Substitution words
Dear presiding judge and judge,
Entrusted by plaintiff Ji Liansheng, Shanxi Xingmei Law Firm appointed lawyers Zhang Zhenjiang and Zhang Xiaomin as its special agents in the first instance. Through pre-trial understanding of the case, investigation and collection of evidence, combined with court investigation, we hereby express the following opinions on the facts of the case and the applicable law, hoping that the collegial panel will adopt them.
I. Facts of this case
Defendant Bai Xiaolong drove the Jiefang light dump truck with license plate number Jin KUE 166 from east to west at Jingangyan intersection on May 23rd, 20 10. Because he didn't drive safely according to the operating rules, he collided with the plaintiff who was drunk driving an electric bicycle and turned left from west to north, causing acute internal open craniocerebral injury and skull base fracture.
On 20 1 June1day, the accident handling brigade of Taiyuan traffic police detachment made the road traffic accident confirmation No.0010: Bai Xiaolong did not fully observe the situation in front of the intersection when driving a motor vehicle to ensure safe driving, and his illegal and wrong behavior was one of the causes of the accident. Its behavior violates the first paragraph of Article 22 of the Road Traffic Safety Law of the People's Republic of China, which stipulates that motor vehicle drivers should abide by the provisions of road traffic safety laws and regulations and drive safely and civilized in accordance with operational norms. Ji Liansheng drunk driving an electric bicycle, and when he turned left at the intersection controlled by the traffic lights, he did not let the straight vehicles go first. His illegal and wrong behavior is another cause of the accident. His behavior violated the provisions of Item 3, Paragraph 1, Article 72 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China that "driving bicycles, tricycles, electric bicycles and disabled motorized wheelchairs on the road shall comply with the following provisions: (3) drunk driving is not allowed" and the provisions of Item 1. The plaintiff and the defendant Bai Xiaolong bear the same responsibility in Paragraph 1, Article 68 of the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China.
After being treated by Taiyuan Central Hospital, the plaintiff was discharged from the hospital on June 29th, 20 10. 201July 2 1 Appraised by Taiyuan Xiaodian Judicial Appraisal Center of Shanxi Armed Police Corps Hospital, the plaintiff suffered from acute internal and open craniocerebral injury and severe hearing impairment in both ears due to a traffic accident, and was assessed as Grade 6 disability.
The losses caused by the accident to the plaintiff are:
1, medical expenses 872 17.46 yuan;
2. The transportation fee is 638.8 yuan;
3. The lost time is 3,600 yuan (1, 800× 2);
4. Nursing expenses12490.5 (7962.3+4200+328.2) yuan.
5. Hospitalization food allowance 1900 yuan (50× 38);
6. Nutrition fee 1800 yuan (90× 20);
7. Disability compensation 139970 yuan (13997× 20× 0.5);
8. The living expenses of the dependents are 9355 yuan (9355× 4× 0.5× 0.5);
9. Property loss: 2,000 yuan for the electric bicycle, and the clothes are damaged in 200 yuan;
10, mental damage compensation 25,000 yuan;
1 1, and the lawyer's agency fee is 3,000 yuan;
12, appraisal fee 1000 yuan;
The above expenses total RMB 28,8271.70 yuan. Bai Xiaolong has paid the medical expenses14,800 yuan.
The vehicle was a Jiefang light dump truck, and the owner confessed to Lianshou. At the time of the accident, the vehicle was driven by the defendant Bai Xiaolong. Defendant Bai Xiaolong bought compulsory insurance for the accident vehicle in the defendant's insurance company. The insurance policy number is 23370000103513006390, and the insured is Bai Xiaolong. The insurance period is from March 20 10 to March 20 1 1 year.
The above facts are supported by 13 sets of relevant evidence.
Two, the plaintiff's claim for compensation in accordance with the law, and there is sufficient evidence to prove that it should be supported.
I. The legal basis for the compensation claimed by the plaintiff in this case is:
1. Paragraph 2 of Article 106 of the General Principles of the Civil Law stipulates that "a citizen or a legal person who infringes on the property of the state or the collective or infringes on the property or person of others through fault shall bear civil liability."
2. Paragraph 1 of Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that if the victim suffers personal injury, the compensation obligor shall compensate all the expenses incurred for medical treatment and the income reduced due to absenteeism, including medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses. Paragraph 2: If the victim is disabled due to injury, the compensation obligor shall also compensate him for the necessary expenses incurred for increasing his daily needs and the income loss caused by his inability to work, including disability compensation, disability AIDS, living expenses of the dependents, and the necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred for rehabilitation nursing and continuing treatment.
B. The legal basis and evidential materials of the individual compensation claimed by the plaintiff in this case are as follows:
1, medical expenses 872 17.46 yuan.
Legal basis: Article 19 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "medical expenses shall be determined according to the receipts of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence."
Evidence materials: the serial numbers of the evidence catalogue are 8, 9, 10, 1 1.
2. The transportation fee is 638.8 yuan.
Legal basis: Article 22 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the transportation expenses shall be calculated according to the actual expenses of the victims and their necessary accompanying personnel for medical treatment or transfer to hospital for treatment."
Evidence materials: Evidence List No.20,21,22,23.
3. The lost time is 3600 yuan (1800× 2).
Legal basis: Article 20 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 stipulates that "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 disability. If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. "
Evidence materials: the serial numbers of the evidence catalogue are 8, 14 and 15. The date of the plaintiff's hospitalization was May 23rd, 20 10, the date of disability was July 23rd, 20 10, and the actual date of missing work was 60 days. The plaintiff's unit issued a certificate to confirm the plaintiff's monthly income 1800 yuan, and the plaintiff's actual income was 3,600 yuan due to missing work.
4. Nursing expenses12490.5 (7962.3+4200+328.2) yuan.
Legal basis: According to Article 21 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, the nursing fee is 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.
Article 3. 1.4 of Appraisal of Workers' Occupational Injury and Disability Degree refers to those who are disabled due to their inability to take care of themselves and need to be taken care of by others. Self-care mainly includes the following five items: 1, eating; 2. turn over; 3, big, urinating; 4. Dress and wash; 5. Move automatically. The nursing level is divided into three levels: 1, and complete nursing dependence means that you can't take care of yourself completely and need to take care of the above five items; 2. Most nursing dependence refers to people who can't take care of themselves for most of their lives, and three of the above five items need nursing; 3. Partial life dependence refers to those who can't take care of themselves, and one of the above five items needs nursing. The plaintiff couldn't take care of herself during her hospitalization, and all the above five items needed nursing, which should belong to first-class nursing, and there could be more than one nursing staff.
Evidence materials: The serial numbers of the Catalogue of Evidence are 8, 16, 17 and 18. The plaintiff was hospitalized for 38 days, including the intensive care unit from May 23 to June 9, and two people took care of her daily life during the rest of the hospitalization. 1. The lactation period of Zhang Jianzhong, the plaintiff's brother-in-law, was ***38 days, from May 23rd, 20th10 to June 29th, 20th10. The evidence provided by the Labor and Personnel Section of Taiyuan Locomotive Depot in taiyuan railway administration where Zhang Jianzhong works proves that his average monthly income is 6,286 yuan, and the total nursing expenses for 38 days are 7,962.3 yuan. 2. The lactation period of eldest sister-in-law Lang Aisheng is from May 23rd, 20 10 to May 25th, 20 10, ***3 days. Lang Aisheng has no fixed job. According to the standard of 20 10, the average annual salary of urban workers in Shanxi Province is 28,559 yuan, and the total nursing expenses for three days is 328.2 yuan. 3. After Lang Aisheng left, the nursing period of care worker Zhou Jianxin was 20 10 from May 26th to June 29th, 20 10, totaling 35 days, and the daily nursing fee was 120 yuan, totaling 4,200 yuan.
5. Hospitalization food allowance 1900 yuan (50× 38).
Legal basis: Article 23 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases: "The food subsidy for hospitalization can be determined by referring to the standard of food subsidy for ordinary staff of local state organs."
Article 15 of the Measures for the Administration of Travel Expenses of Staff of Provincial Organs and Institutions in Shanxi Province, regardless of the region, part of the way and attendance, the quota contract is implemented according to the natural (calendar) days of business trip, and the standard is 50 yuan per person per day.
Evidence material: No.8 of evidence catalogue
6. Nutrition fee 1800 yuan (90×20).
Legal basis: Article 24 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases: "The nutrition fee is determined according to the disability of the victim and with reference to the opinions of medical institutions."
Evidence materials: No.8 and No.24 in the Catalogue of Evidence. The plaintiff has constituted a six-level disability, and the rib fracture needs long-term conservative treatment. People often say that "it hurts the muscles and bones for a hundred days", and the common sense of strengthening nutrition and promoting recovery as soon as possible in this 100 day is well known.
7. Disability compensation 139970 yuan (13997× 20× 0.5).
Legal basis: Article 25 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the disability compensation shall be calculated for 20 years from the date of determination 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 court of appeal is located."
According to the statistical bulletin of national economic and social development of Shanxi Province in 2009 published by Shanxi Provincial Bureau of Statistics on February 24th, 20th/kloc-0, the per capita disposable income of urban residents is 13997 yuan/year.
Evidence materials: the serial numbers of the evidence catalogue are 12 and 24. Two sets of evidence prove that the plaintiff is an urban hukou with a disability level of six.
8. The living expenses of the dependents are 9355 yuan.
Legal basis: Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases Article 28 The living expenses of the dependents shall be calculated according to the degree of the disabled dependents and the standards of the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of 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;
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.
Statistical bulletin of Shanxi's national economic and social development in 2009: the per capita consumption expenditure of urban residents is 9355 yuan.
Evidence materials: the serial numbers of the evidence catalogue are 13 and 24. This set of evidence is enough to prove the relationship between the plaintiff and Ji Lan, prove that Ji Lan belongs to the urban hukou, and prove that Ji Lan is a minor of 14 years old.
9. Property loss is 2200 yuan.
Legal basis: Paragraph 2 of Article 106 of General Principles of Civil Law. Citizens and legal persons who infringe upon the property of the state or the collective or the property or person of others due to their faults shall bear civil liability.
Evidence materials: The serial number of the Catalogue of Evidence is 28. This set of evidence proves that the electric bicycle, clothes and shoes that the plaintiff rode were damaged. Although the invoices for the purchase of electric bicycles, clothes and shoes are lost, the agent believes that the property loss should also be supported in combination with market conditions.
10, mental damage compensation 25,000 yuan.
Legal basis: Paragraph 2 of Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort: If an infringement causes mental damage to people and causes serious consequences, the people's court may order the infringer to bear civil liabilities such as stopping the infringement, restoring reputation, eliminating the influence and making an apology, or at the request of the victim, order him to compensate the corresponding mental damage.
The defendant collided with the plaintiff while driving a motor vehicle, which caused serious consequences of the plaintiff's open brain injury and severe hearing impairment in both ears, and seriously violated the plaintiff's right to health and body. Due to the severe hearing loss in both ears, the plaintiff can no longer really hear the call of his daughter, the nagging of his wife, the greetings from relatives and friends, the cries of street vendors and the roar of the train ... This warm and noisy world seems to be leaving him, but it is lonely, barren, lonely and irritable instead of the previous one ... Taking full account of the local average living standard (per capita consumption expenditure in 2009,
1 1, and the lawyer's agency fee is 3,000 yuan.
Legal basis: Paragraph 2 of Article 106 of the General Principles of the Civil Law: "Citizens and legal persons who infringe on the property of the state or the collective or the property or person of others due to their faults shall bear civil liability."
Evidence materials: The serial number of the Catalogue of Evidence is 27. Lawyer's work is a highly professional and technical work. The plaintiff does not have the professional skills in this field, and he has no conditions to safeguard his rights and interests during the life-threatening traffic accident. Therefore, the cost of hiring a lawyer should be within the scope of compensation.
12, appraisal fee 1000 yuan.
Legal basis: Paragraph 2 of Article 106 of the General Principles of the Civil Law: "Citizens and legal persons who infringe on the property of the state or the collective or the property or person of others due to their faults shall bear civil liability."
Appraisal procedure is a necessary procedure to judge whether the victim constitutes disability and how many levels of disability it constitutes, so the appraisal fee should also be included in the victim's loss range and the defendant should compensate.
3. In this case, the defendant China Ping 'an Property Insurance Co., Ltd. Shanxi Branch shall pay the plaintiff first within the liability limit of compulsory motor vehicle third party liability insurance, and the defendants Bai Xiaolong and Bai Lianshou shall be jointly and severally liable for the part exceeding the liability limit.
The first paragraph of Article 76 of the Law of the People's Republic of China on Road Traffic Safety, which came into effect on May 1 and May 1 2004, clearly stipulates that if a motor vehicle accident causes personal injury or property loss, the insurance company shall compensate it within the limits of compulsory motor vehicle third party liability insurance. The part that exceeds the limit of liability shall be liable for compensation in the following ways: compensation shall be made within the limit of liability compulsory insurance; The insufficient part shall be liable for compensation in accordance with the following provisions:
It is understood that the defendant Bai Xiaolong took out compulsory insurance for the accident vehicle in Shanxi Branch of China Ping An Property Co., Ltd., with the policy number of 23370000103513006390, and the insurance period was from March 20 10 to March 2010. According to the above-mentioned laws and regulations, the insurance company should pay the plaintiff in advance according to law.
2. Defendants Bai Xiaolong and Bai Lianshou are jointly and severally liable for the part exceeding the liability limit.
Article 76, paragraph 1 (2) of the Road Traffic Safety Law of the People's Republic of China clearly stipulates: (2) If a motor vehicle and a non-motor vehicle driver or pedestrian have a traffic accident and the non-motor vehicle driver or pedestrian is not at fault, the motor vehicle party shall be liable for compensation; If there is evidence that non-motor vehicle drivers and pedestrians are at fault, the liability for compensation of the motor vehicle party shall be appropriately reduced according to the degree of fault;
On the basis of proven facts and relevant laws and regulations, Evidence Catalogue No.2, Confirmation of Road Traffic Accidents, scientifically, fairly and justly classified the faults of plaintiff and defendant Bai Xiaolong in this accident. The accident handling brigade of Taiyuan traffic police detachment believes that the plaintiff and the defendant Bai Xiaolong should bear the same responsibility.
Although Bai Lianshou, the owner of the accident vehicle, and Bai Xiaolong, the driver, are not the same person, Bai Lianshou, the owner of the accident vehicle, cannot be exempted from joint liability for compensation. The agent believes that although the confessed Xiaolong is not the owner of the accident vehicle, his sports interests in driving the accident vehicle belong to the whole family and should still be regarded as the property of the accident vehicle. According to the principle of self-responsibility, you should bear joint and several liability. Unless the defendant Bai Xiaolong can prove that he has accepted the employment or paid to drive the accident vehicle.
All the above agency opinions are adopted by our hospital, thank you!
Authorized Agent: Shanxi Xingmei Law Firm.
Attorney: Zhang Zhenjiang.
Zhang Xiaomin
2005128 October +65438