Dear presiding judge and judge, entrusted by Mr. Yan and appointed by XX Law Firm, as Mr. Yan's agent ad litem, I participated in the trial of Li v. Yan's personal injury compensation dispute according to law. According to the facts ascertained in the trial and in combination with relevant laws and regulations, I would like to express the following opinions. At the time of the incident, Mr. Yan did not hire Li as a tower crane driver. From May to the end of 20 13, Li was an apprentice of Mr. Yan in Daming Palace Shopping Plaza. Because he never had a tower crane operation qualification certificate, he was not hired again after the end of the year, and he also returned to his hometown. The scene of the incident was XX site, which did not employ Li. Li's witness can only prove that he worked in the previous XX site. Mr. Yan of the new XX construction site hired Wang, who has the certificate of tower crane operation, as the tower crane driver. There is an employment agreement and a certificate issued by Wang. In addition, Li Can did not provide evidence such as employment agreement, salary certificate and attendance certificate to prove it. 2. Both the Notice of Construction Site Commencement and settlement book show that the construction site started on February 19, 2008, and Li went to the construction site without explicitly indicating that he would hire him. Before the construction started, at 7: 00 or 8: 00 a.m. on 18, there was no construction lighting condition at all, causing an accident. In addition, other parties in this case were not present at the time of the accident, and there were many tower cranes on the construction site. As for which tower crane happened at that time and whether it happened in the process of operating the tower crane, the plaintiff could not provide evidence, so the accident in this case could not be proved by the plaintiff through relevant evidence, could not be verified and could not rule out all possibilities. Therefore, the plaintiff's accidental injury can only be considered as his own reason, which has nothing to do with Mr. Yan. (2) Li illegally operates without a license. Article 27 of the Law of People's Republic of China (PRC) on Work Safety stipulates that the special operators of production and business units must receive special safety operation training in accordance with the relevant provisions of the state and obtain corresponding qualifications before taking up their posts. , of which "Regulations on Safety Supervision and Management of Construction Hoisting Machinery" stipulates in Article 25; Construction crane installation and disassembly workers, crane signalmen, crane drivers, cable workers and other special operators shall pass the examination of the competent construction department and obtain the qualification certificate for special operations before taking up their posts. To sum up, it is illegal for Li to operate the tower crane without anyone's permission and without obtaining the qualification certificate of special industry operation. This further shows that the accident was caused by Li's own fault. Compensation for medical tort damages refers to the failure of medical institutions and their staff to achieve the objectives agreed in the contract (express or habitual) because a diligent and cautious colleague failed to fulfill his duty of care and caused non-medical damage to patients. Breach of contract also violates the patient's right to life and health, which can be summarized as one kind. If one party violates the personal rights and property rights of the other party, the injured party has the right to choose to ask the other party to bear the liability for breach of contract or tort. Victims of medical tort consider the actual situation of their own litigation, and most of them demand to be dealt with according to tort liability. (1) The subjects of medical tort are medical institutions and medical personnel. If illegal medical practice causes personal injury to patients and violates the criminal law, criminal responsibility shall be investigated according to law and civil liability shall be borne at the same time. Because the actor who illegally practices medicine does not have the civil subject qualification to conclude a medical contract, this kind of civil liability should not be understood as the liability for breach of contract, but as the liability for tort, and he can bear the corresponding civil liability for compensation according to the relevant provisions of the tort law. (2) The imputation principle of medical tort is fault principle. Considering the difficulty of proof, and patients who have been injured by wrong medical behavior can get more compensation opportunities, medical institutions should bear the burden of proof on whether the medical staff of medical institutions providing medical services are at fault and whether medical behavior conforms to medical behavior norms and professional standards. (3) the occurrence of damage facts. Wrong medical behavior has caused personal injury to patients, such as death, disability or unnecessary body tissue damage to patients. (4) There is a causal relationship between medical negligence and the consequences of injuries suffered by patients. Model civil defense for personal injury compensation, respondent: name _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ On ×××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× The traffic accident that caused the respondent to be injured occurred on the way home, not in the process of engaging in employment activities, so the respondent should not bear the losses suffered. 2. After the respondent was injured, part of the medical expenses paid by the respondent to the respondent were humanitarian, which could not indicate that the respondent accepted to bear the losses of the respondent; After the defendant was injured, due to his financial difficulties and humanitarian considerations, the defendant paid part of the hospitalization expenses for him first, but this alone does not mean that the defendant agreed to bear the defendant's losses. The loss shall be borne jointly by the respondent and XX according to the responsibility of the traffic police department. To sum up, the court should find out the facts, reject the defendant's claim and safeguard the defendant's legitimate rights and interests. I hereby submit to the People's Court of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ copies of certification materials.
Legal objectivity:
Article 1 179 of the Civil Code
Anyone who infringes on others and causes personal injury shall pay compensation for medical expenses, nursing expenses, transportation expenses, nutrition expenses, hospital food subsidies and other reasonable expenses for treatment and rehabilitation, as well as the income reduced due to missed work. If it causes disability, it shall also compensate for the cost of assistive devices and disability compensation; If death is caused, funeral expenses and death compensation shall also be paid.