Time: July 2, 2010 location: An and the office of the old rights protection studio plaintiff and defendant: the plaintiff Peng Jianhua, the defendant Hu Weiguo, Yu Zhihong and Harbin Xinchi Taxi Company Limited legal representative of the Zhang Jianmin Presiding Judge: Li Sijie Trial Judge: Christina Zhang Li Shao Shen Clerk: Zhou Yuliang attorney-in-fact: Yang Tianyuan Tong Jun attorney-in-fact: Yang Yuehua Yang Yanbo Appraisal: Li Yasha A, the trial preparation Stage (a), the clerk to check the courtroom facilities are complete, signage is complete and placed in place. (B), the clerk to check whether the parties, litigation agent to the court: the plaintiff Peng Jianhua, commissioned by Yang Yuehua, Wang Yanbo whether to the court; the defendant Hu Weiguo, Yu Zhihong and Harbin Xinchi Taxi Co., Ltd. legal representative of Zhang Jianmin, commissioned by Yang Tianyuan, Tong Jun whether to the court; (C), the clerk announced: the parties, commissioned by the agent to the court according to the seat seated. (D), the clerk announced: please be quiet, now announced the court discipline. In accordance with the provisions of the "Chinese people's *** and the people's court court rules", the following people may not participate in the audience: minors under 18 years of age; mental patients and drunken people; people deprived of political rights; people serving a sentence outside the prison, and is under residential surveillance, release on bail, awaiting trial; people carrying weapons, murder weapon; other people may disrupt the order of the court. The parties, other participants in the proceedings and spectators must observe the following disciplines: 1. The spectators must remain silent, and are not allowed to applaud, clamor, or make noise, or otherwise obstruct the trial activities; 2. The spectators may not walk around or enter the trial area; 3. The parties and other participants in the proceedings may not leave the courtroom in the middle of the proceedings, and may not make speeches or ask questions without the consent of the presiding judge, who should stand up when speaking, and may not attack, attack, or ask questions. Attention to civilized manners, shall not attack, abuse others; 4, without the permission of the court, no one shall not record, photography, video in the courtroom; 5, no smoking and spitting; 6, turn off the pager, cell phones and other communication equipment. Violation of court discipline, the court will give verbal warnings, admonitions, and if you do not listen to advice, the presiding judge decides, you can confiscate the audio, video, photography equipment, ordered to withdraw from the courtroom, or approved by the president of the fine, detention. For coaxing, impact on the courtroom and other serious disruption of order in the courtroom, shall be held criminally liable in accordance with the law. (E), the clerk announced: now the presiding judge and members of the panel into the court, all rise. (Presiding Judge and members of the panel enter the courtroom.) (6) Presiding Judge: Please be seated. (VII), the clerk to the presiding judge to report to the parties and agents in court. Second, the trial stage (a), the presiding judge announced the opening: (gavel) I declare the plaintiff Peng Jianhua and the defendant Hu Weiguo, Yu Zhihong dispute, now in session. (B), the presiding judge: now check the identity of the parties and litigants. The plaintiff to the court statement of his name, sex, date of birth, place of origin, occupation, domicile (is the litigation representative of the statement of name, occupation, domicile; is the legal representative of the statement of name, occupation, unit domicile). The authorized agent to the court to state his identity and authority. The defendant and the authorized agent to the court to state their identity. (C), the presiding judge asked the parties: the plaintiff on the other side of the identity of the persons appearing in court have any objection? The defendant has no objection to the identity of the other party to the court? (D), the parties have expressed no objection, the presiding judge announced: the parties and their litigation agents in accordance with the provisions of the law, can participate in the proceedings. (E), the presiding judge: the following I announce the composition of the panel and the clerk list. In accordance with the provisions of the Chinese people's *** and national civil procedure law, this case according to the law to form a collegial tribunal, by the trial judge Li Sijie as the presiding judge, the trial judge Zhang Wei, Li Shao Shen to participate in the collegiality of the clerk Zhou Yuliang as a record. Accountant (engineer, interpreter) Li Ya Xiao accepted the Court commissioned to serve as an expert in this case. (F), the presiding judge: now inform the parties in the court of the litigation rights and litigation obligations. The parties enjoy the following procedural rights in court: 1, the right to apply for disqualification. 2, the right to put forward new evidence. 3, with the permission of the court, the parties can ask questions to witnesses, experts, investigators, can apply for re-investigation, investigation and appraisal. 4, the debate and request the court to give the right to mediation. 5, the plaintiff has the right to waive, change, increase the right of the plaintiff, the defendant has the right of the right of the counterclaim. 6, the plaintiff has the right of the defendant, the defendant has the right of the right of the defendant; The appellant has the right to waive, change or increase the appeal request, and the opposing party has the right to make a defense and rebuttal.6. The right to state a final opinion. The parties must consciously fulfill the following litigation obligations in court: 1, the correct exercise of litigation rights in accordance with the law; 2, to comply with the court discipline and order of the proceedings, and listen to the presiding judge's command; 3, the responsibility to provide evidence for the claims made by themselves; 4, to truthfully state the facts of the case, and shall not distort the facts, provide false evidence, or falsify the evidence. Otherwise, they shall bear legal responsibility. (vii), the presiding judge asked the parties: the plaintiff whether to hear the parties in the courtroom litigation rights and litigation obligations? Whether to apply for the panel members and the clerk, the appraiser recused? (H), the plaintiff: has heard the parties in the court's litigation rights and obligations, do not apply for disqualification. (ix) Presiding Judge: the defendant (or appellee) whether to hear the litigation rights and litigation obligations of the parties in court? Whether to apply for the members of the panel and the clerk, appraiser (or surveyor, interpreter) disqualified? (J), the defendant: has heard the parties in the court's litigation rights and litigation obligations, do not apply for disqualification. Third, the court investigation stage (a), the following court investigation, first by the plaintiff statement of claim and the facts and reasons based on. (B), the plaintiff party statement: the plaintiff party request: 1, request order the defendant to pay medical expenses, nursing care, transportation costs, food subsidies, medical equipment, nutritional expenses, mental comfort **** 600,000 yuan. 2, apply for disability appraisal, the defendant to pay disability compensation, life care, re-treatment, disability equipment amount to appraisal shall prevail. 3, the three defendants bear each other jointly and severally liable. 4, the case acceptance fee. 4, the case acceptance fee by the defendant. Our facts and reasons: at 17:30 on December 6, 2009, the defendant HuWeiGuo driving black A58992 car in dawei district fushun street will be injured, in this accident, the defendant HuWeiGuo full responsibility, the plaintiff is not responsible. The incident the plaintiff head and leg injuries, hospitalized for 38 days, *** spend 45218 yuan, of which hu weiguo paid 5000 yuan, the rest are paid by the plaintiff, the plaintiff many times to find the three defendants demand payment of medical expenses, are refused to pay, now the plaintiff head edema, also need surgical treatment, and the plaintiff has been disabled, life-long need for nursing care, all the request to do the disability level appraisal. The vehicle for the Harbin city Xin Chi rental car limited company, Yu Zhihong contracted the vehicle, Yu Zhihong and hired Hu Weiguo for the night shift driver. (C), the presiding judge: entrusted agent has no additional comments? (D), proxy: no additional comments. (E), the following by the defendant to the plaintiff's prosecution for the defense and the facts and reasons based on the statement. (F), the defendant's statement of the defendant's request: 1, request for an order not to support the plaintiff's request for payment of transportation costs, meal allowance, medical equipment, nutrition, mental comfort *** 5.95 million yuan. 2, request for an order not to support the plaintiff's application for the defendant to pay the disability compensation, life-long care, retreatment costs, disability equipment, the plaintiff's request for payment of disability compensation. 3, the three defendants do not assume joint and several liability. 4, the case is not the case. Jointly and severally liable. 4, the case acceptance fee borne by the plaintiff. Our facts and reasons: the plaintiff was injured during hospitalization, the defendant hu weiguo has paid hospital fees 5000 yuan, and often come to visit. Due to Hu Weiguo's difficult situation, unable to pay more medical expenses. Please consider the court Hu Weiguo's family situation, give appropriate care. During the defendant's hospitalization, the payment did not reach 45,218 yuan, and according to Article 16 of the Tort Liability Law, infringement of another person causing personal injury, shall be compensated for medical expenses, nursing costs, transportation costs. The defendant's request for nutritional expenses, meal allowance, medical equipment, mental comfort is not within the scope of the compensation provided by law, we do not recognize. Article 49 of the Tort Liability Law stipulates that if the owner and the user of the motor vehicle are not the same person due to lease or borrowing, the insurance company shall compensate the owner of the motor vehicle within the liability limit of the compulsory motor vehicle insurance for the responsibility of the motor vehicle in the event of a traffic accident. Insufficient, by the motor vehicle user to bear the liability; motor vehicle owner of the occurrence of damage is at fault, bear the corresponding liability. In this case, the defendant cab company and cab contractors as a civil legal relationship between the lessor and sublessor, because it is not at fault, should not be responsible. In this case, the driver shall be held liable by the driver's side, and due to their family income status, should be discretionary relief. (vii) Presiding Judge: Does the attorney-in-fact have any additional comments? (H), proxy: no additional comments. (Ix), the presiding judge: now for trial evidence and cross-examination. First by the plaintiff on their own claims to the court evidence, by the defendant for cross-examination. (J), the plaintiff cited 1, dori brigade traffic accident certificate 2 peng jianhua in the second hospital of harbin medical university hospitalization certificate 3, the second hospital of harbin medical university medical fee invoice 4, peng jianhua's son peng dequan psychiatric disability certificate 5, peng jianhua in the second hospital of harbin medical university disability appraisal 6, the witness liu li proved that peng jianhua Mental damage testimony (11), the presiding judge: the following by the defendant for proof, the plaintiff for cross-examination. (XII), the defendant's evidence: the tranquility district street office issued by the defendant (driver) of a special hardship certificate. (XIII), the following by the plaintiff and defendant for cross-examination. Plaintiff: we have no objection to the plaintiff's evidence. Defendant: we have no objection to the plaintiff's evidence. (XIV), the presiding judge: the following into the witness testimony stage. Passed the expert Li Ya Xiao appearance. (Appraiser) (15), Presiding Judge: appraiser Li Ya Xia, please show your valid identity documents, state your name, gender, date of birth, work unit, position, place of residence and relationship with the parties. (XVI), appraiser: ...... (XVII), the following appraiser read out the conclusion of the appraisal. (XVIII), the expert: .................. (XIX), the following questions from the defendant to the expert. (XX), the defendant asked: appraisers, do you make the conclusion of the appraisal, what is the conclusion? (XXI), the expert: ............... (XXII), the presiding judge: the following by the plaintiff to the expert question (XXIII), the plaintiff to the expert question: (XXIV), the presiding judge: the following by the members of the collegial court to the Expert questions. (xxv), the panel members to the expert questions. (Appraiser withdrew) witnesses to the court: in accordance with the appraiser's process analogous. Witness testimony: my name is Liu Li, living in Daoli District, No. 79 An Xin Street, Block 2, Unit 6, No. 405, since the car accident, Peng Jianhua in the community when walking, often sullen, depressed, especially with the second son walking, but also a sad face, so that people feel the chills, as well as Peng's movements are not as flexible as before. Fourth, the court debate stage (a), the presiding judge: court investigation is over, the following court debate. First by the plaintiff to speak. (B), the plaintiff and his agent speech Plaintiff speech: December 6, 2009 at 17:30, I walk in Dori District Fushun Street, at this time, the defendant Hu Weiguo in the case of no siren, from the back of me, life is difficult to take care of themselves, hospitalization, the defendant did not actively visit me, cigar juice to get richer 5,000 yuan of medical expenses, the second son of pengdequan mental disability still need people to take care of, the judge please support My lawsuit request. The plaintiff's agent statement: the honorable judge, the judge: in accordance with the provisions of the law, by the plaintiff Peng Jianhua entrusted by the Harbin engineering university law firm, I and Wang Yanbo lawyer as the plaintiff Peng Jianhua's first instance litigation agent to participate in the case of litigation activities, now on the case of the litigation activities, the statement is as follows:
One of the facts of the traffic collision objectively existed the defendant Hu Weiguo Driving the plaintiff peng jianhua injured, by the dori brigade traffic police department, the defendant in the accident, Hu Weiguo full responsibility, the plaintiff is not responsible. Second, the plaintiff caused by traffic accidents caused personal injury, the defendant should be compensated, the plaintiff is not responsible. But in the plaintiff suffered personal injury, the defendant did not actively pay medical expenses to the plaintiff, did not do positive relief obligations. Now the plaintiff has been disabled, edema in the head, also need to continue to do surgical treatment, and the plaintiff has a mentally disabled second son needs to take care of the plaintiff. The defendant HuWeiGuo caused by this traffic collision for the plaintiff such as an 80-year-old ordinary retired workers, no matter in the material or spiritual is not a fatal blow. Third, the three defendants Harbin city Xin Chi rental car limited company, cab contractor Yu Zhihong and Hu Weiguo should be jointly and severally liable for the defendant cab contractor Yu Zhihong is the defendant driver Hu Weiguo's employer, and the defendant Harbin city Xin Chi rental car limited company is the owner of the cab, they should bear joint and several liability. In summary, the plaintiff and his agent request the court to adopt this agency, according to the objective facts and evidence, ordered the three defendants bear joint and several liability for this traffic accident, to pay the plaintiff's medical expenses, nursing care, transportation costs, meal allowance, medical equipment costs, nutritional expenses, mental consolation *** totaling 600,000 yuan, and bear the costs of this case. (d), the presiding judge: the following statement by the defendant (e), the defendant and his agent statement defendant: honorable presiding judge, traffic accidents who do not want to happen, after the traffic accident I have been sent to the hospital in a timely manner to the injured, to do a positive obligation to rescue, I am a cab driver, the family situation is not good, it is difficult to pay such a high cost of compensation please the court to be discretionary remission of the cost of 1. Compensation: on the spiritual damage fee, according to China's tort liability law, causing spiritual damage is particularly great, can compensate for spiritual damage fee. In this case, the plaintiff peng jianhua does not have obvious characteristics of mental damage, also did not provide identification or medical diagnosis and other corresponding evidence, should not be recognized as mental damage is huge. And the plaintiff asked for the amount of mental damages and its huge, obviously unreasonable, please judge based on facts, a law as a guideline, fair treatment. 2, the responsibility of the problem: according to the relevant provisions of the tort liability law, traffic accidents in tort, no fault lessor should not be liable. The total, Xin Chi rental car limited company and cab contractors Hu Weiguo contract, and with the driver in Zhihong and no direct legal relationship. Yu Zhihong to Hu Weiguo cab rental behavior is not known to the cab company, therefore, the cab company should not be liable for the driver's fault. And cab contractors and drivers for the car between the lease relationship. It is characterized as a typical leasing relationship in which the driver rents a cab from the contractor for profit and the contractor receives a small fee. As a result, according to the relevant provisions of the tort liability law, the lessor in the case of no fault, and is not responsible for the lessee's fault caused by the damage. Liability should be responsible for the driver Yu Zhihong himself. 3, the issue of liability driver Hu Weiguo life is very difficult, monthly income of only yuan, and the rest of the family are not able to work. Here 900 yuan because it is mainly used to pay the family's daily living expenses, so it should be used as a family *** with income. Averaged to the driver himself, only less than 300 yuan, below the minimum living standard of Harbin City. The street office certificate issued by us can testify to this. Hu Weiguo in the plaintiff's hospitalization period, had visited many times, there are hospital doctors and nurses can testify, can see, and did not intentionally refuse to pay the medical expenses. Really due to the economic situation is unable to afford. (Leave the face of mutual debate session, first by the plaintiff to debate the views.) (F), the plaintiff's agent: on the mental damage compensation, according to "the supreme people's court on the determination of civil tort mental damage liability a number of issues of interpretation" clearly stipulates that the defendant should bear the compensation for mental damage, the reason is that there is a drive into the existence of illegal behavior, second is the peng jianhua therefore brain and legs, and often depressed, by the community residents can prove, three is the subjective aspect of the defendant Existence of negligence. The plaintiff's agent added: we believe that the defendant hu weiguo and the driver between the formation is not a lease relationship, but between the employer and the employee a kind of labor relationship. According to the "tort liability law" article 35: the formation of labor relations between individuals, providing labor services, the party causing damage to others due to labor, by the acceptance of labor services, the party bear the responsibility for tort. In this case, the cab driver Yu Zhihong as a cab contractor Hu Weiguo's employees, because of the provision of labor that is driving hit and injured our client Peng Jianhua, so the employer Hu Weiguo should bear the liability. (VII), the following by the defendant to make arguments. (H), the defendant agent: .................. (IX), the following by the plaintiff and the defendant to state the final opinion. The plaintiff's final statement: the plaintiff a nearly 80-year-old man, should be in later life to enjoy the happiness of heaven, but a car accident so that he suffered great losses in personal, property, mental suffer great trauma, downstream mental disability of the second son needs care, hope that the court fully consider the above views we put forward to the facts as the basis for the law to give the verdict. Defendant's final statement: for the responsibility of the traffic accident and compensation matters, in the previous links have been described in full, the facts are clear, the evidence is sufficient, please the court in accordance with the law and fair judgment. Fifth, the court mediation judgment stage (a), the end of the court debate, the following court mediation, the plaintiff agrees to mediate? Does the defendant agree to mediate? (b), presiding judge: does the defendant agree to mediation? Agree (c), the plaintiff: do not agree. (D), the presiding judge: in view of the plaintiff and the defendant do not agree to mediation, court mediation can not be carried out, the following collegiality will be deliberated, and on whether to be able to make a decision on the verdict, now adjourned (banging the gavel). (E), the presiding judge: please be seated, (after banging the gavel) is now continued, the collegiality of the court after deliberation. The judgment is now pronounced. (Read out the verdict) (knock on the gavel) Please be seated. Presiding Judge: the plaintiff Peng Jianhua and the defendant Hu Weiguo, Yu Zhihong, Harbin Xinchi Taxi Co. road traffic damage compensation disputes are now closed (knock on the gavel) Clerk: all rise (six), the clerk announced: please observe the personnel retired from the courtroom, the parties and the agent to check the transcript of the trial.