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 criteria for determining the 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 determination of the amount of property compensation for traffic accidents.
Criteria for determining 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 disability grades, the heaviest grade is 1 grade, and the lightest grade is1grade. 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 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) to determine the standard of living expenses for 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 as 10%, and other analogies 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) Determine the standard of death compensation
1. Determination of the nature of death compensation
The interpretation of personal injury compensation abandons the position of "loss of support" in the interpretation of mental injury compensation in the French Interpretation [200 1] No.7, 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.
(four) the criteria for determining the cost of assistive devices for the disabled
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.