Answers to Several Questions Concerning the Trial of Cases of Disputes over Liability for Motor Vehicle Traffic Accidents (1)

Author: Shandong Provincial High People's Court Second Trial and Supervision Division

Source: The rule of the same judgment for similar cases

Shandong Provincial High People's Court Second Trial and Supervision Division

Regarding the trial of motor vehicle traffic accident liability disputes

Answers to some questions (1)

April 2024

In order to unify the standards of court adjudication in the province and properly hear cases of motor vehicle traffic accident liability disputes, in accordance with the provisions of laws, regulations, and judicial interpretations such as the Civil Code of the People's Republic of China, the Road Traffic Safety Law of the People's Republic of China, the Insurance Law of the People's Republic of China, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Road Traffic Accident Compensation Cases, and the Interpretation of the Supreme People's Court on Several Issues Concerning the Use of Law in the Trial of Personal Injury Compensation Cases, combined with the actual trial work in our province, The following answers are given to a number of questions in the trial of motor vehicle traffic accident liability dispute cases for the reference of courts in the province.

1. The determination of the insurance company's obligation to prompt and clearly explain

1. If a natural person applies for insurance in the form of the Internet, and the phone number and payment account number are owned by the policyholder himself, can the policyholder's claim that the insurance company has not fulfilled its obligation to prompt and clearly explain on the grounds that the signature on the insurance materials such as the electronic insurance policy is not the policyholder's handwriting?

Answer: Online insurance requires the consent of the policyholder and authorizes the insurance company to collect, process, transmit and apply the personal information such as the policyholder's payment account, name, ID number, mobile phone number, etc., and the insurance company shall transmit, inquire or verify the identity information corresponding to the payment account to a third-party institution, and receive and enter the insurance SMS verification code and complete the insurance with the policyholder's electronic signature. Where it is asserted that the insurance company has not fulfilled its obligation to prompt and clearly explain, the people's court will not support it.

2. How to review the insurance company's obligation to prompt and clearly explain the insurance contract concluded through the Internet?

Answer: In online insurance, when determining whether the insurance company has fulfilled its obligation to prompt and clearly explain, it should be reviewed whether the insurance company has the following links in the insurance application process at the same time:

1. Whether face recognition, SMS verification and other identity recognition links are set up;

2. Whether the webpage actively displays all the terms and conditions of the insurance contract in its entirety, and uses words, fonts, symbols or other obvious signs that are sufficient to attract the attention of the policyholder to make special reminders of the clauses exempting the insurance company from liability;

3. Whether the exemption clauses in the insurance contract are prompted and clearly explained in the form of web pages, audios, videos, etc., which can be understood by ordinary people;

4. Whether there is a special "policyholder statement" setting, the policyholder clearly confirms that he has understood the content of the contract, especially the content of the exemption clause, and voluntarily applies for insurance.

3. If the policyholder is a company, and the policyholder's statement is only stamped by the company without the signature of the handler, can it be determined that the insurance company has fulfilled its obligation to prompt and clearly explain?

Answer: The first paragraph of Article 490 of the Civil Code stipulates: "If the parties conclude a contract in the form of a written contract, the contract shall be formed when the parties sign, affix their seals or press their fingerprints." Paragraph 2 of Article 13 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China stipulates that: "If the policyholder has fulfilled the obligation of clear explanation that meets the requirements of paragraph 2 of Article 11 of this Interpretation, and signs, seals or otherwise confirms the insurer's performance of the relevant documents, it shall be deemed that the insurer has fulfilled the obligation." Unless there is other evidence proving that the insurer has failed to perform its obligation to make a clear statement. According to the above provisions, the signature or seal of the parties to the contract has legal effect. If the policyholder's statement states that the policyholder has read and understood the terms of the insurance contract, and the insurance company affixes its official seal, it shall be deemed that the insurer has fulfilled its obligation to prompt and clearly explain, unless there is other evidence to the contrary that proves that the insurer has not fulfilled its obligation to prompt and clearly explain.

4. The "policyholder's declaration column" signed by the policyholder only indicates that the insurer has made a clear explanation of the content and legal consequences of the exemption clause, and if the concept is not specified, can it be determined that the insurance company has fulfilled its obligation to clearly explain the exemption clause in the insurance contract?

Answer: Paragraph 2 of Article 11 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China stipulates that if the insurer makes an explanation to the policyholder in written or oral form on the concept, content and legal consequences of the clause exempting the insurer from liability in the insurance contract, the people's court shall find that the insurer has fulfilled the obligation of clear explanation as stipulated in the second paragraph of Article 17 of the Insurance Law. If the concept of the exemption clause can be understood by ordinary people, even if the concept is not mentioned in the statement in the "policyholder's declaration column", it can be deemed that the insurance company has fulfilled its obligation to clearly explain the exemption clause in the insurance contract.

2. Determination of non-medical insurance drug deductible clauses

5. For the part of the medical expenses beyond the scope of the basic medical insurance, if the insurance company underwriting the commercial third-party insurance claims to deduct the non-medical insurance drug deductible clause, can it be supported?

Answer: Article 24 of the Model Clauses for Commercial Insurance of Motor Vehicles of the Insurance Association of China (2020 Edition) stipulates that the insurer shall not be liable for compensation for the following personal injuries, property losses and expenses...... (F) the part of the expenses that exceed the "Guidelines for Clinical Diagnosis and Treatment of Persons Injured in Road Traffic Accidents" and the standard of similar medical expenses of the national basic medical insurance; ...... "If an insurance company claims that the medical expenses exceed the scope of the basic medical insurance and deduct non-medical insurance drugs in accordance with the above provisions, it shall review whether the insurance company has fulfilled its obligation to remind and clearly explain the deductible clauses for non-medical insurance drugs when entering into the contract. This clause is valid if the insurer has fulfilled its obligation to indicate and make it clear. If the insurance company has evidence to prove that the medical expenses exceed the standard of similar medical expenses of the basic medical insurance, and requests that the excess part be denied, the court should support it.

3. Insurance liability when the use of the vehicle changes

6. If a traffic accident occurs in the course of ordinary trucks or online car-hailing activities, and the insurance company claims for a waiver of compensation on the grounds that the risk of the insured subject matter has increased significantly, should the people's court support it?

Answer: Article 4 of the Interpretation (IV) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China stipulates that: "When determining whether the subject matter of insurance constitutes a "significant increase in the degree of risk" as provided for in Articles 49 and 52 of the Insurance Law, the people's court shall comprehensively consider the following factors: (1) the change in the use of the subject matter of insurance; (2) Changes in the scope of use of the subject matter of insurance; (3) Changes in the environment in which the subject matter of the insurance is located; (4) Changes in the subject matter of insurance due to modification and other reasons; (5) A change in the user or manager of the subject matter of the insurance; (6) The duration of the increase in the degree of danger; (7) Other factors that may lead to a significant increase in the degree of danger. Although the degree of risk of the subject matter of insurance has increased, but the increased risk is within the scope of the insurance contract foreseen or should have been foreseen by the insurer at the time of the conclusion of the insurance contract, it does not constitute a significant increase in the degree of risk. "In practice, the nature of the use of insured vehicles is divided into operational and non-operational, and the two types of vehicles are different in terms of frequency of use, scope of use, and environment, so there are significant differences in the setting of insurance rates. If the insured vehicle is insured on a non-operational basis, the degree of risk posed by continuing to engage in operational passenger and freight activities for the purpose of obtaining profits will increase significantly. The insured shall notify the insurance company in a timely manner in accordance with the contract, and the insurance company may increase the insurance premium or terminate the contract in accordance with the contract. If the insured fails to perform the notification obligation in a timely manner, the insurance company shall not be liable for compensating the insurance money for the insured accident that occurs due to a significant increase in the risk of the insured object, unless the insured has evidence to prove that its business activities have not significantly increased the risk of the insured object.

4. Identification and responsibility of two-wheeled electric vehicles and electric tricycles

7. In a traffic accident case, if the party claims that the two-wheeled electric vehicle is a motor vehicle and applies for appraisal on this basis, how to deal with it?

Answer: In the course of the trial of the case, the people's court may make a determination of the nature of the vehicle based on the number plate hung by the two-wheeled electric vehicle, the nature of the vehicle stated in the traffic accident identification certificate issued by the traffic police department, and the legal basis cited in the accident identification document. Where a party claims that a two-wheeled electric vehicle is a motor vehicle without sufficient evidence to overturn the traffic accident determination and applies for appraisal, the people's court shall not approve it.

8. If the victim requests the driver of the over-standard two-wheeled electric vehicle or electric tricycle to compensate within the liability limit of the compulsory traffic insurance, can it be supported?

Answer: over-standard two-wheeled electric vehicles, electric tricycles although do not meet the technical standards of non-motor vehicles, but the mainland's relevant management system for electric vehicles is not perfect, such vehicles do not have the conditions for applying for motor vehicle license plates and driving licenses, at present, such vehicles in our province can not be purchased from insurance companies compulsory insurance, objectively do not have the conditions for compulsory insurance. If such a vehicle is not insured with compulsory traffic insurance, it is not a failure to perform the statutory obligation to insure, and the people's court will not support the compensation obligee who requests the insurance obligor to compensate within the liability limit of the compulsory traffic insurance in accordance with the provisions of Article 16 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages from Road Traffic Accidents.

5. Determination of loss of motor vehicle suspension

9. Whether the loss of suspension is a direct loss or an indirect loss, and how should the compensation right holder handle it if it requests the insurance company to compensate for the loss of suspension of operation?

Answer: Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Compensation for Damages in Road Traffic Accidents stipulates that if a party requests compensation from the infringer for the following property losses caused by a road traffic accident, the people's court shall support it...... (3) Reasonable suspension losses caused by the inability to engage in corresponding business activities for vehicles engaged in cargo transportation, passenger transportation and other business activities in accordance with the law; ...... "Where the loss of suspension of operation is a loss caused by the inability to operate due to damage to the vehicle, and is an indirect loss, the compensation right holder may request compensation from the infringer for the loss of suspension of operation, and request the insurance company that underwrites compulsory traffic insurance to compensate for the loss of suspension of operation, the people's court shall not support it." Whether the insurance company underwriting the commercial third-party insurance bears the liability for compensation shall be determined according to the provisions of the insurance contract and whether the insurance company has fulfilled its obligation to prompt and clearly explain.

10. If a passenger car is registered as a non-commercial vehicle, but is actually engaged in business activities, should the infringer compensate for the loss of suspension of operation?

Answer: According to the "Road Transport Regulations", to engage in passenger transport operations need to obtain administrative permission, passenger cars registered as non-commercial vehicles cannot be engaged in passenger transport business activities in accordance with the law, and the people's court should not support the claim of the right holder for the loss of suspension of operation.

Sixth, the issue of the living expenses of dependants

11. If the victim is disabled due to a traffic accident, how to assess the degree of loss of the victim's working ability when calculating the living expenses of the dependents?

Answer: In view of the fact that it is difficult to determine the degree of loss of working capacity through appraisal in civil litigation, in judicial practice, the living expenses of dependents can be calculated according to the coefficient of the victim's disability level. If the person obligated to pay compensation has evidence to prove that the victim's disability does not affect his or her ability to work, the people's court may, on the basis of the actual circumstances, make a determination of the living expenses of the dependents as appropriate.

12. For victims over the age of 60, especially elderly victims, is the age of the victim considered when determining the number of years of dependents?

A: Mainland law does not take the age of the victim as the basis for calculating the living expenses of the dependents, and it is not appropriate to deviate from the provisions of the existing judicial interpretations before the Supreme Court has made clear provisions, so the age of the victim should not be taken into account when determining the number of years of support of the dependents.

13. How to determine that the victim's adult close relatives are dependents?

Answer: Dependents refer to minors who are required by law to support the victim or adult close relatives who have lost the ability to work and have no other source of livelihood. Proof of inability to work can be: 1. Disability certificate that can prove that the dependant is incapable of working; 2. Appraisal opinions on the working ability of dependents; 3. The hospital diagnosis proves that the dependant suffers from an illness that seriously affects the ability to work. As to whether there is no source of income, it is necessary to submit relevant evidence to substantiate, and those who enjoy the subsistence allowance and basic livelihood security should not be found to have a source of income.

7. Fixed-form compensation for disability compensation

14. If the victim is disabled due to a traffic accident and dies before or during the litigation due to reasons other than the traffic accident, how should the calculation period of disability compensation be determined?

A: The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases adopts a stereotyped calculation method for disability compensation, and the victim's loss has been determined at the time of the accident, and it is calculated according to a fixed number of years, and does not change or return due to the change in the actual life of the victim.

8. Traffic safety co-ordination

15. In the litigation, should the infringer's application for the addition of a security coordination company to participate in the litigation be allowed? How should the validity of the security coordination agreement be determined?

Answer: The company engaged in safety co-ordination is not an insurance company established with approval in accordance with the law to engage in auto insurance business, and the relationship between it and the safety co-ordination buyer is a contractual relationship, and it is not the same legal relationship as the motor vehicle traffic accident liability dispute raised by the infringed party. In principle, the infringer's application for the addition of a security coordination company shall not be permitted. However, if the security coordination company agrees to participate in the litigation and is willing to bear the debt and the victim agrees, in order to reduce the burden of litigation on the parties, the security coordination company may be added as a defendant to participate in the litigation.

In view of the fact that the "Opinions of the State Council on Strengthening Road Traffic Safety" proposes to encourage transport enterprises to adopt the form of traffic safety co-ordination to strengthen mutual assistance in the industry and improve the ability of enterprises to resist risks, in judicial practice, it is not appropriate for the people's courts to find it invalid. However, if the safety co-ordination company goes beyond the transportation industry and undertakes insurance business to an unspecified group of people, and meets the requirements of articles 153 and 154 of the Civil Code, it shall be found invalid.

16. If the victim suffers additional losses due to the traffic accident and the compulsory traffic insurance limit, will the liability of the safety coordination company be dealt with together in the case of road traffic damage compensation disputes? How should the responsibility of the security coordination company be determined?

Answer: If the security co-ordination company expressly agrees to bear the debt in the lawsuit, according to Article 552 of the Civil Code, it constitutes a debt accession, and it can be determined that the security co-ordination company is jointly and severally liable with the compensation obligor within the scope of its agreement to bear the debt. In practice, it should be noted that the solvency of a security co-ordination company is different from that of an insurance company, and the infringer's liability cannot be exempted from compensation due to the participation of a security co-ordination company. If the safety coordination company does not agree to bear responsibility, it is not appropriate to hear the safety coordination agreement together in a road traffic damage compensation dispute.

9. Litigation costs

17. In a dispute over liability for a motor vehicle traffic accident, can the insurance company's claim that it does not bear the case acceptance fee in accordance with the insurance contract be supported?

Answer: The burden of case acceptance fees shall be determined by the people's court in accordance with the provisions of the Measures for Payment of Litigation Fees, and if the court finally rules that the insurance company shall pay compensation, that is, the insurance company loses the case or partially loses the lawsuit, it shall bear the corresponding litigation costs.

18. Can the compensation right holder support the insurance company's request for the insurance company to bear the appraisal fee?

Answer: According to Article 64 of the Insurance Law of the People's Republic of China, the insurer and the insured shall bear the necessary and reasonable expenses paid by the insurer and the insured to ascertain and determine the nature and cause of the insured accident and the extent of the loss of the insured subject. The appraisal fee paid by the victim to determine whether the victim has constituted a disability and the corresponding grade, the price of the property loss, the length of the third period, etc., is "necessary and reasonable expenses paid to ascertain the extent of the loss of the subject matter of the insurance" and should be borne by the insurance company.

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