Picture of traffic accident compensation standard
According to the provisions of Article 17 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases and Article 16 of People's Republic of China (PRC) Tort Liability Law, it includes the following items: medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies, necessary nutrition expenses, disability compensation, disability AIDS, living expenses of dependents, and rehabilitation.
(2) Standard of compensation for property losses
The compensation standard for property losses is to determine the compensation amount according to the direct losses and indirect losses caused by traffic accidents.
Compensation standard for direct loss:
In principle, restitution or discount compensation should be made. For vehicles, facilities and articles that can be partially repaired, the maintenance expenses shall be compensated; If depreciation is caused by local losses, it shall also compensate for the loss of the depreciated part; Can not be repaired, should be compensated according to the actual value.
Compensation standard for indirect losses:
The infringer should also compensate the victim for the indirect losses suffered by the traffic accident. For example, in a case of traffic accident damages, if the victim claims that the damaged vehicle is being used for cargo transportation or passenger transportation business activities, the person responsible for the traffic accident shall compensate for the service loss during the repair of the damaged vehicle.
(3) compensation standard for mental damage
Mental injury is an intangible injury that outsiders cannot measure. The size and degree of general mental damage can't be measured by material scale. Therefore, in the specific judicial practice, the compensation for mental damage can only be determined by the judge according to the specific circumstances of the parties, including the regional economic environment, the identity of the parties, the family background of the parties, the responsibilities of the parties in the case, and the social impact.
legal provision
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Chapter VI of Tort Liability Law of People's Republic of China (PRC) [1]?
Forty-eighth motor vehicle traffic accidents caused damage, in accordance with the relevant provisions of the road traffic safety law, bear the liability for compensation.
Article 49 If the owner and user of a motor vehicle are not the same person due to leasing or lending, and one party of the motor vehicle is liable after a traffic accident, the insurance company shall make compensation within the liability limit of compulsory motor vehicle insurance. For the insufficient part, the motor vehicle user shall be liable for compensation; If the owner of a motor vehicle is at fault for the damage, he shall bear the corresponding liability for compensation.
Article 50 If the parties transfer and deliver motor vehicles and motor trains by way of sale, but fail to register the transfer, and the motor vehicles are liable after a traffic accident, the insurance company shall make compensation within the liability limit of compulsory motor vehicle insurance. For the insufficient part, the transferee shall be liable for compensation.
Article 51 If a motor vehicle that has been assembled or reached the scrapping standard is transferred by way of sale, and a traffic accident causes damage, the transferor and the transferee shall bear joint liability.
Article 52 If a traffic accident is caused by stealing, robbing or robbing a motor vehicle, the thief, robber or looter shall be liable for compensation. If an insurance company advances the rescue expenses within the liability limit of compulsory motor vehicle insurance, it has the right to recover from the person responsible for the traffic accident.
Article 53 If the driver of a motor vehicle escapes after a traffic accident and the motor vehicle participates in compulsory insurance, the insurance company shall make compensation within the liability limit of compulsory insurance for motor vehicles; If the motor vehicle is unknown or the motor vehicle does not participate in compulsory insurance, and it is necessary to pay the rescue and funeral expenses of the infringed person's personal injury or death, it shall be paid in advance by the social assistance fund for road traffic accidents. After the social assistance fund for road traffic accidents is advanced, its management institution has the right to recover from the person responsible for traffic accidents. [2]?
Lawyer's analysis
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Legal basis of compensation for mental damage.
(a) in the traffic accident tort compensation, the parties shall make a claim for compensation for mental damage, otherwise they shall not bring a lawsuit after prosecution. (Explain Article 8 with reference to mental compensation)
(2) Category of compensation:
1, resulting in disability, disability compensation;
2, causing death, death compensation; According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, death compensation can be recognized as property loss. )
3. Spiritual consolation money for other damages (specified by other laws and regulations). (See Article 9 of the Compensation Interpretation)
(3) In judicial practice, the court of compensation for mental damage in criminal incidental civil action does not support it.
(four) the mental damages shall be paid in one lump sum in principle, and may be paid in installments under special circumstances.
The compensation system for mental damage is actually a moral supplement of the national system to the legal system, which is of positive significance to maintaining social harmony and perfecting China's legal system.
compensate
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compensation for damages
Personal injury refers to the personal injury caused to the victim in a traffic accident, and various expenses for medical treatment or rest need to be paid. According to article 17 of the judicial interpretation of personal injury compensation, personal injury compensation includes medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses.
The calculation standard of personal injury compensation is calculated separately according to the characteristics of each category and the relevant provisions of the law. For example, the calculation standard of medical expenses is determined according to the actual degree of injury and recovery of the victim, with reference to the certificate issued by the treatment hospital or forensic identification.
Disability compensation
According to different disability appraisal grades, the compensation standards for people disabled by traffic accidents will be different, but generally include: disability compensation, disability AIDS, living expenses of dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.
Death compensation
Deaths caused by traffic accidents should undoubtedly be classified as serious traffic accidents. Although the value of life can't be measured by money, the death of a fresh life is not the end of life, and there are matters that need to be solved urgently, such as funeral and the life of the dependents. Therefore, it is necessary to fully understand the death compensation items and related standards.
If the victim dies, in addition to paying compensation for various expenses incurred due to personal injury, he shall also pay compensation for funeral expenses, living expenses of dependents, death compensation and other reasonable expenses such as transportation, accommodation and lost time.
The calculation standard of the living expenses of the dependents should pay special attention to the age and working ability of the dependents. According to the provisions of Article 28 of the judicial interpretation of personal injury compensation, the living expenses of the dependents are calculated according to the degree of disability of the dependents and the per capita consumption expenditure of urban residents and rural residents in the last year where the court of appeal is located. If the dependant is a minor, it shall be calculated at the age of eighteen; If the dependent has no ability to work and no other source of income, it shall be counted as 20 years. However, for those over 60 years of age, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.
mental compensation
The request for compensation for mental damage applies to the personal injury, disability or death of the victim, but not to the property damage in traffic accidents. For example, if a pet dog dies in a traffic accident, even if the owner regards the pet dog as a family member, he can't claim compensation for mental damage. The calculation standard of compensation for mental damage should be based on the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Mental Damage in Civil Tort.
At the same time, it should be noted that the right to claim compensation for mental damage may not be transferred or inherited. However, the obligor for compensation has promised to pay monetary compensation in writing, or the obligee for compensation has brought a lawsuit to the people's court.
standard
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City standard
The standard of urban residents refers to that if the victim is an urban resident, the calculation standard of disability compensation and death compensation is calculated according to the per capita disposable income of urban residents; The living expenses of the dependents are calculated according to the per capita consumption expenditure of urban residents.
1. Per capita income of urban residents
The per capita income of urban residents is the standard for calculating disability compensation and death compensation for injured urban residents. The per capita disposable income of urban residents is an annual accounting index. It reflects the average income level of urban residents in a country or region.
The disposable income of urban households is calculated according to the daily income of households. Per capita disposable income refers to the disposable part of the total household income except all necessary expenses. The total family income includes the wages of family members' main occupation, the labor income of the second occupation, other part-time and temporary labor, net operating income, property income and transfer income. Net operating income refers to the net income obtained by family members engaged in production and business activities. Property income refers to interest dividends and rental income. Per capita disposable income refers to the part that residents can't control freely, that is, personal income tax, provident fund, pension fund, medical fund and unemployment fund, which are deducted from the total household income. Because these are all rigid expenses that family members must pay, this part of nominal income must be deducted, and the rest is the income that residents can freely control. Expressed by formula:
Disposable income of urban households = total income of urban households-income tax paid-social security expenditure paid by individuals. Total household income includes wage income, net operating income, property income and transfer income (such as pension, retirement pension and social assistance income).
2. Per capita consumption expenditure of urban residents
The per capita consumption expenditure of urban residents is the standard for calculating the living expenses of urban residents' dependents.
The per capita consumption expenditure of urban residents refers to the total expenditure of urban residents for daily life, including the expenditure on purchasing commodities, cultural life, service and other non-commodity expenditures. Excluding fines, losses and various taxes paid (such as personal income tax, license tax, property tax, etc.). ), nor does it include all kinds of expenses incurred by individual workers in production and operation.
3. Urban residents
Urban residents can be divided into broad sense and narrow sense. Urban residents in a broad sense generally refer to people who live and live in cities and towns. It includes not only residents with urban hukou, but also people without urban hukou who have lived, worked and lived in cities and towns for a certain period of time and whose economic income and life come from cities and towns. Therefore, whether it belongs to "urban residents" is not marked by or not only by household registration. [3]?
In a narrow sense, "urban residents" refers to the permanent population in cities and towns, that is, people who live in cities and towns, have a fixed occupation and a stable source of income and life, and have permanent residence or household registration. "Urban residents" in a narrow sense have urban hukou. Urban hukou includes non-agricultural registered permanent residence personnel such as "self-care ration hukou", "blue-printed hukou" and "local urban resident hukou". Therefore, the subject of "urban residents" is much broader than that of "non-agricultural population".
Rural standard
Rural residents' standard refers to that the victim is a rural resident, and the calculation standard of disability compensation and death compensation is calculated according to the per capita net income of rural residents; The living expenses of the dependents are calculated according to the annual per capita living expenses of rural residents.
1. Per capita net income of rural residents
The per capita net income of rural residents is the standard for calculating disability compensation and death compensation for rural residents. The per capita net income of rural residents is an annual accounting index reflecting the average income level of rural residents in the whole country or a region.
The net income of rural residents is the total income of rural households from various sources in that year, after deducting the corresponding related expenses. Specifically, it is the total income of rural families after deducting household operating expenses, various taxes and fees paid, depreciation of productive fixed assets and gifts from relatives and friends in rural areas. The total income of rural families includes wage income, family business income, property income and transfer income.
2. Per capita annual living consumption expenditure of rural residents
The annual per capita living expenditure of rural residents is the standard for calculating the support expenses of rural residents.
The per capita annual living consumption expenditure of rural residents refers to the total expenditure of rural households for daily life, and is an important indicator to reflect and study the actual living consumption level of rural households.
3. Rural residents
Rural residents refer to people who have agricultural registered permanent residence, live and live in rural areas, and take agricultural production as their source of livelihood, that is, rural permanent population. Rural residents are only a part of agricultural registered permanent residence.