How to claim compensation for intentional injury?

The Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases

2008- 12- 18 22:38

(Adopted by the Judicial Committee of the Supreme People's Court at its1299th meeting on 4 February 2003)

(Fa Shi [2003] No.20)

In order to correctly hear cases of personal injury compensation and protect the legitimate rights and interests of the parties in accordance with the law, according to the General Principles of the Civil Law of People's Republic of China (PRC) (hereinafter referred to as the General Principles of the Civil Law), the Civil Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Civil Procedure Law) and other relevant laws, combined with the trial practice, the relevant applicable laws are now explained as follows:

Article 1 The people's court shall accept the case that the obligee for compensation has been infringed upon his life, health and body and sued the obligor for compensation, causing property losses and mental damage.

The obligee for compensation mentioned in this article refers to the victim who directly suffered personal injury due to tort or other damage reasons, the dependant who has the obligation to support the victim according to law, and the close relatives of the deceased victim.

The obligor for compensation mentioned in this article refers to a natural person, legal person or other organization that should bear civil liability according to law because of its own or others' tort and other causes of damage.

Article 2 Where the victim intentionally or negligently causes the occurrence or expansion of the same damage, the liability of the obligor for compensation may be reduced or exempted in accordance with the provisions of Article 131 of the General Principles of the Civil Law. However, if the infringer causes damage to others intentionally or due to gross negligence, and the victim has only general negligence, the liability of the compensation obligor shall not be reduced.

When the third paragraph of Article 106 of the General Principles of Civil Law is applied to determine the liability of the compensation obligor, if the victim has gross negligence, the liability of the compensation obligor may be reduced.

Article 3 Where two or more persons intentionally or negligently cause damage to others, or their infringement acts are directly combined to produce the same damage result, it constitutes * * * infringement, and they shall be jointly and severally liable in accordance with the provisions of Article 130 of the General Principles of the Civil Law.

If two or more persons have no intention or negligence, but several acts they have committed are indirectly combined to cause the same damage, they shall bear corresponding liability for compensation according to the size of negligence or the proportion of causal power.

Article 4 Where two or more persons commit acts endangering the personal safety of others, causing damage and the actual infringer cannot be identified, they shall be jointly and severally liable in accordance with the provisions of Article 130 of the General Principles of the Civil Law. * * * The same dangerous actor can prove that the damage result was not caused by his behavior, and he will not be liable for compensation.

Article 5 If the obligee for compensation sues a * * with the infringer as the defendant, the people's court shall add other * * with the infringer as the defendant. If the obligee for compensation waives the claim against some joint infringers, the other joint infringers shall not be jointly and severally liable for the defendant's waiver of the claim for compensation. If the scope of liability is difficult to determine, it is presumed that each * * * bears the same responsibility as the infringer.

The people's court shall inform the obligee of compensation of the legal consequences of giving up the creditor's rights, and specify the situation of giving up the creditor's rights in legal documents.

Article 6 If a natural person, legal person or other organization engaged in business activities such as accommodation, catering, entertainment or other social activities fails to fulfill its security obligations within a reasonable range and causes personal injury to others, the people's court shall support it.

If damage is caused by infringement by a third party, the infringing third party shall be liable for compensation. If the security obligor is at fault, he shall bear the corresponding supplementary liability for compensation within the scope that he can prevent or stop the damage. After assuming the responsibility, the security obligor may claim compensation from a third party. Where the right holder of compensation brings a lawsuit against the security obligor, the third party shall be regarded as a co-defendant, except where the third party is uncertain.

Article 7 If schools, kindergartens and other educational institutions that are legally obligated to educate, manage and protect minors fail to perform relevant obligations within the scope of their duties, causing personal injury to minors or personal injury to others by minors, they shall be liable for compensation corresponding to their faults.

If a third party causes personal injury to minors, it shall be liable for compensation. If schools, kindergartens and other educational institutions are at fault, they shall bear corresponding supplementary liability for compensation.

Article 8 If the legal representative, responsible person or staff member of a legal person or other organization causes damage to others while performing their duties, the legal person or other organization shall bear civil liability in accordance with the provisions of Article 121 of the General Principles of the Civil Law. If the above-mentioned personnel commit acts unrelated to their duties and cause damage to others, the perpetrator shall be liable for compensation.

If it belongs to the compensation reasons stipulated in the State Compensation Law, it shall be handled in accordance with the provisions of the State Compensation Law.

Article 9 Where a laborer causes damage to others in employment activities, the employing unit shall be liable for compensation; Workers who cause damage to others due to intentional or gross negligence shall be jointly and severally liable for compensation with the employer. If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer.

Engaged in employment activities mentioned in the preceding paragraph refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer. The employee's behavior is beyond the scope of authorization, but its manifestation is or is intrinsically related to the performance of duties, which should be considered as "engaging in employment activities".

Article 10 Where the hiree causes damage to a third party or the hiree during the completion of the work, the hirer shall not be liable for compensation. However, if the ordering party is at fault in ordering, instructing or selecting, it shall bear the corresponding liability for compensation.

Article 11 Where a laborer suffers personal injury in employment activities, the employing unit shall be liable for compensation. If a third person other than the employment relationship causes personal injury to the laborer, the right holder of compensation may request the third person to bear the liability for compensation or the employer to bear the liability for compensation. After the employer assumes the liability for compensation, it may claim compensation from a third party.

If employees suffer personal injury due to production safety accidents in their business activities, and the employing unit or subcontracting unit knows or should know that the employing unit that accepts the contract or subcontracting business does not have the corresponding qualifications or conditions for production safety, it shall be jointly and severally liable for compensation with the employing unit.

The provisions of this article do not apply to the labor relations and the scope of industrial injury insurance adjusted by the Regulations on Industrial Injury Insurance.

Article 12 If a worker of an employer who should participate in the overall planning of industrial injury insurance according to law suffers personal injury due to an industrial accident, and the worker or his near relatives bring a lawsuit to the people's court, requesting the employer to bear the civil liability for compensation, they shall be informed to handle it in accordance with the provisions of the Regulations on Industrial Injury Insurance.

The people's court should support the claim that the personal injury of workers was caused by a third party other than the employer.

Article 13 If a helper who provides services for others free of charge causes damage to others in his helper activities, the helper shall be liable for compensation. If the helped laborer explicitly refuses to help, he shall not be liable for compensation. If there is intentional or gross negligence in helping laborers, the people's court shall support the obligee's request to help laborers and the helped laborers to bear joint liability.

Article 14 A helper shall be liable for compensation for personal injury caused by his activities. If the worker who is helped explicitly refuses to help, he shall not be liable for compensation; But it can be properly compensated within the scope of benefit.

If the personal injury of the laborer is caused by the infringement of the third party, the third party shall be liable for compensation. If the third party is uncertain or unable to pay compensation, the helped workers can make appropriate compensation.

Article 15 In order to safeguard the legitimate rights and interests of the state, the collective or others, causing personal injury to oneself, there is no infringer, the infringer cannot be determined or the infringer is incapable of compensation, and the compensation obligee requests the beneficiary to make appropriate compensation within the scope of benefit, the people's court shall support it.

Article 16 In the following cases, the provisions of Article 126 of the General Principles of Civil Law shall apply, and the owner or manager shall be liable for compensation, unless he can prove that he is not at fault:

(a) Artificial structures such as roads, bridges and tunnels. Damaged due to defects in maintenance and management;

(2) The stacked items roll, slide or collapse, causing personal injury;

(3) Trees lodging, breaking or fruit falling, causing personal injury.

The owner, manager, designer and constructor shall be jointly and severally liable for the damage caused by design and construction defects in the case of Item (1) of the preceding paragraph.

Article 17 If the victim suffers personal injury, the compensation obligor shall compensate all expenses such as medical expenses and reduced income caused by absenteeism, including medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses.

If the victim is disabled due to injury, the compensation obligor shall also compensate the necessary expenses incurred due to the increase of daily needs and the income loss caused by the loss of working ability, including disability compensation, disability AIDS, living expenses of the dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.

If the victim dies, the compensation obligor shall, in addition to compensating the relevant expenses stipulated in the first paragraph of this article according to the rescue and treatment, also compensate the funeral expenses, living expenses of the dependents, death compensation and other reasonable expenses such as transportation, accommodation, lost time and so on for the funeral expenses of the relatives of the victim.

Eighteenth victims or close relatives of the deceased have suffered mental damage, and the obligee requests the people's court for compensation, which 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.

The right to claim compensation for mental damage shall not be transferred or inherited. However, the obligor for compensation has promised to pay monetary compensation in writing, or the obligee for compensation has brought a lawsuit to the people's court.

Nineteenth medical expenses are determined according to the receipts of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records and diagnosis certificates and other relevant evidence. 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.

Article 20 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 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.

Twenty-first nursing expenses are 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.

Twenty-second 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 other hospitals for treatment. Transportation expenses should be based on official bills; Relevant credentials shall be consistent with the place, time, times and frequency of medical treatment.

Twenty-third hospital food subsidies can be determined with reference to the standard of food subsidies 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.

Twenty-fourth nutrition fee is determined according to the disability of the victim with reference to the opinions of medical institutions.

Article 25 Disability compensation shall be calculated from the date of disability 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 appeal court is located, and the calculation period shall be 20 years. However, for those over 60 years of age, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.

If the victim is disabled due to a work-related injury, but his actual income has not decreased, or his disability level is light, but his employment is seriously affected by occupational hazards, his disability compensation can be adjusted accordingly.

Twenty-sixth disability assistive devices 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.

Twenty-seventh funeral expenses shall be calculated according to the average monthly salary of employees in the last year where the court of appeal is located, and the total amount shall be six months.

Article 28 The living expenses of the dependents shall be calculated according to the degree of disability of the dependents and the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of rural residents in the last year where the appealed court is located. If the dependant is a minor, it shall be calculated at the age of eighteen; If the dependent has no ability to work and no other source of income, it shall be counted as 20 years. However, for those over 60 years of age, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.

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. If there are several dependents, the total annual compensation shall not exceed the per capita consumption expenditure of urban residents or the per capita annual living consumption expenditure of rural residents in the previous year.

Twenty-ninth death compensation is calculated according to 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. However, for those over 60 years of age, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.

Article 30 If the compensation obligee proves that the per capita disposable income of urban residents or the per capita net income of rural residents in his domicile or habitual residence is higher than the standard of the place where the sued court is located, he may calculate disability compensation or death compensation according to the relevant standard of his domicile or habitual residence.

The relevant calculation standards for the living expenses of the dependents shall be determined in accordance with the principles stipulated in the preceding paragraph.

Article 31 The people's court shall, in accordance with Article 131 of the General Principles of the Civil Law and Article 2 of this Interpretation, determine the actual amount of compensation for property losses in Articles 19 to 29.

In principle, the compensation for material damage determined in the preceding paragraph and the compensation for mental damage determined in accordance with the provisions of the first paragraph of Article 18 shall be paid in one lump sum.

Thirty-second beyond the fixed period of nursing, assistive devices or disability compensation, the right holder claims to continue to pay nursing, assistive devices or disability compensation, and the people's court shall accept it. If the obligee really needs to continue nursing and prepare assistive devices, or has no ability to work and no source of income, the people's court shall order the obligor to continue to pay the relevant expenses for five to ten years.

Article 33 Where the compensation obligor requests to pay the disability compensation, the living expenses of the dependents and the expenses of assistive devices by regular payment, it shall provide corresponding guarantee. The people's court may, according to the ability to pay and the guarantee provided by the compensation obligor, determine to pay the relevant expenses in the form of regular payment. However, the expenses, death compensation and mental damages incurred before the end of the debate in the court of first instance shall be paid in one lump sum.

Article 34 The people's court shall specify the time, method and standard of periodic payment in legal documents. If the relevant statistical data changes during the implementation period, the payment amount should be adjusted accordingly in time.

Regular payments are made according to the actual life of the compensation obligee, and are not limited by the compensation period in this interpretation.

Article 35 The per capita disposable income of urban residents, the per capita net income of rural residents, the per capita consumption expenditure of urban residents, the per capita annual consumption expenditure of rural residents, and the average wages of employees as mentioned in this Interpretation shall be determined on the basis of the relevant statistical data of provinces, autonomous regions, municipalities directly under the Central Government, special economic zones and cities with separate plans published by the government statistics department in the previous year.

"Last year" refers to the last statistical year at the end of the debate in the Court of First Instance.

Article 36 This Interpretation shall come into force as of May 6, 2004. The provisions of this interpretation are applicable to the first-instance personal injury compensation cases newly accepted after May 1 2004. The provisions of this interpretation shall not apply to cases of personal injury compensation that have been retried according to law and have made effective judgments.

If the contents of the judicial interpretation that came into effect before the promulgation and implementation of this interpretation are inconsistent with this interpretation, this interpretation shall prevail.