1, fixed income refers to legitimate income such as wages, bonuses, allowances and subsidies for special types of work. , should be made by the state organs, enterprises, institutions and social group work personnel on schedule, but due to medical accidents caused by medical delays and losses.
Generally, the income certificate and payroll issued by the unit shall prevail, and the bonus shall be calculated based on the per capita bonus of the patient in the previous year, and the bonus tax threshold shall be limited.
It should be noted that the income certificates issued by private enterprises such as sole proprietorship enterprises, partnerships, and limited companies with unsound finances, especially the income certificates proving that the patient's "fixed income" is more than three times the average annual salary of employees in the previous year, are not used as the basis for identification alone, but must be combined with the personal income tax payment certificate of the tax authorities and other materials.
If the victim can't provide evidence to prove his average income in the last three years, he can refer to the average salary of employees in the same industry or similar industries where the Court of Appeal is located in the previous year.
2, no fixed income includes two types of people, one is engaged in agriculture, forestry, animal husbandry and fishery production of rural villagers; Second, there are street offices, township people's governments or relevant certificates.
Engaged in some kind of labor before the medical accident, whose income can maintain my normal life, including contracted business households, urban and rural individual industrial and commercial households, migrant workers (casual workers, temporary workers), family laborers and so on. All of them are calculated according to the average annual salary of employees in the last year where the medical accident occurred.
3. Identification of late working date. According to Article 143 of the Supreme Court's Implementation Opinions on Several Issues, "the date of lost work should be determined according to the actual damage degree, recovery status and reference to the certificate issued by the treatment hospital or forensic identification".
The date of missed work consists of two parts: the days of hospitalization and the days of rest issued by the treatment hospital after discharge. Calculated from the date of the medical accident, it will not be deducted in case of national legal holidays.
After the treatment, those who refuse to leave the hospital without justifiable reasons or refuse to rest without relevant certificates will not be counted as lost time. If the medical accident causes the patient to be disabled, the lost time fee will no longer be calculated after the expert appraisal group issues the medical accident technical appraisal book, that is, the lost time fee will no longer be compensated after the disability is identified.
4, patients engaged in a second occupation according to law, the actual reduction of income, should be reasonable compensation. If the patient is a minor, it is not supported to claim compensation for lost time.
5. Calculation of lost time of retirees. In this regard, there is no clear provision in the current national laws, and some local courts also have relevant contents in the "Work Guidance Opinions".
For example, the Opinions of the Higher People's Court of Shandong Province on Several Issues Concerning the Trial of Personal Injury Compensation Cases stipulates that the victim is a retiree who is looking for another job, and the income reduced due to missed work shall be treated as follows: if it is clearly recognized by laws and policies, compensation shall be given according to the actual reduced income;
If the laws and policies are not explicitly approved or prohibited, compensation shall be made with reference to the original on-the-job wage standard, but if the new income is lower than the on-the-job wage, compensation shall be made according to the new income; In violation of laws and policies, the reduced income will not be compensated.
Extended data
The Supreme People's Court's Interpretation of Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases
first
The people's court shall accept the case where the obligee for compensation has been infringed upon his life, health and body and the obligor for compensation has been sued for causing property losses and mental damage. ?
The obligee for compensation mentioned in this article refers to the victim who directly suffered personal injury due to tort or other damage reasons, the victim's legal obligation to support him, and the close relatives of the deceased victim. ?
The obligor for compensation mentioned in this article refers to a natural person, legal person or other organization that should bear civil liability according to law because of its own or others' tort and other causes of damage. ?
second
If the victim intentionally or negligently causes the occurrence or expansion of the same damage, the liability of the compensation obligor may be reduced or exempted in accordance with the provisions of Article 131 of the General Principles of the Civil Law. However, if the infringer causes damage to others intentionally or due to gross negligence, and the victim has only general negligence, the liability of the compensation obligor shall not be reduced. ?
When the third paragraph of Article 106 of the General Principles of Civil Law is applied to determine the liability of the compensation obligor, if the victim has gross negligence, the liability of the compensation obligor may be reduced. ?
essay
If two or more persons * * * intentionally or negligently cause damage to others, or their infringement acts are directly combined to produce the same damage result, which constitutes * * * infringement, they shall be jointly and severally liable in accordance with the provisions of Article 130 of the General Principles of the Civil Law. ?
If two or more persons have no intention or negligence, but several acts they have committed are indirectly combined to cause the same damage, they shall bear corresponding liability for compensation according to the size of negligence or the proportion of causal power. ?
Article 4
If two or more persons commit acts endangering the personal safety of others, causing damage and the actual infringer cannot be determined, they shall bear joint and several liability in accordance with the provisions of Article 130 of the General Principles of the Civil Law. * * * The same dangerous actor can prove that the damage result was not caused by his behavior, and he will not be liable for compensation. ?
Article 5
If the obligee for compensation sues a certain * * with the infringer as the defendant, the people's court shall add other * * with the infringer as the defendant. If the obligee for compensation waives the claim against some joint infringers, the other joint infringers shall not be jointly and severally liable for the defendant's waiver of the claim for compensation. If the scope of liability is difficult to determine, it is presumed that each * * * bears the same responsibility as the infringer. ?
The people's court shall inform the obligee of compensation of the legal consequences of giving up the creditor's rights, and specify the situation of giving up the creditor's rights in legal documents. ?
Article 6
If a natural person, legal person or other organization engaged in business activities such as accommodation, catering, entertainment or other social activities fails to fulfill the obligation of safety and security within a reasonable range, causing personal injury to others, and the obligee for compensation requests him to bear the corresponding liability for compensation, the people's court shall support it. ?
If damage is caused by infringement by a third party, the infringing third party shall be liable for compensation. If the security obligor is at fault, he shall bear the corresponding supplementary liability for compensation within the scope that he can prevent or stop the damage.
After assuming the responsibility, the security obligor may claim compensation from a third party. Where the right holder of compensation brings a lawsuit against the security obligor, the third party shall be regarded as a co-defendant, except where the third party is uncertain. ?
Article 7
Schools, kindergartens or other educational institutions that are legally obligated to educate, manage and protect minors fail to perform relevant obligations within the scope of their duties, thus causing personal injury to minors, or if minors cause personal injury to others, they shall be liable for compensation corresponding to their faults. ?
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. ?
Article 8
If the legal representative, responsible person or staff member of a legal person or other organization causes damage to others when performing their duties, the legal person or other organization shall bear civil liability in accordance with the provisions of Article 121 of the General Principles of the Civil Law.
If the above-mentioned personnel commit acts unrelated to their duties and cause damage to others, the perpetrator shall be liable for compensation. If it belongs to the compensation reasons stipulated in the State Compensation Law, it shall be handled in accordance with the provisions of the State Compensation Law. ?
Article 9
If a laborer causes damage to others in employment activities, the employer shall be liable for compensation; Workers who cause damage to others due to intentional or gross negligence shall be jointly and severally liable for compensation with the employer. If the employer is jointly and severally liable for compensation, it may claim compensation from the laborer. ?
Engaged in employment activities mentioned in the preceding paragraph refers to engaging in production and business activities or other labor activities within the scope authorized or instructed by the employer. The employee's behavior is beyond the scope of authorization, but its manifestation is or is intrinsically related to the performance of duties, which should be considered as "engaging in employment activities".
Article 10
Where the ordering party causes damage to a third party or itself during the completion of the work, it shall not be liable for compensation. However, if the ordering party is at fault in ordering, instructing or selecting, it shall bear the corresponding liability for compensation. ?
Reference: laws and regulations network? The Supreme People's Court's Interpretation of Applicable Law in Personal Injury Compensation Cases