Referee summary
1. According to Article 16 of the General Principles of Civil Law and the Supreme People's Court's "On Implementation"
2. According to Article 7 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 school has the obligation to educate, manage and protect underage students, although it has no guardianship duty. If the school fails to fulfill its obligations of education, management and protection, causing minor students to hurt other minor students on campus, in addition to the guardian of the offender, the school should also bear the corresponding liability for compensation.
Plaintiff: Wu Mou.
Legal Representative: Wu Fucheng, father of plaintiff Wu Mou.
Defendant: Zhu.
Legal Representative: Zhu Shanyong, father of defendant Zhu.
Defendant: Shuguang Bilingual School in Huai 'an City, Jiangsu Province.
Legal Representative: Ding Deli, president of this school.
The plaintiff filed a lawsuit with the people's court of Chuzhou District, Huai 'an City, Jiangsu Province on behalf of his father Wu Fucheng for personal injury compensation dispute with the defendant Zhu and the defendant Shuguang Bilingual School (hereinafter referred to as Shuguang School). Zhu's father, Zhu Shanyong, represents Zhu.
It was originally told that the plaintiff was injured by an orange thrown by the defendant Zhu while resting in the dormitory of the defendant Shuguang School, and was still disabled after being treated by several hospitals. Shuguang School has the obligation of guardianship to the plaintiff. If the plaintiff is injured during his study and life at school, Shuguang School shall compensate the plaintiff for his losses. Zhu is the direct cause of the injury and should also be liable for compensation. However, Shuguang School and Zhu shirked each other and refused to bear the liability for compensation. It is requested to order Shuguang School and Zhu to compensate the plaintiff for medical expenses of 39,056.76 yuan, nursing expenses of 1.20 million yuan, hospitalization expenses of 1.80 yuan, nutrition expenses of 249.37 yuan, accommodation expenses of 1.500 yuan, transportation expenses of 3,996 yuan, disability subsidy of 9,507.80 yuan, and spiritual consolation.
Defendant Zhu argued that Zhu was a person with no capacity for civil conduct, and his parents were unable to perform their guardianship duties during their school days, and the guardianship duties were handed over to the school. The defendant Shuguang School implements closed management, bears the responsibility of guardianship for the students who live in the school, and is liable for compensation for the damages suffered by the plaintiff during the school period. In addition, after the plaintiff was injured, Shuguang School failed to effectively treat it, delayed the treatment and expanded the loss, and should also bear corresponding responsibilities.
The defendant Shuguang School argued that according to the law, the guardians of minors are their parents, and only guardians have guardianship responsibility for minors. Guardianship duties cannot be transferred to schools at will. The plaintiff was injured by the defendant Zhu's behavior, and was rescued by our school in time after the injury. Our school has fulfilled its obligation to protect, care and manage the boarders, and there is no fault in the injury suffered by the plaintiff, so it should not be liable for compensation. And there is no compensation for paying tuition fees in the statutory personal injury compensation project, the plaintiff's claim against our school should be rejected.
The People's Court of Chuzhou District of Huai 'an City found out through trial that:
The defendant Shuguang School is a private boarding primary school with closed management for students. On June 3, 2004, the guardian of the plaintiff and the defendant Zhu signed an admission agreement with Shuguang School respectively to send Zhu and Zhu to school. In September of the same year, Zhu became a first-year student of Shuguang School (1) and lived in the same dormitory. In the same year, on the evening of 17 10, Zhu threw an orange at his right eye while resting in the dormitory bed, causing injury to his right eye. Wu Mou cried after being injured. When the teacher found out, he sent Wu Mou to the school hospital for treatment. At the end of February, Shuguang School informed Wu Mou's parents of Wu Mou's injury. Wu Mou's parents took Wu Mou to jianhu county Jianyang Eye Hospital, Huai 'an First People's Hospital, Huai 'an Second People's Hospital and Eye, Otolaryngology Hospital affiliated to Fudan University for treatment. The medical expenses were 39,592.58 yuan, the transportation expenses were 2,040 yuan, and the accommodation fee was 1 1,000 yuan. In order to treat the disease, Zhu's guardian paid 5665438 yuan +0.60 yuan, and Shuguang School paid 65438 yuan +0.00 yuan.
According to forensic identification, the plaintiff Wu Mou's right eye suffered from blunt contusion, right vitreous hemorrhage and right retinal detachment, with poor vision 1 grade, and the degree of disability was1grade; Wu Mou needs nutritional supplement 1 month after injury, and needs nursing during 3-4 months after injury; The drugs used after injury are all used in the clinical symptomatic treatment of trauma patients, and there is no obvious improper place. The two sides have no objection to the above-mentioned forensic appraisal conclusion, and there is no objection to Wu Mou's appraisal fee 300 yuan, food subsidy expenditure 180 yuan during hospitalization, nutrition expenditure of 249.37 yuan and disability compensation of 9,508 yuan.
The above facts are confirmed by the statements of the parties, admission agreement, medical records, medical expenses, transportation expenses, accommodation fees, appraisal fees and other related bills, as well as investigation transcripts, certificates, appraisal books and other evidence.
The focus of the dispute that should be resolved in this case is: 1. Does the school assume the responsibility of guardianship during the study and life of underage students at school? 2. Who should be responsible for the injury consequences in this case? 3. Is it reasonable for the plaintiff to claim compensation for the missed tuition fees?
The Chuzhou District People's Court of Huai 'an City held that:
1. Article 16 of General Principles of Civil Law of People's Republic of China (PRC) (hereinafter referred to as General Principles of Civil Law) stipulates: "Parents of minors are guardians of minors. If a minor's parents are dead or have no guardianship, one of the following persons with guardianship shall be the guardian: (1) grandparents; (2) brothers and sisters; (three) other close relatives and friends are willing to assume the responsibility of guardianship, with the consent of the unit where the minor's parents work or the residents' committee or villagers' committee of the minor's domicile. If there is any dispute about being a guardian, it shall be designated by the unit where the minor's parents belong or the residents' committee or villagers' committee where the minor's near relatives live. If a lawsuit is filed against the designation, it shall be ruled by the people's court. If there is no guardian as stipulated in the first and second paragraphs, the unit where the minor's parents belong or the residents' committee, villagers' committee or civil affairs department of the minor's domicile shall act as the guardian. " Therefore, guardianship is a civil right based on identity. If a minor has no parents or other relatives as guardians, the unit where his parents work or the residents' committee, villagers' committee, civil affairs department and other units where he lives may become guardians. Schools cannot be guardians of minors. The scope of guardianship is clearly defined by law, and the guardianship relationship cannot be established or changed at will. Therefore, guardians send underage students to school to study, and their guardianship duties are not transferred to school; The school does not accept underage students to study at school, so it naturally assumes the responsibility of guardianship for students. Article 22 of the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) (for Trial Implementation) stipulates: "A guardian may entrust part or all of his guardianship duties to others. If the guardian needs to bear civil liability for infringement, it shall be borne by the guardian, unless otherwise agreed; If the client is indeed at fault, he shall bear joint and several liability. " This article stipulates that guardianship duties can be transferred by entrustment. If the guardian wants to entrust part or all of his guardianship duties to the school, he must reach a clear entrustment agreement with the school. Without a clear entrustment agreement, it cannot be presumed that the school has accepted the entrustment of the guardian and assumed part or all of the guardianship duties for the underage students who came to the school.
The defendant Shuguang School in this case is a private boarding primary school. Compared with other day schools, boarding primary schools only expand their internal management, but do not change the essence of their obligations of education, management and protection of students. However, the change of school internal management does not necessarily lead to the transfer of guardianship duties of underage students. In the admission agreement signed between Shuguang School and parents of students, there is no agreement that parents entrust the school to perform guardianship duties for underage students. Therefore, Shuguang School has no guardianship responsibility for underage students studying at school.
Second, the plaintiff in this case was injured in his right eye by an orange thrown by the defendant Zhu while resting in the dormitory of the defendant Shuguang School. Article 133 of the General Principles of the Civil Law stipulates: "If a person without or with limited capacity for civil conduct causes damage to others, the guardian shall bear civil liability. If the guardian has fulfilled his guardianship obligations, his civil liability may be appropriately reduced. " The victim Zhu is a person without civil capacity. Zhu caused harm to others, and Zhu's guardian is of course the subject of compensation according to law. Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates: "If a school, kindergarten or other educational institution that has the obligation to educate, manage and protect minors according to law fails to perform relevant obligations within the scope of its duties and causes personal injury to minors, or if a minor causes personal injury to others, it shall bear the liability for compensation corresponding to its fault. 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. " Although Shuguang School has no obligation of guardianship for underage students, it has the obligation of education, management and protection. In fulfilling the obligations of education, management and protection, Shuguang School is not the responsible subject of this case if there is no fault; If there is a fault, it will become another subject of responsibility in this case and bear the corresponding liability for compensation. Wu Mou was injured on the night of February 7th, 2004 10. It's time for boarding students to turn off the lights and go to bed. According to the management system of Shuguang School, the teacher in charge of students' life in the school should check the bedtime of underage students. Facts have proved that, Zhu and others have not slept more than the prescribed time. Shuguang School failed to find and manage this abnormal situation in time, which led to avoidable injury accidents. After the injury accident, Shuguang School not only failed to provide Wu Mou with timely and effective treatment measures, but also delayed 10 to inform the guardian of Wu Mou's injury, which aggravated Wu Mou's injury. Shuguang School has failed to fulfill its obligations of education, management and protection for underage students, and there is a certain subjective fault, which should be another responsible subject in this case.
Article 133 of the General Principles of Civil Law stipulates that guardians shall bear no-fault liability for the harmful acts of persons without civil capacity; If a guardian fulfills his guardianship responsibility, his civil liability may be appropriately reduced. Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that in campus injury cases, schools should bear civil liabilities corresponding to their faults. The plaintiff Wu Mou was injured during the life of the defendant Shuguang School, and there was no fault of her own; Although the defendant Zhu has an injury behavior, Zhu is a minor and hurts others during school. Shuguang School has the obligation to educate, manage and protect both the offender and the victim. Shuguang School failed to fulfill this obligation, which is the main reason for the injury accident in this case. Shuguang school has a big subjective fault and should bear the main responsibility for compensation for the consequences of injury. Due to the closed management of Shuguang School, Zhu's guardian was restricted from performing guardianship duties. For Zhu's injurious behavior, his guardian should bear no-fault responsibility, but should bear secondary responsibility. The plaintiff should not bear any responsibility.
Thirdly, the plaintiff Wu Mou had to drop out of school because of physical injury. Although there are certain economic losses, there is no compensation for missed tuition fees in the personal injury compensation project stipulated in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases. Wu Mou's claim for compensation for wrong tuition fees has no legal basis and is not supported.
Article 106 of the General Principles of Civil Law stipulates: "Citizens and legal persons who violate contracts or fail to perform other obligations shall bear civil liability." "A citizen or legal person who infringes upon the property of the state or the collective or infringes upon the property or person of others through fault shall bear civil liability." "If there is no fault, but the law stipulates that it should bear civil liability, it should bear civil liability." Article 119 stipulates: "Anyone who infringes on a citizen's body and causes damage shall pay compensation for medical expenses, income reduced due to missed work, living allowance for the disabled and other expenses. ; If death is caused, the funeral expenses and the necessary living expenses of the dependents of the deceased shall be paid. " Paragraph 2 of Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Spiritual Damage in Civil Tort stipulates: "If an infringement causes mental damage to people and causes serious consequences, the people's court may order the infringer to bear civil liabilities such as stopping the infringement, restoring his reputation, eliminating the influence and making an apology, and may order him to compensate the corresponding mental damage at the request of the victim." Paragraph 1 of Article 10 stipulates: "The amount of compensation for mental damage shall be determined according to the following factors: (1) The degree of fault of the infringer, unless otherwise provided by law; (2) The means, occasions and behaviors of infringement; (3) Consequences caused by the infringement; (4) profits of the infringer; (five) the economic ability of the infringer to bear the responsibility; (6) The average living standard of the court of appeal. " The first paragraph of Article 17 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates: "If the victim suffers personal injury, the compensation obligor shall compensate all expenses such as medical expenses and income reduced due to absenteeism, including medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses." The second paragraph stipulates: "If the victim is disabled due to injury, the compensation obligor shall also compensate him for the necessary expenses incurred for increasing his daily needs and the income loss caused by his inability to work, including disability compensation, disability AIDS, living expenses of the dependents, and the necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred for rehabilitation nursing and continuing treatment." Article 18 stipulates: "If the victim or a close relative of the deceased suffers mental damage and the obligee requests the people's court to pay compensation for mental damage, it 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 compensation obligor has promised to pay monetary compensation in writing, or the compensation obligee has brought a lawsuit to the people's court. " Article 19 stipulates: "The medical expenses shall be determined according to the receipt documents such as medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, 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 21 stipulates: "The nursing fee shall be determined according to the income of nursing staff, the number of nurses and the nursing period." "Nursing staff have income, calculated with reference to the provisions of the lost time; 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 ability to take care of himself. 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 no more than 20 years. " "The nursing level of the victim after disability should be determined according to the degree of nursing dependence and the equipment of disability AIDS." Article 22 stipulates: "The 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 hospital for treatment. Transportation expenses should be based on official bills; Relevant credentials should be consistent with the location, time, number and frequency of medical treatment. " Article 23 stipulates: "The food allowance for hospitalization can be determined with reference to the food allowance standard 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 expenses actually incurred by the victim himself and his entourage shall be compensated. " Article 24 stipulates: "Nutrition expenses shall be determined according to the disability of the victim and with reference to the opinions of medical institutions." Article 25 stipulates: "Disability compensation shall be calculated for 20 years 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. However, for those over 60 years of age, the age will be reduced by one year for each additional year; If you are over 75 years old, it is five years. " "If the victim is disabled due to work-related injuries, but the actual income has not decreased, or the disability level is relatively light, but the employment is seriously affected by occupational hazards, the disability compensation can be adjusted accordingly." According to the above provisions, the medical expenses of plaintiff Wu Mou should be determined to be 39,592.58 yuan; According to the relevant standards of Jiangsu Province, the nursing fee should be 6767.67 yuan if calculated by 1 person-time for 4 months. The transportation fee and accommodation fee are determined to be 2040 yuan and 1000 yuan respectively. Wu Mou's injury constitutes 10 disability, and he suffered some physical and mental losses. Defendant Shuguang School and Defendant Yin Zhu compensated for mental damages. According to the degree of fault of the infringer, the means of infringement, the occasion, the way of behavior and the average living standard of the court where the defendant is located, the specific amount of mental damages is determined as appropriate to be 4000 yuan. In addition, the two sides have no objection to the compensation for hospitalization food subsidies, nutrition fees, disability compensation and appraisal fees, and they are recognized.
Accordingly, the People's Court of Chuzhou District of Huai 'an City ruled in June 65438+February 65438+June 2005 that:
1. Plaintiff Wu Mou's medical expenses are 39,592.58 yuan, nursing expenses are 6,767.67 yuan, hospital food allowance 180 yuan, nutrition expenses are 249.37 yuan, disability compensation is 9,508 yuan, transportation expenses are 2,040 yuan, accommodation expenses/kloc-0,000 yuan, mental damages are 4,000 yuan, and appraisal fees. After deducting the paid 56 1.60 yuan, the compensation should be 18529.69 yuan. The defendant Shuguang School compensated 70%, or 44,546.33 yuan. After deducting the 65,438+0,000 yuan paid by him, he should pay compensation of 34,546.33 yuan, and pay it all to the plaintiff Wu Mou within 65,438+00 days after this judgment takes effect.
Second, reject the plaintiff Wu Mou's other claims.
The case acceptance fee is 2,740 yuan, and other legal fees, 600 yuan, total 3,300 yuan, which shall be borne by 280 yuan, the plaintiff's legal representative Wu Fucheng, and Zhu Shanyong, the defendant Zhu's legal representative, and Shuguang School.
After the verdict was pronounced in the first instance, neither party appealed, and the judgment of the first instance became legally effective.