On February 5th, 2002 15, at the entrance of the back overpass of Zaomu Expressway (Zaozhuang to Mushi) in Zaozhuang City, a local truck, escorted by inspectors from Zaozhuang Municipal Transportation Bureau, turned around and reversed into the expressway, and collided with the truck pulling cement from Chengwu Agricultural Machinery Company, which was driving normally, resulting in two deaths. 1 Seriously injured. After the incident, the relatives of the deceased found another cause of the accident in the handling of the accident-the design of this expressway is flawed!
It turns out that the second paragraph of Article 12 of the Measures for Expressway Traffic Management issued by the Ministry of Public Security clearly stipulates: "Vehicles entering the expressway from the ramp entrance must increase their speed in the acceleration lane and turn on the left turn signal. When driving into the driveway, you must not interfere with the normal driving of other vehicles. " However, Zaomu Expressway intersection is not designed as a speed-changing lane for accelerating entry or decelerating exit. In particular, the drive-in lane is connected with the main lane of the expressway in a nearly T-shape, and vehicles directly drive into the main lane, which is easy to collide with vehicles driving normally in the main lane, forming a major traffic safety hazard. To this end, the relatives of the deceased brought the perpetrators, Shandong Provincial Communications Department, Zaozhuang Highway Bureau and other departments to court.
There are many reasons for road traffic accidents, and the quality of drivers and the technical performance of vehicles are often the main incentives. However, it is undeniable that in the case of road traffic accident compensation disputes, the structure and design of roads or their appendages are often flawed, forcing drivers to drive vehicles in a way that does not conform to common sense, habits and automatic laws, greatly increasing driving risks and causing traffic accidents.
Article 11 of the Interpretation of the Supreme Court on Several Issues Concerning the Application of Laws in the Trial of Road traffic accident compensation Cases stipulates: "If the design and construction are not carried out in accordance with the mandatory provisions of laws, regulations, rules or national standards, industry standards and local standards, resulting in defects in the road and traffic accidents, the people's court shall support the parties who request the construction unit and the construction unit to bear the corresponding liability for compensation. "This can be said to be a major breakthrough in traffic accident legislation, because it is the first time that improper road design and construction have been admitted in legislation, and it may also become one of the triggering factors of road traffic accidents. This provision is in the same strain as Article 86 of the Tort Liability Law, which stipulates: "If buildings, structures or other facilities collapse and cause damage to others, the construction unit and the construction unit shall bear joint and several liability. After the construction unit and the construction unit make compensation, if there are other responsible persons, they have the right to recover from other responsible persons. If buildings, structures or other facilities collapse due to the reasons of other responsible persons and cause damage to others, other responsible persons shall bear tort liability. "
Interestingly, the law only stipulates that the construction unit and the construction unit shall be directly responsible for traffic accidents caused by road design and construction defects, but it does not mention the responsibilities of road managers, road design units and road planning and design review units. The reason is that the victims do not have the corresponding professional knowledge, so it is generally difficult to know the actual causes of road defects and the situation of internal cooperation units such as design and supervision, so it is difficult to directly investigate the responsibility of design units. Construction units and construction units are concrete road builders, which directly control the quality of road projects and should bear joint and several responsibilities first.
So, what is a defect? How to identify the defects in the road? The author believes that in a broad sense, real estate, such as buildings and structures, is built and attached to the land, and is also the product of artificial construction and processing. Therefore, although the products stipulated in the Product Quality Law do not include buildings and other real estate, we can refer to the definition of defects in the Product Liability Law to define the "defects" here, that is, there are unreasonable parts on the road that endanger personal and other people's property safety. First of all, the road defect is an unreasonable danger, that is, the road is in danger beyond the reasonable expectation of users. Secondly, this kind of danger endangers the personal or property safety of others. Finally, national standards and industry standards are the important basis for identifying road defects.
When the road does not meet the national standards and industry standards, it should be considered as defective; But when it meets the above standards, it is not necessarily certain that it has no defects. If it is unreasonably dangerous, it should still be considered as defective. Considering the reality of the road traffic industry and the operability in judicial practice, Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Road traffic accident compensation Cases further defines the "defects" in the application of this article, and takes the mandatory provisions of laws, regulations, rules or national standards, industry standards and local standards as the basis for judging whether there are defects in roads, which is in line with the mandatory provisions of laws, regulations, rules or national standards, industry standards and local standards.
For highway design and construction standards, Article 26 of the Highway Law puts forward a clear requirement: "Highway construction must meet the technical standards of highway engineering. Design units, construction units and engineering supervision units undertaking highway construction projects shall establish and improve the quality assurance system in accordance with the relevant provisions of the state, implement the post responsibility system, and design, construct and supervise in accordance with the requirements of relevant laws, regulations, rules and technical standards for highway engineering and contractual agreements to ensure the quality of highway engineering. " The Technical Standard for Highway Engineering 198 1 promulgated and implemented by the Ministry of Communications on May 22nd has been refined. Since then, a series of Technical Specifications for the Construction of Highway Traffic Safety Facilities (JTG F7 1-2006) and Technical Regulations for the Construction of Highway Tunnels (JTG/TF60-2006) have been successively formulated and promulgated.
For the above-mentioned national standards and industry standards for engineering construction, the contents directly related to people's life and property safety, personal health, environmental protection and other public interests are clearly included in the mandatory provisions of engineering construction standards issued by the Ministry of Housing and Urban-Rural Development, which serves as the basis for all parties involved in engineering construction activities to implement the mandatory standards for engineering construction and government supervision, and is also an important basis for people's courts to determine whether there are defects in road design and construction. Local standards for highway design and construction formulated by local governments in accordance with laws, regulations, rules, national standards and industry standards, combined with local conditions, are adopted as mandatory standards for local highway design and construction by local regulations or rules, and should also serve as an important basis for people's courts to determine whether there are defects in highway design and construction. For example, during the design and construction of the road in this case, the construction of variable-speed lanes for speeding or slowing down was not considered, which obviously violated the relevant provisions of road construction and should be considered as a "defect" of the road.
1. Traffic accident scene map. Remember to ask the traffic police to clearly mark the distance and relationship between the lines, partitions, guardrails, reverse, parallel and tangent roads on the road.
2. photos of the scene.
1. The victim shall provide evidence to prove the qualification of the responsible person as the subject of litigation. According to the law, the liability for compensation for accidents caused by road design defects is the construction unit and the construction unit. Therefore, the relevant materials of the construction unit and the construction unit, such as business license and organization code certificate, should be submitted when giving evidence.
2. All the main materials of the construction unit are used as evidence, and all the construction units are brought to court. In the current construction market in China, there are a lot of subcontracting and subcontracting phenomena. China's "Construction Law", "Contract Law" and other laws have detailed provisions on subcontracting and rights and obligations in subcontracting. On the one hand, illegal subcontracting and subcontracting are prohibited, on the other hand, it is stipulated that in the case of legal subcontracting, the general contractor should be jointly responsible for the project quality with subcontractors. Therefore, the construction unit should be understood in a broad sense, including both the general contractor of the project and all subcontractors directly responsible for the bid. This can greatly improve the efficiency of litigation and avoid wasting litigation time because of the increase of litigation subjects in litigation.
3. Pay attention to the burden of proof to prove the responsibility of each construction unit. When determining the scope of responsibility, we should grasp the following points:
(1) Road defects are the only cause of traffic accidents, and the construction unit and the construction unit should take full responsibility for the damage consequences.
(2) Road defects and other factors * * * lead to traffic accidents, which belong to the tort of several people who have no intention to contact, that is, several actors are not at fault for the same * * *, and several acts implemented separately indirectly combine to produce the same damage result. At this time, according to the provisions of Articles 1 1 2 of the Tort Liability Law, the construction unit, the construction unit and other responsible persons should bear full responsibility for the damage consequences when several people have no intention of contacting each other for infringement. At this time, the form of responsibility is "joint and several liability"; If several people who have no intention to contact infringe, the construction unit and the construction unit shall bear joint and several liability according to the proportion of the causes and consequences of road defects. If it is difficult to determine the responsibility, the construction unit, the construction unit and other responsible subjects shall bear the same liability for compensation. The form of responsibility at this time is "sharing responsibility".
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