The Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases
Article 17 If the victim suffers personal injury, the compensation obligor shall compensate all expenses such as medical expenses and reduced income caused by absenteeism, including medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses.
If the victim is disabled due to injury, the compensation obligor shall also compensate the necessary expenses incurred due to the increase of daily needs and the income loss caused by the loss of working ability, including disability compensation, disability AIDS, living expenses of the dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.
Nineteenth medical expenses are determined according to the receipts of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records and diagnosis certificates and other relevant evidence. If the obligor for compensation disagrees with the necessity and rationality of the treatment, he shall bear the corresponding burden of proof.
The amount of compensation for medical expenses shall be determined according to the amount actually incurred before the end of the debate in the court of first instance. The obligee can sue separately after deducting the necessary rehabilitation expenses, appropriate cosmetic expenses and other follow-up treatment expenses of organ function recovery training. However, according to the medical certificate or appraisal conclusion, the inevitable expenses can be compensated together with the medical expenses that have already occurred.
Article 20 The lost time fee shall be determined according to the lost time fee and income of the victim.
The lost time fee is determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to be absent from work due to injury and disability, the absence time can be calculated to the day before the date of disability.
If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years; If the victim can't provide evidence to prove his average income in the last three years, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year.
Twenty-first nursing expenses are determined according to the income of nursing staff, the number of nurses and the nursing period.
If the nursing staff has income, it shall be calculated with reference to the provisions of the lost time fee; If the nursing staff has no income or employs nursing staff, it shall be calculated with reference to the local labor remuneration standard for nursing staff at the same level. In principle, there are 1 nursing staff, but if medical institutions or appraisal institutions have clear opinions, the number of nursing staff can be determined by reference.
The nursing period should be calculated until the victim recovers his self-care ability. If the victim can't recover his self-care ability due to disability, a reasonable nursing period can be determined according to his age, health status and other factors, but the longest period is no more than 20 years.
After the victim is disabled, the nursing level should be determined according to the degree of nursing dependence and the preparation of disability AIDS.
Twenty-second transportation expenses shall be calculated according to the actual expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to other hospitals for treatment. Transportation expenses should be based on official bills; Relevant credentials shall be consistent with the place, time, times and frequency of medical treatment.
Twenty-third hospital food subsidies can be determined with reference to the standard of food subsidies for ordinary staff of local state organs.
The victim really needs to go to other places for treatment and cannot be hospitalized for objective reasons. A reasonable part of the accommodation and food expenses actually incurred by the victim and his entourage shall be compensated.
Twenty-fourth nutrition fee is determined according to the disability of the victim with reference to the opinions of medical institutions.
Article 25 Disability compensation shall be calculated from the date of disability according to the degree or level of disability of the victim and the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year where the appeal court is located, and the calculation period shall be 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.
If the victim is disabled due to a work-related injury, but his actual income has not decreased, or his disability level is light, but his employment is seriously affected by occupational hazards, his disability compensation can be adjusted accordingly.
Twenty-sixth disability assistive devices shall be calculated according to the reasonable cost standard of common applicable devices. If the injury has special needs, you can refer to the opinions of the assistive devices configuration organization to determine the corresponding reasonable cost standard.
The replacement cycle and compensation cycle of auxiliary appliances are determined with reference to the opinions of the organization.
Article 28 The living expenses of the dependents shall be calculated according to the degree of disability of the dependents and the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of rural residents in the last year where the appealed court 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.
A supporter refers to a minor who should bear the obligation of support according to law or an adult close relative who has lost the ability to work and has no other source of income. If the dependents have other dependents, the compensation obligor shall only compensate the victim for the part that he should bear according to law. If there are several dependents, the total annual compensation shall not exceed the per capita consumption expenditure of urban residents or the per capita annual living consumption expenditure of rural residents in the previous year.
Article 30 If the compensation obligee proves that the per capita disposable income of urban residents or the per capita net income of rural residents in his domicile or habitual residence is higher than the standard of the place where the sued court is located, he may calculate disability compensation or death compensation according to the relevant standard of his domicile or habitual residence.
The relevant calculation standards for the living expenses of the dependents shall be determined in accordance with the principles stipulated in the preceding paragraph.
Second, answer the landlord's questions in combination with the landlord's actual situation and legal basis.
1 The requirements in the first question are completely reasonable. As long as the offender has the ability to compensate, he must compensate. If he is temporarily unable to pay compensation, he can pay compensation in installments and postpone payment. Please refer to Understanding Lost Time Costs:
"Twentieth lost time is determined according to the lost time and income of the victim.
The lost time fee is determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to be absent from work due to injury and disability, the absence time can be calculated to the day before the date of disability.
If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years; If the victim can't prove his average income in the last three years, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year. "
What constitutes a disability must be evaluated, and you cannot identify yourself. This situation can be identified as a serious injury, but several serious injuries need to be judged by an appraisal agency. However, you can check the disability grade appraisal standard of your province online and make a prediction.
If the negotiation and settlement work is unsuccessful and the loss cannot be fully compensated, it is best to file a lawsuit.
A is going to write a letter of complaint.
B the defendant's court, or the court where the accident occurred.
Keep relevant evidence, medical bills, actual expense bills and salary certificates of the victims and their caregivers.
D. Initiate disability appraisal in litigation (the expenses can be borne by the defendant after the case is closed)
E it is best to hire a lawyer to deal with current and future work.
As for the cost, it depends on the amount of your lawsuit. If it exceeds 50w, the litigation cost will be nearly 2w. Of course, after the other party loses the case, the defendant will bear or share it reasonably. Attorney's fee, about 3% of the required amount, can generally be represented.
Is there a problem?
Supplement:
Individual litigation is perfectly acceptable. The lawyer's fee depends on the size of your litigation object, and of course you can bargain. You can also appoint a risk agent to charge after winning the case, but the fee is relatively high, about 10%-20%, but don't worry.