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Guide language
How fast, effective, convenient change settle dispute of damages of road transportation accident, legitimate to ensuring party rights and interests, safeguard justice of fairness of social harmony stability, stimulative society to have active sense. In the course that builds socialistic law society in compose, active exploration accords with the diversity dispute of Chinese national condition to solve a mechanism, had become the issue that management department of public security transportation and social all circles pay close attention to jointly. Perfect and contradictory dispute is multivariate mediate a mechanism, drive people mediation, administration mediation, judicatory mediation actively to join linkage, push the blame lawsuit way such as lawsuit and mediation, arbitration organic join, enhance the integral effect that contradictory dispute dissolves and effectiveness, it is the inevitable demand that compose builds harmonious society, implementation society to administer modernization. The article from our country " law of road transportation safety " (the following abbreviation " traffic safety law " ) the provision that settles a way to controversy of traffic accident damages unscrambles proceed with, the proper motion that sets to its reconciles, administration is mediated and the advantages and disadvantages of 3 kinds of means has civil suit analysis, the outstanding problem that solves a mechanism to build presence to current diversity dispute at the same time and weak point undertake analysing, put forward to perfect dispute of traffic accident damages to solve the countermeasure of the way and proposal then.
One, the legal provision that controversy of damages of road transportation accident settles way is unscrambled
" traffic safety law " be aimed at different traffic accident situation, stipulated party settles 3 kinds of way of controversy of traffic accident damages accordingly, namely party undertakes reconciliatory by oneself, application (request) mediation of management department of public security transportation, mention to people court civil suit.
1
Reconcile by oneself
Basis " traffic safety law " the 70th the 2nd section provision, traffic accident produces on road, did not cause person casualties, can withdraw the spot all right namely, negotiate processing damages matters concerned by oneself. Withdraw the spot all right namely need is contented and the following two conditions: It is casualties of the member that produce traffic accident to did not build an adult, 2 it is party does not have controversy to fact and cause of formation. Below this kind of circumstance, the damages dispute between party reconciles through proper motion the way gives solve, do not need management department of public security transportation to undertake handling.
" traffic safety law " the 70th status that ought to withdraw spot reentry the 3rd times to talk things over all right first to party undertook making clear formulary, produce traffic accident on road namely, cause slight belongings loss only, and basic fact is clear about, party ought to withdraw spot reentry to negotiate processing all right first. This kind of case includes two important condition: It is the accident causes slight belongings loss only. If the accident causes personal casualty or belongings loss is bigger, criterion cannot applicable this one regulation, the person that party ought to fulfill protective spot, rescue to hurt, call the police and the obligation that pending handles. 2 it is basic fact is clear about. Cause of formation of accident of this kind of traffic and basic fact are clearer, responsibility is clear, nonexistent controversy, be approbated by each party place. If accident happening matter is more complex, each party is main to accident happening reason and traffic accident factual existence controversy, need to report a case to the security authorities in time, await processing of the member that management department of public security transportation is sent.
2
Administrative mediation
Basis " traffic safety law " the 74th the first section provision, to the controversy of damages of road transportation accident, party can request mediation of management department of public security transportation, also can mention to people court directly civil suit. The mediation of management department of public security transportation to dispute of traffic accident damages, belong to administrative mediation.
According to afore-mentioned regulations, the administrative mediation of management department of public security transportation is active no longer, action of positive administrative powers and authorities of office, depend on the passive administration action that party applies for and is however, obligor of blame compensation obligee, compensation submits written application jointly, management department of public security transportation must not start intercessory program by oneself. In the meantime, according to our country " traffic safety law carries out byelaw " the 96th regulation, to the controversy of traffic accident damages, party mentions to people court of civil suit, management department of public security transportation accepts intercessory application no longer; During management department of public security transportation is mediated, party mentions to people court of civil suit, mediation is stopped. Change character, management department of public security transportation is mediated to the administration of dispute of traffic accident damages, already was party mentions no longer of civil suit before buy order, party has authority to in the request management department of public security transportation is mediated and mention to people court civil suit has free choice in two kinds of means.
3
Civil suit
Basis " traffic safety law " the 74th regulation, to the controversy of traffic accident damages, party can be mediated without management department of public security transportation and mention to courtyard of person civil code directly civil suit; Via mediation of management department of public security transportation, of the nonperformance after party did not come to an agreement or mediating student effect, party can mention to people court civil suit.
Accordingly, party mentions to people court civil suit, cent is two kinds of case, it is direct mention to people court civil suit, compensate for obligor of obligee, compensation to did not refer management department of transportation of request public security to have written application of mediation jointly namely, do not mediate via management department of public security transportation, mention to people court directly civil suit, requirement people court undertakes handling to its damages problem; 2 it is to be in civil suit mentions after management department of public security transportation is mediated. After obligor of compensatory obligee, compensation refers management department of transportation of request public security to have written application of mediation jointly, via mediation of management department of public security transportation, of the nonperformance after party did not come to an agreement or mediating student effect, party can mention to people court civil suit.
2, reconcile by oneself, the actor bad analysis that administrative mediation, civil suit settles way
1
The actor bad that reconciles by oneself is analysed
The end that negotiates processing by oneself depends on convenient masses, raise efficiency of traffic trouble removal and road resource utilization rate. " traffic safety law " gift the proper motion of party reconciles authority, was sure party is right adequately of road transportation accident but punish sex. But what should notice is, inside the range that sets in law only, with respect to specific item, party just can negotiate processing by oneself.
All sorts of elements that tackle traffic accident damages through reconciling to affecting party proper motion currently undertake survey and analysis, discover its are main influencing factor is in centrally the following 3 respects:
It is sincere letter system has not build the society, party produces psychogenic disorder generally to withdrawing the spot by oneself, general choice calls the police processing, party can withdraw the spot, law provision that arranges processing damages issue to be become in fact by oneself theoretic.
2 because economic interest issue asks,be insurance company admit posthumously spot, manage compensate practice and the legal spirit of fast evacuation spot produce serious conflict, in the meantime, insurance company in order to have " moral risk " for, collect a letter to after proper motion withdraws the spot, asking manage compensate does not grant, repudiate compensates for obligation, force party not to wish to withdraw the spot by oneself.
2
The actor bad that administration mediates is analysed
Management department of public security transportation is in process of processing traffic accident, the person that reach party credentials, party to enquire accident of investigation, traffic is hurt through car of spot perambulate, sequestered accident injures a circumstance the means such as examination and postmortem, contact party or the dead's family member for a short while, solving respect of dispute of traffic accident damages to have natural advantage, its are professional mediate means to using administration with rich experience fast, reasonable solve its damages dispute to have main effect.
In the settlement of dispute of traffic accident damages, administrative mediation is not the choice with party favorite place, its are solved in dispute of traffic accident damages medium applicable not very general. Although bilateral party chose administrative mediation, the effect also is like person meaning very much, intercessory success rate is inferior. Analyse its reason, basically center in the following respects:
It is to be on legal idea, lawsuit of people praise highly and doubt mediation. According to law state new condition falls, as a result of people law consciousness rise and the accredit to legal lawsuit, abet lawsuit is all-purpose of thoughts flush. Public security policeman holds the producer of the book as traffic accident, already in sortie case processing, establish a gender to often be oppugned among them as intercessory main body again. Party more apt chooses forensic suit, administration of and rather than is mediated.
2 it is administration intercessory book effectiveness is finite. The intercessory agreement of sign after receiving sth of party both sides, can fulfill by bilateral party consciousness only. Be like one party or bilateral nonperformance, management department of public security transportation has no right to be carried out compulsively, abate party feels to the reliance of management department of public security transportation. In the meantime, effectiveness of administrative mediation book is finite, in be being carried out time and again be rebuffed, also be the main reason that party rejects administration to mediate.
3 it is to mediate time limit weak point, resource is deployed put in difference with actual demand. The requirement of bilateral party in mediating a process changes ceaselessly, need relapses for long explanation, patience is mediatory. In the meantime, current alarm power natural resources is deployed form tremendous contrast with real need. Law about mediating time limit the longest must not exceed regulation of 10 days, more deep the undesirable effect that this kind of difference causes. Afore-mentioned all sorts of causing the element that low-key solution rate and low-key solution success lead interweaves each other, bring about show level administration mediation to produce its due effect hard.
3
The actor bad of civil suit is analysed
The settlement to controversy of damages of road transportation accident means, party has option. So, tell from some kind of meaning, the subjective apiration of party to proceeding start have decision sense. Only should one party party thinks this controversy ought to be solved by the court and to people the court mentions of civil suit, ought to be solved by people court, and the intercessory program that need not resemble management department of public security transportation must agree with ability consistently to start by party of road transportation accident in that way.
According to legal provision, after party proper motion reconciles, if nonperformance of one party party reconciles agreement and mention to people court of civil suit, people court ought to be accepted. After obligor of compensatory obligee, compensation refers management department of transportation of request public security to have written application of mediation jointly, via mediation of management department of public security transportation, of the nonperformance after party did not come to an agreement or mediating student effect, party mentions to people court of civil suit, people court also ought to be accepted. In addition, party is during mediation of administration of organization of management department of public security transportation, before reaching intercessory agreement, mention to people court of civil suit, people court also ought to be accepted. Can say, through mentioning to the court civil suit settles the dispute of traffic accident damages between party, it is the inherent right of party and effective safeguard.
2004 " traffic safety law " order of the buy before cancelling management department of public security transportation to mediate deals with of the mechanism after changing, case of many traffic accident swarms into people court, litigant volume rises, a long-pending case serious, lawsuit complex, mediation leads protracted, program low, antagonism is strong wait for a problem, become the thorny problem that our country court must face. The litigant fashion with periodic and endless, higher cost often cannot make the victim gets seasonable relief, the stability of the family life that affects litigant directly and society is harmonious. (unfinished to be continued)
This abstract is chosen from " road transportation science and technology " 2018 the 6th period
