[Key words]: incidental civil action traffic accident
[introduction to the lawyer of this case] Ren Jianhong is a practicing lawyer of Liaoning Tongfang law firm. During his practice, he has represented and participated in many major arbitration, civil and commercial, intellectual property and real estate legal disputes and other types of litigation and enforcement cases. He has considerable experience in litigation agency. He has provided litigation agency or served as a legal adviser for many foreign-funded enterprises and private enterprises. In non litigation legal services, he participated in the design and legal confirmation of the overall structure of the investment project, implemented various negotiations in the investment project, drafted and revised various legal documents such as the enterprise contract and articles of association, and solved various problems involved in the investment process. According to the relevant provisions of laws and policy documents, he explained in detail for customers and issued special or comprehensive legal opinions of high standards and quality, Timely provide comprehensive and deep-seated high-end legal services for enterprises.
[key points of judgment]: Wang, the defendant of the incidental civil action × Haizhao drove away afterwards, and passers-by found the victim 20 minutes later and reported the case. The accident section is remote, and there is no video surveillance camera equipment at the accident site, so it is impossible to directly restore and determine the relevant objective basic facts of the case at the first time of the accident based on the video data at the accident site. Because the defendant went to the public security organ at noon on the next day to give up his case, it was only after 15 hours that the venous blood was sampled. In the ethanol experience report, ethanol was detected. However, in the investigation stage, the interrogation transcripts and statements, the testimony of other witnesses and the statements of the defendant in the court trial were consistent, which confirmed that he drank a small amount of alcohol; By comparing the time of the accident recorded in the process of arriving at the case and the source of the case issued by the traffic police department with the time when the 120 emergency center went to the scene for rescue and observed the ECG of the victim to make a detection record, the evidence in the file can not prove that the victim died on the spot when the accident occurred, that is, the victim died when the defendant escaped by driving. Whether the above criminal circumstances of the defendant constitute escape after traffic accident; In terms of sentencing, how to determine the starting point of sentencing and the circumstances of sentencing is the focus of the criminal judgment of this case, and also has a certain connection with the mediation work of the civil part of the criminal;
Although the victim is an agricultural registered residence, the relevant evidence fully confirms that the victim is a project manager of a city construction enterprise stationed in Shenyang and resident in Shenyang project department, has a professional and technical title of intermediate construction engineer, and his habitual residence and main source of income are all cities. In the civil judgment attached to the criminal case, the death compensation is calculated according to the urban standard, and the court shall support it according to law.
[basic case]: at about 21:10 pm on April 9, 2016, in Shenyang ×× area ×× street ×× 200 meters north of the road intersection, the defendant Wang × Sea driving Liao ××× When the No. Toyota jeep was driving from south to north, it was walking with the victim Xu × Chapter traffic accident to Xu × Zhang died on the spot and the vehicle was damaged. After the accident, Wang × Hai drove away from the scene, and it was confirmed that Wang × Hai is fully responsible for the accident, Xu × Chapter no liability.
[judgment result] i. defendant Wang × If a person commits the crime of causing traffic accidents at sea, he shall be sentenced to fixed-term imprisonment of three years and suspended for three years (the probation period of suspension shall be calculated from the date when the judgment is made);
2、 Defendant of incidental civil action: Shenyang Branch of PICC Property and Casualty Insurance Co., Ltd. compensates plaintiff of incidental civil action: Xing × Ying, Xu × Bo, Xu × The compensation for Yan's death is RMB 110000, which shall be paid within 10 days from the date of the legal effect of this judgment.
[reason for judgment]: defendant Wang × In violation of the road traffic safety laws and regulations, the driver who drives a motor vehicle and causes one death shall be fully responsible for the accident and escape. His behavior has constituted the crime of causing traffic accidents and shall be punished according to law. If the defendant voluntarily surrenders to the court and truthfully confesses his crime, he may be given a lighter punishment according to law. If the defendant actively compensates and obtains the understanding of the victim's family, he may be given a lighter punishment as appropriate.
[relevant articles] Article 133, paragraph 1 of Article 167, paragraph 1 of Article 72, paragraphs 2 and 3 of Article 73 of the criminal law of the people's Republic of China, and Articles 16 and 48 of the tort liability law of the people's Republic of China
[lawyer's opinion] 1. On the conviction and sentencing of this case. The existing evidence in the volume can not prove that the victim died on the spot when the accident occurred, that is, the victim died when the defendant fled in the car. The defendant's confession proved that he had seen the collision, but he did not get off the car to check the injury of the injured person, and did not take any rescue measures, that is, he drove away from the scene. According to the procedural documents of the public security organs, the test records of the first aid center, and in combination with the statements of the defendant, it is proved that after the traffic accident involved in his driving, he knew that the place where the accident occurred was not a busy main road and was relatively remote, and that there were few vehicles and pedestrians on the street at the time of the accident, Directly causing the legal consequences of the death of the victim due to lack of assistance. According to the facts proved by the above evidences, according to the provisions of Article 133 of the criminal law of the people's Republic of China, the defendant's behavior has constituted the crime of traffic accident according to law, and according to the provisions of Article 2, paragraph 1 (1) and Article 5 of the interpretation of the Supreme People's Court on Several Issues concerning the specific application of laws in the trial of criminal cases of traffic accident (hereinafter referred to as the interpretation), Judging from the subjective and objective aspects of the overall and comprehensive analysis, it belongs to the death caused by escape, rather than the ordinary traffic and transportation accident and escape specified in Article 3 of the interpretation.
2. On the items, standards and amounts of incidental civil compensation
First of all, the relevant evidence provided by the plaintiff in the trial of the incidental civil action proves that the victim's habitual residence and main source of income are both cities. According to the reply of the people's Court of the people's Republic of China on how to calculate the compensation costs for traffic accident injuries and deaths of rural residents whose habitual residence is in cities and towns, the death compensation and other related damage compensation costs of the victim shall be calculated according to the relevant standards of local urban residents. Secondly, the reasonable expenses incurred by the relatives of the victims for handling funeral matters belong to the legal compensation items. Although there are air tickets to and from home and abroad, they belong to the immediate family members. The court should consider the facts and circumstances of the whole case and determine them as appropriate.
3. How to link up and combine the division of liability in incidental civil litigation with the criminal circumstances
1. Starting from the careful inspection of public security files and procuratorial files, we will not miss any details and doubts. Through comprehensive analysis of all the evidence of the case, we will eliminate reasonable doubts and provide sufficient and conclusive basis for conviction and sentencing.
2. In this case, because the defendant escaped by driving, the commercial insurance company was exempted from the liability of compensation according to law. In order to help the plaintiff in the incidental civil action to fight for this part of the loss, the agent made use of the previous litigation experience to clarify the seriousness of the defendant's criminal behavior by proposing the starting point of criminal sentencing and the circumstances of sentencing, and also paved the way for the judge to carry out the mediation work in the incidental civil part, The legal provisions have been used to protect the legitimate rights and interests of the client to the greatest extent.