Application for retrial of personal injury compensation

Retrial application

Applicant: Zhang × ×, male, Han nationality, born in 1969 × month × day, household registration

X×, Xiaoxi Village, Pingshang Town, Xinshao County, Hunan Province. ID number: 4305221969 × × × × × × 111.

Respondent: Dongguan City × × × × Restaurant Co., Ltd., domicile: Dongguan South

City ××× Road ×××× Building ××× Building.

Legal representative: Li × ×, general manager of the company.

Respondent: Wang × ×, male, born in 1973 × month × day, Meixian County, Guangdong Province, now living in Humen Town, Dongguan City × × × × Garden × × Yuan × ×, ID number: 4414211973 × × × × 5916, Department of Dongguan Humen × × × × repair shop owners.

Retrial litigation request:

1. The civil judgment of No. 4741 of the Eastern Chinese Law and the People's Republic of China;

2. The respondent shall be jointly and severally liable for the following losses of the applicant;

1. Medical expenses are 34,286 yuan, 2, lost time is 1,6168.5 yuan, 3. Accompanying fee is 1,560 yuan, and hospitalized food allowance is 1,506 yuan. 4. Living allowance for disabled persons is 71,117 yuan. 6. Identification fee is 550 yuan. 7. Raised. The living expenses of people are 85,680 yuan, 8, the transportation fee is 4,081 yuan, and the mental damage is 50,000 yuan;

The above total amounted to 26,4948.5 yuan, minus the medical expenses paid by the respondent Wang Xx 23,000 yuan and the compensation paid according to the judgment amount of 46,612.46 yuan. The two respondents also need to pay the applicant 195,336.04 yuan.

Third, the litigation costs are all borne by the respondent.

The facts and reasons are as follows:

1. The basic facts identified by the court of first instance are incorrect.

According to Article 37 of China's Regulations on Electricity Supply and Use, in conjunction with the Measures for the Administration of Licenses for Power Facilities, the “Air Conditioning Installation Project of Dongguan Restaurant” signed by the two applicants is an invalid contract.

The owner of the respondent Wang X×, the owner of the Dongguan Humen×××× repair shop, does not have the qualification to install the power facility permit, and cannot engage in the installation, maintenance or testing of the power facilities. After signing the "Air Conditioning Installation Project of the City Restaurant", it was officially stamped with the official seal issued by the legal person of "×××× Electromechanical Engineering Co., Ltd.". The respondent Dongguan City ×××× Restaurant Co., Ltd. illegally issued the package; therefore, it showed that the two respondents had a common subjective fault.

Any act by the respondent Wang X× to convert the applicant into an independent contractor is invalid, and the two parties can only form an employment relationship or a de facto labor relationship. The applicant has practical work experience and does not have the "Electrical Network Access Permit". It can only act as the employee of the respondent's Wang in terms of professional qualifications, employment status, organizational affiliation and external responsibility. Or a helper or assistant.

2. The applicable law of the court of first instance is indeed wrong. When determining civil liability, it violates the provisions of the law and obviously violates the agreement of the parties.

The case shall be subject to the "Safe Production Law", "Electricity Law", "Electricity Supply and Use Regulations", "Electric Power Regulations", "Power Supply Business Rules", "Electricity Inspection Management Measures", "Electricity Safety Guidelines", etc. The laws, regulations and rules and regulations clarify the faults and corresponding legal responsibilities of the restaurant company in terms of the rules of the electricity industry and the use of super-contractual electricity.

As the owner and manager of power facilities or buildings and other items, according to Article 126 of the General Principles of Civil Law of China, the restaurant company should prove that there is no fault. However, the court of first instance will prove that the burden of proof of the fault of the restaurant company is completely pushed to the applicant. If the law is wrong, the facts identified will be wrong.

Secondly, the case should apply to the two applicants' agreement on safety duties in the Agreement.

Article 2, paragraph 1, and paragraph 2 of the Agreement respectively clarify the duties of the two respondents.

Finally, although the supply and use contract of the restaurant company is subject to a different legal relationship from the Agreement, its performance is related to the Agreement. The restaurant company has taken a series of measures to cope with the obligation of the power supplier to ensure the safety of electricity to meet the requirements of the regulations. For example, design, install, repair, operate and maintain electricity facilities in strict accordance with national or power industry standards.

3. There are two extreme situations in which judges have negative treatment and excessive exercise in exercising their right of interpretation.

First, the judge negatively treats the right to interpret. Applicant determined by the Dongguan Municipal People's Government's Dongfu Reconsideration [2011] No. 011002 Administrative Reconsideration Decision “Wang Zhangqi was accidentally checked at 2 pm on August 22, XX at the second floor of the restaurant company. The fact that the court of first instance also made a reverse-induced inspiration inspired the applicant to prove his "facts of electric shock."

According to Article 4 of the Supreme People's Court on Certain Provisions on Evidence in Civil Proceedings and Articles 123 and 126 of the General Principles of Civil Law, the two respondents shall bear the burden of proof. The court of first instance assigned the above burden of proof to the applicant. This kind of temporary evidence and related legal opinions deprived the applicant of the right to participate in the program, resulting in the burden of issuing the burden of proof and the assault. The applicant submitted the “Application for Court Investigation and Evidence Application”, but the court of first instance did not exercise the right to explain the evidence, and did not investigate it afterwards.

Second, the court of first instance overexended the right of interpretation. Although the applicant has contradictions in the petition, that is, "the loss of work fee is 1347 yuan", according to the calculation standard provided by the applicant, the loss of lost time should be 16168.50 yuan. The court of first instance exercised the power of interpretation and regarded the issue of the amount of lost time in the field of debate as the disciplinary action of the parties. The deprivation of the right of the applicant to debate has resulted in the legal consequences of substituting the applicant for the right of disposition. The Procedural Safeguarding Directional Positive Interpretation Model requires judges to provide advice and advice to applicants in a timely manner to ensure that the “party-led principle” really works. Any act committed by the judge in the course of litigation involving the interests of the applicant shall not violate the principle of trial, and the opportunity given to the applicant shall be given a full and complete legal and de facto statement.

Finally, in order to realize the function of “there is damage, there is relief” in the tort law, the infringer must prove who is the true injurer to be exempted from liability, and the court has not explained the relevant legal opinions.

4. The court of the first instance basically did not support the 50,000 yuan of mental damages raised by the applicant.

For the future loss of income of the victim, the laws of various countries generally stipulate that compensation should be given. With regard to the calculation of such compensation, the amount of compensation in principle should be the difference between the actual income that may be earned after the injury and the likely income that would have been obtained if not injured.

For the loss of opportunity caused by infringement, when an opportunity is a chance that is likely to occur, in other words, when an opportunity exists according to the usual development process of the thing, the damage caused by the loss of opportunity should be compensated.

The applicant only obtained a part of the nominal compensation, and the court of the original court for its substantial damages basically did not support it. The parties who have suffered damages due to the infringement of others, according to the nature of the infringement and the certainty allowed in the current situation, prove the extent of the damage and the amount of compensation that can properly compensate for the loss, according to the “filling in the tort law” The principle of “loss” or “filling in damage” is entitled to compensatory damages for the loss.

Article 7 of the Supreme People's Court's "Special Provisions on the Trial of Damages Involving Personal Injury in Sea Cases" of July 1, 1992 stipulates: "The maximum limit for compensation for personal injury or death at sea is 800,000 yuan per person."

Article 31 of the “Measures for the Implementation of the Law on the Protection of Consumer Rights and Interests in Guangdong Province”, implemented on August 5, 1999, provides for the compensation of more than 50,000 yuan for violations of personal dignity or violation of personal freedom.

On March 7, XX, the "Interpretation of the Supreme People's Court on Several Issues Concerning the Determination of Liability for Compensation for Torture of Moral Infringement" provided for mental damage. The Supreme People's Court has agreed that some local legislatures and higher people's courts have made specific provisions on compensation for mental damage, and believe that this has no principle conflict with the guiding ideology of judicial interpretation.

Article 28 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Personal Injury Compensation Cases Limits the Total Annual Compensation; However, this case shall give priority to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Cases of Compensation for Personal Injury of Electric Shock". The total amount is not limited, because the commercial infringers who caused such disputes are legal persons and individual industrial and commercial households, and the applicants in this case are vulnerable migrant workers who do not enjoy national treatment such as social injury insurance.

The constitutional amendment of XX states: "The state respects and protects human rights."

At the age of 39, the applicant constitutes a fourth-grade disability. According to the forensic appraisal, “the injury caused the Zhang X×l1 vertebral compression burst fracture, and the bones entered the spinal canal, the spinal canal stenosis, accompanied by incomplete paralysis of the lower limbs. Such as the injured lumbosacral and hip sensation decreased, lower abdominal wall and sputum reflex decreased, lower limb muscle strength 4 ,, both feet dorsiflexion, toe flexor strength 3, both toe flexor and extensor strength 0 to 1 level, foot Toe dysfunction, causing the injured lower limbs to be weak, lifting difficulties, slow gait, slow, and active."

The intensity of the humiliation, pain or humiliation caused by the disability of the applicant for decades, the length of the actual continuation period or the length of time it may continue, and the consequences it can expect, have a negative impact on the lives of children. For the guilty, please check with your hospital.

In summary, the civil judgment of Dongzhong Famin Yizhongzi No. 4741 of Dongguan Intermediate People's Court has the following statutory conditions that meet the conditions for retrial:

1. The basic facts identified are lack of evidence;

2. The evidence required for the trial of the case may not be collected by the parties for objective reasons, and shall be submitted to the people's court for investigation and collection in writing, and the people's court shall not investigate and collect the evidence;

3. The applicable law is indeed wrong;

4. Determining civil liability clearly violates the agreement of the parties and violates the provisions of the law;

5. Failure to properly exercise the right of interpretation clearly violates the legislative intent;

6. Violation of the law and deprivation of the parties' right to debate.

Therefore, please ask your hospital to humiliate the stipulations, such as the request for retrial; sweep the law to lose the new rules, and correct the trial bias.

This

Guangdong Higher People's Court

applicant:

March 12, 2019