Recommend case
In dispute of accident of dynamoelectric bicycle traffic, should whether does the basis belong to motor vehicle, return duty the respect such as the principle undertakes responsibility differentiates -- Cao Zhou Xi appeals to desk of issue of liability of accident of traffic of motor vehicle of Huang Lei, Ou Fangqing
Case argument: In dispute of accident of dynamoelectric bicycle traffic, whether are its belonged to motor vehicle and how to undertake responsibility differentiates, put in bigger dispute. In the cognizance process of this kind of case, should emphasize the respect such as the speed from dynamoelectric bicycle to undertake whether dynamoelectric bicycle belongs to motor vehicle judging, and whether does the basis belong to motor vehicle, return duty the principle undertakes responsibility differentiates.
Record date: (2017) Hunan 10 civilian eventually 967
Cognizance court: Court of intermediate people of city of state of Hunan Province Chen
[review analyse]
The attribute of 1. dynamoelectric bicycle: Be motor vehicle or blame motor vehicle?
Law of road transportation safety first the form with law, will dynamoelectric bicycle brings into the limits that is not motor vehicle management, register to its sort, road exercise speed made specific provision. Dynamoelectric bicycle in blame motor vehicle exercise.
National standardization committee was released " dynamoelectric autocycle and dynamoelectric and light autocycle are general technical standard " (GB/T24158-2009) , according to this standard, the dynamoelectric bicycle that highest design speed is more than 50KM/H is more than 50KM/H for speed of dynamoelectric two rounds of autocycle, highest design and truckload the electric tricycle that quality of reorganize and outfit does not exceed 400KG is more than 20KM/H for speed of electric motor tricycle, highest design and do not be more than 50KM/H (or truckload quality of reorganize and outfit is more than 40KG and highest. Because autocycle belongs to the motor vehicle that law of road transportation safety indicates, it is motor vehicle to achieving the dynamoelectric autocycle of national level and dynamoelectric and light autocycle to also ought to be maintained.
In this case, although Huang Lei drives elegant enlighten the card is dynamoelectric bicycle, but wait for an element as a result of speed per hour, through policeman detachment 6 groups are investigated repeatedly, made road transportation accident hold a book, maintaining what yellow Lei drives is to was not registered those who register is elegant enlighten the card is dynamoelectric bicycle, belong to motor vehicle, is not blame motor vehicle, this case brief of a case is reason issue of liability of accident of motor vehicle traffic.
2. is in the basis answers in traffic accident the attribute of dynamoelectric bicycle, return duty the principle undertakes responsibility differentiates
Law of road transportation safety sets the 76th times, accident of traffic of motor vehicle happening causes losing of person casualties, belongings, give inside range of limit of liability of compulsory insurance of liability of motor vehicle a third party by insurance company compensation; Skimpy share, assume liability to pay compensation according to following regulation: (1) traffic accident produces between motor vehicle, assume liability to pay compensation by the one party that has fault; Both sides has fault, partake according to the scale of respective fault responsibility. (2) motor vehicle and blame motor vehicle drive traffic accident produces between person, pedestrian, blame motor vehicle drives person, pedestrian does not have fault, assume liability to pay compensation by motor vehicle one party; Evidence proves what person, pedestrian has fault to be not motor vehicle to drive, reduce the liability to pay compensation of motor vehicle one party appropriately according to fault degree; Motor vehicle one party does not have fault, assume the liability to pay compensation that does not exceed 10 ％ . The loss of traffic accident is drive by blame motor vehicle intended collision motor vehicle causes person, pedestrian, motor vehicle one party does not assume responsibility.
According to afore-mentioned legal provisions, dynamoelectric bicycle can distinguish for motor vehicle and blame motor vehicle. In the meantime, differ according to the attribute of dynamoelectric bicycle, use return differently duty principle, should distinguish when dynamoelectric bicycle responsibility involves to differentiate among traffic accident the following two kinds of circumstances handle respectively:
It is dynamoelectric bicycle belongs to motor vehicle. According to afore-mentioned regulations, achieve " dynamoelectric autocycle and dynamoelectric and light autocycle are general technical standard " (GB/T24158-2009) the dynamoelectric bicycle that the technology asks belongs to motor vehicle, ought to bring into the administrative limits of motor vehicle, drive the person ought to hold card to drive, applicable fault principle, between traffic accident ought to according to law of road transportation safety the 76th the first (one) the regulation undertakes handling. Accordingly, the traffic accident that issues according to policeman branch is commonly when people court is handling this kinds of case the fault size of delimit of cognizance book place differentiates responsibility size, decide bilateral party assumes the proportion of responsibility in traffic accident lawfully.
2 it is dynamoelectric bicycle belongs to blame motor vehicle. According to afore-mentioned regulations, did not exceed " dynamoelectric bicycle is general technical condition " (GB17761-1999) the dynamoelectric bicycle that the technology asks belongs to blame motor vehicle, applicable without fault principle, between traffic accident ought to according to law of road transportation safety the 76th the first (2) the regulation undertakes handling. Hunan Province is among the executive method of law of road transportation safety, undertook be refininged further to responsibility scale, this executive method thirtieth sets 6 times " (one) motor vehicle one party bears main responsibility, assume 80 ％ ; (2) motor vehicle one party bears coequal responsibility, assume 60 ％ ; (3) motor vehicle one party bears less important responsibility, assume 40 ％ ; (4) motor vehicle one party is unaccountable, assume 20 ％ " .
Look in the author, accident secondary responsibility is borne in motor vehicle one party or unaccountable when, electric car drives the person often exists not to press traffic signal current, speed is too fast, optional take up driveway of motor-driven driveway, optional cross, aleatoric bend turns around, drunk wine drives wait for serious mistake behavior, it is those who reflect law to punish, education, how-to wait for social action, can reduce the responsibility proportion of motor vehicle appropriately in trying practice, for example is when responsibility of negative secondary of motor vehicle one party, assume 20 ％ - the responsibility scale of 30 ％ , when motor vehicle one party is unaccountable, assume the responsibility proportion that does not exceed 10 ％ .
(pick from Chen Jianhua: " dynamoelectric bicycle differentiates in the responsibility in the accident " , carry " people judicatory (case) " 2017 the 29th period (always the 796th period)
Juridical regulation
1.Electric car is by appraisal after motor vehicle, car advocate unfavorable go ahead of the rest is falling strong danger limit liability to pay compensation is assumed inside limits -- Lu Wen dragon, Liu Xiuyun appeals to desk of issue of liability of accident of traffic of Liu Zheng motor vehicle
Case argument: In traffic accident case, electric car is by appraisal after motor vehicle, car advocate unfavorable according to top people court " about hearing case of damages of road transportation accident applicable law the explanation of a certain number of problems " the 19th the 1st regulation, go ahead of the rest is falling strong danger limit liability to pay compensation is assumed inside limits.
Record date: (2017) short for Shaanxi Province 07 civilian eventually 423
Cognizance court: Shaanxi is saved Chinese in court of city intermediate people
2. Children suffers accident of electric car traffic inside the village, electric car drives the person assumes main responsibility, guardian has fault, assume less important responsibility -- introduced from the northern and western nationalities or from abroad lady appeals to desk of issue of damages of Ms. Liu person
Case argument: Inside the village motor-car riding report causes child Tong Ren to be harmed personally, the agree carries tort responsibility. Although the child hurts motor-car of the reason report to drive,the person drives the operation is undeserved cause, but guardian ought to realize young child pass through in the village near the place alone the amuse oneself, safe hidden trouble that nobody attend, put in fault to guarding him neglect one's duty, the agree carries less important responsibility.
Cognizance court: Hubei saves court of people of Qi spring county
Judicatory viewpoint
1. amounts to mark the tort liability of accident of dynamoelectric bicycle traffic maintains regulation
(1) the tort liability of accident of dynamoelectric bicycle traffic maintains the speed limit that amount to mark
The speed limit that amount to mark is dynamoelectric the bicycle is the dynamoelectric bicycle that highest speed per hour does not exceed 15 kilometers. The speed limit that amount to mark is dynamoelectric bicycle and pedestrian or blame motor vehicle drive traffic accident produces between the person, applicable fault returns duty principle, according to tort liability law the 6th sets, assume liability to pay compensation by the one party that has fault, if both sides has fault, partake according to the scale of respective fault responsibility. If amount to mark speed limit,dynamoelectric bicycle drives person and motor vehicle drive traffic accident produces between the person, criterion according to law of road transportation safety the 76th the first (2) the regulation with the 2nd, normally the circumstance falls to return without fault by motor vehicle one party duty the principle assumes liability to pay compensation; The speed limit that amount to mark is dynamoelectric the bicycle drives the person has fault, according to its fault reduces the liability to pay compensation of motor vehicle one party appropriately; Motor vehicle one party does not have fault, assume the responsibility that does not exceed 10% ; The speed limit that amount to mark is dynamoelectric the bicycle drives the person collides intentionally of motor vehicle, motor vehicle one party does not assume liability to pay compensation.
(2) the tort liability of accident of dynamoelectric bicycle traffic maintains the exceed the speed limit that amount to mark
The highest speed per hour of dynamoelectric bicycle is more than the overspeed that amount to mark 15 kilometers but be less than 20 kilometers again, this kind of car does not belong to motor vehicle, but exceed road transportation safety again the law is fiftieth the top speed limit of 8 regulations. On administration of road transportation safety, management department of transportation of public security mechanism and its pointsman are dynamoelectric to amounting to mark overspeed of the bicycle drive the person can adopt warning, amerce, of short duration to buckle wait for condemnatory measure, but in produce traffic accident to need to differentiate then still answer to be treated according to blame motor vehicle when tort liability, it is OK to because highest speed per hour exceeds,just be restricted direct and illative to drive the person has fault, should amount to mark overspeed of dynamoelectric bicycle drive less proportional compensation ought to be won when the person serves as a victim, ought to assume bigger proportional liability to pay compensation when its regard tort behavior as the person.
2. exceeds bid the tort liability of accident of dynamoelectric bicycle traffic maintains regulation
The demand of two safe specifications with dynamoelectric most significant bicycle is speed limit 20 kilometers are horary, be restricted to weigh 40 kilograms, dynamoelectric bicycle exceeds mark to basically be centered hereat, roughly OK end is 3 reasons, bid exceeds below every kinds of circumstance the tort liability of accident of dynamoelectric bicycle traffic is maintained also each are not identical.
(1) drive overspeed is dynamoelectric the tort liability of accident of bicycle happening traffic is maintained
(A) if overspeed is dynamoelectric,the bicycle drives person and blame motor vehicle drive the person perhaps produces traffic accident between the pedestrian, although dynamoelectric bicycle did not register this overspeed,be motor vehicle, its drive the person did not obtain motor vehicle driver's license possibly also, but when holding its tort responsibility, still answer according to law of road transportation safety the 76th regulation, motor vehicle prepping according to drives the person will assume without fault responsibility, blame motor vehicle drives person or if the pedestrian has fault to be able to reduce exceed the speed limit only dynamoelectric bicycle drives the person's liability to pay compensation.
(B) if overspeed is dynamoelectric,the bicycle drives person and its everybody or administrative person are not same person, according to top people court " about hearing case of damages of road transportation accident applicable law the explanation of a certain number of problems " the 1st the 3rd regulation, everybody perhaps manages a person to ought to assume corresponding liability to pay compensation, although the expert thinks to should not be,according to tort liability law the 49th regulation is sentenced make everybody perhaps manage a person making strong narrow pass give inside extent of liability compensation, but everybody or administrative person are known perfectly well drive to the person did not obtain motor vehicle driver's license and give lend, happening to what damage is to put those who have certain fault, inside the extent of liability that even if is making strong narrow pass first at compensation, also ought to assume joint liability to damages.
(C) know perfectly well overspeed dynamoelectric bicycle does not accord with production of law of national level and rather than, sale, if produce traffic accident, the person is harmed or other is killed by damage, according to product quality standard the 43rd sets, the generator, person that sell ought to assume liability to pay compensation, the overspeed below the circumstance is normally dynamoelectric the bicycle drives the person has bigger mistake to the happening of traffic accident, the generator of dynamoelectric bicycle, person that sell assumes overspeed less important responsibility.
(2) the tort liability that traffic accident produces after demolishing device to limit speed is maintained
Manufacturer for managing production cost, perhaps demolish for convenience consumer proper motion, the dynamoelectric bicycle device to limit speed of many brands is very pallet, on controller shedding protector too is an outlet only, consumer is dealt with register and go up it is OK to plug should only plug unplugs after the card twice land raises rate. Because speed limit is the safe technique with dynamoelectric the mainest bicycle asks, the difficult easy degree that demolishs because of this device to limit speed can serve as the level that measures manufacturer home to whether assume liability to pay compensation, if produce manufacturer to did not take any safeguard to device to limit speed, the design also does not concealment, consumer basis the manual is OK very give easily demolish, manufacturer of not difficult illative production ought to assume fair liability to pay compensation. If the manufacturer home of dynamoelectric bicycle took the safe safeguard that secure and concealments to device to limit speed, need changes his costume or dress to just can give through major demolish, after demolishing device to limit speed once produce traffic accident to cause other loss, share the agency that change one's costume or dress or maintain inn ought to with drive the person assumes implicative liability to pay compensation together.
(3) overweight the tort liability of accident of dynamoelectric bicycle traffic is maintained
Of dynamoelectric bicycle truckload weight must not be more than 40 kilograms, rigid limitation is only truckload weight, when dynamoelectric bicycle with top speed dynamoelectric ride when travel, its do voice apply the brake to be apart from ability to won't be more than 4 meters, distance of wet condition apply the brake also won't be more than 15 meters, if dynamoelectric bicycle weight exceeds bid, distance of its apply the brake can show geometry to increase progressionally, endanger the person of other and belongings security badly. Basis " dynamoelectric autocycle and dynamoelectric and light autocycle are general technical condition " regulation, truckload the dynamoelectric bicycle that quality of reorganize and outfit exceeds 40 kilograms ought to be maintained on property for dynamoelectric and light autocycle, belong to the category of motor vehicle, once produce traffic accident, ought to according to law of road transportation safety the 76th regulation by drive the person is assumed without fault liability to pay compensation. The tort liability of accident of traffic of dynamoelectric to overweighting bicycle assumes a problem, it is OK to be returned when necessary the source that restrospect to creates dynamoelectric bicycle to overweight, by overweight the manufacturer home of dynamoelectric bicycle perhaps changes his costume or dress the businessman assumes implicative liability to pay compensation.
(above viewpoint picks from Han Yubin: " the tort liability of accident of electric car traffic maintains explore analyse " , carry " people judicatory (case) " 2017 the 29th period (always the 796th period)
Legal basis
1. " law of liability of tort of People's Republic of China "
Person of the 6th behavior because other people of fault enroach on is civil rights and interests, ought to assume tort responsibility.
2. " law of safety of transportation of road of People's Republic of China " (2011 amend)
Accident of traffic of the 76th motor vehicle happening causes losing of person casualties, belongings, give inside range of limit of liability of compulsory insurance of liability of motor vehicle a third party by insurance company compensation; Skimpy share, assume liability to pay compensation according to following regulation:
(one) traffic accident produces between motor vehicle, assume liability to pay compensation by the one party that has fault; Both sides has fault, partake according to the scale of respective fault responsibility.
(2) motor vehicle and blame motor vehicle drive traffic accident produces between person, pedestrian, blame motor vehicle drives person, pedestrian does not have fault, assume liability to pay compensation by motor vehicle one party; Evidence proves what person, pedestrian has fault to be not motor vehicle to drive, reduce the liability to pay compensation of motor vehicle one party appropriately according to fault degree; Motor vehicle one party does not have fault, assume the liability to pay compensation that does not exceed 10% .
The loss of traffic accident is drive by blame motor vehicle intended collision motor vehicle causes person, pedestrian, motor vehicle one party does not assume liability to pay compensation.
The meaning of following choice of words in this the 119th law:
(one) " road " , it is to show although be in,road of highway, town is mixed unit administer limits but the place that permits social motor vehicle to pass through, include the square, communal parking lot site that is used at the public to pass through.
(2) " car " , it is to point to motor vehicle and blame motor vehicle.
(3) " motor vehicle " , it is to point to with dynamical plant drive or drawing, on of transport travelling multiply for personnel use or use at carrying article and have a project round of type car of special operation.
(4) " blame motor vehicle " , it is to point to with manpower or animal power drive, go up the vehicle of transport travelling, and although have dynamical plant drive but the vehicle such as the car of disabled motor-driven wheelchair that designs quality of highest speed per hour, empty wagons, over all dimension to accord with concerned state level, dynamoelectric bicycle.
(5) " traffic accident " , be the person casualties that shows because fault perhaps is caused accidentally,car is in on road or belongings losing incident.
3. " top people court about hearing case of damages of road transportation accident applicable law the explanation of a certain number of problems "
Accident of traffic of the first motor vehicle happening is caused damage, motor vehicle everybody perhaps manages a person to have one of following state, people court ought to maintain his to have fault to damaged happening, the 49th regulation defines law of liability of applicable tort its corresponding liability to pay compensation:
(one) know or ought to know limitation of motor vehicle existence, and this blemish is traffic accident produces one of accounts;
(2) know or ought to know to drive the person is not had drive the qualification perhaps was not obtained drive accordingly of the qualification;
(3) know or ought to know to drive because the person drinks, the mental drug that takes national control is anaesthetic perhaps medicines and chemical reagents, perhaps suffer from cloggy safety to drive the disease of motor vehicle cannot drive lawfully of motor vehicle;
(4) other ought to maintain motor vehicle everybody to perhaps manage a person to have fault.
The 19th is not cast lawfully protect the motor vehicle that makes strong narrow pass to produce traffic accident to cause damage, party requests to cast protect obligor falling limit of strong danger liability give inside limits of compensation, people court should grant to support.
Cast protecting obligor and infringer is not same person, party requests to cast protect obligor and infringer handing in what joint liability assumes inside range of limit of strong danger liability, people court should grant to support.
4. " standard of quality of product of People's Republic of China " (2009 amend)
Because of the product existence blemish causes belongings of person, other the 43rd to damage, the victim is OK the generator seek redress to the product, OK also the sell person to the product seek redress. Attribute the responsibility of the generator of the product, the sell person of the product compensates for, the sell person of the product has authority to chase after countervail to the generator of the product. Attribute the responsibility of the sell person of the product, the generator of the product compensates for, the generator of the product has authority to chase after countervail to the sell person of the product.
