One, traffic accidents under what circumstances will be sentenced
(a) object elements
The object of this crime infringement, is the safety of transportation. Transportation, refers to a certain means of transportation and transportation equipment linked to the railroad, highway, water and air traffic loss, this kind of transportation is characterized by the life and property safety of the general public is closely linked to the accident, will endanger the lives of an unspecified majority of the people's safety. Causes extensive damage to public and private property, so its behavior is essentially a crime against public **** security.
(2) Objective Elements
The objective aspect of this crime is manifested in the violation of transportation management regulations in transportation activities, and thus the occurrence of major accidents, resulting in serious injuries, deaths, or causing public and private property to suffer large losses. It can be seen, the objective aspect of the crime is composed of the following four inseparable factors:
1, there must be a violation of transportation regulations in the transportation of traffic violations of transportation regulations, which is the cause of traffic accidents, but also to bear the legal basis for punishment. The so-called transportation laws and regulations, is to ensure the normal transportation and transportation safety rules and regulations, including water, sea, air, highway, railroad and other transportation systems, safety rules, regulations, as well as engaged in transportation work must comply with the discipline, system and so on. For example, the Urban Traffic Rules, the Motor Vehicle Management Measures, the Inland Waterway Collision Avoidance Rules, the Navigation Collision Avoidance Rules, the Ferry Code, and the Maritime Traffic Safety Law of the People's Republic of China. Violation of the above rules may result in major traffic accidents. In practice, the violation of transportation management rules and regulations is mainly manifested in the violation of labor discipline or operating procedures, dereliction of duty or AWOL, unauthorized command, unauthorized operation, or driving in violation of the rules and regulations. For example, highway violations: driving without a license, forced overtaking, speeding, driving under the influence of alcohol; shipping violations: ships forced across, not according to the rules and regulations of the avoidance of avoidance, speeding to grab the gear, in the impediment to the navigation of the place of the anchor or dock; aviation violations: violation of the air traffic management without authorization to take off, deviate from the flight path, without reason not to contact with the ground, and so on. The above violations of various forms of expression, can be summarized as two basic forms of action and inaction, regardless of which form, as long as the violation, have the conditions to constitute this crime.
2, must be a major accident, causing serious injury, death, or so that public and private property suffered serious loss of serious consequences. This is one of the necessary conditions to constitute the crime of traffic accident. Although the perpetrator violated the transportation management regulations, but did not cause the above legal serious consequences, does not constitute this crime.
3, serious consequences must be caused by the violation of the law, there is a causal relationship between the two. Although the perpetrator has violated the rules and regulations, resulting in serious consequences, and there is a prior and subsequent relationship in time, it does not constitute this crime.
4, violation of rules and regulations, resulting in serious injury, death, or so that public and private property suffered major losses, must occur from the originating station, terminal, airport ready to load people to the terminal station, terminal, airport passengers leave, the goods unloaded throughout the process of transportation activities. In terms of space, it must take place on railroads, highways, town roads, and airways; in terms of time, it must take place in the ongoing transportation activities. If it does not take place in the above space and time, but operates in factories, mines, forests, construction sites, business establishments, and compounds, or carries out other non-transportation activities, such as overhauling and washing vehicles, etc., it does not generally constitute this crime. The Procuratorate on March 23, 1992 "on the factory (mine) area motor vehicles caused casualties in the crime case how to qualify and deal with the problem of the approval of the issue", pointed out that: in the factory (mine) area motor vehicles during the operation of the casualty case, should be differentiated according to the different circumstances; in the scope of the public *** traffic management, due to violations of transportation regulations, major accidents, should be in accordance with the Criminal Law, Article 113 Provisions to be dealt with. Violation of production safety rules and regulations. The occurrence of major casualties, resulting in serious consequences, shall be dealt with in accordance with the provisions of Article 114 of the Criminal Law; outside the scope of the management of public **** transportation, shall be defined as the crime of major liability accidents. It can be seen that, for the determination of such cases, the key is to find out whether it occurs in the public **** traffic management of railroads and highways.
Using large, modern means of transportation to engage in transportation activities, violation of rules and regulations, resulting in serious injury, death, or so that the public and private property suffered major losses, should be defined as the crime of traffic accidents, which is uncontroversial. However, for the use of non-motorized vehicles, such as bicycles, tricycles, horse-drawn carriages, etc., to engage in transportation activities, violation of rules and regulations, causing serious injury or death, whether it constitutes a traffic crime, there are different views. The first opinion that: traffic crime belongs to jeopardize the public **** security of the crime, that is, can at the same time cause unspecified multiple casualties or extensive damage to public and private property, and driving a non-motorized vehicle engaged in transportation activities, violation of the law, generally can only be specific individual casualties or a limited number of property damage, does not have jeopardize the nature of the security of the public ****, and therefore should not be set traffic crime, should be determined according to the circumstances of the case. And should be based on the specific circumstances, to determine the nature of the crime, causing the death of others, the crime of causing death by negligence; causing serious injury, the crime of serious injury by negligence. The second opinion is that, although it generally can only cause specific individual casualties or limited damage, but can not be denied that it has the nature of endangering the public * * * safety, and many town traffic accidents are directly or indirectly related to non-motorized traffic violations. Therefore, the said person should be punished for the crime of traffic accident by violating the law. It would be unreasonable to penalize them for the crime of causing death because they hit and killed someone, and for the crime of causing serious injury by negligence because they hit and injured someone. At present, judicial practice, generally according to the second opinion of the conviction and sentence, that is, the crime of traffic accident.
(C) the main elements
The subject of this crime is the general subject. That is, all 16 years of age, with the capacity for criminal responsibility of the natural person can constitute. The subject can not be understood as all the people working in the above transportation sector, and can not be understood as only referring to trains, cars, trams, ships, aircraft and other means of transportation driving personnel, but should be understood as all directly engaged in transportation business and ensure transportation personnel and non-transportation personnel. Transportation personnel, specifically, including the following four kinds of personnel engaged in transportation, (1) the driving personnel of transportation tools, such as trains, automobiles, trams, drivers, etc.; (2) the manipulation of transportation equipment, such as wrenching, inspectors, crossing guards, etc.; (3) the direct leadership of transportation activities, commanders, such as the captain of the ship, the captain of the plane, the navigator, the dispatcher, etc.; (4) the safety of the transportation Management personnel, such as traffic supervisors, traffic police and so on. They bear the responsibility with the transportation has a direct relationship, once the correct performance of their duties, may cause major traffic accidents.
Non-transportation personnel violating rules and regulations, such as non-drivers driving against the rules, in the transportation of major accidents, resulting in serious consequences, also constitute the subject of this crime. The supreme people's court, the supreme people's procuratorate "on the handling of theft cases on the specific application of the law of a number of issues of the interpretation", "in stealing a car in the negligence of the death, injury to others, or crashed the vehicle, but also constitutes another crime, should be according to the crime of traffic accidents with the crime of other crimes and penalties," this explanation shows that the non-transportation personnel constitute the crime of traffic accident, and not by the crime of traffic accident. This explanation shows that the non-transportation personnel constitute the crime of traffic accident, and does not take the accident occurred in the process of transportation as an essential element.
(D) subjective elements
The subjective aspect of this crime is manifested in negligence, including negligence and overconfidence. This kind of negligence refers to the behavior of the perpetrator of their own violation of the rules and regulations may cause serious consequences in terms of mental attitude. Behavior in the violation of rules and regulations may be knowingly, such as driving under the influence of alcohol, forcible overtaking, speeding, etc., but on their own violation of the rules and regulations may occur major accidents, resulting in serious consequences, should be foreseen but due to negligence and carelessness, did not foresee, or have foreseen, but gullible to believe that it can be avoided, so as to cause the serious consequences.
Two, how to deal with minor traffic accidents
(a) at the fast compensation
suitable for dealing with motor vehicles between the two parties to negotiate the damage to the car traffic accidents, self-snapshot, retain evidence, their own rapid evacuation of the scene, *** with the fast compensation service center for processing.
Conforms to the conditions of treatment, can be dealt with to the fast compensation center: 1, Xi'an City, the administrative area of the traffic accidents caused only by property damage; 2, motor vehicles between the occurrence of traffic accidents do not involve injuries; 3, in the province to insure the third compulsory motor vehicle liability insurance; 4, the vehicle can be driven by themselves.
Not applicable to the scope of the need to call the police to deal with (the following first five belong to the first move the scene, after the police situation, the last three belong to the scene immediately call the police) 1, collision of buildings, public **** facilities and other facilities; 2, the vehicle has not been inspected annually; 3, the uninsured motor vehicle compulsory insurance; 4, the vehicle without a license plate; 5, without a driver's license to drive a vehicle; 6, driving a vehicle after drinking alcohol ;7, a party fleeing; 8, the cause of the accident is disputed.
(B) the scene of the removal procedures:
1, the accident, stop immediately; 2, check each other's driver's license, license, insurance certificate; 3, check the damage, take pictures for evidence. Panoramic photo (front and rear two), the center of the photo (two sides of the body), detailed photo (collision parts of the photo two); 4, evacuate the scene, parked by the side of the road, self-consultation, leave each other's phone numbers, to the fast-track compensation center to deal with.
(C) to the fast-transfer claims center procedures:
1, guide desk: submit documents (driver's license, driving license, insurance certificate); check documents; copy documents; fill out the Agreement. 2, out of the billing desk: print the Agreement. 3, the insurance company to assess the damage to the car, issued by the loss of a single. 4, the police department: the loss of 2,000 yuan of damage to the car below the Agreement to confirm; more than 2,000 yuan of damage issued by the police. More than 2,000 yuan of damage to the car issued a "Certificate of Accident" (simplified procedures). 5, insurance claims, repair vehicles.
(D) micro-letter processing
Applicable to motor vehicles between the occurrence of traffic accidents, the parties involved in the micro-letter accident processing platform to take pictures, transmission of evidence, to achieve remote online acceptance, processing, determination of responsibility, claims, "one-click" processing. Self-service processing, fast and efficient, the fastest speed since the withdrawal of the scene, the shortest time to deal with the case. Acceptance scope: people are not injured, the car can move; full formalities, insurance; cause clear, no dispute. Handling advantages: no need to traffic police to the scene, easy to operate, data run efficiently, claims quickly in place.
(E) graded disposal
Applicable to the grid duty police received alarms or passing through the discovery of traffic accidents, belonging to the circumstances of the clear damage to the car accident on the spot, issued a "Certificate of Accident" (summary procedure); disputes photographed and retained evidence to hand over to the brigade rapid processing office to deal with the situation of injuries, to fulfill the duties of the scene, protect the scene, rescue the injured, looking for Witnesses, traffic diversion, waiting for the accident police to the scene to help deal with. Can effectively ensure that the scene of the car accident quickly evacuated to ensure that the road is smooth.
(F) rapid processing
The brigade accident squadron as well as high-speed, Chang'an brigade duty squadron set up a rapid processing office, the accident handling full-time police accept grid police transfer, fast compensation center returned to the brigade, not examined, such as difficult, the parties to deal with their own to the brigade of the car-damaged traffic accidents. Ensure that all types of car accidents are handled quickly.
The rapid compensation service center according to the scale, their own conditions in addition to handling traffic accidents, legal aid, rescue and other business, but also the introduction of traffic management business, car driving management business and other functions, more convenient to the people.
Three, how to compensate for traffic accidents
Traffic accidents occur, according to the following standards for compensation:
(a) the determination of disability compensation standards
Disability compensation according to the degree of the victim's incapacity to work or disability level, according to the location of the court of appeal in the previous year, the per capita disposable income of urban residents or the per capita income of rural residents, the standard from the date of determination of disability by 20%, or by the average of the average disposable income of urban residents or rural residents. standard, calculated at 20 years from the date of disability determination. However, if the person is over 60 years old, the period shall be reduced by one year for each additional year of age; if the person is over 75 years old, the period shall be calculated by five years.
(B) the dependents of the determination of living expenses
"Personal injury compensation interpretation" stipulates that the urban residents per capita consumer spending and rural residents per capita annual living consumption expenditure standards, the dependents are minors are calculated until the age of 18 years old, the age of 60 years old and above, every year of age is reduced by 1 year; 75 years old and above, is calculated according to the five-year period. This is also different from the provisions of the "minors are calculated until the age of 16, the age of 50 years of age is reduced by one year for each additional year of age, the age of 50 years of age is calculated in accordance with the five-year period.
(C) the determination of death compensation standards
Death compensation in accordance with the location of the court of appeal in the previous year per capita disposable income of urban residents or rural residents of pure income standards, calculated over 20 years. However, for those over 60 years of age, the number of years shall be reduced by one for each additional year of age; and for those over 75 years of age, the calculation shall be made on the basis of five years.
(4) Determination of the cost of disability aids
The cost of disability aids is calculated in accordance with the standard of reasonable cost of ordinary applicable aids. If the injury has special needs, the reasonable cost standard can be determined with reference to the opinion of the auxiliary aids dispensing organization. The replacement cycle and compensation period of the auxiliary aids shall be determined with reference to the opinion of the formulating organization.
(E) Determination of medical expenses
Medical expenses shall be determined on the basis of medical bills, hospitalization fees and other receipts issued by the medical institutions, combined with medical records and diagnostic certificates and other relevant evidence.
(F) Determination of lost wages
Lost wages are determined on the basis of the victim's lost time and the status of income. The time lost at work is determined according to the certificate issued by the medical institution where the victim received treatment.
(7) Criteria for Determining Nursing Care Costs
Nursing care costs are determined according to the income status of the caregiver and the number and duration of nursing care. If the caregiver has an income, it is calculated with reference to the provisions of the lost wages; if the caregiver has no income or hires a caregiver, it is calculated with reference to the standard of labor remuneration of the local caregiver engaged in the same level of care.
(VIII) Determination of transportation costs
The transportation costs are calculated on the basis of the actual costs incurred by the victim and his/her necessary companions for medical treatment or transfer to a hospital for treatment.
(IX) Criteria for determining hospital meal allowance
Hospital meal allowance can be determined by referring to the local state organs of the general staff of the business trip meal allowance standard. The victim really needs to go abroad for treatment, due to objective reasons can not be hospitalized, the victim himself and his companion actually incurred accommodation and food expenses, and its reasonable part shall be compensated.
(J) the determination of nutritional expenses
Nutritional expenses are determined according to the victim's disability with reference to the opinion of the medical institution.
(xi) the determination of funeral expenses
Funeral expenses are calculated in accordance with the standard of the average monthly salary of the employees in the previous year in the place where the court under appeal is located, in the total amount of six months.
Traffic accidents may be criminalized when they meet the constitutive elements of the crime of traffic accidents, and the criminal responsibility is different according to the circumstances of the crime. The above is to find law net editor for you to bring about traffic accidents under what circumstances will be sentenced to imprisonment of the relevant knowledge, if you have any do not understand or have other questions, you can consult the lawyers to find law net.
Legal objective:"The supreme people's court on the trial of criminal cases of traffic accidents on the specific application of the law of the interpretation of the second traffic accident with one of the following circumstances, shall be sentenced to less than three years of fixed-term imprisonment or detention: (a) the death of a person or serious injury to more than three people, responsible for all the accidents or the main responsibility; (b) more than three deaths, the same responsibility for the accident ; (c) causing direct loss of public **** property or other people's property, is fully or mainly responsible for the accident, incapable of compensation amounting to more than 300,000 yuan. Traffic collision causing serious injury to more than one person, is fully or mainly responsible for the accident, and has one of the following circumstances, the traffic crime shall be punished by conviction: (1) driving a motor vehicle after drinking or taking drugs; (2) driving a motor vehicle without driving qualifications; (3) driving a motor vehicle that is known to have incomplete safety devices or malfunctioning safety components; (4) driving a motor vehicle that is known to be without a license plate or has been scrapped; (5) driving a motor vehicle with serious injuries; (6) causing serious injuries to more than one person, and is fully or mainly responsible for the accident. And driving; (E) serious overloading driving; (F) to avoid legal action to flee the scene of the accident.