I. Source of the case
(20 14) Zheng Shaomin zhongzi No.98 civil judgment
Second, the gist of the referee
If a person without civil capacity suffers personal injury during his study and life in a kindergarten or other educational institution, and the educational institution fails to fulfill its educational management responsibilities, he shall bear the responsibility. At the time of the incident, two kindergarten staff failed to fulfill their guardianship responsibilities, and failed to fulfill their education management responsibilities in this incident, and should bear corresponding responsibilities; Because his injury was caused by another child being pushed down, this child should also bear the corresponding responsibility. The first instance ruled that the kindergarten should bear 80% of the compensation liability, and the pushed children should bear 20% of the compensation liability. The second instance upheld the judgment of the first instance.
Three. Brief introduction of the case
Plaintiff He Mou, Defendants Zhang Mou and Xu Mou are middle-level children of the kindergarten of Defendant Huang Wei Committee. 201310 June 2 1 5: 20 pm, when the plaintiff He Mou, the defendant Zhang Mou and Xu Mou were playing together in the classroom, the defendant Zhang Mou pushed Xu Mou Jia, causing Xu Mou to sit on He Mou's arm, causing He Mou's arm to be injured, which was rated as Grade 9 disability.
Fourth, the lawyer's opinion.
This paper mainly discusses two issues: first, although Zhang is the person directly responsible for the injury, Zhang is a person without civil capacity and has no ability to understand his own behavior. At the same time, he is also the object that needs kindergarten management and protection. Should Zhang's behavior be borne by his guardian or kindergarten? Second, the plaintiff was injured because Zhang was pushed down. How should kindergartens take responsibility?
The second issue belongs to the security obligation of educational institutions. Because the accident happened in the kindergarten, the kindergarten has the obligation to educate, manage and protect the children, so the responsibility of the kindergarten should be judged according to the degree of the kindergarten's fault and the cause of the damage. In this case, whether the kindergarten's responsibility is 80% or 75% actually belongs to the judge's discretion, as long as it is within a reasonable range, it is acceptable. Therefore, in practice, if the appeal is not satisfied with the distribution of the proportion of responsibility in the second instance, it is rare for the second instance to change the sentence, unless the distribution of the proportion of responsibility is obviously improper. This reminds us that in order to achieve the expected effect, we must provide sufficient evidence and reasoning as soon as possible.
Text/Du (Shanghai full-time lawyer, master of civil and commercial law, micro signal: ad80805)