Defense of first and second instance
Respondent (plaintiff in civil litigation attached to the first instance): Cao Moumou, Han nationality, ID number:
Respondent (plaintiff in civil litigation attached to the first instance): Chen Moumou, Han nationality, ID number:
Respondent (plaintiff in civil litigation attached to the first instance): Li Moumou, Han nationality, ID number:
Respondent (plaintiff in civil litigation attached to the first instance): Cao Moumou, Han nationality, ID number:
The defendant sued the defendant Shenzhen XXX Concrete Co., Ltd. to jointly undertake the second-instance case of civil damages for the death of Cao Moumou and Tao Moumou caused by Zhong Moumou's traffic accident. Lawyer Zhou of Guangdong Renren Law Firm, as the entrusted agent of the respondent, puts forward the following defense opinions on this case according to the ascertained facts and the provisions of relevant laws, regulations and judicial interpretations for the reference of the collegial panel:
I. Determination of the compensation standard for the death compensation of the deceased Cao Moumou.
The deceased Cao Moumou lived in Shenzhen with his parents for a long time and studied in a kindergarten in Shenzhen for three years. Although he has no economic income and is raised by his parents, the main living and learning expenses come from the city. Therefore, the deceased Cao Moumou should pay compensation according to the standards of urban residents in Shenzhen.
According to the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Personal Injury Compensation Cases and the Reply of the First Trial Chamber of the Supreme People's Court on How to Calculate the Compensation Expenses for Rural Residents with Fixed Residence in Cities and Towns ((2005) Min He Zi No.25), those who do not explicitly exclude living in cities and towns but have no economic income cannot be compensated according to the standards of urban residents, and at the same time, due to household registration reasons? Same life, different prices? This phenomenon has long been denied by legal theorists and many judicial examples.
Especially in the same accident, cases involving both urban victims and rural victims should be executed according to the same standard.
Therefore, in this case, Cao should make compensation according to the standards of urban residents in Shenzhen.
Two, the court of first instance will reduce the total amount of compensation to the insurance company's compulsory insurance liability limit and then share it according to the proportion of responsibility.
Article 76 of the Road Traffic Safety Law of the People's Republic of China: If a motor vehicle accident causes personal injury or property loss, the insurance company shall make compensation within the liability limit of compulsory motor vehicle third-party liability insurance.
The part exceeding the liability limit shall be liable for compensation in the following ways: if there is a traffic accident between motor vehicles, the party at fault shall bear the responsibility; If both parties are at fault, they shall share the responsibility according to their respective fault proportions.
Therefore, it is correct for the court of first instance to deduct the total amount of compensation from the limit of compulsory insurance liability undertaken by the insurance company and then share it according to the proportion of liability.
Three. Regarding the proportion of liability division in this case, according to China's legal provisions and judicial practice, the proportion of main liability compensation is between 60% and 90%.
In this case, although the respondent Cao Moumou belongs to driving without a license, he did not commit other illegal acts at the time of the accident, and his lack of a driver's license has no direct causal relationship with the accident.
According to the technical appraisal and inspection report of vehicles involved in road traffic accidents, the vehicle involved (Guangdong b/b4330) has serious safety hazards, the front and rear brakes (brakes) are not working, and the turn indicator light is not on, so it simply does not have the conditions for driving on the road.
As far as the driving part is concerned, the responsibility for this accident lies entirely with Defendant I and Defendant II.
In addition, the defendant escaped after the accident, which delayed the rescue time and aggravated the damage result.
Therefore, according to the specific circumstances of this case, it is appropriate to divide the liability according to the ratio of 9: 1.
Four, about the advance payment of insurance companies.
According to the relevant provisions of China's Insurance Law, the purpose of establishing motor vehicle insurance is to ensure that victims can get corresponding compensation in time and in full.
Although it is stipulated in the auto insurance contract that the insurance company shall not be liable for compensation if it escapes after a traffic accident, the perpetrator shall be liable for compensation.
But this provision is only an agreement between the insured and the insurance company, that is, it is only valid between the insured and the insurance company. Is it a kind of? Internal effect? For the third party who suffered damage due to traffic accidents, it has no legal effect and conforms to the principle of relativity of contracts.
Therefore, in this case, the third defendant should be liable for two deaths and one injury in accordance with the relevant provisions of the Insurance Law and the Auto Insurance Contract, and the division and liability between the insurance company and the first and second defendants should be handled by them respectively.
Verb (abbreviation of verb) Regarding compensation for mental damage, the Supreme People's Court's Interpretation on Several Issues Concerning the Trial of Personal Damage Compensation Cases clearly separates compensation for mental damage from compensation for death, that is, compensation for death is classified as property loss. Should death compensation and mental damage compensation be paid in one lump sum? (article 33).
The Supreme People's Court's Interpretation on Several Issues Concerning the Trial of Personal Injury Compensation Cases stipulates in Article 9? Mental damage includes the following ways: 2. Death compensation for death. Here, death compensation is just a way to comfort mental damage, and the two are not inclusive, let alone offset each other.
Article 19 of Opinions of Guangdong Provincial Court and Provincial Public Security Department on Several Issues Concerning Handling Road Traffic Accident Cases also stipulates that if a party requests compensation for mental damage due to a traffic accident, the people's court may determine the amount of compensation according to the consequences and responsibilities of the traffic accident.
As can be seen from the above provisions, the defendant should not only pay compensation for death, but also should not take whether the defendant should be investigated for criminal responsibility as a condition for whether the three defendants should bear compensation for mental damage.
6. The defendant Cao Moumou was indeed adopted by the deceased couple for many years. Because the accounts of the deceased husband and wife are separate, Cao's account can only be in the account of the deceased husband Cao.
The first-instance judgment only found that the adoption relationship was not established on the grounds that Cao's household registration was not in the household registration book of the deceased Tao, and the reasons were not sufficient.
7. The defendant Chen has a pension, but the amount is very small. Now that I am old and sick, I have to bear the responsibility of supporting my wife and pay high medical expenses. So he should be compensated for child support.
In addition, in the process of handling the funeral, more than a dozen relatives came, and their travel expenses and lost time expenses should also be compensated.
8. The defendant Zhong Moumou was given a lighter sentence.
Zhong Moumou seriously violated traffic regulations, causing two deaths and one injury. Whoever intentionally escapes after a traffic accident and does not give any compensation to the family of the deceased after being brought to justice should be severely punished.
The first-instance judgment is only based on the reason that his guilty attitude is good, that is, the punishment is lighter, which obviously belongs to the same crime and punishment.
Please ask the court of second instance to conduct a fair trial and safeguard the legitimate rights and interests of the respondent.
I am here to convey
Second reply
Respondent: Suzhou Central Branch of * * Property Insurance Co., Ltd.
Person in charge: * * Position: company manager
Address: Suzhou, Anhui * * * * * * * * * * * * * * * * * * * * * * * * * *.
Regarding the case of the respondent v. the respondent's liability dispute over motor vehicle traffic accidents, the respondent replied as follows:
1. This case is a motor vehicle traffic accident liability dispute, and Zhang * * sued the defendant for misunderstanding the legal relationship. Please dismiss his claim against the defendant according to law.
The legal relationship between the parties involved in the motor vehicle traffic accident liability dispute is tort legal relationship, and the legal relationship between the parties involved in the dispute caused by commercial third insurance is contract legal relationship. There are two reasons for the insurer to compensate the victim directly: first, there are clear provisions in the law; The second is the insurance contract.
The insured and the insurer did not agree in the insurance contract that the insurer should directly compensate the victim. In view of the fact that there is no factual or legal relationship of rights and obligations between Zhang * * and the respondent, the respondent has no factual and legal basis for the respondent's claim, and requests the court to reject the respondent's claim against the respondent according to law.
Second, to say the least, even if the litigants are unanimous, there are statutory and agreed insurers who do not compensate the insured in this accident.
First of all, the insured linked the insured vehicle, and the nature of use changed from non-business to business, which obviously increased the danger of the subject matter insured, and the insured failed to fulfill the obligation of informing.
From the evidence insurance policy, contract and car rental, we can know that the insured changed the use nature of the subject matter insured from non-business to business, and the danger degree of the subject matter insured increased obviously. The insured shall fulfill the obligation of informing the insurer according to law, but the insured does not.
According to the provisions of Article 52 of the Insurance Law, if the insured fails to fulfill the obligation of informing due to the significant increase in the risk of the subject matter insured, the insurer shall not be liable for compensation.
Secondly, according to the insurance contract, if the driver escapes after the insured accident, the insurer is not responsible for compensation.
According to the accident certificate, the driver fled the scene by car after the accident.
Article 4 of the Commercial Third Party Liability Insurance Clause clearly stipulates that after the accident, if the insured or the driver fails to take measures according to law to drive or abandon the insured vehicle, the insurer shall not be responsible for compensation.
To sum up, there is no factual and legal basis for the respondent to sue the respondent, and he requests the court to dismiss his claim according to law.
I am here to convey
Yongqiao District People's Court
Respondent: Suzhou Central Branch of * * Property Insurance Co., Ltd.
20XX 65438+ October 10
Comprehensive defense of liability disputes in motor vehicle traffic accidents
Defendant: Li.
Authorized Agent: Li XX, lawyer of XX Law Firm.
The defendant now submits Yang and other seven plaintiffs (i.e.
The defendant has no objection to taking full responsibility for the accident. If the plaintiff's claim is established according to law, the insurance company shall compensate it within the insurance liability of the insurance company and commercial insurance. Some of the plaintiff's claims are inconsistent with the facts and have no legal basis, so they should be rejected.
The defendant's main reasons are as follows:
1. Please ask the people's court to add car Ganxxxxx and police car xxxxx as defendants according to law.
2. Part of the plaintiff's claims cannot be established and should be rejected according to law.
1. The defendant has already borne part of the medical expenses, lost time, nursing expenses and hospitalization expenses of the seven plaintiffs (see the list of expenses paid by the defendant Li Xiangqi for details). The plaintiff claimed that the drugs at his own expense should be borne by the plaintiff, and the defendant requested the court to conduct a rational review of the drugs on the drug list of the seven plaintiffs.
2. If the respondent disagrees with the calculation standard and basis of the six plaintiffs' disability compensation, it shall be handled in accordance with the legal provisions in force at the time of the accident (2xx65438+1October 7).
Two plaintiffs, Ma and Yang, have objections to disability identification: Ma was discharged from the People's Hospital of xx County, xx Province, only 20XX 10 years 10 July-20xx10/4 times, and the diagnosis was head trauma, systemic soft tissue injury, pear-shaped machine syndrome and no fracture. However, his leg fracture was used as a disability appraisal on 1 1 month of 2xx, which had no causal relationship (that is, no connection) with Ma xx's injury in the traffic accident in this case, so the court should not accept it.
The main body of Yang xx's disability appraisal institution is illegal. According to Article 7 of the NPC Standing Committee's Decision on Judicial Appraisal Management (hereinafter referred to as the Decision), which was adopted at the 14th meeting of the Standing Committee of the Tenth NPC on February 28th, 2×5 and implemented on February 28th 10/0, it is clearly stipulated that the appraisal institution established by the investigation organ according to the investigation needs shall not accept the entrustment to engage in judicial appraisal business for the society. The people's courts and judicial administrative departments shall not set up authentication institutions. ?
Therefore, the requesting people's court should not adopt the appraisal opinion.
3. The respondent objected to the lost time and nursing expenses of seven plaintiffs, such as Ma, and because the calculation standard was too high, it should be calculated according to the basic standards of rural residents or urban residents; If the calculation time is too long, it shall be calculated according to the actual number of days in hospital and the number of days specified at discharge.
4. If the respondent disagrees with the hospitalization food allowance of seven plaintiffs, such as Ma, it shall be calculated according to the standard of 10 yuan per person per day or determined according to the judicial practice of the local court.
The defendant objected to the transportation expenses of seven plaintiffs, including Ma. The traffic ticket provided by the plaintiff cannot explain the legal source and purpose, and the specific time when the traffic occurred. The court should consider it as appropriate according to the actual situation.
6. The respondent has objections to Yang's follow-up treatment expenses 18700 yuan and Xu's follow-up treatment expenses 10000 yuan.
The expenses of continuing medical care claimed by the two plaintiffs have no legal basis and are uncertain data, which should be claimed after the actual occurrence.
Please ask the court not to support it.
7. The respondent objected to Yang's escort bed fee 390 yuan, American line potty material fee 70 yuan and copying fee 50 yuan, and requested the court not to support it.
8. The respondent failed to sign or seal the income certificates of seven plaintiffs, including Ma, and the documentary evidence of nursing staff, the signature or seal of the person in charge of the unit, the business license, the tax registration certificate, the organization code certificate, the labor contract between the plaintiff and the employer, the annual average salary certificate, the tax payment certificate of personal income tax payable and the social insurance certificate.
The people's court should not accept the letter, and the building is calculated according to the basic standards of rural residents or urban residents.
In short, some of the claims of the seven plaintiffs are inconsistent with the facts, have no legal basis and cannot be established. Please ask the people's court to reject it according to law.
3. In addition to paying the medical expenses for the plaintiff, the respondent also paid the plaintiff's compensation, which shall be deducted from the compensation due to the plaintiff (see the list of expenses paid by defendant Li to seven plaintiffs and the list of evidence materials of defendant Li for details).
4. The respondent has insured the motor vehicle traffic accident liability compulsory insurance and commercial insurance with a limit of 500,000 yuan for the vehicle involved in the accident in the defendant "PICC P&C Company".
Therefore, the liability of the respondent in this case should be borne by the defendant "PICC P&C Company" within the scope of insurance liability.