Paragraph 1 of Article 11 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 laborer suffers personal injury in the course of labor, the employer shall bear the liability 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. "
It is a difficult problem in practice whether an employee can sue the employer and the third party at the same time after being injured by the third party and demand that both parties bear the liability for compensation. In the process of litigation on behalf of employee Li, it can be described as twists and turns. When filing the case, the filing court of Shunde Court disagreed to list it as the defendant at the same time, requiring the plaintiff to choose only the employer or one of the third parties to sue. The plaintiff first took Shao, the infringer, as the defendant, and then applied to the original judge to add Tang, the employer, as the defendant. Although the court of first instance agreed to add Tang as the defendant, it did not support the plaintiff's request for compensation from the employer Tang.
The court of first instance held that the plaintiff sued the road traffic accident for personal injury compensation dispute, which meant that the plaintiff asked the third person Shao to bear the liability for personal injury compensation, so the plaintiff could not ask the employer Tang to bear the liability for personal injury compensation at the same time. Therefore, in the dispute of personal injury compensation for road traffic accidents in this case, the defendant Tang is not liable for compensation. The plaintiff refused to accept and appealed to Foshan Intermediate People's Court.
After trial, the court of second instance held that the cause of this case should be a dispute over tort damages. The employer Tang and the third person Shao should bear joint and several liability for compensation. The compensation debts owed by Tang and Shao to the appellant Li are in line with the characteristics of unreal joint and several debts. Article 11, paragraph 1, of the Interpretation of the Supreme Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases does not restrict workers from demanding only the employer or the infringer to bear the liability for compensation. Therefore, the original trial found that the appellant Li could not ask the employer Tang and the infringer Shao to bear the liability for compensation at the same time, which was wrong and should be corrected. Therefore, the second item of the original judgment was revoked, and the employer Tang and the infringer Shao were sentenced to bear untrue joint and several debts. After assuming the liability for compensation, Tang has the right to recover from Shao.
Basic case and lawyer's handling process:
On May 5, 2004, Tang asked Shao to drive a truck to transport furniture from Lecong Town, Shunde District, Foshan City to Hunan. On May 6th, Tang hired Li to carry furniture and load cars. When Shao was driving, the furniture in the carriage fell and hurt the porter Li sitting behind the car. The disability level was 1. After the accident, Shunde traffic police made an accident determination and determined that Shao was fully responsible for the accident.
After accepting Li's entrustment, the lawyer thinks that Shao and Tang should be brought to court at the same time in order to get as much actual compensation as possible. However, when filing a case in Shunde court, the first obstacle was encountered. The filing court disagreed with the simultaneous prosecution of two defendants, Shao and Tang, and held that only one of them could be prosecuted. In order to avoid too much entanglement, Shao filed a case as the only defendant, and later applied to the court to add Tang as the defendant. The court agreed to add, but the cause of action is still the road traffic accident compensation dispute set by the staff of the filing court when filing the case.
Foshan Shunde District People's Court's first-instance judgment:
Paragraph 1 of Article 11 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 laborer suffers personal injury in the course of labor, the employer shall bear the liability 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. " Accordingly, Li, the plaintiff, engaged in employment activities for Tang, the defendant. When personal injury was caused by a third person, he could choose to ask the third person to bear the liability for compensation, or he could ask the employer to bear the liability for compensation, but he could not ask the third person and the employer to bear the liability for compensation at the same time. According to the fact that the plaintiff sued, it can be concluded that the plaintiff sued the dispute of personal injury compensation in road traffic accidents, that is, the plaintiff asked the third party to bear the liability for personal injury compensation, so the plaintiff could not ask the employer Tang to bear the liability for personal injury compensation at the same time. Therefore, in the dispute of personal injury compensation for road traffic accidents in this case, the defendant Tang is not liable for compensation. Shao should be liable for compensation.
Lawyer Li appealed to Foshan Intermediate People's Court. The main reasons for the appeal are: 1. The cause of this case should be a dispute over tort damages, and the original trial wrongly identified the nature of this case. 2. The first paragraph of Article 11 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 does not clearly stipulate that the victim cannot claim rights from the third party and the employer at the same time. The victim Li can choose to claim rights from a third party, the employer or both. 3. Requiring the appellant to choose the object of prosecution is not conducive to ensuring the maximum relief for the victim, which is contrary to the original intention of legislation. It is impossible for the victim to fully understand the payment ability of the employer and the infringer, and it is unfair to ask the victim to bear the risks brought by choosing the object of prosecution. Therefore, the court of second instance is requested to revoke the second item of the first-instance judgment and sentence Tang and Shao to bear joint and several liability for compensation.
The second instance judgment of Foshan Intermediate People's Court held that:
The dispute during the appeal hearing of this case is whether the appellee Tang should bear the liability for compensation in this case and the nature of the liability. Both parties have no objection to the fact that Appellant Li is an employee of Appellee Tang, and that Appellant Li had a traffic accident due to Appellee Shao during his employment activities, which is confirmed by our court. The rights, obligations and civil liabilities of the litigants caused by the incident in this case should be as follows: 1. As the direct infringer of the road traffic accident, the appellee Shao should be liable for the personal injury of the appellant Li; At the same time, the appellee Tang, as an employer, is responsible for protecting the personal safety of the employee Li, who was injured while working for him. The appellee Tang, as an employer, should also be liable for compensation. In this case, Appellant Li made different claims against Appellees Shao and Tang based on different claims. Although these two creditor's rights are independent, and the appellee Shao and Tang have no corresponding relationship or mutual agreement, it is only an accidental combination, but the payment contents of the two debtors are the same, and the debt payment is disproportionate. Every debtor has the obligation to pay off in full, and any compensation obligor can fill and comfort the material loss and mental damage suffered by the appellant Li, so that his claim for compensation will be eliminated because of the realization of his purpose. However, as the damage of Appellant Li was directly caused by the damage of Appellee Shao, based on the compensation principle of employment relationship, Appellee Tang was only liable for compensation to Appellant Li. Therefore, the appellee Shao is the ultimate responsible person. If the appellee Tang actually bears the liability for compensation, he has the right to claim compensation from the appellee Shao. Based on the above analysis, it can be seen that the compensation debts owed by Appellants Shao and Tang to Appellant Li conform to the characteristics of unreal joint and several debts. According to the external effect of this debt, the appellant Li Can made all or part of the request to one or all debtors at the same time or successively. Therefore, in this case, the appellant Li took the employer Tang and the traffic accident infringer or responsible person Shao as * * * co-defendants, demanding that they bear the liability for compensation, which is in line with the relevant provisions of the Civil Procedure Law of People's Republic of China (PRC) and other laws and regulations on common * * * joint litigation and should be supported. The first paragraph of Article 11 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases only clarifies the right of claim formed by employees in the case of personal injury caused by a third person in employment activities, as well as the nature of the responsibility and subrogation right undertaken by the employer, and does not restrict employees from only requiring the employer or the infringer to bear the liability for compensation in the above circumstances. The original trial held that it was wrong for the appellant Li not to ask the employer and the infringer Shao to bear the liability for compensation at the same time, and it should be corrected. Although Li, the appellant, only listed Shao and other persons responsible for traffic accidents as the defendants' rights in the original trial, he later applied for an additional employer, Tang, to participate in the litigation with the defendants. Although the cause of action is still written as a traffic accident compensation dispute case in the supplementary application, the appellant's intention to pursue the employer's liability for compensation in this case is clear from the analysis of the ideographic meaning of the supplementary application, the substantive content of the application and the claims and propositions in the original trial, and the corresponding claims are also made based on the existence of the employment relationship. Therefore, Li, the appellant, actually filed a lawsuit with Tang and Shao, the appellees, with the same payment content, not just asking for the liability of the compensation obligor in the legal relationship of traffic accidents, so the cause of action of this case should be a dispute over tort damages. The original trial was not based on the nature of the legal relationship identified after the trial of the entity, and did not comprehensively analyze and consider the facts and opinions put forward by the parties. It is only the fact that the appellant sued that this case was characterized as a dispute over improper compensation for personal injury caused by traffic accidents, and our hospital corrected it. As the appellee Tang has paid the appellant Li 22,200 yuan, he still has to bear unreal joint and several debts with the infringer Shao within the scope of 36 1439+0 yuan.
Accordingly, the second item of the civil judgment No.03272 (2004) of Shunde District People's Court of Foshan City was revoked, and it was decided that the appellee Tang and the appellee Shao should jointly bear the compensation liability of 36 1439.35438+0 yuan to the appellant Li. After the appellee Tang assumes the liability for compensation, he has the right to recover from the appellee Shao.