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In order to correctly try the cases on compensation for personal injury, lawfully protect the legitimate rights and interests of the parties, we hereby give our interpretation as follows regarding the relevant issues concerning the application of law in accordance with the "General Principles of Civil Law of the People's Republic of China" (hereinafter referred to the General Principles of Civil Law) and the "Civil Litigation Law of the People's Republic of China" (hereinafter referred to the Civil Litigation Law) and other relevant laws: Article 1. Where an obligee to compensation brings a lawsuit due to an injury to his life, health or body, claiming compensation for property losses or psychological injuries against the obligor to compensation, the people's court shall accept the lawsuit. An "obligee to compensation" mentioned in the present Article means a victim who directly suffers from personal injury due to a tort or any other cause of injury, or a person in need of maintenance and upbringing for which the victim is obligated in accordance with law, or a close relative of the deceased victim. An "obligor to compensation" mentioned in the present Article means a natural person, legal person or other organization that shall bear civil liabilities in accordance with the law for the tort or any other cause of injury committed by himself/itself or by any other person. Article 2. Where a victim has any intent or negligence for the occurrence or enlargement of the same injury, the liabilities of the obligor to compensation may be mitigated or exempted in accordance with Article 131 of the General Principles of Civil Law. However, if the tortfeasor causes injury to another person by intent or major negligence, while the victim only has generic negligence, the liabilities of the obligor to compensation shall not be mitigated. If, when Paragraph 3 of Article 106 of the General Principles of Civil Law is applied to determine the liabilities of an obligor to compensation, the victim is found to have any major negligence, the liabilities of the obligor to compensation may be mitigated. Article 3. Where two or more persons cause an injury to others by joint intent or joint negligence, or their injurious acts are directly combined and result in the same injury consequence even if there is no joint intent or joint negligence, a joint tort shall be constituted, and the tortfeasors shall bear joint liabilities in accordance with Article 130 of the General Principles of Civil Law. Where two or more persons have no joint intent or joint negligence, but separately commit several acts that are indirectly combined and result in the same injury consequence, they shall bear corresponding compensation liabilities respectively in appropriate proportions upon the extent of their faults or the reasons of such injury. Article 4. Where two or more persons jointly commit any act endangering the personal safety of any other person and result in any injury, they shall bear joint liabilities in accordance with Article 130 of the General Principles of Civil Law in the case that the actual injuring person is unable to be determined. Where anyone who is suspected to have caused the joint danger can prove that the injury consequence is not caused from his act, he shall bear no compensation liabilities. Article 5. Where an obligee to compensation brings a lawsuit against some of the joint tortfeasors, the people's court shall add other joint tortfeasors as joint defendants. Where the obligee to compensation abandons his litigation claims against some of the joint tortfeasors in the process of litigation, other joint tortfeasors shall not bear joint liabilities for the share of compensation that ought to be previously borne by the defendants against whom the abandoned litigation claims were proposed. If the scope of liabilities is difficult to be determined, all the joint tortfeasors shall be putatively deemed to bear equal liabilities. The people's court shall inform the obligee to compensation of the legal consequence of his abandonment of the litigation claims, and shall state such abandonment in the legal documents. Article 6. Where a natural person, legal person or any other organization who engages in the business of hotel, catering or entertainment, etc. or carries out other social activities, fails to perform the security guaranty obligation within a reasonable scope, and thus causes any other person to suffer from a personal injury, and the obligee to compensation claims against the obligor for bearing corresponding compensation liabilities, the people's court shall support such claim. Where a third person's tort results in an injury, he shall bear the compensation liabilities. If the obligor for security guaranty has any fault, he shall bear corresponding supplementary compensation liabilities within a scope of his capacity to prevent or stop such injury. The obligor for security guaranty may, after bearing the liabilities, claim compensation from the third person. If the obligee to compensation brings a lawsuit against the obligor for security guaranty, he shall regard the third person as a joint defendant, unless the third person is unable to be determined. Article 7. Where a school, kindergarten or other educational institution lawfully obligated for educating, managing and protecting minors fails to perform the relevant obligations within the scope of its duties, and thus causes a minor to suffer from a personal injury, or causes a personal injury to any other person via the minor, it shall bear compensation liabilities matching its fault. Where a third person's tort causes a minor to suffer from a personal injury, he shall bear the compensation liabilities. If the school, kindergarten or other educational institution has any fault, it shall bear corresponding supplementary compensation liabilities. Article 8. Where the legal representative, responsible person or any employee of a legal person or any other organization causes an injury to others in his implementation of duties, the said legal person or organization shall bear the civil liabilities in accordance with Article 121 of the General Principles of Civil Law. If any of the aforementioned persons commits an act irrelevant to his duties, and thus causes an injury to others, he himself shall bear the compensation liabilities. The causes of compensation governed by the "State Compensation Law" shall be handled in accordance with the "State Compensation Law". Article 9. Where an employee causes an injury to others when carrying out an employment activity, the employer shall bear the compensation liabilities; if the employee causes the injury due to his intent or major negligence, he shall bear joint compensation liabilities along with the employer. The employer may, when bearing the joint compensation liabilities, claim compensation from the employee. "Carrying out an employment activity" mentioned in the preceding paragraph means carrying out a production or business activity or any other labor service activity within a scope of authorization or instructions of the employer. If the employee's act exceeds the scope of authorization, but is embodied in a form of performing duties or is internally relating to the performance of duties, it shall be ascertained as "carrying out an employment activity". Article 10. Where an undertaker causes an injury to a third person or to himself when completing certain work, the hirer shall bear no compensation liability. However, if the hirer has any negligence on his order, instruction or selection, he shall bear corresponding compensation liabilities. Article 11. Where an employee suffers from a personal injury when carrying out an employment activity, the employer shall bear the compensation liabilities. If a third person out of the employment relationship causes a personal injury to the employee, the obligee to compensation may claim against either the third person or the employer for bearing the compensation liabilities. The employer may, after bearing the compensation liabilities, claim compensation from the third person. Where an employee suffers from a personal injury due to an accident on safety production when carrying out an employment activity, and the contract letting party or the subcontract letting party knows or ought to know that the employer undertaking the contract or subcontract has no corresponding qualifications or safety production conditions, the said employee shall bear joint compensation liabilities with the employer. The present Article shall not apply to the labor relationships or work-related injury insurances, which should be governed by the "Regulation on Work-Related Injury Insurance". Article 12. Where a laborer of an employing entity which is required by law to be under the overall planning on work-related injury insurance, suffers from a personal injury due to a work-related injury accident, and the laborer or his close relative brings a lawsuit to the people's court claiming against the employing entity for bearing civil compensation liabilities, he shall be informed to handle the matter in accordance with the "Regulation on Work-Related Injury Insurance". Where a laborer suffers from a personal injury due to the tort of a third person other than the employing entity, and the obligee to compensation claims against the third person for bearing the civil compensation liabilities, the people's court shall support such claim. Article 13. Where a helper provides another person with labor services gratuitously, and causes an injury to others when carrying out the work, the helped party shall bear the compensation liabilities. If the helped party clearly refuses the work, he shall bear no compensation liability. While if the helper has any intent or major negligence, and the obligee to compensation claims against the helper or the helped party to bear joint liabilities, the people's court shall support such claim. Article 14. Where a helper suffers from a personal injury due to the work, the helped party shall bear compensation liabilities. If the helped party clearly refuses the work, he shall bear no compensation liability; but may be required to make supplementary payments within the scope of his benefits. Where a helper suffers from a personal injury due to the tort of a third person, the third person shall bear the compensation liabilities. If the third person cannot be determined or has no capacity of compensation, the helped party may be required to make appropriate supplementary payments. Article 15. Where any obligee to compensation who suffers from a personal injury for the purpose of maintaining the legitimate rights and interests of the state, collectivity or any other person claims against the beneficiary for making appropriate supplementary payments within the scope of his benefits due to the fact that there is no tortfeasor, the tortfeasor cannot be determined or the tortfeasor has no capacity of compensation, the people's court shall support such claim. Article 16. Under any of the following circumstances, Article 126 of the General Principles of Civil Law shall apply, and the owner or caretaker shall bear the compensation liabilities, unless he can prove that he has no fault: (1) a road, bridge, tunnel or any other artificial building injures someone due to a blemish in maintenance or management; (2) a piled-up article rolls or slides down or collapses, and injures someone; (3) a tree falls down or is broken or a fruit drops, and injures someone. Where, in the event of a circumstance in Item (1) of the preceding paragraph, an injury occurs due to a defect in design or construction, the owner and the caretaker shall bear joint liabilities together with the designer or constructor. Article 17. All expenses paid by a victim suffering from a personal injury for medical treatment and his income loss due to missed working time, including the medical expenses, the loss in income due to missed working time, the nursing expenses, the traffic expenses, the accommodation expenses, the board expenses in hospital, and necessary expenses for nutrition, shall be compensated by the obligor to compensation. Where the victim becomes disabled due to an injury, the necessary expenses he has paid for additional needs in his living and his income loss due to his inability to work, including the compensation for disability, the expenses of aid for disability, the living expenses of the persons in need of his maintenance and upbringing, the necessary healing expenses that actually occurred for healing and nursing, continuing treatment, the nursing expenses, and the follow-up treatment expenses, shall also be compensated by the obligor to compensation. Where the victim has died, the obligor to compensation shall, in addition to compensating the relevant expenses prescribed in Paragraph 1 of the present Article according to the facts of rescue and treatment, compensate the funeral expenses, the living expenses of the persons in need of the victim's maintenance and upbringing, the death compensation expenses, the traffic expenses and accommodation expenses paid by the victim's relatives for funeral matters and their income loss due to missed working time, as well as other reasonable expenses. Article 18. Where the victim or a close relative of the decedent suffers from a psychological injury, and the obligee to compensation claims to the people's court for consolation money for psychological injury, the "Interpretation of the Supreme People's Court of Some Issues concerning Determining the Compensation Liabilities for Psychological Injury Due to Civil Tort" shall apply in the determination. The right to request consolation money for the psychological injury shall not be transferred or succeeded, unless the obligor to compensation has promised in writing to make money compensation, or the obligee to compensation has brought a lawsuit to the people's court. Article 19. The medical expenses shall be determined on the basis of the vouchers issued by the medical institution on medicine expenses and hospital expenses, etc., as well as in combination with the medical records, the diagnose proof and other relevant evidence. Where the obligor to compensation has any dissent on the necessity or rationality of the treatment, it shall assume the corresponding obligation for providing evidence. The compensation amount of medical expenses shall be determined on the basis of the actual amount up to the end of debate in the court of the first instance. With regard to the necessary healing expenses for recovering the functions of the injured human organ through exercises, the appropriate face-lifting expenses and other follow-up treatment expenses, the obligee to compensation may bring a lawsuit separately after they have actually occurred. However, the inevitable expenses determined on the basis of the medical proof or expert conclusion may be compensated along with the medical expenses that have occurred. Article 20. The loss in income due to missed working time shall be determined in light of the victim's missed working time and his usual income. The missed working time shall be determined on the basis of the proof issued by the medical institution where the victim is treated. If the victim misses his working time continuously due to disability caused by an injury, the missed working time may be calculated up to the day before the disability is determined. Where the victim has fixed income, his loss in income due to missed working time shall be calculated according to the income actually reduced. However, if the victim has no fixed income, his loss in income due to missed working time shall be calculated on the basis of his average income during the latest three years. If the victim is unable to provide evidence to prove his average income during the latest three years, his loss in income due to missed working time may be calculated by referring to the average wages of the employees in the same or similar industry at the locality of the case-accepting court of the last year. Article 21. The nursing expenses shall be determined in light of the usual income of the nursing personnel, the number of nursing personnel and the nursing period. Where the nursing personnel have any income, their income shall be calculated by referring to the provisions on the loss in income due to missed working time. If the nursing personnel have no income or any nurse is employed, the said income shall be calculated by referring to the remuneration rates of the local nurses engaging in the labor services of the same class of nursing. There shall be one nursing person in principle. But if there are clear opinions of the medical institution or appraisal institution, they may be regarded as the reference to determine the number of nursing personnel. The nursing period shall be calculated up to the time when the victim has recovered his capability of taking care of himself. If the victim is unable to recover his capability of taking care of himself due to disability, a reasonable nursing period may be determined in light of factors such as his age and health, etc., provided that the period shall not exceed 20 years. Where the victim needs to be nursed after determination of his disability, the nursing class shall be determined in light of the extent of his dependence on the nursing and in combination with the equipment of aid for disability. Article 22. The traffic expenses shall be calculated on the basis of the expenses that actually occurred to the victim and his necessary accompanying carers due to medical treatment or due to hospitalization in another hospital. The traffic expenses shall be proved with formal tickets, and the relevant documents shall conform with the place, time and frequency of medical treatment, and the number of persons, as well. Article 23. The board expenses in hospital may be determined by referring to the rates of board subsidies for business trip for ordinary functionaries of local state organs. Where it is indeed necessary for a victim to be treated in another place of the country, or the victim is unable to be in hospital due to any objective reason, the reasonable proportion of the accommodation expenses and board expenses that actually occurred to the victim himself and his accompanying carers shall be compensated. Article 24. The expenses for nutrition shall be determined in light of the victim's situation of injury or disability and with reference to the opinions of the medical institution. Article 25. The compensation for disability shall be calculated on the basis of the extent of the victim's inability to work or the grade of injury or disability, in light of the per capita disposable income of the urban residents or the per capita net income of the rural residents at the locality of the case-accepting court of the last year, for a period of 20 years as of the day when the disability is determined. However, if the victim is at the age of 60 or over, the period shall be deducted by one year for each year of age added. If the victim is at the age of 75 or over, the period shall be calculated as 5 years. Where the victim becomes disabled due to an injury but his actual income is not reduced, or the grade of his injury or disability is not heavy but his employment is affected due to occupational impediments, the compensation for disability may be adjusted accordingly. Article 26. The expenses for aid for disability shall be calculated in light of the reasonable expense rates of common applicable devices. If it is required particularly by the condition of injury, the corresponding reasonable expense rates may be determined by referring to the opinions of the aid-equipping institution. The period of using the aid before change and the time limit for compensation may be determined by referring to the opinions of the aid-equipping institution. Article 27. The funeral expenses shall be calculated in light of the per capita monthly average wage of the employees at the locality of the case-accepting court of the last year, and at the total amount of six months of such wage. Article 28. The living expenses for a person in need of maintenance and upbringing shall be calculated on the basis of the extent of the victim's inability to work, and in light of the per capita consumption expenditures of the urban residents and the per capita annual living consumption expenditures of the rural residents at the locality of the case-accepting court of the last year. If the person in need of maintenance and upbringing is a minor, the period shall be calculated up to the age of 18. If the person in need of maintenance and upbringing has no ability to work or no other source of income, the period shall be calculated as 20 years. However, if the victim is at the age of 60 or over, the period shall be deducted by one year for each year of age added. If the victim is at the age of 75 or over, the period shall be calculated as 5 years. A person in need of maintenance and upbringing means a minor to whom the victim is lawfully obligated for maintenance and upbringing, or an adult close relative of the victim, who has lost the ability to work and has no other source of income. If the person in need of maintenance and upbringing may be maintained and brought up by any other person, the obligor to compensation may only compensate the proportion that the victim shall bear in accordance with the law. Where there are more than one person in need of maintenance and upbringing, the accumulative annual compensation amount in total shall not exceed the amount of per capita consumption expenditures of urban residents of the last year or the amount of per capita annual living consumption expenditures of rural residents of the last year. Article 29. The compensation for death shall be calculated for 20 years in light of the per capita disposable income of the urban residents or the per capita net income of the rural residents at the locality of the case-accepting court of the last year. However, if the victim is at the age of 60 or over, the period shall be deducted by one year for each year of age added; if the victim is at the age of 75 or over, the period shall be calculated as 5 years. Article 30. Where the obligee to compensation provides evidence to prove that the per capita disposable income of the urban residents or per capita net income of the rural residents at his domicile or habitual residence is higher than the rates at the locality of the case-accepting court, the compensation for disability or death may be calculated in light of the relevant rates at his domicile or habitual residence. The relevant rates for calculating the living expenses of the person in need of maintenance and upbringing shall be determined pursuant to the principles in the preceding paragraph. Article 31. The people's court shall, in accordance with Article 131 of the General Principles of Civil Law and Article 2 of the present Interpretation, determine the actual amount of compensation for all property losses in Article 19 through Article 29. The compensation for material injury determined in the preceding paragraph and the consolation money for psychological injury determined in accordance with Paragraph 1 of Article 18 shall be paid in a lump sum in principle. Article 32. If, in excess of the determined nursing period, the duration for payment of expenses for aid or payment of compensation for disability, the obligee to compensation brings a lawsuit to the people's court requesting continuing payment of nursing expenses, expenses for aid or compensation for disability, the people's court shall accept the case. If the obligee to compensation indeed needs to continue to be nursed or be equipped with the aid, or has no ability to work or no source of income, the people's court shall rule that the obligor to compensation continue paying the relevant expenses for 5 to 10 years. Article 33. Where an obligor to compensation requests the compensation for disability, the living expenses for the person in need of maintenance and upbringing, or the expenses of aid for disability by means of regular payment, it shall provide corresponding guaranty. The people's court may, in light of the capacity of the obligor to compensation to make payment and the guaranty he provides, determine the relevant expenses to be paid at regular intervals. However, the expenses that have occurred prior to the end of the debate in the court of the first instance, the compensation for death and the consolation money for psychological injury, shall be paid in a lump sum. Article 34. The people's court shall clarify in the legal documents the time and method of regular payment, and the rates of each installment. If the relevant statistical datum is changed during the period of execution, the amount to be paid shall be adjusted accordingly. The regular payment shall be made in light of the actual duration when the obligee to compensation is living, and shall not be limited by the relevant time limit for compensation mentioned in the present Interpretation. Article 35. The "per capita disposal income of urban residents", "per capita net income of rural residents", "per capita consumption expenditures of urban residents", "per capita annual living consumption expenditures of rural residents", and "average wages of employees" mentioned in the present Interpretation, shall be determined according to the relevant statistical data of the province, autonomous region, municipality directly under the Central Government, special economic zone, or city directly under state planning of the last year, which were promulgated by the government statistical department. "The last year" means the last statistical year prior to the end of debate in the court of first instance. Article 36. The present Interpretation shall come into force on May 1, 2004. The cases of the first instance on compensation for personal injury, which were accepted after May 1, 2004, shall be governed by the present Interpretation. The cases on compensation for personal injury, for which the effective rulings have been made and which are retried in accordance with the law, shall not be governed by the present Interpretation. In case any content in a judicial interpretation that came into force prior to the present Interpretation's promulgation and entry into force is inconsistent with the present Interpretation, the present Interpretation shall prevail. |
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