road traffic accident compensation standard
On May 1 2004, the Regulations on the Implementation of the Road Traffic Safety Law was formally implemented, and the Measures for Handling Road Traffic Accidents in the State Council were abolished at the same time. In the past, the compensation items and standards for traffic accident damages were stipulated in the Measures, and the compensation items and standards for other cases involving personal injury compensation were also calculated with reference to the Measures. However, when the new regulations abolished the Measures for Handling Road Traffic Accidents, they did not stipulate the corresponding items and standards of damages, but stipulated in the second paragraph of Article 95 of the Regulations that "the items and standards of damages for traffic accidents shall be implemented in accordance with the provisions of relevant laws". This is of course in line with the legitimacy and scientific spirit of legislation. However, at present, the state has not formulated corresponding laws on the items and standards of traffic accident compensation, and the standards related to personal injury compensation are only the Interpretation of Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases (hereinafter referred to as the Interpretation of Personal Injury Compensation) promulgated by the Supreme People's Court. Therefore, the people's court can only determine the compensation items and standards according to the judicial interpretation when trying cases of traffic accident damage compensation.
I. Criteria for distinguishing rural residents from urban residents
According to the Interpretation of Personal Injury Compensation, the calculation standards of disability compensation, living expenses of dependents and death compensation should be calculated according to the identity of the compensation obligee determined through examination and according to the relevant standards of urban residents and rural residents respectively. At present, a large number of migrant workers go to work or settle in cities and towns, and they are already a special group of urban residents. In some areas, the actual average annual income of rural residents is equal to or even higher than that of urban residents. If we ignore this objective reality, it is unfair to pay compensation according to the standards of rural residents just because the victims are rural residents. Therefore, the principle of household registration should be adopted when confirming the identity of the compensation obligee, except for the habitual residence. Villages whose household registration is in the neighborhood committees and villages where the town is located, which have not been built but have been included in the urban planning area, are regarded as urban residents. Although the right holder of compensation is a rural resident, there is evidence that his work unit or the place where he actually lived for one year at the time of the traffic accident is in the neighborhood Committee or village where the town is located, and the village that has not been built but has been included in the urban planning area is also an urban resident. When calculating the amount of compensation, it should be treated in the same city according to the standards of urban residents. Only in this way can everyone be equal before the law and rural residents be fairly protected. If there are special circumstances, it is difficult to distinguish between urban residents and rural residents, and they will be treated as high or low as urban residents.
Second, the compensation standard of the road traffic accident compensation project
The Interpretation of Personal Injury Compensation implements the principle of comprehensive compensation in terms of compensation items and compensation standards. In the compensation project, the rehabilitation fee and follow-up treatment fee have been increased, and the "disability compensation" has replaced the "living allowance for the disabled". It is embodied in Articles 17 and 18 of the Interpretation of Personal Injury Compensation:
(1) The compensation items for personal injury suffered by the victim include: medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses.
(2) In addition to 1, the compensation items for the victim's disability due to injury also include: disability compensation, disability assistive devices, living expenses of dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.
(3) The compensation items for the victim's death include: except 1, compensation for funeral expenses, living expenses of dependents, death compensation, transportation expenses, accommodation expenses, and other reasonable expenses incurred by the victim's relatives in handling the funeral.
(four) the victim or the close relatives of the deceased suffered mental damage.
Third, the compensation standard of the amount of property compensation for road traffic accidents
(A) the standard of compensation for disability compensation
Article 25 of the Interpretation of Personal Injury Compensation stipulates that the disability compensation shall be calculated according to the degree or level of disability of the victim, according to the per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the appeal court is located, and the calculation period shall be 20 years from the date of disability. However, for those over 60 years old, the age will decrease by 1 year for each additional year; Over 75 years of age, calculated by 5 years.
1. Determination of the nature of disability compensation
The nature of disability compensation, is it property damage compensation or mental damage compensation? This is not a very clear problem in theory and practice. The explanation of personal injury compensation is based on the provisions of the State Compensation Law. Identifying the nature of disability compensation refers to the property damage compensation caused by the loss of income or source of livelihood due to disability, which denies the identification of the nature of disability compensation in the Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort No.7 [200 1].
2. Criteria for determining the degree of disability.
According to Article 2 1 of the Regulations on Work-related Injury Insurance, if an employee is injured at work and is disabled after treatment and the injury is relatively stable, he shall be appraised for his working ability. Labor ability appraisal refers to the level appraisal of the degree of labor dysfunction and the degree of life handling disorder. The degree of labor dysfunction is divided into ten levels of disability, with the heaviest being level 1 and the lightest being level 10. There are three levels of self-care obstacles: life can not take care of itself at all, most of life can not take care of itself, and life can not take care of itself.
3. Criteria for determining disability levels
At present, the appraisal standards of disability grades in China can be said to be "different", and different competent departments have formulated different appraisal standards for different people's disabilities. The assessment of the degree of disability of the injured in road traffic accident cases should generally be applied to the "People's Republic of China (PRC) * * * and National Disability Assessment Standards for Road Traffic Accident Victims" issued by the Ministry of Public Security. Specific calculation formula of disability compensation:
(1) Disability compensation (for people under 60 years old) = disability level (1 calculated by 100, secondary reduction 10%, and so on) x per capita disposable income of urban residents or per capita net income of rural residents in the last year where the sued court is located x 20 years;
(2) Disability compensation (people over 60 years old) = disability grade (1 grade is calculated as 100, grade II is reduced by 10%, and so on) x The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the court of appeal is located (with x(20 years) increasing age;
(3) Disability compensation (people over 75 years old) = disability grade (1 grade is calculated as 100, grade II is reduced by 10%, and so on) x per capita disposable income of urban residents or per capita net income of rural residents in the last year where the court is located.
Of course, if there is a situation stipulated in the Interpretation of Personal Injury Compensation that "the victim has not reduced his actual income due to disability, or his disability level is light, but his occupation has seriously affected his employment", the disability compensation can be adjusted accordingly according to the regulations.
(two) the compensation standard for the living expenses of the dependents
In the past, the compensation standard for the living expenses of the dependents was the living allowance standard or the basic living expenses standard. The former is tens of yuan per month, while the latter is actually the minimum living standard for urban residents, but it is only two or three hundred yuan per month. The Interpretation of Personal Injury Compensation stipulates that the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of rural residents also reflect the consistency of compensation and damage. At the same time, the interpretation of personal injury compensation stipulates that the calculated age of the dependent is 18 years old, and if the age is over 60 years old, it will be reduced by 1 year old every year; Those over 75 years old are counted as 5 years. This is also different from the provisions of "minors are calculated at 16 years old, and each additional year under 50 years old is reduced by one year, and those over 50 years old are calculated at five years".
Specific calculation formula:
1. Dependent's living expenses (minors) = disability level (1 calculated by 100%, secondary reduction by 10%, and other deaths calculated by 100%) x per capita consumption expenditure of urban residents and per capita consumption expenditure of rural residents in the last year where the Court of Appeal is located.
2. Dependent's living expenses (those who have no ability to work and no other source of income) = disability level (1 level is calculated as 100%,1level is reduced 10%, and so on, the death is calculated as100.
3. Dependent's living expenses (over 60 years old) = disability level (1 calculated as 100, secondary reduction 10%, and other analogies calculated as 100%)x per capita consumption expenditure of urban residents and per capita annual consumption expenditure of rural residents in the last year where the appeal court is located.
4. Dependent's living expenses (over 75 years old), secondary disability (1 calculated as 100, secondary reduction 10%, and other analogies calculated as100%), x per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the court of appeal is located.
(3) Compensation standards for death compensation
1. Determination of the nature of death compensation
The interpretation of personal injury compensation gives up the position of "loss of support" in the Interpretation of Mental Injury Compensation No.7 [200 1], but explains the death compensation system in relevant laws and regulations in China with "loss of inheritance". According to this new orientation, the content of death compensation is income loss compensation, and its nature is property damage compensation, not mental damage compensation.
2. The specific calculation of death compensation
Death compensation is calculated according to the standard of per capita disposable income of urban residents or per capita net income of rural residents in the last year where the court of appeal is located, and is calculated according to 20 years. However, for those over 60 years old, every increase in age 1 year decreases 1 year; Over 75 years of age, calculated by 5 years. The specific calculation formula is:
(1) Death compensation (persons under 60 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located ×20 years;
(2) Death compensation (persons over 60 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located (20 years-increasing age);
(3) Death compensation (persons over 75 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located ×5 years.
(4) Compensation standards for assistive devices with disabilities.
Disabled assistive devices are self-help devices purchased and prepared by disabled victims to compensate their injured body organ functions and help them take care of themselves or engage in productive labor.
Article 26 of the Interpretation of Personal Injury Compensation stipulates that the cost of assistive devices for the disabled 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.
"Universal application" is a guiding principle as a standard for determining reasonable expenses. The basic requirements of this principle:
1. is "ordinary", that is, the prepared auxiliary appliances should exclude luxury and luxury, and should not blindly pursue high quality.
2. It is "applicable" and there are two applicable test standards:
(1) can really play the role of functional compensation;
(2) Meet the requirements of "stability" and "safety".
How to determine the organization? Prosthetics and Orthopaedics Rehabilitation Institutions of China's civil affairs departments are professional institutions engaged in the research and production of assistive devices, and can be engaged in the identification and preparation of assistive devices for the disabled. In practice, the court should generally determine the cost of disability AIDS according to the opinions of the prosthetic and orthopedic rehabilitation institutions of the civil affairs department. If the obligee really needs to continue to prepare assistive devices for disability beyond the fixed payment period for assistive devices, the people's court shall order the compensation obligor to continue to pay the related expenses for 5- 10 years.
(five) the standard of medical expenses compensation
Medical expenses refer to the expenses that the victim must pay for medical examination, treatment and rehabilitation training after personal injury.
Article 19 of the Interpretation of Personal Injury Compensation stipulates that medical expenses shall be determined according to receipts and vouchers such as medical expenses and hospitalization expenses issued by medical institutions, combined with relevant evidence such as medical records and diagnosis certificates. 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.
The Interpretation of Personal Injury Compensation adopts the principle of differential compensation for specific losses such as medical expenses, and the principle of compensation is based on the actual expenditure. Follow-up treatment fee adopts the standard of stereotyped compensation. Follow-up treatment fee refers to "the cost of re-treatment if the dysfunction left after injury is fixed after treatment or the injury has not recovered". Stereotyped compensation does not consider the arithmetic difference of personal property loss of specific victims, but sets a fixed standard principle of damage compensation based on social appropriateness and social justice.
(6) Compensation standard for lost time.
The lost time fee is the compensation for the work and labor income lost or reduced because the victim can't engage in normal work or labor during the period from injury to full recovery (that is, lost time fee).
Article 20 of the Interpretation of Personal Injury Compensation stipulates that the lost time fee shall be determined according to the lost time fee and income status 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. The interpretation of compensation for personal injury shall compensate the actual expenses and lost time expenses according to the difference. In the original Measures for Handling Road Traffic Accidents, it was stipulated that the maximum loss of time for a party with a fixed income should not exceed three times the average living expenses of the place where the traffic accident occurred. If there is no fixed income, it shall be calculated according to the average income of the same state-owned industry. There is no maximum time lost in interpretation. For "the victim has a fixed income, and the lost time fee is calculated according to the actual reduced income", there are two points that need to be clarified:
1. Fixed income must have legal proof;
2. Fixed income must be actually reduced by the victim. If the victim suffers damage and his employer fails to deduct or deduct all his income, his lost time fee will not be compensated or underpaid.
(seven) nursing fee compensation standard
Nursing expenses refer to the expenses paid by the victim because of personal injury, unable to take care of himself and needing help from others.
Article 2 1 of the Interpretation of Personal Injury Compensation stipulates that 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. After the victim is disabled, the nursing level should be determined according to the degree of nursing dependence and the preparation of disability AIDS.
If the actual nursing period of the victim exceeds the nursing period determined by the court, and the victim brings a lawsuit to the court to request to continue to pay the nursing fee, if it is really necessary to continue nursing, the court shall order the compensation obligor to continue to pay the nursing fee for 5- 10 years. If the actual nursing period of the victim is shorter than the nursing period determined by the court, and the compensation obligor pays all the nursing expenses at one time, should the extra nursing expenses be returned? We believe that the nursing period determined by the judgment was made by the judge within the scope of discretion based on the provisions of the law, and the victim obtained the nursing fee at one time based on the court judgment. As for the overcharged nursing fee, the victim's heirs have no obligation to return it, and the compensation obligor may not ask for it.
(eight) the standard of transportation cost compensation
Transportation fee refers to the actual expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to other hospitals for treatment.
Article 22 of the Interpretation of Personal Injury Compensation stipulates that the 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 hospital for treatment. Transportation expenses are generally paid according to the standard of travel expenses of ordinary staff of state organs where the infringement occurred. The main means of transportation is ordinary bus. You can take an ambulance or taxi under special circumstances, but the victim should explain the rationality of the use. Transportation expenses should be based on official bills; Relevant credentials shall be consistent with the place, time, times and frequency of medical treatment. If not, the corresponding amount should be deducted from the compensation.
(nine) the compensation standard of hospitalization food subsidies
In-hospital food subsidy refers to the expenses that need to be subsidized during the hospitalization of the victim or the hospitalization before the death of the victim.
Article 23 of the Interpretation of Personal Injury Compensation stipulates that the food subsidy for hospitalization can be determined with reference to the food subsidy standard 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. The food subsidy for hospitalization is for the victims who are hospitalized. If the victim is not hospitalized, there is no such compensation fee.
(10) Nutrition cost compensation standard
Nutritional expenses refer to the expenses paid by the damaged body after metabolic changes, but it is impossible to meet the needs of the damaged body for heat energy and various nutrients through daily diet, and it is necessary to obtain nutrition from other foods. Article 24 of the Interpretation of Personal Injury Compensation stipulates that the nutrition fee is determined according to the degree of disability of the victim and with reference to the opinions of medical institutions.
(eleven) the standard of compensation for funeral expenses
Funeral expenses are calculated according to the average monthly salary of employees in the last year where the Court of Appeal is located. If the victim dies of personal injury, no matter how different the victim's occupation, identity, work, gender, age and other circumstances are, no matter whether he lived in a town or a country before his death, there is no difference in the standard of paying funeral expenses, and the same standard should be applied to determine.
Two questions
Effective.
3 q
Yes, please refer to the provisions in question 1.
Four questions
If the limb injury is irreversible, you can request it. Generally from 5000 to 50000 (ten to one). If the grade is not enough, the compensation shall be less than 5000 yuan.
If the victim or a close relative of the deceased suffers mental damage and the obligee requests compensation for mental damage from the people's court, it shall be determined in accordance with the Interpretation of the Supreme People's Court on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Tort.
Mental damage includes the following ways:
(a) causing disability, disability compensation;
(2) Compensation for death if death is caused;
(3) Spiritual consolation money for other damages.
The amount of compensation for mental damage is determined according to the following factors:
(a) the degree of fault of the infringer, except as otherwise provided by law;
(2) The means, occasions and behaviors of infringement;
(3) Consequences caused by the infringement;
(4) profits of the infringer;
(five) the economic ability of the infringer to bear the responsibility;
(6) The average living standard of the court.
Where there are clear provisions in laws and administrative regulations on disability compensation and death compensation, the provisions of laws and administrative regulations shall apply.
Calculation formula: mental damage compensation = the court decides according to the actual situation.