pay compensation according to the relevant provisions of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases.

the Supreme People's Court's explanation on several issues concerning the application of law in the trial of personal injury compensation cases

(adopted at the 1299th meeting of the the Supreme People's Court Judicial Committee on February 4, 2113)

Interpretation of Law [2113] No.21

Proclamation of the People's Republic of China * * * and the Supreme People's Court

Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases was issued in 2113. Is hereby promulgated and shall come into force as of May 1, 2114.

December 26th, 2113

In order to correctly hear personal injury compensation cases and protect the legitimate rights and interests of the parties according to law, according to the General Principles of the People's Republic of China and the Civil Law of the People's Republic of China? Hereinafter referred to as the General Principles of the Civil Law and the Civil Procedure Law of the People's Republic of China? Hereinafter referred to as the Civil Procedure Law and other relevant laws and regulations, combined with the trial practice, the following explanations are made on the issues concerning the application of the law:

Article 1 If the right holder of compensation has infringed upon his life, health and body, the people's court shall accept the claim that the compensation obligor is required to compensate for the property loss and mental damage.

the term "compensation obligee" as mentioned in this article refers to the victim who has suffered personal injury directly due to tort or other causes, the dependents whose support obligations are assumed by the victim according to law, and the close relatives of the deceased victim.

the "compensation obligor" as 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 harm.

article 2 if the victim intentionally or neglects the occurrence or expansion of the same damage, the liability of the compensation obligor may be reduced or exempted according to the provisions of article 131 of the general principles of the civil law. However, if the infringer causes damage to others intentionally or through 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 116 of the general principles of the civil law is applied to determine the liability of the obligor for compensation, if the victim has gross negligence, the liability of the obligor for compensation may be reduced.

Article 3 Where two or more persons * * * intentionally or * * with negligence cause damage to others, or their infringing acts are directly combined to produce the same damage result, which constitutes * * * with infringement, and they shall be jointly and severally liable in accordance with the provisions of Article 131 of the General Principles of Civil Law.

if two or more persons do not have the same intention or the same negligence, but the same damage result is caused by the indirect combination of several acts they respectively perform, they shall bear the corresponding liability for compensation according to the size of negligence or the proportion of causes.

Article 4 Where two or more persons commit acts that endanger the personal safety of others and cause damage, and the actual infringer cannot be identified, they shall be jointly and severally liable in accordance with the provisions of Article 131 of the General Principles of the Civil Law. * * * The same dangerous actor can prove that the damage result is not caused by his behavior, and will not be liable for compensation.

article 5 if the compensation obligee sues some * * * with the infringer, the people's court shall add other * * with the infringer as * * with the defendant. If the obligee for compensation waives the claim against some of the joint infringers in the lawsuit, the other joint infringers shall not be jointly and severally liable for the share of compensation that the defendant who has waived the claim. 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 claim, and state the situation of giving up the claim 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 the obligee requests him to bear the corresponding liability for compensation.

if damage results from infringement by a third party, the third party who commits the infringement 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 obligee for compensation brings a lawsuit against the security obligor, it shall treat the third party as a co-defendant, unless the third party is uncertain.

article 7 if a school, kindergarten or other educational institution that has the obligation to educate, manage and protect minors according to law fails to fulfill the relevant obligations within the scope of duties, causing personal injury to minors, or causing personal injury to others by minors, it shall be liable for compensation corresponding to its fault.

if a third party infringes and 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 and staff of a legal person or other organization cause 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 actor shall be liable for compensation.

if it belongs to the compensation cause of the state compensation law, it shall be handled in accordance with the provisions of the state compensation law.

article 9 if an employee causes damage to others in employment activities, the employer shall be liable for compensation; If an employee causes damage to others due to intentional or gross negligence, he shall be jointly and severally liable for compensation with the employer. If the employer is jointly and severally liable for compensation, he may claim compensation from the employee.

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

article 11 the hirer shall not be liable for compensation if the hiree causes damage to a third party or its own during the completion of the work. However, if the ordering party is at fault in ordering, instructing or selecting, it shall bear the corresponding liability for compensation.

article 11 if an employee suffers personal injury while engaging in employment activities, the employer shall be liable for compensation. If a third person other than the employment relationship causes personal injury to the employee, the obligee for 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, he may claim compensation from a third party.

if an employee suffers personal injury due to a production safety accident during employment activities, and the employer or subcontractor knows or should know that the employer who accepts the contracting or subcontracting business does not have corresponding qualifications or conditions for production safety, they shall be jointly and severally liable for compensation with the employer.

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

article 12 if an employee 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 employee or his close relatives file a lawsuit with the people's court requesting the employer to bear civil liability for compensation, he shall be informed to handle it according to the provisions of the Regulations on Industrial Injury Insurance.

the people's court shall support the claim of the obligee for compensation for personal injury caused by infringement 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 workers explicitly refuse to help them, they shall not be liable for compensation. If there is intentional or gross negligence in helping the workers, the people's court shall support the obligee's request to help the workers and the helped workers to bear joint liability.

Article 14 If a helper suffers personal injury due to helper activities, the helper shall be liable for compensation. If the helped workers explicitly refuse to help them, they shall not be liable for compensation; However, it can be properly compensated within the scope of benefit.

if a worker suffers personal injury due to infringement by a 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 if the obligee of compensation requests the beneficiary to make appropriate compensation within the scope of benefit because there is no infringer, the infringer cannot be determined or the infringer is incapable of compensation, and the people's court shall support him in order to safeguard the legitimate rights and interests of the state, the collective or others.

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, except those who can prove that they are not at fault:

(1) artificially constructed structures such as roads, bridges and tunnels cause damage to people due to maintenance and management defects;

(2) The stacked articles roll down, slide down or collapse, causing damage to people;

(3) trees are toppled, broken or fruits fall, causing damage to people.

in the case of item (1) of the preceding paragraph, if damage is caused by defects in design and construction, the owner, manager, designer and constructor shall bear joint liability.

article 17 if the victim suffers personal injury, the compensation obligor shall compensate for all expenses incurred for medical treatment and income reduced due to missed work, 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 for 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 assistive devices, living expenses of the dependents, and the 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 the relevant expenses stipulated in the first paragraph of this article according to the rescue and treatment, also compensate the funeral expenses, the living expenses of the dependents, the compensation for death, and other reasonable expenses such as transportation expenses, accommodation expenses and lost time for work incurred by the relatives of the victim in handling funeral matters.

article 18 if the victim or a close relative of the deceased suffers from mental damage and the obligee requests the people's court for compensation for mental damage, it shall be determined by 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 assigned or inherited. However, the obligor for compensation has promised to pay monetary compensation in writing, or the obligee for compensation has brought a lawsuit in a people's court.

article 19 the medical expenses shall be determined according to the receipt vouchers such as 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 compensation holder may sue separately after the necessary rehabilitation expenses, appropriate cosmetic expenses and other follow-up treatment expenses for 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 21 The lost time fee shall be determined according to the lost time and income of the victim.

the time lost for work is determined according to the certificate issued by the medical institution where the victim is treated. If the victim continues to miss work due to injury and disability, the time of missing work 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 cannot provide evidence to prove his average income in the last three years, he may refer to the average salary of employees in the same or similar industries where the court of appeal is located in the previous year.

Article 21 The nursing expenses shall be 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 on lost time; If the nursing staff has no income or employs nursing staff, it shall be calculated with reference to the labor remuneration standard of local nursing staff engaged in the same level of nursing. In principle, there is one nursing staff, but if the medical institution or appraisal institution has a clear opinion, 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, he can determine a reasonable nursing period according to his age, health status and other factors, but the longest period is not more than 21 years.

The nursing level of the victim after disability should be determined according to the degree of nursing dependence and the preparation of disability AIDS.

article 22 the transportation expenses shall be calculated according to the actual expenses incurred by the victims and their necessary accompanying personnel for medical treatment or transfer to other hospitals for treatment. Transportation expenses shall be based on official bills; The relevant credentials shall be consistent with the place, time, number and frequency of medical treatment.

Article 23 The food allowance for hospitalization can be determined by referring to the standard of food allowance for ordinary staff of local state organs on business trips.

it is really necessary for the victim to go to other places for treatment, but he can't be hospitalized due to objective reasons. The reasonable part of the accommodation and meals actually incurred by the victim and his accompanying staff should be compensated.

Article 24 Nutrition expenses shall be determined according to the disability of the victim and with reference to the opinions of medical institutions.

Article 25 Disability compensation shall be calculated as 21 years from the date of disability according to the degree of disability or disability level of the victim and 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. However, for those over 61 years old, 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 injury, but his actual income has not decreased, or if his disability level is relatively light, but his occupational impairment has seriously affected his employment, the disability compensation can be adjusted accordingly.

Article 26 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 auxiliary equipment preparation institution to determine the corresponding reasonable cost standard.

the replacement cycle and compensation period of auxiliary devices shall be determined by referring to the opinions of the preparation organization.

article 27 the 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 incapacity of the dependents and the standards of per capita consumption expenditure of urban residents and per capita annual living 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 to be eighteen years old; If the dependent has no ability to work and no other source of income, it shall be counted as 21 years. However, for those over 61 years old, the age will be reduced by one year for each additional year; Seventy-five years of age or older, calculated by five years.

Dependents refer to minors or adult close relatives who have lost the ability to work and have no other source of income. If the dependant has other dependants, the compensation obligor shall only compensate the victim for the part that should be borne 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.

article 29 the death compensation shall be 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, and shall be calculated for 21 years. Danliu