Traffic accident compensation standards
1. Standards for distinguishing rural residents from urban residents
According to the "Interpretation of Personal Injury Compensation", disability compensation, dependents The calculation standards for living expenses and death compensation shall be calculated according to the relevant standards for urban residents and rural residents respectively based on the identity of the compensation right holder determined through review. At present, a large number of migrant workers have moved to cities to work or settle down. They have become a special group among urban residents. The actual average annual income of rural residents in some areas is the same as or even higher than the average annual income of urban residents. If this objective reality is ignored, , just because the victim has a rural household registration, all compensation should be based on the standards of rural residents, which is contrary to fairness. Therefore, when confirming the identity of the person entitled to compensation, the household registration principle should be used as the principle, with the place of habitual residence as an exception. If your household registration is in the neighborhood committee or village where each town is located, or in a village that has not yet been built but has been included in the urban planning area, you are considered an urban resident. For those who are entitled to compensation but are rural residents, if there is evidence to prove that their workplace or actual residence for one year at the time of the traffic accident was in the neighborhood committee or village where the town is located, or in a village that has not yet been built but has been listed in the urban planning area. As urban residents, they will be treated according to the standards of urban residents when calculating the amount of compensation, and "same city treatment" will be implemented. Only in this way can everyone be equal before the law and fair protection for rural residents. If there are special circumstances where it is difficult to distinguish whether they are urban residents or rural residents, the level will be higher or lower and they will be treated as urban residents.
2. Determination standards for compensation items in traffic accidents
The "Interpretation of Personal Injury Compensation" implements the principle of comprehensive compensation in terms of compensation items and compensation standards. Among the compensation items, rehabilitation fees and follow-up treatment fees have been added, and "disability compensation" has been used to replace "living allowance for the disabled". Specifically reflected in the provisions of Articles 17 and 18 of the "Interpretation of Personal Injury Compensation":
(1) Compensation items for personal injuries suffered by the victim include: medical expenses, lost work expenses, nursing expenses, and transportation expenses. , accommodation expenses, hospitalization food subsidy, and necessary nutrition expenses.
(2) In addition to item 1, the compensation items for the victim who is disabled due to injury also include: disability compensation, disability assistive device fees, dependents’ living expenses, and actual expenses incurred due to rehabilitation care and continued treatment. necessary rehabilitation fees, nursing fees, and follow-up treatment fees.
(3) Compensation items for the death of the victim include: in addition to the expenses in item 1, it also includes compensation for funeral expenses, living expenses of dependents, death compensation, and transportation expenses for the relatives of the victim to handle funeral matters. , accommodation fees, lost work time and other reasonable expenses.
(4) Solatium for mental damage suffered by the victim or close relatives of the deceased.
3. Standards for determining the amount of property compensation for traffic accidents
(1) Standards for determining disability compensation
Article 25 of the "Interpretation of Personal Injury Compensation" , Disability compensation is calculated based on the degree of the victim's loss of working ability or disability level, based on the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year where the court where the lawsuit is filed is located, and is calculated based on 20 years from the date of disability determination. . However, for those over 60 years old, one year will be reduced for every additional year of age; for those over 75 years old, it will be calculated as 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 question in theory and practice. The "Interpretation of Personal Damage Compensation" is based on the provisions of the "State Compensation Law" and determines that the nature of disability compensation refers to the compensation for property damage due to reduced income or loss of source of livelihood due to disability, which denies the legal Interpretation [2001] No. 7 "Interpretation on Several Issues Concerning the Determination of Liability for Mental Damage in Civil Torts" determines the nature of disability compensation.
2． Criteria for determining the degree of incapacity to work.
According to the provisions of Article 21 of the "Regulations on Work-related Injury Insurance": If an employee suffers a work-related injury and becomes disabled and affects his ability to work after treatment and the injury is relatively stable, he must undergo a labor ability appraisal. Work ability appraisal refers to the grade appraisal of the degree of labor dysfunction and the degree of life management disorder. The degree of labor dysfunction is divided into ten disability levels, with the most severe being Level 1 and the lightest being Level 10. Impairments in self-care are divided into three levels: inability to take care of oneself at all, inability to take care of most of self-care and inability to take care of part of self-care.
3. Standards for identification of disability levels
At present, my country’s standards for identification of disability levels can be said to be “multiple”. Different competent authorities have formulated different identification standards for the disabilities of different people. The assessment of the degree of disability of injured persons in traffic accident cases shall generally apply to the "National Standards of the People's Republic of China on the Assessment of Disability of Injured Persons in Road Traffic Accidents" issued by the Ministry of Public Security. The specific calculation formula for disability compensation:
(1) Disability compensation (for people under 60 years old) = disability level (calculated as 100 for level 1, reduced by 10% for level II, and so on for others) ) Level (level 1 is calculated as 100, level II is reduced by 10%, and so on) );
(3) Disability compensation (people over 75 years old) = disability level (calculated as 100 for level 1, reduced by 10% for level II, and so on for others) The per capita disposable income of urban residents or the per capita net income of rural residents in the location in the previous year x 5 years.
Of course, if there is a situation stipulated in the "Interpretation of Personal Injury Compensation" that "the victim is disabled but his actual income is not reduced, or the disability is minor but causes occupational hindrance that seriously affects his employment", Disability compensation may be adjusted accordingly according to regulations.
(2) Determination standards for dependents’ living expenses
In the past, the compensation standard for dependents’ living expenses was the living hardship subsidy standard or the basic living expenses standard. The former was tens of yuan per month. , the latter is actually the minimum living standard for urban residents, which is only two to 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 living consumption expenditure of rural residents shall be the standard, which also reflects the consistency between compensation and damage. At the same time, the "Interpretation of Personal Damage Compensation" stipulates that if the dependent is a minor, the calculation will be until the age of 18, and the age of the dependent will be reduced by one year for each additional year of age over 60; if the dependent is over 75, the calculation will be based on 5 years. This is also different from the regulations stipulating that "minors are counted until they are 16 years old, and those under 50 years old are deducted by one year for every additional year of age, and those over 50 years old are calculated according to 5 years."
The specific calculation formula ：
1. Living expenses of dependents (minors) = disability level (100% for Level 1, 10% reduction for Level II, and so on for others, 100% for death) Per capita consumption expenditure of residents and per capita annual living consumption expenditure of rural residents X (18 years old - age):
2. Living expenses of dependents (those who are incapable of working and have no other source of livelihood) = disability level (calculated as 100% for level 1, reduced by 10% for level 11, and so on for others, and calculated as 100% for those who died) x the person being sued The per capita consumption expenditure of urban residents and the per capita annual living consumption expenditure of rural residents in the previous year where the court is located Calculated at 100, Grade II cases are reduced by 10%, others are deduced by analogy, and cases of death are calculated as 100%) Age):
4. Living expenses of dependents (over 75 years old) Two disability levels (level 1 is calculated as 100, level II is reduced by 10%, and so on for others, and death is calculated as 100% Calculation) X The per capita consumption expenditure of urban residents in the previous year and the per capita annual living consumption expenditure of rural residents in the location of the court being sued X5 years.
(3) Determination standards for death compensation
1. Determination of the nature of death compensation
The "Interpretation of Personal Damage Compensation" abandons the "Interpretation of Mental Damage Compensation" No. 7 of Fajie [2001] to adopt the "loss of support theory" to explain death compensation. The "inheritance and loss theory" is used to explain the death compensation system in the relevant legal provisions of our country. According to this new position, the content of death compensation is compensation for loss of income, and its nature is compensation for property damage, not compensation for mental damage.
2． Specific calculation of death compensation
Death compensation is calculated based on the per capita disposable income of urban residents or the net income of rural residents in the previous year where the court where the lawsuit is filed is based, and is calculated over 20 years. However, for those over 60 years old, the age will be reduced by one year for every additional year; for those over 75 years old, it will be calculated as 5 years. The specific calculation formula is:
(1) Death compensation (persons under 60 years old) = per capita disposable income of urban residents in the previous year or net income of rural residents in the location of the court where the lawsuit is filed X 20 years; < /p>
(2) Death compensation (persons over 60 years old) = per capita disposable income of urban residents or net income of rural residents in the previous year in the location of the court where the suit is filed X (20 years - increase in age);
(3) Death compensation (persons over 75 years old) = per capita disposable income of urban residents or net income of rural residents in the previous year at the location of the court where the suit is filed x 5 years.
(4) Determination standards for assistive device fees for disabled people
Assistive devices for disabled people are used by victims who are disabled due to injuries to compensate for the functions of their traumatized body organs and to assist them in achieving self-care. Or self-service appliances purchased and prepared for production work.
Article 26 of the "Interpretation of Personal Injury Compensation" stipulates that the cost of assistive devices for disabled people is calculated according to the reasonable cost standards of ordinary applicable devices. If the injury requires special needs, you can refer to the opinions of the assistive device dispensing agency to determine the corresponding reasonable fee standards. The replacement cycle and compensation period of assistive devices shall be determined with reference to the opinions of the dispensing agency.
"General application" is a guiding principle when determining the standard for reasonable expenses. The basic requirements of this principle:
1. It is "ordinary", that is, the auxiliary devices prepared should exclude luxury and luxury types, and should not blindly pursue high quality.
2． It is "applicable", and there are two test standards for applicability:
(1) It can indeed play a functional compensation role;
(2) It meets "stability" and "safety" " request.
How to determine the preparation agency? The prosthetic and orthopedic rehabilitation institutions of my country's civil affairs department are professional institutions engaged in the research and production of assistive devices and can engage in the identification and preparation of assistive devices for disabled people. In practice, the court should generally determine the cost of compensation for disability assistive devices in accordance with the opinions of the prosthetic and orthopedic rehabilitation institutions of the civil affairs department. If the holder of the right to compensation really needs to continue to prepare assistive devices for disabled people after the specified period of payment of assistive device fees has passed, the People's Court shall order the compensation obligation to continue to pay the relevant fees for a period of 5 to 10 years.