoubtedly get the greatest protection of interests. However, the geographical barriers, language barriers and high litigation costs of transnational litigation can not be ignored.
Zhang Yanfang said that after determining the place of prosecution and the applicable law, if the prosecution is chosen in Malaysia or Australasia (if the plane is determined as the final landing place), considering the high litigation cost, the families of the victims can take a class action lawsuit, which can reduce the litigation cost.
Is class action more convenient? Zhu Yuanyuan, who claimed on behalf of the families of nine French citizens killed in the French air crash, said that it was very difficult for China Airlines to kill nine China passengers. We should learn from the collective claims of the families of some developed countries in Europe and strive for the compensation standards of developed countries for Chinese passengers. In the Malaysia Airlines incident, it is a better choice for the families of passengers killed in China to "hold a group to keep warm" to deal with the prosecution in different places and complicated judicial procedures.
Question 4
Compensation standard: one-size-fits-all or differentiated?
Zhang Yanfang said that according to the Montreal Convention, if the cause of the accident is unknown, the family members can exercise the special drawing right and demand compensation of about 6.5438+0.08 million yuan to solve the temporary difficulties. Malaysia Airlines is fully capable of paying this compensation, because commercial airlines have at least $654.38+$50 million liability insurance for each passenger plane. If the liability insurance is shared, if there are 300 people on this plane, everyone will have at least $5 million in compensation. "In addition to personal injury compensation, there are also property damage compensation. Every victim has checked his luggage, and according to Article 22, paragraph 2, of the Montreal Convention, there should also be compensation of 1.08 million US dollars. "
Wu Yanping said that when the incident is identified and the responsibilities are clearly defined, Malaysia Airlines should continue to pay on the basis of SDR. After the family members exercise the SDR, the final accountability will not be affected, and obtaining the SDR will not affect the continued compensation afterwards.
According to experts attending the meeting, Malaysia Airlines insurance related news shows that the liability limit of MH370 fuselage insurance is US$ 6543.8 +0 billion, and the comprehensive liability insurance is US$ 6543.8+0.75 billion. In addition to SDR, ex post compensation may also include personal injury compensation, insurance compensation, tolerance compensation, baggage compensation and so on. According to the compensation standards of different national laws, the final compensation will be different.
Is the compensation standard the same for every victim? Zhu Yuanyuan introduced the considerations for the claim of inland countries in Europe. She said that France, Germany and other countries will probably consider the following factors when making claims: First, the income of the victims at that time, while considering their working years and possible income levels in the future. The second is the personal income of the victims, as well as factors such as rising prices and economic development. Third, are the families of the victims old or young? It should also be measured according to the living standard of the family, such as how much it costs for the elderly, wife and children.
"In addition, the more mature and advanced practice abroad is to find a special laboratory to do aviation simulation if the black box is found or there is a large amount of information leaked, to simulate how the plane flies, and then to determine where the accident may occur, and to determine whether the airline and the aircraft manufacturer bear the responsibility and how much responsibility. These flight simulation experiments will add very big chips to the negotiating table. " Zhu Yuanyuan said that it may be more important than we thought to determine the whereabouts of the black box and obtain the data of the black box.