Civil retrial application

Zhou is a self-employed person and is engaged in home improvement business. On one day, he contracted Xu’s anti-theft network installation business, assigned his store employee Zhang to install it, and hired the individual transport driver Li who took the street to pull the anti-theft network to the location of the project, assisted by Li. Specifically, Zhang was responsible for the installation, Li assisted in fixing the rope, and Xu was commanding downstairs. During the installation process, Zhang accidentally fell and fell to death. After the incident investigation team determined that: Zhang is directly responsible for the occurrence of the accident, Zhou is responsible for the main responsibility, Li has an important responsibility. Zhou and the deceased Zhang’s family reached a compensation agreement, and Zhou compensated Zhang’s family for 220,000 yuan. Later, Zhou tried to catch up with Li, and Li told the court that Li would be responsible for 40% of the compensation.

Civil retrial application

Applicant: Li Guoping, male, born on October 22, 1969, Han nationality, tricycle driver, living in Yuetou City Community Committee of Yueyang City, Tel: 13501386270
Attorney: Zhu Mujun, Beijing Youtian Law Firm Attorney: Zhou Zhengbing, male, born on September 28, 1968, Han nationality, individual industrial and commercial households, living in Meixi Bridge, Yueyang City, Tel:
In the case of the applicant's personal injury compensation dispute with the respondent, the applicant refused to accept the civil judgment of Yue Zhongmin Yi Zhong Zi No. 227 made by the Yueyang Intermediate People's Court of Hunan Province on August 1, 2019, and filed a retrial application.

Request
1. Request a retrial according to law to correct the original judgment error;
2. Cancellation of the civil judgment of No. 460 of the first name of the people and the civil judgment of No. 227 of Yue Zhongmin and the final word;
3. Dismiss the unreasonable lawsuit of the plaintiff in the original trial.

Facts and reasons The trials of the two-level courts in Yueyang City, Hunan Province violated the basic legal principles and spirits, illegally identified relevant facts and evidence, the trial procedure was seriously illegal, and the applicant was treated vulgarly in the trial. The judges in the case lacked legal professional ethics. The low level of legal business not only makes the applicants tired of litigation that should not be accepted, but also erroneously judges the applicant to assume responsibility. This is a flaw in the law and a serious violation of the interests of the applicant.
1. The respondent does not have the qualification of the litigant, and the prosecution is the abuse of the right to appeal. It should not be accepted when filing the case, and the case should be rejected after the acceptance.
1. According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, employees shall be liable for employment activities and the employer shall be liable for compensation. The respondent is the employer of the deceased and is the person responsible for compensation for personal injury. He is not a victim and his prosecution does not comply with the law. Article 108 of the Civil Procedure Law stipulates that: “The plaintiff is a citizen, legal person and other organization that has a direct interest in the case”, which of course means that the plaintiff has a direct interest in the case and its legal rights and interests are infringed. The respondent in this case is the injuring party of the infringement. It is the plaintiff's lawsuit and is inconsistent with the spiritual principle of the law. It is an act of abusing the right to appeal. The people's court should stop its behavior and should not accept it when filing the case. The ruling should be dismissed after the ruling.
2. The premise that the respondent acts as an employer to exercise the right of recovery does not exist. Article 9 of the Interpretation: ... If an employee causes damage due to intentional or gross negligence, he shall be jointly and severally liable with the employer; if the employer is jointly and severally liable, he may recover the compensation from the employee. It can be seen that the employer’s precondition for exercising the right of recovery is to assume joint and several liability. It should be emphasized that the joint liability is a judgment responsibility and is borne by the court through litigation. The respondent privately reached a compensation agreement with the family of the deceased, which did not constitute a joint responsibility, and the premise of exercising the right of recourse was not established.
2. The facts of the first-instance court were found to be wrong, and the judgment lacked the factual basis.
1. According to the relevant laws and regulations, the responsible persons involved in the case may be: the respondent, the applicant, the deceased Zhang Haibo, and the appointed person Xu Guoxiang. The court of first instance only divides and determines the responsibility between the applicant and the respondent. Violation of the relevant laws; it is also because of the dissatisfaction of the plaintiff's litigation subject in the first instance, which led to the mistake of civil liability determination.
2. The first-instance court confirmed that the evidence of civil liability was invalid. The only basis for the civil liability of the first-instance court was the “12.22 High-altitude Falling Death Accident Investigation Report”. The investigation report had many flaws in content and form, which were obviously artificially produced and could not be used as According to the civil liability of the case, the accident investigation report belongs to the internal organs of the administrative organ and does not have the public effect of publicity.
It may not be accepted as a valid evidence in a civil lawsuit.
The "Investigation Report" is evidence obtained by the respondent in violation of the law and does not have legality: in accordance with the provisions of Article 28 of the Regulations on Production Safety Accident Reporting and Investigation and Handling, members of the accident investigation team shall conduct investigations into accidents during accident investigation. Secret, it can be seen that the accident investigation report is not external, and the respondent obtained the program illegally.
The Accident Investigation Report clarifies that the applicant's responsible person has not given him the right to appeal. According to the relevant theory of administrative law, the investigation report does not have legal effect on the applicant.
The accident investigation program is illegal, and the investigation report does not have the corresponding legal effect: 1According to Article 22 of the Regulations on Production Safety Accident Reporting and Investigation and Handling, the accident investigation team shall invite the people's procuratorate to participate; 2 in accordance with the production safety accident report and investigation Article 30 of the Handling Regulations stipulates that members of the accident investigation team shall sign the accident investigation report. However, unfortunately, the accident investigation report submitted by the respondent did not participate in the investigation by the procuratorate, and the members of the accident investigation team did not sign the investigation report. It is an investigation report that does not have legal effect.
The terminology of the accident investigation report is vague. The so-called “direct cause”, “main reason”, “important reason” and “direct responsibility”, “main responsibility” and “important responsibility” are obviously the products of artificial processing. Cause analysis and division of responsibility.
Anyone who finds that the amount of compensation is contrary to the basic principles and spirit of the law and has a little legal knowledge knows that civil agreements have strict relativity and cannot be used against third parties by agreement. The compensation agreement reached between the respondent and the family of the deceased Zhang Haibo was not recognized by the applicant and did not have legal effect on the applicant. The court of first instance, based on the amount of compensation determined by the agreement, requires the applicant to share the liability for compensation, contrary to the basic legal principles and spirit.
The court of first instance has given a clear period of proof. However, at the time of the cross-examination, the respondent did not submit evidence in accordance with the law. The compensation agreement submitted was a copy, and the applicant immediately denied it. The court of first instance actually used the copy as a trial. The basis of the case.

〖1〗〖2〗〖3〗〖4

Third, the court of first instance hears a lot of mistakes, seriously violates the law, and the second instance should be sent back for retrial.
1. The respondent filed a lawsuit on January 28, 2019. The court should file a case within 7 days from the date of receipt of the indictment, and the judgment was written on March 11, 2019, and the case was violated.
2. The people's court shall apply for a summary procedure to hear the case and it shall be concluded within three months. In the first instance of the case, the simple procedure was applied, and the time limit for trial was already exceeded.
3. The delivery program is illegal. The Civil Procedure Law stipulates that if the legal documents are served directly, they shall be handed over to the recipient for signing. When the applicant served the second trial summons, the court of first instance took the form of direct delivery, but did not receive the signature of the respondent; and the service was vulgar and seriously damaged the image of the people's court.
4. The trial program is illegal. The Litigation Law stipulates that the people's court shall notify the parties and other participants in the litigation three days before the opening of the court. The second trial of the first instance did not comply with this provision, and the first day of the notice was opened the next day, causing the applicant's agent to be unable to participate in the proceedings.
5. The evidence-based certificate program is illegal. The court of first instance gave a clear period of proof. After the expiration of the period of proof, the respondent did not submit valid evidence. The court of first instance arranged a cross-examination after the court debate ended, violating the relevant provisions of the Rules of Evidence.
6. According to the "Procedures for the Payment of Litigation Fees", the case handling case shall be halved and the case acceptance fee shall be paid. The case acceptance fee determined by the first-instance judgment is charged according to the ordinary program and is inconsistent with the legal provisions.
4. In this case, the applicant shall not be liable for the family members of the deceased.
1. The respondent shall be responsible for the compensation of the family of the deceased. Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases stipulates that employees shall be liable for employment activities and employers shall be liable for compensation. It can be seen that the respondent’s liability for the family of the deceased is directly stipulated by law, and it bears no fault liability.
The respondent had a major fault in subjective and objective terms and should be liable for compensation. In accordance with the relevant regulations, the contractor's home decoration should have corresponding qualifications, and its employees should have corresponding qualifications. The respondent did not have the corresponding construction qualifications, which was a violation of the contract; the employees did not have the qualifications for qualification and work at height; the construction site did not take any safety measures, the construction personnel did not have any installation equipment, and the on-site commanders were missing, so they were applied The person shall be liable for the occurrence of the accident.
2. The applicant shall not be liable for compensation for the family of the deceased. According to Article 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, employees are only responsible for the employment activities caused by intentional or gross negligence. Liability. The objective criteria for the breach of duty in the determination of negligence are already indisputable facts in judicial practice. In this case, the applicant is an individual transport worker, who is not employed by the respondent for a long time, and does not possess the professional technology of the anti-theft net installation. It only assists the installation project and is constructed according to the instructions of the professional installer employed by the respondent. There is no violation of any obligation, so the applicant does not have a gross negligence on the damage and should not be liable for the family of the deceased.
For the illegal judgment of the court of first instance, the applicant filed a protest in time. However, the second-instance court did not correct the mistake of the first-instance judgment, but maintained the original judgment. In order to safeguard the seriousness of the law and the impartiality of the law, in order to protect the lawful rights and interests of the applicant, the special people's court is required to re-examine the case.

Sincerely, Hunan Provincial Higher People's Court

applicant:
year month day