Traffic accident compensation Project refers to the items included in the compensation given by the injurer to the victim in traffic accidents, mainly including medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, food subsidies during hospitalization, nutrition expenses, appraisal expenses, disability compensation, disability assistive devices expenses, funeral expenses, living expenses of dependents, death compensation, etc.
The Interpretation of Personal Injury Compensation implements the principle of comprehensive compensation in terms of compensation items and compensation standards. Rehabilitation expenses and follow-up treatment expenses were added to the compensation project, and "disability compensation" was used instead of "living allowance for the disabled". It is embodied in Articles 17 and 18 of the Interpretation of Personal Injury Compensation:
(1) The compensation items for personal injury suffered by the victim include: medical expenses, lost time, nursing expenses, transportation expenses, accommodation expenses, hospital food subsidies and necessary nutrition expenses. (2) In addition to the first item, the compensation items for disabled victims also include: disability compensation, disability AIDS, living expenses of dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.
A, traffic accident compensation standard table
Second, the traffic accident compensation standard
(1) General compensation standard for traffic accidents
1. Medical expenses compensation standard
Medical expenses refer to the expenses that the victim must pay for medical examination, treatment and rehabilitation training after personal injury.
Article 19 of the Interpretation of Personal Injury Compensation stipulates that medical expenses shall be determined according to the receipt of medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence. If the obligor for compensation disagrees with the necessity and rationality of the treatment, he shall bear the corresponding burden of proof. The amount of compensation for medical expenses shall be determined according to the actual amount before the end of the debate in the court of first instance. After the necessary rehabilitation expenses of organ recovery training, appropriate beauty expenses and other follow-up treatment expenses actually occur, the right holder may sue separately. However, according to the diagnosis or appraisal conclusion, the inevitable expenses can be compensated together with the medical expenses that have already occurred.
The Interpretation of Personal Injury Compensation adopts the principle of differential compensation for specific losses such as medical expenses, that is, how much is actually paid. Follow-up treatment costs are subject to standardized compensation standards. The cost of follow-up treatment refers to the cost of secondary treatment for injuries with fixed signs, residual dysfunction or injuries that have not recovered after treatment. Stereotyped compensation does not consider the arithmetic difference of personal property loss of specific victims, but is based on the social appropriateness of damage compensation and the principle of fixing the standard of damage compensation for social justice.
2. Compensation standard for lost time
The lost time fee refers to the compensation for the lost or reduced work and labor income due to the victim's inability to engage in normal work or labor during the period from injury to full recovery (that is, lost work).
Article 20 of the Interpretation of Personal Injury Compensation stipulates that the lost time fee shall be determined according to the lost time fee and income of the victim. The time of loss is determined according to the certificate issued by the medical institution where the victim is treated. If the victim continues to lose his job due to injury and disability, the lost working time can be calculated to the day before the fixed disability. If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income. If the victim has no fixed income, it shall be calculated according to his average income in the last three years; If the victim can't 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. Personal injury compensation instructions compensate the actual expenses and lost time expenses according to the actual difference. In the original "Measures for Handling Road Traffic Accidents", the maximum loss of lost time for parties with fixed income cannot exceed three times the average living expenses of the place where the traffic accident occurred, and those without fixed income are calculated according to the average income of state-owned industries. This explanation does not set a maximum limit on lost time. There are two points to be clarified about "if the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income":
(a) fixed income must have legal proof;
(2) The victim must actually reduce his fixed income. If the employer of the victim fails to withhold or withhold all his income after the victim is injured, the lost time fee shall not be compensated or underpaid.
3. Nursing expenses compensation standard
Nursing expenses refer to the expenses paid by the victim who suffers personal injury, can't take care of himself and needs help from others.
Article 21 of the Interpretation of Personal Injury Compensation stipulates that the nursing fee shall be determined according to the income status of nursing staff, the number of nursing staff and the nursing period. Nursing staff have income, according to the provisions of the calculation of lost time; If the nursing staff has no income or employs nursing staff, it shall be calculated according to the local labor remuneration standard for nursing staff at the same level. In principle, there are 1 nursing staff, but if medical institutions or appraisal institutions have clear opinions, the number of nursing staff can be determined by reference. The nursing period should be calculated until the victim recovers his self-care ability. If the victim can't recover his self-care ability due to disability, a reasonable nursing period can be determined according to his age, health status and other factors, but the longest nursing period shall not exceed 20 years. The nursing level of disabled victims should be determined according to their nursing dependence and the equipment of assistive devices for the disabled.
If the actual nursing period of the victim exceeds the nursing period determined by the court, and the victim brings a lawsuit to the court to ask for continuing to pay the nursing expenses, if it is really necessary to continue nursing, the court shall order the compensation obligor to continue to pay the nursing expenses for 5- 10 years. If the actual nursing period of the victim is shorter than the nursing period determined by the court, and the compensation obligor pays all the nursing expenses in one lump sum, should the overpaid nursing expenses be returned? We believe that the nursing period determined by the judgment is made by the judge within the scope of discretion according to the law, and the victim receives the nursing fee in one lump sum according to the judgment of the court. The heir of the victim has no obligation to return the excessive nursing expenses, and the compensation obligor may not ask for them.
4. Transportation cost compensation standard
Transportation expenses refer to the actual transportation expenses incurred by the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment.
Article 22 of the Interpretation of Personal Injury Compensation stipulates that the transportation fee shall be calculated according to the actual cost of the victim and his necessary accompanying personnel for medical treatment or transfer to hospital for treatment. Transportation expenses are generally paid according to the standard of travel expenses of ordinary staff of state organs where the infringement occurred. Ordinary buses are the main means of transportation. You can take an ambulance or taxi under special circumstances, but the victim should explain the rationality of the use. Transportation expenses should be based on official bills; Relevant evidence should be consistent with the place, time, frequency and frequency of medical treatment. If not, the corresponding amount should be deducted from the compensation amount.
5. Hospitalization food subsidy compensation standard
Hospitalization food subsidy refers to the expenses that need to be subsidized during the hospitalization of the victim or before the death of the victim.
Article 23 of the Interpretation of Personal Injury Compensation stipulates that the food subsidy for hospitalization can be determined with reference to the food subsidy standard for ordinary staff of local state organs. If the victim really needs to go to other places for treatment and cannot be hospitalized for objective reasons, he shall compensate the reasonable part of the accommodation expenses actually incurred by the victim himself and his entourage. Hospitalization food subsidy, the subsidy object is the "victim" of "hospitalization". If the victim is not hospitalized, there is no such compensation.
6. Nutrition fee compensation standard
Nutritional expenses refer to the expenses paid by the damaged body after metabolic changes, which can not meet the needs of the damaged body for heat energy and various nutrients through daily diet, and must obtain nutrition from other foods. Article 24 of the Interpretation of Personal Injury Compensation stipulates that the nutrition fee is determined according to the degree of disability of the victim and with reference to the opinions of medical institutions.
(two) the victim's disability compensation standard
In addition to the first item, the victim's disability compensation items also include: disability compensation, disability AIDS, living expenses of dependents, and necessary rehabilitation expenses, nursing expenses and follow-up treatment expenses actually incurred due to rehabilitation nursing and continuing treatment.
1. Compensation standard of disability compensation
Article 25 of the Interpretation of Personal Injury Compensation stipulates that the disability compensation shall be calculated according to the per capita disposable income of urban residents or the per capita net income of rural residents in the previous year, and calculated for 20 years. However, for people over 60 years old, each year of increase in age will decrease 1 year; Five years for those over 75.
(1) Determination of the nature of disability compensation
Is the nature of disability compensation property damage compensation or mental damage compensation? This is not a very clear problem in theory and practice. According to the provisions of the State Compensation Law, the Interpretation of Personal Injury Compensation holds that the nature of disability compensation refers to the compensation for property losses caused by loss of income or loss of living ability due to disability, and denies the determination of the nature of disability compensation in the Interpretation of Several Issues on Determining the Liability for Compensation for Spiritual Damage in Civil Torts [200 1] No.7.
(2) Criteria for determining the degree of incapacity for work
According to Article 21 of the Regulations on Work-related Injury Insurance, if an employee is injured at work and is disabled after treatment, he shall be appraised for his ability to work. Labor ability appraisal refers to the level appraisal of the degree of labor dysfunction and the degree of disability in living conditions. The degree of labor dysfunction is divided into ten levels of disability, the heaviest being 1 and the lightest being 10. Self-care obstacles are divided into three levels: life can not take care of itself at all, most of life can not take care of itself, and life can not take care of itself.
(3) Criteria for determining the level of disability
China's current disability rating standards can be said to be "multi-level". Different authorities have formulated different appraisal standards for different disabled people. The assessment of the degree of disability of the injured in road traffic accidents should generally be applied to the National Standard for Disability Assessment of the Injured in Road Traffic Accidents in People's Republic of China (PRC) issued by the Ministry of Public Security. Specific calculation formula of disability compensation:
A. Disability compensation (people under 60 years old) = disability level (level I 100, level II 10%, etc. ) × per capita disposable income of urban residents or per capita net income of rural residents in the last year where the court of appeal is located ×20 years;
B. Disability compensation (people over 60 years old) = disability level (Grade I 100, Grade II 10%, etc. ) × per capita disposable income of urban residents or per capita net income of rural residents in the last year where the court of appeal is located ×(20 years old-aging);
C. Disability compensation (people over 75 years old) = disability level (Grade I 100, Grade II 10%, etc. ) × per capita disposable income of urban residents or per capita net income of rural residents in the last year where the court of appeal is located ×5 years.
Of course, in the case that "the actual income of the victim has not decreased due to disability, or the degree of disability is low, but the occupation obstacle seriously affects his employment", the disability compensation can be adjusted accordingly.
2. Compensation standard for assistive devices with disabilities
Disabled assistive devices are self-help devices purchased and prepared by disabled victims to compensate their injured body and organ functions and help them take care of themselves or engage in productive labor.
Article 26 of the Interpretation of Personal Injury Compensation stipulates that the cost of assistive devices for the disabled shall be calculated according to the reasonable cost standard of generally applicable devices. If there is a need for special injury, the corresponding reasonable cost standard can be determined by referring to the opinions of the auxiliary equipment organization. The replacement cycle and compensation cycle of auxiliary appliances should be determined with reference to the opinions of the organization.
"Universal applicability" is the guiding principle for determining reasonable expenses. The basic requirements of this principle:
(1) is "ordinary", that is, the auxiliary equipment prepared should exclude luxury and luxury, and should not blindly pursue high quality.
(2) It is "applicable", and there are two applicable inspection standards:
A. it can really play the role of functional compensation;
B. meet the requirements of "stability" and "safety".
How to determine the organization? Prosthetic and Orthopedic Rehabilitation Institutions of China's civil affairs departments are specialized institutions engaged in the research and production of assistive devices, which can be engaged in the identification and preparation of assistive devices for the disabled. In practice, the court should generally determine the compensation cost of disability AIDS according to the opinions of the prosthetic and orthopedic rehabilitation institutions of the civil affairs department. If the obligee of compensation really needs to continue to prepare assistive devices for disability after the fixed payment period of assistive devices, the people's court shall order the obligor of compensation to continue to pay the related expenses for 5- 10 years.
3. Compensation standard for living expenses of dependents
In the past, the compensation standard for the living expenses of the dependents was the standard of living allowance or basic living expenses. The former is tens of yuan per month, while the latter is actually the minimum living standard for urban residents, but it is only two or three hundred yuan per month. The Interpretation of Personal Injury Compensation stipulates that the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of rural residents are the standards, which also reflects the consistency of compensation and damage. At the same time, the interpretation of personal injury compensation stipulates that if the dependent is a minor, it is 18 years old, and if it is over 60 years old, it will be reduced by 1 year old for each additional year; Over 75 years old, five years old. This is also different from the provisions of "minors are calculated at 16 years old, and each additional year under 50 years old is reduced by one year, and those over 50 years old are calculated at five years".
Specific calculation formula:
(1) Dependent's living expenses (minors) = disability level (level I 100%, level II 100%, others 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the court of appeal is located ×( 18 years old);
(2) Dependent's living expenses (no ability to work, no other source of income) = disability level (level I 100%, level XI 100%, other 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the Court of Appeal is located ×20 years;
(3) Dependent's living expenses (over 60 years old) = disability level (Grade I 100%, Grade II 100%, others 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the court is located ×(20 years old-growing age);
(4) Dependent's living expenses (over 75 years old) = disability level (Grade I 100%, Grade II 100%, others 100%, etc. ) × The per capita consumption expenditure of urban residents and the per capita annual living expenditure of rural residents in the last year where the Court of Appeal is located ×5 years.
4. Rehabilitation expenses, nursing expenses and other expenses
Rehabilitation expenses should have relevant evidence, such as medical bills.
The nursing fee is determined according to the income of nursing staff, the number of nursing staff and the nursing period.
Nursing staff have income, with reference to the provisions of the calculation of lost time; If the nursing staff has no income or employs nursing staff, it shall be calculated according to the local labor remuneration standard for nursing staff at the same level. In principle, there are 1 nursing staff, but if medical institutions or appraisal institutions have clear opinions, the number of nursing staff can be determined by reference.
The nursing period should be calculated until the victim recovers his self-care ability. If the victim can't recover his self-care ability due to disability, a reasonable nursing period can be determined according to his age, health status and other factors, but the longest nursing period shall not exceed 20 years.
The nursing level of disabled victims should be determined according to their nursing dependence and the equipment of assistive devices for the disabled.
After the necessary rehabilitation expenses of organ recovery training, appropriate beauty expenses and other follow-up treatment expenses actually occur, the right holder may sue separately. However, according to the diagnosis or appraisal conclusion, the inevitable expenses can be compensated together with the medical expenses that have already occurred.
(3) the compensation standard of the victim's death
1. Determination of the nature of death compensation
The interpretation of personal injury compensation abandons the position of "loss of support" in the interpretation of mental injury compensation in the French Interpretation [200 1] No.7, but uses "loss of inheritance right" to explain the death compensation system in relevant laws and regulations in China. According to this new orientation, the content of death compensation is income loss compensation, and its nature is property damage compensation, not mental damage compensation.
2. The specific calculation of death compensation
Death compensation is calculated according to the standard of per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located, and calculated according to 20 years. But for people over 60 years old, the age increases 1 year, and decreases 1 year; Five years for those over 75. The specific calculation formula is:
(1) Death compensation (persons under 60 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located ×20 years;
(2) Death compensation (persons over 60 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located ×(20 years old-aging);
(3) Death compensation (persons over 75 years old) = per capita disposable income of urban residents or net income of rural residents in the last year where the court of appeal is located ×5 years.
3. Compensation standard for living expenses of dependents
In the past, the compensation standard for the living expenses of the dependents was the standard of living allowance or basic living expenses. The former is tens of yuan per month, while the latter is actually the minimum living standard for urban residents, but it is only two or three hundred yuan per month. The Interpretation of Personal Injury Compensation stipulates that the per capita consumption expenditure of urban residents and the per capita annual consumption expenditure of rural residents are the standards, which also reflects the consistency of compensation and damage. At the same time, the interpretation of personal injury compensation stipulates that if the dependent is a minor, it is 18 years old, and if it is over 60 years old, it will be reduced by 1 year old for each additional year; Over 75 years old, five years old. This is also different from the provisions of "minors are calculated at 16 years old, and each additional year under 50 years old is reduced by one year, and those over 50 years old are calculated at five years".
Specific calculation formula:
(1) Dependent's living expenses (minors) = disability level (level I 100%, level II 100%, others 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the court of appeal is located ×( 18 years old);
(2) Dependent's living expenses (no ability to work, no other source of income) = disability level (level I 100%, level XI 100%, other 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the Court of Appeal is located ×20 years;
(3) Dependent's living expenses (over 60 years old) = disability level (Grade I 100%, Grade II 100%, others 100%, etc. ) × per capita consumption expenditure of urban residents and per capita annual living consumption expenditure of rural residents in the last year where the court is located ×(20 years old-growing age);
(4) Dependent's living expenses (over 75 years old) = disability level (Grade I 100%, Grade II 100%, others 100%, etc. ) × The per capita consumption expenditure of urban residents and the per capita annual living expenditure of rural residents in the last year where the Court of Appeal is located ×5 years.
4. Compensation standard for funeral expenses
The funeral expenses are calculated according to the average monthly salary of employees in the last year where the Court of Appeal is located, and the total amount is six months. If the victim dies of personal injury, regardless of the victim's occupation, identity, work, gender, age, etc. When it comes to the payment standard of funeral expenses, there is no difference between whether he lived in a town or a country before his death, but the same standard should be applied to determine it.
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