Debate over the right to life, health and body.
Institutional opinion
Dear presiding judge and judge,
Entrusted by plaintiff Ma XX, Guo Hao Law Firm appointed lawyer Zhang Xianzheng as the litigation agent of first instance in the case of plaintiff Ma XX v. Zheng XX's right to life, health and body. According to the pre-trial investigation and the court investigation just now, combined with the focus of the dispute in this case, we hereby put forward the following agency opinions for the reference of the collegial panel:
1. The facts of this case are clear, and the evidence is conclusive and sufficient, which proves that the defendant Zheng XX has hurt the plaintiff Ma XX, and the defendant Zheng XX should bear all the liability for compensation according to law.
In this case, the defendant deliberately made trouble while working in XXX Heavy Industry Maintenance Service Center (address: XXX Heavy Industry Maintenance Service Center, Shenmi Road, Chang 'an District) on the morning of June 5438+065438+ 10/3, 2020, and insulted the plaintiff all the time. In this process, the plaintiff never fought back, and the defendant always beat the plaintiff on the ground. Subsequently, the plaintiff had no choice but to call the police, and1113, 2002 sent the plaintiff to Xi Trade Union Hospital, and then transferred to Xi Red Cross Hospital for hospitalization. The Red Cross Hospital of Xi City was diagnosed as "the fracture of the eagle bone of the left ulna", and medical expenses were incurred after hospitalization. The defendant's intentional injury behavior, which ignored the national laws, seriously hurt the plaintiff's health and caused great damage to the plaintiff's health. The plaintiff is still in unbearable pain, dizziness and severe discomfort. After the appraisal by Shaanxi Jinzhong Judicial Appraisal Center, the judicial appraisal opinionNo. was issued: Shaanxi Jinzhong Sijian Center [202 1] Lin Jianzi No.333. According to the judicial appraisal opinion of Shaanxi Jinzhong Sijian Center [202 1] Lin Jianzi No.333, the plaintiff was rated as 10-level disability, with a working period of 100 days and a lactation period of 50 days. And the following facts are supported by evidence materials such as the certificate issued by the plaintiff company, the diagnosis certificate of the Red Cross Hospital, the hospitalization medical records, and the judicial expertise opinion of Shaanxi Jinzhong Sijian Center [202 1] Lin Jianzi No.333.
Second, the plaintiff Ma XX's claim for compensation is in full compliance with relevant laws and regulations, and the evidence is sufficient, so the people's court shall support it according to law.
The first paragraph of Article 1 165 of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that "an actor who infringes upon the civil rights and interests of others due to his fault shall bear the tort liability." Article 179 stipulates that "anyone who infringes upon 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 absenteeism." 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. "
Paragraph 1 of Article 183 stipulates: "If a natural person's personal rights and interests are infringed, causing serious mental damage, the infringed person has the right to claim compensation for mental damage".
According to the above-mentioned laws and regulations, the plaintiff Ma XX proposed the following compensation items:
1, medical expenses 4 105 1.97 yuan. Article 6 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "medical expenses shall be determined according to receipts and vouchers such as medical expenses and hospitalization expenses issued by medical institutions, combined with medical records, diagnosis certificates and other relevant evidence." In this case, the plaintiff provided medical invoices, medical records and diagnosis certificates from the hospital, proving that the plaintiff spent 4 1.05 1.97 yuan.
2. The nursing fee is 8550 yuan. Article 8 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the nursing fee shall be determined according to the income of nursing staff, the number of nurses and the nursing period. If the nursing staff has income, it shall be calculated with reference to the provisions of the lost time fee; If the nursing staff has no income or employs nursing staff, it shall be calculated with reference to the local labor remuneration standard for nursing staff at the same level ... ". In this case, the plaintiff was hospitalized for 7 days, and the follow-up appraisal nursing period was 50 days, totaling 57 days. The plaintiff needed someone to take care of her injury, so she suffered the loss of nursing expenses. According to the local labor remuneration standard for nurses who are engaged in the same level of nursing, the nursing fee for one day is 150 yuan, resulting in a total nursing fee of 8,550 yuan.
3. The lost time is 28,024.30 yuan. Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the lost time fee shall be determined according to the lost time fee and income of the victim. The lost time fee is determined according to the certificate issued by the medical institution where the victim receives treatment. If the victim continues to be absent from work due to injury and disability, the absence time can be calculated to the day before the date of disability. If the victim has a fixed income, the lost time fee shall be calculated according to the actual reduced income ... ". In this case, the plaintiff was hospitalized in Xi 'an Red Cross Hospital and needed to take a rehabilitation leave. After identification, the follow-up delay period was 100 days, and the total delay period was 107 days. According to the labor contract, unit certificate and detailed bank transaction voucher, the basic salary of the contract is 4,300 yuan, and the average monthly salary plus monthly performance is 7,857.27 yuan, and the lost time is 28,024.30 yuan.
4. Transportation fee 1500 yuan. Article 9 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the transportation expenses shall be calculated according to the actual expenses incurred by the victims and their necessary accompanying personnel for medical treatment or transfer to other hospitals for treatment. Transportation expenses should be based on official bills; Relevant credentials should be consistent with the location, time, number and frequency of medical treatment. " The transportation expenses claimed by the plaintiff are the actual expenses incurred by the plaintiff and his necessary accompanying personnel for hospitalization, inspection and appraisal. And it is based on official bills; The transportation ticket is consistent with the place, time, times and frequency of medical treatment. After the injury was confirmed, the plaintiff went back and forth to see a doctor, and spent a total of transportation expenses 1500 yuan. However, due to the loss of some bills, the court is requested to make a judgment at its discretion.
5, hospital food subsidies 700 yuan. Article 10 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the food subsidy for hospitalization can be determined with reference to the standard of food subsidy for ordinary staff of local state organs". The plaintiff was hospitalized in Xi Red Cross Hospital for 7 days due to injury. According to the standard of food allowance for general staff of local state organs, 700 yuan was given food allowance for hospitalization.
6. The nutrition fee is 4350 yuan. Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the nutrition fee shall be determined according to the degree of disability of the victim and with reference to the opinions of medical institutions". According to the injury, the plaintiff judged that the injury was serious and really "needed to increase nutrition". After identification, the follow-up nutrition period is 80 days, totaling 87 days. According to 50 yuan, the nutrition fee for one day is 4,350 yuan.
7. Disability compensation is 75,736.00 yuan. Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the disability compensation shall be calculated according to the degree or level of disability of the victim, the per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the Court of Appeal is located, and it shall be calculated for 20 years from the date of disability". The plaintiff has lived in Xi for a long time. His income comes from Xi and his living expenses are in Xi. According to the labor contract and the rental contract, after judicial appraisal, the plaintiff's disability level is level 10. According to the per capita disposable income of urban residents in the last year where the sued court is located, his disability compensation should be calculated as 75,736.00 yuan according to the resident standard.
8. The living expenses of the dependents are 365,438+0,250.20 yuan. Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases stipulates that "the living expenses of the dependents shall be included in the disability compensation or death compensation". This shows that the living expenses of dependents, such as disability compensation, are of the same nature and belong to the category of material losses. The plaintiff Ma XX is a door-to-door son-in-law, and her father-in-law Fan XX and her mother-in-law Yuan XX form a parent-child relationship. Mr. and Mrs. Fan XX have two daughters and one son. Gao XX, the biological mother of the plaintiff Ma XX, still needs her support, and Gao XX supports four children. According to the per capita consumption expenditure standard of urban residents and the per capita annual living expenditure standard of rural residents in the last year where the Court of Appeal is located, the plaintiff Ma XX incurred living expenses of 3 1250.20 yuan, including Fengxiang's father Fan XX 12957.40 yuan, Fengxiang's mother Yuan XX 137 19.60 yuan, and Suide's mother was in 40 yuan.
9. Follow-up treatment fee 10000 yuan. After judicial appraisal by Admiralty, the plaintiff's follow-up treatment fee was 10000 yuan.
10, the accommodation fee is 7460 yuan. The plaintiff stayed in the Red Cross Hospital for 7 days, resulting in expenses of 1050 yuan; Hotel expenses during hospitalization 19 10 yuan; Rent a house for 3 months, resulting in a house rent of 4500 yuan; The total cost is 7460 yuan.
1 1, and the appraisal fee is 2720 yuan. The plaintiff made a judicial appraisal of his disability grade, nutritional period, delayed construction period and lactation period. According to Admiralty's judicial appraisal, the disability grade is grade 10, the construction period is delayed 100 days, the lactation period is 50 days, and the nutrition period is 80 days, resulting in an appraisal fee of 2720 yuan.
12, spiritual consolation money 1 ten thousand yuan. Because of the defendant's behavior, the plaintiff's physical rights and health rights were seriously damaged, and the plaintiff could not work for a long time, because the plaintiff was the only source of family economy. This injury seriously affected the plaintiff's family life and undoubtedly caused extreme mental pain to the plaintiff and his family. Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning Determining the Liability for Compensation for Mental Damage in Civil Torts stipulates that "the amount of compensation for mental damage shall be determined according to the following factors: (1) the degree of fault of the infringer, except as otherwise provided by law; (2) Specific information such as the purpose, manner and occasion of the infringement; (3) Consequences caused by the infringement; (4) profits of the infringer; (five) the economic ability of the infringer to bear the responsibility; (six) the average living standard of the court, the defendant shall compensate the plaintiff for mental damage. According to the provisions of Article 10 of the judicial interpretation, it is reasonable and legal to determine the amount of compensation for mental damage with reference to the following factors.
(1) The infringer's fault is very serious. In the process of injury, the plaintiff did not have the strength to fight back from beginning to end, and the defendant's behavior was extremely bad. In order to kill the plaintiff and cause minor injuries to the plaintiff, the disability level reached 10 after judicial appraisal.
(2) The specific circumstances such as the purpose, occasion and method of infringement are very bad. The defendant's behavior is no different from intentional homicide. Deliberately hurting people in the workplace, the means are extremely cruel, which has a great negative impact on society and caused great harm to the plaintiff.
(3) The damage caused to the plaintiff has serious consequences. After the plaintiff was injured by the defendant, it was identified that the plaintiff's injury level was minor injury level 1 and the disability level was level 10, which caused great mental pain to the plaintiff and his family.
(4) The defendant has the financial ability to bear the compensation for mental damage. It is understood that the defendant's family is relatively rich and fully capable of paying compensation for mental damage, but the defendant has been reluctant to pay compensation. The defendant's attitude is openly contemptuous of the law. I hope the court will consider the defendant's attitude of admitting mistakes and the plaintiff's reasonable and legitimate claims.
(5) The average living standard of the place where the sued court is located is relatively high, and the compensation of 10000 yuan is conducive to punishing the defendant and creating a safe environment for the surrounding people. In 2020, the per capita consumption expenditure of urban residents in Shaanxi is 22,866 yuan/person, while that of mental damage compensation is 65,438 yuan+0,000 yuan, which is only equivalent to five months' consumption expenditure, not too high. At the same time, the defendant's infringement was extremely bad, which had a great negative impact on society and caused serious harm to the plaintiff. It is conducive to prompting the defendant to change his impulsive behavior, effectively protecting the personal and property safety of the nearby people, maintaining social stability and normal order, and also conforms to the legislative purpose of China's civil code-protecting the legitimate rights and interests of civil subjects.
The plaintiff's losses above XX totaled RMB 2,265,438+0,342.47, all of which were caused by the defendant's injury to the plaintiff. The plaintiff's claim is reasonable, lawful and well-founded, and the defendant shall make full compensation.
To sum up, the fact that the defendant Zheng XX injured the plaintiff Ma XX in this case is clear, and the circumstances are bad and the consequences are serious; The evidence provided by Ma XX, the plaintiff, is conclusive enough to prove that Zheng XX, the defendant, acted illegally, with bad plot and subjective intention; Defendant Zheng XX's injury behavior not only caused serious harm to plaintiff Ma XX's body, but also caused great losses to plaintiff Ma XX's economy. According to the General Principles of the Civil Law of People's Republic of China (PRC), the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases, and the Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Compensation Liability for Civil Tort Mental Damage, the defendant Zheng XX should bear all the compensation liabilities. We implore the people's court to support all the plaintiff's claims in accordance with the law and protect the legitimate rights and interests of the plaintiff Ma XX to the maximum extent.
I am here to convey
Xi Chang 'an District People's Court
Authorized Agent: Lawyer Zhang Xianzheng.
202 1 12 3 1