The Road Traffic Safety Law of the People's Republic of China, the Regulations for the Implementation of the Road Traffic Safety Law of the People's Republic of China and the Interpretation of the People's Court on Several Issues Concerning the Applicable Law in the Trial of Personal Injury Compensation came into effect on May 1, 24, and the original Measures for Handling Road Traffic Accidents were abolished accordingly. With the promulgation of a series of new laws, regulations, judicial interpretations and rules, the problem of inconsistent provisions on civil compensation for road traffic accidents in the past has been solved. However, the people's courts have also presented some new features and faced many new problems in the trial of road traffic accident damage compensation cases. This paper investigates the cases of road traffic accident damages tried by the two-level courts in Hezhou before and after the implementation of the Road Traffic Safety Law, discusses the problems that should be paid attention to in the trial of road traffic accident cases under the new situation and puts forward corresponding suggestions.

first, the characteristics of road traffic accident damage compensation cases.

(1) The number of personal injury compensation disputes in road traffic accidents is on the rise rapidly.

After the implementation of the Road Traffic Safety Law of the People's Republic of China on May 1, 24, the number of cases of personal injury caused by road traffic accidents brought to the people's courts increased greatly. In 23, the two-level courts in Hezhou accepted 93 cases of road traffic accident compensation, and in 24, 174 cases were accepted, up by 87.1%. Among them, 139 cases were accepted from May to December in 24, up by 124% compared with 62 cases accepted in the same period in 23. < P > The reasons for the sharp increase of such cases are mainly as follows:

1. According to the provisions of Article 74 of the Road Traffic Safety Law, the parties concerned may request the traffic department of the public security organ to mediate in the dispute over compensation for traffic accidents, or they may directly bring a civil lawsuit to the people's court. That is, as long as the prosecution of the parties meets the conditions stipulated in Article 18 of the Civil Procedure Law, the court can accept it, and the mediation of the traffic police department is no longer the pre-procedure for bringing a lawsuit.

2. The traffic police department is restricted in starting mediation procedures for traffic accident cases, and the mediation function is weakened. According to the Regulations on the Implementation of the Road Traffic Safety Law of the People's Republic of China, which came into effect on May 1, 24, the traffic police department will mediate the dispute only if all parties to a traffic accident unanimously request the traffic management department of the public security organ for mediation, and the parties' application for mediation of the traffic accident should be submitted in writing within 1 days from the date of service of the traffic accident responsibility letter, and the traffic police department will no longer take the initiative to organize mediation between the two parties. In this way, as long as one party does not agree to mediation, the traffic police department will no longer organize mediation, resulting in some cases where one party is unwilling to mediate or fails to submit a written mediation application in time within ten days, which will be directly brought to court without mediation by the traffic police department. At the same time, the new regulations stipulate that the mediation procedure can be terminated if the traffic police department fails to mediate once, instead of having to mediate twice in the past, and the number of cases that have reached an agreement through mediation by the traffic police department has dropped significantly. According to the statistics of Hezhou Accident Handling Squadron, from May to December 24, only 35 cases reached an agreement through mediation by the accident handling squadron, while in the same period of 23, 116 cases were successfully mediated, a decrease of 231%. These cases that failed to mediate also flowed to the court.

3. The Interpretation of the People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases has made great adjustments to the compensation standards of some personal compensation items, such as the compensation period for death compensation and disability compensation has been increased from 1 years as stipulated in the Measures for Handling Road Traffic Accidents to 2 years at present, and the parties can request death compensation and mental damages at the same time, so the compensation amount has been greatly increased, so some of them occurred before May 1, 24.

(2) the subject matter of the lawsuit is relatively large.

Because traffic accidents cause more deaths and serious injuries, and the judicial interpretation of personal injury compensation has raised the compensation standard, the amount of litigation requests of the parties is relatively large. The subject matter of most cases ranges from tens of thousands to hundreds of thousands. In 23, the total amount of litigation objects in such cases was 2,122,32 yuan, with an average amount of 22,8 yuan per object. In 24, the total amount of litigation objects in such cases was 6,41,65 yuan, with an average amount of 34,7 yuan, which was 52.19% higher than that in 23. < P > (3) There are many litigants and the legal relationship is complicated.

At present, people do not strictly follow the transfer registration procedures in motor vehicle transactions, and the management of vehicles, leasing and use is not standardized. After road traffic accidents, the responsible subjects often involve registered owners, actual owners, borrowers, lessees, employers and other personnel. Article 75 of the Road Traffic Safety Law stipulates that "those who have not participated in compulsory third-party motor vehicle insurance or escaped after an accident shall be paid in part or in whole by the social assistance fund for road traffic accidents ...", and Article 76 stipulates that after a traffic accident happens to a motor vehicle, the insurance company shall make compensation within the liability limit of compulsory third-party motor vehicle liability insurance. Therefore, in some cases at present, insurance companies also participate in litigation directly as co-defendants or as a third party. In the future, there may be cases in which the social assistance fund for road traffic accidents is the main body of litigation. The subject of litigation is more complicated.

(4) The majority of cases are closed by judgment, and the mediation settlement rate is low.

In 23, 83 cases of road traffic accidents were concluded, of which 64 cases were concluded by judgment and 13 cases were mediated, with a mediation rate of 15.66%. In 24, 171 cases were concluded, 116 cases were decided, and 31 cases were mediated, with a mediation rate of 18.13%. The main reasons for the low mediation rate of cases are that some parties have insufficient understanding of the determination and division of responsibilities, the applicable compensation standards are wrong, or they don't consider the other party's actual performance ability. When they sue, they often make huge claims for compensation, and their expectations for litigation are too high. However, some perpetrators are unable to compensate or deliberately refuse to attend court proceedings due to financial difficulties, so it is difficult for both parties to have great differences. In addition, traffic accidents usually cause heavy losses, such as casualties. The injured party has a grudge against the perpetrator, hoping to get reasonable compensation through litigation, and is unwilling to make big concessions psychologically and emotionally, which also leads to great difficulty in mediation and high judgment rate in such cases to a certain extent.

(5) Property preservation has increased substantially.

according to article 42 of the newly promulgated traffic accident handling procedures, "the accident vehicles detained by the traffic management department of the public security organ shall not be used except for inspection and appraisal. Notify the parties to receive the accident vehicle and motor vehicle driving license within five days after the inspection and appraisal are completed. " The purpose and duration of detaining accident vehicles and motor vehicle driving licenses by the traffic management department of public security organs are strictly restricted, and accident vehicles can no longer be detained as long as in the past. In order to ensure the smooth execution of the case in the future, the plaintiff often applies to the court for property preservation at the time of prosecution or before prosecution, so as to prevent the defendant from hiding and transferring the property and causing difficulties in execution.

second, the current problems in the trial of road traffic accident damage compensation disputes.

(1) it is difficult to identify the responsible subject.

in traffic accident damage compensation cases, it is the most important issue to determine the subject of liability for damage compensation. Only by distinguishing the different relationships among vehicle owners, drivers and actual controllers and determining the subject of liability, can we determine how to bear the liability for compensation. In the trial of a specific case, as a vehicle owner who should bear civil liability, there are often relationships such as vehicles, contracting, leasing, borrowing and employment, as well as multiple buying, selling and subcontracting behaviors. The actual owner and the nominal owner are often inconsistent, or there are multiple owners who bear the responsibility, which involves many subjects and is difficult to divide the responsibilities.

(2) how to identify the accident certificate of the traffic police department.

The Road Traffic Safety Law changes the expression of the original "responsibility confirmation" to "accident confirmation", and defines the accident responsibility confirmation as evidence for handling traffic accidents. The parties may not file a reconsideration, and the court will finally examine and confirm it. However, there are still some difficulties in practice. First of all, whether to adopt the accident identification depends on the judge's discretion, and there may be deviations in the cause and responsibility sharing of the accident due to the differences in individual cognition. In addition, what should be done when the court considers that there is something wrong with the accident after examination? There is no legal basis for requesting the traffic police department to re-identify; If the court directly changes the accident identification of the traffic police department, because the judge is not a professional accident handler, it is difficult to identify the original responsibility only by the written materials of the case file. At the same time, because the identification of the responsibility of the traffic police department is not equal to the sharing of civil responsibility, the sharing of responsibility finally decided by the court may not be consistent with the identification of responsibility, which will often cause dissatisfaction or misunderstanding of the parties.

(3) the litigation status of insurance companies is difficult to determine.

Article 75 of the Road Traffic Safety Law stipulates: "If the vehicle involved in the accident participates in compulsory motor vehicle third-party liability insurance, the insurance company shall pay the rescue expenses within the limit of liability"; Article 76 stipulates: "If a motor vehicle accident causes personal injury, death or property loss, the insurance company shall compensate it within the liability limit of compulsory third-party liability insurance for motor vehicles". However, there is no clear stipulation on whether the victim can directly ask the insurance company to bear the liability for compensation and the subject of litigation of the insurance company in traffic accident compensation's case. From the legal point of view, it is difficult for the victim to directly request the insurer to bear the responsibility in theory. If the victim directly sues the insurance company or applies to the court for the first execution of the insurance premium of the accident party in the insurance company, it is difficult to grasp how the insurance company participates in the lawsuit, whether as a third party with the defendant or without independent claim. On the other hand, insurance companies still pay claims according to the old standard for accidents that occurred before May 1, 24, while the court adopts the new standard when calculating the amount of compensation, and there is also a big gap between them.

(4) There are great differences on the understanding of the motor vehicle full liability compensation clause.

Article 76 of the Road Traffic Safety Law stipulates: "If a traffic accident occurs between a motor vehicle and a non-motor vehicle driver or pedestrian, the motor vehicle party shall bear the responsibility; However, there is evidence to prove that non-motor vehicle drivers and pedestrians violate road traffic safety laws and regulations, and motor vehicle drivers have taken necessary measures to reduce the responsibility of the motor vehicle side, which is the "motor vehicle full responsibility" clause that has caused widespread controversy in society. This provision adopts no-fault liability or strict liability. In judicial practice, some people think that from the literal understanding of this clause, one side of the motor vehicle must be completely free from any fault and the other side has violated the rules in order to reduce the responsibility. If the pedestrian has a major fault and causes an accident, but the driver of the motor vehicle fails to take necessary measures, the motor vehicle side still has to take full responsibility. However, those who hold the opposite view think that this is too harsh on the motor vehicle side and advocate that the principle of fault offset should be applied to deal with it.

(5) there is no unified basis for applying to urban residents or rural residents.

the judicial interpretation of the court's personal injury compensation stipulates that the disability compensation, the living expenses of the dependents and the death compensation shall be calculated according to whether the compensation holder is an urban resident or a rural resident and according to the corresponding standards. There is a great disparity between the two different compensation standards. However, it is not clearly defined whether to identify rural and urban residents on the basis of household registration or on the basis of habitual residence. In today's society, there are more migrant workers and frequent population movements. Some farmers have gone out to work in cities for more than one year or have settled in cities for many years, and their income is not lower than the average standard of local urban residents. If compensation is only based on the standard of rural residents, it will cause obvious unfairness.

(6) the application for litigation preservation is not timely.

according to article 42 of the traffic accident handling procedures, the traffic police department detained the car on the basis of identification and inspection, not to ensure the realization of compensation liability, and it should be returned to the parties within five days after the inspection and identification are completed. The vehicle itself is of great value, which is an important guarantee for the execution of the judgment documents in the future. Because the traffic police department will hand over the vehicle to the accident party after making the accident identification, some parties lack legal knowledge in this field and fail to apply to the court for pre-litigation property preservation measures in time. It will be very difficult for the court to take preservation measures when the parties file a lawsuit with the court, and sometimes even go to other provinces to seal up and detain the vehicle, which is very passive.

third, the way to solve the problem.

(a) on the identification of the subject of compensation.

the subject of responsibility in traffic accident compensation's case involves the following aspects. 1. Those who are directly liable for the accident include the owner, actual controller and driver of the motor vehicle. 2. Insurance companies that bear the liability for alternative compensation. This kind of compensation is based on the provisions of the insurance contract, and the insurer bears the vicarious liability. 3, bear the responsibility of road traffic accident social assistance fund institutions. It is mainly the first case that is difficult to identify in practice. We should pay attention to the following points: first, we should distinguish between the owner of the vehicle and the actual controller. Vehicle owners refer to units or individuals registered with the vehicle management authority. The actual controller includes several situations: the buyer who has not registered the transfer of ownership in the car sale (if the serial car purchase has not been transferred, it is the buyer of the last sale relationship), the buyer, the contractor, the renter, the borrower, the buyer who has purchased by installment but has not gone through the transfer formalities, etc. Secondly, when the owner of the vehicle is inconsistent with the actual controller, the determination of the subject of liability for damages should be based on the ownership of the vehicle and the ownership of the operating interests. Specific to each case, we should follow the general principles and combine the division of tort liability and different case facts in the Interpretation of the People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation. If a party only sues a part of the main body of the vehicle driver, vehicle owner or actual controller, it shall explain to him the responsibilities of other relevant personnel. If the party insists on suing only a part of the main body, it will be allowed in general, and if it is sorry to sue, it will be regarded as a waiver of rights.

(2) On the litigation status of insurance companies.

There are two different views on this issue: one holds that the road traffic accident is a lawsuit of infringement, and the insurance company's performance of the obligation to pay insurance benefits is a lawsuit of contract, which belong to different legal relationships. Therefore, it is not appropriate to list the insurance company as a * * * co-defendant in the trial of traffic accident damage compensation cases, but because it has a legal interest in the outcome of the case, it should apply for participation in the lawsuit as a third party without independent claim or be added by the people's court. Another point of view is that Article 76 of the Traffic Safety Law stipulates: "If a motor vehicle accident causes personal injury or property loss, the insurance company shall compensate it within the liability limit of compulsory third-party liability insurance for motor vehicles". At the same time, Article 5, paragraph 1 of the Insurance Law stipulates that "the insurer may, in accordance with the provisions of the law or the stipulations of the contract, directly damage the insured of liability insurance to a third party.