The Supreme People's Court's Interpretation on Several Issues Concerning the Application of People's Republic of China (PRC) Tort Liability Law
Issuing Authority: the Supreme People's Court.
Document number: Fa Fa [2065438+00] No.23.
Release date: 20 10-6-30
Implementation date: 20 10-6-30
Four, the people's court shall apply the tort liability law in the trial of civil disputes. If the victim has a dependant, the living expenses of the dependant shall be included in the disability compensation or death compensation according to the provisions of Article 28 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases.
It is not difficult to see from these that the explanations of these questions are still effective.
How to understand Article 17 of Tort Liability Law;
If the same tort causes multiple deaths, the same amount of death compensation can be determined.
Explanation:
First, determining the same amount of death compensation is not a general way to determine death compensation. If it is easier to calculate the death compensation separately, this method may not be adopted;
Second, according to the provisions of this law, the determination of the same amount of death compensation is only applicable to cases in which the same tort causes multiple deaths in principle;
Thirdly, the article emphasizes that it is only "possible" to determine the same amount of death compensation for cases in which the same tort causes multiple deaths, rather than "necessary" or "should" determine the same amount of death compensation for any case in which the same tort causes multiple deaths. As for the circumstances under which it can and cannot be decided, the court can decide according to the specific circumstances and comprehensively consider various factors. In practice, the attitude of the plaintiff is also an important consideration. If most plaintiffs take the initiative to ask for the same amount of death compensation, of course; The plaintiff did not take the initiative to ask for it, but most plaintiffs have no objection to the death compensation scheme of the same amount proposed by the court, and this method can also be applied.
Fourth, in determining the same amount of death compensation, in principle, personal factors such as the victim's age and income status are not considered. What needs to be emphasized here is that this article only stipulates that if many people die because of the same tort, the "death compensation" can be determined in the same amount, and the reasonable expenses such as medical expenses and nursing expenses incurred by the deceased during his lifetime, as well as funeral expenses, should be calculated separately according to the actual expenses to determine the amount of losses and compensation.
How to understand the second judicial interpretation of Tort Liability Law? For example, the traffic accident tort occurred one day before the implementation of the Tort Liability Law, but five days after the implementation of the Tort Liability Law, the victim of the traffic accident died after being rescued. Then tort liability applies to tort.
The Tort Liability Law of People's Republic of China (PRC) (hereinafter referred to as the Tort Liability Law) came into force on July 1 2065438. In order to correctly apply the Tort Liability Law, relevant issues are hereby notified as follows:
1. The provisions of the Tort Liability Law shall apply to civil disputes caused by tort after the implementation of the Tort Liability Law. Civil disputes caused by tort before the implementation of the Tort Liability Law shall be governed by the legal provisions at that time.
Two, the infringement occurred before the implementation of the Tort Liability Law, but the consequences of the damage occurred after the implementation of the Tort Liability Law, the provisions of the Tort Liability Law shall apply.
Third, the people's courts apply the Tort Liability Law to try civil disputes, conduct medical damage appraisal according to the application of the parties or ex officio, and organize the appraisal according to the Decision of the NPC Standing Committee on Judicial Appraisal Management, the Provisions of the People's Court on Entrusting Foreign Countries to Conduct Judicial Appraisal Management and the provisions of relevant state departments.
Four, the people's court shall apply the tort liability law in the trial of civil disputes. If the victim has a dependant, the living expenses of the dependant shall be included in the disability compensation or death compensation according to the provisions of Article 28 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases.
According to the provisions of Article 23 of the Tort Liability Law of People's Republic of China (PRC), if an infringer infringes on the civil rights and interests of others and causes his own damage, he shall bear the responsibility of prevention or stop. If the infringer escapes or is unable to bear the responsibility, and the infringed party requests compensation, the beneficiary shall give appropriate compensation.
According to what you said, there is no obvious boundary to negotiate the appropriate compensation according to the actual situation.
Whether the tort liability law and the state compensation law are applicable to administrative infringement is based on the premise that the administrative organ infringes on the rights of citizens when exercising administrative power. If the administrative organ fails to implement the administrative act, it will apply civil compensation and deal with it in accordance with the relevant provisions of the Tort Liability Law.
Application of Criminal Law and Tort Liability Law Who told you that the Tort Liability Law is still applicable when it comes to crime? Legally speaking, the tort law is a private law, which can adjust the relationship between the property and the person of the parties without violating the public law. But if you violate the criminal law (public law), you will be punished by the criminal law. For example, A seriously injured B, and the two directly reached an agreement. A compensated B 65438+ 10,000 yuan, and B did not report the case. In this case, the civil compensation part was established and the compensation was demanded, but the criminal part could not be exempted, which constituted the crime of intentional injury.
Of course, the above is a legal issue, and theoretically it should be. In practice, public security organs can mediate acts of fighting and destruction of property. Although seriously injured, it has little impact. If mediation is good, tort liability law can also be used.
Interpretation of Tort Liability Law? Yu Weian's 20 10 monograph "Interpretation of Tort Liability Law" can be found on Shaanxi Personal Injury Compensation Network.
Understanding of Article 57 of Tort Liability Law Article 57: Obligation of diagnosis and treatment
Article 57 If medical personnel fail to perform medical obligations corresponding to the medical level at that time in medical activities, thus causing damage to patients, medical institutions shall be liable for compensation.
The interpretation of this article is about how to define the fault of medical staff in diagnosis and treatment activities.
Article 54 of this law stipulates that if a medical institution and its medical personnel are at fault for causing damage to patients in medical activities, the medical institution shall be liable for compensation. The fault of medical staff includes intention and negligence. Intention is easy to understand, and how to define negligence is the main concern of this paper. "Do the duty of diagnosis and treatment corresponding to the medical level at that time" embodies an important concept in tort liability law, that is, duty of care. In the modern tort liability law, whether in the civil law system or the common law system, the duty of care is the core element of tort liability and the benchmark for defining negligence. The connotation of duty of care in tort liability laws of different countries is similar. The common interpretation of duty of care in Anglo-American law is a legal obligation to pay reasonable attention to avoid damage. In the tort law, if the actor's act of causing damage violates the duty of care to the victim, he shall bear tort liability. If a person can reasonably foresee that his behavior may cause personal or property damage to others, then in general, he should have a duty of care to those who may be affected by it.
According to this article, the duty of care of medical personnel is to perform the duty of diagnosis and treatment corresponding to the medical level at that time. An important aspect of fulfilling the obligation of diagnosis and treatment is that the diagnosis and treatment behavior conforms to the relevant requirements of laws, administrative regulations, rules and norms of diagnosis and treatment. However, the duty of care of medical staff is not completely equivalent to legal compliance. The relevant requirements of laws, administrative regulations, rules and norms of diagnosis and treatment do not fully cover the level of diagnosis and treatment that medical personnel should have. Medical staff have completely complied with the specific operating procedures, and it is still possible to make judgments and implement behaviors that are proved to be wrong afterwards. However, medical behavior is unknown, specific and professional, so we can't judge that medical staff have made mistakes in diagnosis and treatment just by proving mistakes afterwards, and we can't just talk about the results. The key depends on whether other medical staff generally do not make such mistakes. Therefore, the obligation of diagnosis and treatment stipulated in this article can be understood as the obligation that medical staff can do in general to avoid patients from being hurt by cautious actions or omissions.
The settlement of medical disputes may take a long time, and it is fair and reasonable to judge whether to fulfill the obligation of diagnosis and treatment by referring to the level of diagnosis and treatment at the time of diagnosis and treatment. In addition, the draft tort liability law has stipulated that "when judging the duty of care of medical personnel, factors such as region, qualification of medical institutions and qualification of medical personnel should be properly considered". Later, considering that the actual situation of diagnosis and treatment behavior is very complicated, this provision was deleted. Whether the application of this article can consider factors such as region and qualification should be combined with specific circumstances. Laws, administrative regulations, rules and norms of diagnosis and treatment stipulate the specific requirements of diagnosis and treatment behavior, which should be generally observed by medical institutions and medical personnel, and shall not be different due to different regions and qualifications. In addition, some diagnosis and treatment behaviors are basic operations, and these factors need not be considered. On the contrary, for some diagnosis and treatment behaviors, in some cases, "the obligation of diagnosis and treatment corresponding to the medical level at that time" can also be understood as including factors such as region and qualification.
The legislation and practice of some countries stipulate the duty of care in diagnosis and treatment, which can be used as a reference for understanding this article. From the foreign situation, the content of duty of care includes two aspects: first, the general abstract provisions of duty of care; The second is to clarify the duty of care in each specific medical behavior. Regarding the abstract duty of care, Japan's Supreme Court clearly stated in the case of blood transfusion syphilis infection in Dongda Hospital on February 196 16, 2006 that people engaged in the management of human life and health, contrary to the nature of their business, need to do their best duty of care in practical experience to prevent danger. 1On February 6th, 969, the Supreme Court of Japan further expounded the "best duty of care" in the case of radiation panel tinea pedis cancer in Tokyo No.1 National Hospital: as a doctor, he should pay attention to the symptoms of patients, determine the treatment method and degree according to the medical knowledge at that time and consider the effects and side effects, and implement the treatment with full attention. Article 7-453 of the Dutch Civil Code stipulates that "the rescuer must observe the prudence of a good rescuer in the course of his work, and his behavior should conform to the professional standards of the rescuer and bear corresponding responsibilities."
The specific duty of care in diagnosis and treatment involves whether the consultation is sufficient and whether the diagnosis and treatment is wrong. First, the obligation of consultation. In the case of transfusion syphilis infection in Dongda Hospital, Japan, when doctors consult professional blood donors (blood donors hold reliable negative test certificate of serum reaction, health diagnosis certificate, membership card of blood transfusion center, etc.). ), routinely asked whether the body was healthy, and got a positive answer from the donor (at that time, the syphilis of the donor did not attract the attention of the doctor), and finally the patient who received blood transfusion was infected with syphilis. The focus of the case is whether the doctor has conducted sufficient consultation. The Supreme Court of Japan held in its judgment that although professional blood donors with the above certificates only need to ask "whether they are healthy" according to the medical practice, they can draw blood after receiving a positive answer, but this medical practice is only a discretionary factor to judge the severity of negligence, and this medical practice alone cannot deny that doctors have violated the duty of care. In this case, it is not impossible to get the fact that the blood donor is infected with syphilis if the doctor makes a detailed inquiry about whether the blood of the blood donor is dangerous and induces him to give a true answer by carefully observing his response when answering. Therefore, the doctor in this case failed to fulfill the "duty of best care". A vaccine case in Japan's Supreme Court 1976 has aroused strong repercussions in Japanese medical circles. In this case, doctors vaccinate thousands of recipients, and they only vaccinate them after routinely asking "Are they healthy?". As a result, some people had allergies the next day. The court ruled that it was not enough for the doctor to simply ask, but to ask in detail about the physical condition of each subject at that time, so the court ruled that the doctor was at fault. People in the medical field generally believe that it is difficult to ask doctors to ask everyone individually when carrying out mass vaccination of thousands of people, but the judicial field believes that in order to protect the interests of patients more effectively, doctors must be required to fully fulfill their consulting obligations. Whether the medical industry practice can be used as a defense, many doctors have suggested that omitting some consultation contents in medical damage compensation litigation is a medical practice and should not be considered as a violation of consultation obligations. Japanese courts generally believe that trade practices have no direct legal effect, and legal judgments are based on legal provisions and legislative purposes. Whether there is medical behavior can not directly affect the judgment of whether it violates the duty of care in law, but it can be considered in the degree of negligence. This requires medical professionals to take patients' interests seriously, change their habitual thinking and re-examine the rationality of existing practices.
Second, about fault diagnosis. In the process of diagnosis, the doctor's fault is mainly misdiagnosis, but not all misdiagnosis can be judged as negligence. Because of the complexity of human physiology and the similarity of many disease symptoms, it is often difficult for doctors to make a correct diagnosis at one time. Christian, a German scholar, introduced in the book Comparative Tort Law in Europe that the European Court of Justice is very cautious about the determination of negligence in misdiagnosis cases. The Supreme Court of Sweden still applied the traditional negligence standard in a misdiagnosis case in March 1974, and thought that it was inevitable to consider whether undiagnosed symptoms and other diagnostic errors were to some extent. German courts also hold the same attitude. German judges believe that only when the doctor's diagnosis is extremely serious and wrong can it be considered that the doctor has made a wrong diagnosis in German law. The error may come from a check that should have been done but not done. If the patient describes the symptoms, but the doctor does not do the corresponding examination, or does not do the corresponding treatment after the examination, it is a very serious mistake, and the doctor can be considered to be at fault. In the judgment of1987165438+124 October, the Civil Trial Chamber of the French Supreme Court also clearly stated that only when misdiagnosis is due to ignorance of current medical knowledge, it will be shown as a fault. The Supreme Court of Ireland denied the existence of the doctor's fault in the case that several doctors neglected the displacement of the medullary joint of the newborn baby at the same time, and took "a rational doctor can't make such a mistake" as the condition of misdiagnosis responsibility.
Third, the handling of negligence. Courts in various countries are generally cautious about the judgment of treating negligence. For example, the Supreme Court of Denmark clearly pointed out in the case of spinal puncture on June 25th (1985) that when some medical measures are inherently dangerous, only when such medical measures are unnecessary or there are serious mistakes in the implementation process can the doctor's fault be determined. The Danish Supreme Court also ruled in another case that the doctor was not at fault. In this case, the doctor made 20 attempts to insert the tube into the patient's trachea, but all failed. Because the patient was anesthetized for too long, he was paralyzed for life. The court held that the prolonged anesthesia process did not mean that the doctor was wrong, because it was due to the wrong estimation of extremely unusual symptoms. At the same time, mistakes in the choice of handling methods do not necessarily lead to liability for compensation. In this regard, the court tends to give doctors considerable freedom. According to German judges, Germany often judges whether doctors are at fault by objectively judging whether the measures they take are appropriate, whether they should know but don't know what measures to take, or whether they should take but don't take corresponding measures.
Understanding and application of the second paragraph of Article 9 1 of the Tort Liability Law The understanding and application of the second paragraph of Article 9 1 of the Tort Liability Law are as follows:
Article 9 1 of Tort Liability Law
Digging holes, repairing and installing underground facilities in public places or roads, etc. If no obvious signs are set and safety measures are taken, causing damage to others, the constructor shall bear tort liability.
If the underground facilities such as manhole cause damage to others, and the manager cannot prove that he has fulfilled his management obligations, he shall bear tort liability.
Interpretation: The first paragraph of this article originates from Article 125 of the General Principles of Civil Law, and only the position expression of "roadside" is cancelled, which can be understood as "roadside" belonging to "public place" belongs to the scope of this article, and the family courtyard that does not belong to "public place" is immediately "roadside". At the same time, the second paragraph of this article separately increases the provision that underground facilities such as manhole cause damage to others. The specific reason may be that the case managers mentioned in paragraphs 1 and 2 have different projects to prove exemption.
If infringement is caused by the circumstances mentioned in this article, the principle of no-fault liability shall be adopted according to the provisions of this article. Setting up obvious signs and taking safety measures are enough for anyone to avoid losses. Doing the management responsibility according to the usual attention should be exempted from liability.
Article 125 Civil Liability for Damage Caused by Ground Construction In case of digging, repairing or installing underground facilities in public places, roadsides or passages, no obvious signs are set and no safety measures are taken, thus causing damage to others, the constructor shall bear civil liability.
This paper is about the civil liability for damage caused by ground buildings.
The liability for damage caused by ground construction is a special tort liability, and the principle of fault presumption is adopted. The so-called principle of presumption of fault is that the fault of the builder is a necessary condition for him to bear the responsibility, but this fault method assumes that the builder has it in advance, unless there is evidence to the contrary afterwards, that is, if the builder can prove that he has set obvious signs and taken safety measures, and these signs are enough for anyone to avoid damage with usual attention, he must bear civil liability. Special attention should be paid to the construction party (usually the contractor or subcontractor of the construction project contract), not the construction party responsible for the damage caused by the ground construction (usually the employer of the construction project contract).
How to understand the application of Article 88 of Tort Liability Law on the liability for damage caused by the collapse of stacked objects? Hello, Article 88 of the Tort Liability Law stipulates: "If the collapsed stack causes damage to others and the stacker cannot prove that he is not at fault, he shall bear tort liability."
(a) the liability for damage caused by the collapse of the stack is subject to the presumption of fault liability. Article 16 of the Judicial Interpretation of Personal Injury Compensation stipulates: "Article 126 of the General Principles of the Civil Law shall apply to the following cases, and the owner or manager shall be liable for compensation, except those who can prove that they are not at fault: (1) artificially built structures such as roads, bridges and tunnels are damaged due to defects in maintenance and management; (2) The stacked items roll, slide or collapse, causing personal injury; (3) Trees lodging, breaking or fruit falling, causing personal injury. In the case of item (1) of the preceding paragraph, the owner, manager, designer and constructor shall bear joint and several liability for damage caused by design or construction defects. " Judicial interpretation stipulates that the fault presumption rule is applicable to the liability for damage caused by stack collapse, which has been well received by theoretical and practical circles. Article 88 of Tort Liability Law follows the provisions of judicial interpretation.
When the fault presumption is implemented, the victim, as the plaintiff, requests compensation only by proving that the defendant is the stacker of the collapsed pile and there is damage caused by the collapse of the pile, without proving that the stacker is at fault, that is, it is presumed that the stacker is subjectively at fault from the damage facts. If the stacker claims that it is not at fault, it shall provide proof. If it cannot be proved or the evidence is insufficient, it shall be presumed to be established, that is, it shall bear tort liability; If it can be proved, it will not bear tort liability.
(2) Constitutive elements of the liability for damage caused by the collapse of stacked objects. Including: first, there is a harmful behavior of pile collapse, that is, all or part of the collapsed pile. Second, there is the fact that the victim is damaged, that is, the collapse of the pile has caused personal injury or property loss to the victim. Thirdly, there is a causal relationship between the damage facts and the damage caused by pile collapse. There are many reasons for the collapse of stacked items: there are their own reasons, such as improper stacking methods; There are also external reasons, such as the reasons of natural forces and the reasons of the third person. Causality of damage caused by stack collapse does not investigate the specific cause of collapse, but emphasizes the causality between collapse behavior and damage consequences. Fourth, the stacker is at fault. This subjective fault generally refers to improper stacking or management of the stacker, or the lack of other duty of care, all of which are done in a negligent way. This negligent psychological state is negligence or slack. The form of fault identification is presumption. If the stacked articles cause damage to people, it is first presumed that the stacker is at fault, and it is deemed that he has not fulfilled his duty of care without the victim's proof. Only when the stacker proves that it has paid considerable attention, that is, there is no fault, can it overturn the presumption and be exempted from its liability for compensation. If you can't prove that you are not at fault, the stacker shall bear the corresponding liability for compensation.
If you can give detailed information, you can give a more detailed answer.