Foreword:
This is a typical traffic accident case. How should this be defended in such cases? If the cause of death is a traffic accident caused by a self-caused disease, then the sentence will be lighter, and strictly speaking, it will not even involve criminal issues. Secondly, look at the division of responsibility, the division of responsibility generally lies in the traffic police force, and the court can only recognize the determination of the traffic police force without special circumstances; Again, look at the compensation, which involves the insurance of those who have insurance; How much can you pay without insurance, and how can you pay it.
The issue of compensation relates primarily to the length of the sentence. In a traffic accident case, if compensation is paid, then the defendant wants to be released from the detention center immediately, so the lawyer should try to come out as soon as possible after the defendant has paid the compensation. That is, you can either be released on bail after compensation, or how long you can stay in the court judgment and how long you can be sentenced.
Defenceand ** words
RespectPresiding Judge and People's Assessor:
Accepting the entrustment of Fang Dongming and his son, the lawyer served as his defender and the attached civil litigation ** person appeared in court to participate in the litigation, and hereby issued the following defense statements and ** opinions on the facts and legal issues of this case, please consider:
oneDefenderRightPublic ProsecutorThere is no objection to the charge of the crime of causing a traffic accident, and the relevant sentencing is hereby givensectionPublishedAs followsOpinions:
oneFang DongminghappensActive rescue after the accidentandAdvance ReliefFees, its behaviorRemarkableYesKindnessLaw-abidingCitizensofCode of Conduct
According to the investigation of the trial, after the incident, Fang Dongming immediately helped the victim up and inquired about the injury. After that, I called 120 for ambulance** and the traffic police for police**. Subsequently, with 120, the patient was sent to the hospital and paid 46,000 yuan as much as he could.
(b).Fang DongmingThe vehicle being drivenPurchaseYes1 millionof third party insurance and100 thousandcompulsory insurance
According to the evidence in the dossier, the vehicle that caused the accident, Zhejiang J2YY03, has a third-party liability insurance with an insurance amount of 1 million yuan and a compulsory insurance with a total amount of 122,000 yuan in Pacific Insurance Co., Ltd.
According to the third-party insurance clause signed between Fang Yujing and the insurance company, Article 22 stipulates: "During the insurance period, if the insured or its permitted driver has an accident in the course of using the insured motor vehicle, resulting in direct damage to the third party's personal or property, the third party shall be liable for damages in accordance with the law, and it does not fall within the scope of exempting the insurer's liability, and the insurer shall be in accordance with the provisions of this insurance contract. It is responsible for compensation for the part that exceeds the compensation limit of each sub-item of the compulsory motor vehicle traffic accident liability insurance. ”
According to this article, although the insured and the policyholder are Fang Yujing, his father Fang Dongming drove his vehicle with his permission, so after a traffic accident, the insurance company should also bear the insurance liability for the personal and property losses suffered by the third party.
Article 33 stipulates that "the insurer may directly compensate the third party for the damage caused by the insured to a third party." If the insured causes damage to a third party, and the insured's liability for compensation to the third party is determined, the insurer shall, at the request of the insured, directly compensate the third party. If the insured fails to make a claim, the third party has the right to directly claim compensation from the insurer for the part of the compensation to be paid. ”
It can be seen that at the request of the insureds Fang Yujing and Fang Dongming, and in the case of the third party Pan Guolian and He Guohua requesting compensation from them, the defendant China Pacific Property Insurance Co., Ltd. *** Taizhou Central Branch should pay insurance money to the third party Pan Guolian and He Guohua within the scope of the insurance amount insured by Fang Yujing and according to the responsibilities that the defendant Fang Dongming should bear.
According to Article 49 of the Tort Liability Law of the People's Republic of China, "when the owner and user of a motor vehicle are not the same person due to leasing, borrowing, etc., and the liability of the motor vehicle party after a traffic accident occurs, the insurance company shall compensate within the limit of compulsory insurance liability of the motor vehicle." For the insufficient part, the user of the motor vehicle shall be liable for compensation; If the owner of the motor vehicle is at fault for the occurrence of the damage, he shall bear the corresponding liability for compensation. ”
According to the provisions of this article, it can be seen that within the scope of compulsory insurance, China Pacific Property Insurance Co., Ltd. *** Taizhou Central Branch should first compensate the victims, namely Pan Guolian and He Guohua, within the scope of compulsory insurance.
To sum up, it can be seen that the amount of compensation received by the victim He Liang for his death, according to the laws of China, the above insurance amount can be fully compensated; That is, Fang Dongming was able to compensate the plaintiff in full for the compensation that he should have received in accordance with the law.
(3) DefendantsFang DongmingCompositionTurn yourself in
According to the court investigation, after the accident, Fang Dongming protected the scene, rescued the injured, and reported to the public security organs.
According to Article 1 of the "Opinions of the Supreme People's Court on Several Specific Issues Concerning Voluntary Surrender and Meritorious Service", "a person who protects the scene of a traffic accident, rescues the injured, and reports to the public security organs shall be deemed to have voluntarily surrendered, and where voluntary surrender is constituted, because the above-mentioned acts are also the legal obligations of criminal suspects, whether and the scope of leniency should be appropriately and strictly controlled." ”
It can be seen from this that although the scope of leniency should be strictly controlled, Fang Dongming still constituted voluntary surrender.
(iv).Fang DongmingSentencing
Article 10 of the Shanxi Provincial High People's Court's Implementation Opinions on the "Guiding Opinions on Sentencing for Common Crimes" provides: "With regard to the circumstances of voluntary surrender, comprehensively consider circumstances such as the motive, time, and method of voluntary surrender, the severity of the crime, the degree of truthful confession of the crime, the timeliness and stability of the crime, and the expression of remorse, and reduce the base sentence by up to 40%; where the crime is relatively minor, the base sentence is reduced by 40% or more or punishment is waived. ”
Based on Fang Dongming's circumstances, it can be seen that Fang Dongming has the conditions to reduce the sentencing range of the base sentence by 40%.
Article 15 provides: "Where the victim is actively compensated for economic losses and forgiveness is obtained, the base sentence is to be reduced by up to 40% based on comprehensive consideration of circumstances such as the nature of the crime, the amount of compensation, the ability to compensate, the degree of admission of guilt and remorse, and the reasons for the victim's forgiveness; where compensation is actively made but no understanding is obtained, the base sentence is to be reduced by up to 30%".
According to this article, the insurance purchased by Fang Yujing and Fang Dongming was sufficient to pay the amount of compensation for the victims, and Fang Dongming voluntarily surrendered, although no understanding was obtained, but according to this article, the base sentence should also be reduced by less than 30%.
According to the sentencing provisions of the Detailed Implementation Rules on the crime of causing traffic accidents: it can be seen that if a traffic accident causes the death of one person and bears full responsibility for the accident, the starting sentence shall be determined in one year, six months to two years.
Based on the above sentencing standards for voluntary surrender and compensation circumstances, it can be seen that the declared sentence can be determined below 70% of the base sentence. If one year and nine months is the base sentence, then a reduction of 70 per cent is 63 months.
To sum up, Fang Dongming should be in 6The sentence is to be determined on the basis of 3 months.
(b).Fang YujingAccording to the lawThe traffic accident is not liable for compensation
Article 49 of the Tort Liability Law stipulates that: "If the owner and user of a motor vehicle are not the same person due to leasing or borrowing, the insurance company shall compensate within the limits of the compulsory insurance liability of the motor vehicle if a traffic accident occurs and the motor vehicle is liable." For the insufficient part, the user of the motor vehicle shall be liable for compensation; If the owner of the motor vehicle is at fault for the occurrence of the damage, he shall bear the corresponding liability for compensation. ”
The last sentence of this article stipulates that if the owner and user of the motor vehicle are inconsistent, the owner of the motor vehicle shall be liable for compensation if he is at fault for the occurrence of the damage.
In this case, Fang Dongming was the father of Fang Yujing, the owner of the vehicle that caused the accident, although he used the vehicle with Fang Yujing's consent; However, Fang Dongming has a valid driver's license and has not committed any other illegal acts. Therefore, although there was a traffic accident, it was only caused by Fang Dongming's behavior, and Fang Yujing was not at fault for the occurrence of the traffic accident.
Therefore, according to this article of the Tort Liability Law, Fang Yujing did not bear any liability because he was not at fault for the occurrence of the traffic accident, so the plaintiff's lawsuit against Fang Yujing should be dismissed.
Three, on civil compensation
(1) NutritionfeesNo, it shouldn'tYes
Article 24 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 nutrition fee shall be determined according to the disability of the victim with reference to the opinions of the medical institution. ”
In this case, the plaintiff did not adduce evidence to prove that it had special medical orders and opinions on the nutrition medical institution; Moreover, when the deceased is in the hospital, it is mainly for the rescue of the indications for restoring life, not for the recovery of physical functions**, so there will be no nutrition expenses.
(2) Nursing expensesIt should not be supported
Article 21 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: "Nursing fees shall be determined on the basis of the income status of the nursing staff, the number of nursing personnel, and the duration of nursing care. Where nursing staff have income, it is calculated with reference to the provisions on lost work pay; Where nursing staff have no income or employ nursing staff, it shall be calculated with reference to the labor remuneration standards for local nursing workers engaged in the same level of nursing. In principle, there is one nursing staff, but where the medical establishment or evaluation body has a clear opinion, the ...... for determining the number of nursing personnel may be referred to”
Article 20 states: "Compensation for lost time shall be determined on the basis of the victim's lost time and earnings.
The lost time is determined on the basis of a certificate issued by the medical institution to which the victim received. Where the victim continues to miss work due to disability due to injury, the time of missing work may be calculated to the day before the date of disability.
If the victim has a regular income, the compensation for lost work shall be calculated on the basis of the actual reduced income. If the victim has no regular income, it is calculated on the basis of his average income in the last three years; Where the victim cannot provide evidence to prove his or her average income in the last three years, it may be calculated by referring to the average wages of employees in the same or similar industry in the previous year at the location of the court where the lawsuit is filed. ”
According to the above provisions, the first nursing fee shall be for one person, unless there is a clear opinion from the hospital. However, the other party did not adduce evidence to prove that the hospital had such an opinion. In addition, the deceased is resuscitated after being injured and generally has specialized care in the ICU ward, and does not require additional care from family members. And this part of the cost is included in the medical bills.
In addition, according to the law, if the nursing staff has income, it shall be calculated according to the method of lost time pay, and the lost time pay requires the person with income to provide the calculation of the actual reduction in income due to lost work. Therefore, the plaintiff should provide proof of the loss of income due to lost work issued by the employer's employer. However, the plaintiff failed to provide it, so its claim for care fees should not be supported.
(3) SpiritSolatium for damages should not be compensated
Article 18 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: "Where the victim or the close relatives of the deceased suffer mental damages, and the person entitled to compensation requests the people's court for compensation for moral damages, the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Moral Damages in Civil Torts shall be applied to make the determination." ”
Article 9 of the Interpretation stipulates that "solatium for moral damage shall include the following methods:
1) Where a person is disabled, it is disability compensation;
2) where death is caused, death compensation;
3) Spiritual solatium in other cases of harm. ”
According to the above provisions, it can be seen that the death compensation is the solatium for moral damage. However, the plaintiff has already claimed death compensation at the same time, so there should be no more solatium for moral damages.
(4) Funeral expensesThe claim is inconsistentAct
Article 27 of the Interpretation stipulates that "funeral expenses shall be calculated on the basis of the average monthly wage of employees in the previous year at the location of the court where the lawsuit is filed, and shall be calculated on the basis of the total amount for six months".
Its claim that the funeral expenses of 72,750 yuan is calculated to include all the expenses for handling funeral matters, which is obviously inconsistent with the provisions and should not be supported.
(5) ProcessingLost time during funeral matters
First of all, according to the plaintiff's calculation method, it was obviously wrong to calculate the entire 13 days of rescue time as the time spent dealing with the funeral matters.
Secondly, in order to calculate the lost time pay, as mentioned above, it is necessary to provide proof of income due to the loss of work issued by the employer, but the plaintiff has failed to provide this proof, so the expense should not be supported.
(6) PropertyLosses
Except for the loss of electric vehicles, which needs to be determined at the discretion of the court, the rest of the claims have no legal basis at all, completely contradict the relevant provisions 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, and should not be supported.
Defenders and litigants:
July 2020.
Postscript:
The parties in this case had insurance on their vehicles, but the insurance could not be paid in the first place. In addition, the family made additional claims for compensation, and no mediation agreement could be reached. If a mediation agreement can be reached, I will seek early bail pending trial.
In the absence of a mediation agreement, we can only seek that the victim's losses are fully covered by insurance, and the judgment fully implements the obligation of compensation to the insurance company, and we are free as soon as possible in this case.
In the civil action attached to the criminal case, the victim also sued the registrant of the vehicle and the defendant's child. In a traffic accident, the actual owner of the vehicle is not liable for civil compensation, and the driver is generally liable for compensation. Therefore, there is also an aim to dismiss the prosecution against the defendant's children in the judgment.
In the end, all these goals were achieved, and all the compensation fell on the insurance company, and the judgment also required the victim to return the funds advanced by the defendant, and the defendant came out within one month after the judgment took effect. At the same time, there is also a calculation of the amount of compensation in this article, which can be regarded as a summary of the calculation of the amount of compensation. After reading the content of this part of the calculation of the amount of compensation, the reader should have a clear understanding of the various compensation in traffic accidents.
Such a verdict was also made possible by the fact that the trial judge was a senior judge. Integrity and business. At the same time, because it was during the epidemic, the trial was postponed several times, and if it were not for this, the defendant would have come out earlier.