An Analysis on the Problem of Liable Party in Road Traffic Accident Damages
|School||China University of Political Science|
|Keywords||Damage suffered as a result of an incident Road traffic accidents The main responsibility Liability for damages Motor vehicle The main responsibility Probe Morphological analysis Law Japan and France|
The number of traffic lawsuits has unexpectedly gone up, since <The Road TrafficSecurity Law of People’s Republic of China> was put into effect on May 1, 2004.Themain causes accounting for this phenomenon lie in some problems such as the lack ofrelative regulations and the detailed providence of enforcement, and the inconsistencebetween the old law and the new one, which are still unsolved effectively. Among theothers, the identification of the liable party is remarkably important, on which I willendeavor to make an analysis in this thesis, in combination with the judicial practice:1, The main principle of identification of liable party in the traffic accidentdamages;2, The responsibility types of liable party in the traffic accident damages in ourcountry;3, The liable party problem of insurance company under the system of mandatoryinsurance of the third party in traffic accident damages;4, Social funds and subsidies in traffic accidents.I.The main principle of identification of liable party in the traffic damages;The liable party of traffic accident damages refers to the person who shouldundertake the responsibility of compensation in traffic accidents. Since there is nostandard of identification, the name of liable party differs from one country to another,however, special laws and regulations do exist to identify those who have relationshipwith the automobiles to take the responsibility.To begin with, from the angle of comparison, we look into the practices in thedeveloped countries which stepped into the auto times early. There is a definition of“keeper” in Germany law, which refers to the people who could handle the automobileas he likes and has the right to use in fact for his own goal, according to Germany lawtheory. In Japan, they use “operator”, which takes the operation of the automobile andthe profit from it as the identification standard.In our country, the names of the liable party in the traffic accident damages include:“operator of highly risky task”, “liable person of traffic accident damages”, and “theautomobile party”. In general, the operation of automobile and the profit from it areviewed as the standard of identification in the damages of this kind.The law basis of liable party in damages mainly include: 1), article 123, <Generalprinciple of Civil law>;2), article 31, (which has been abolished) < Regulation>;3), theinterpretation by the supreme people’s court;4), article 76, <The road traffic securitylaw>. Besides, there are some regulations in the tortuous behavior part of Civil code2002 (draft) and scholars’ suggestions, however, these regulations are not of definiteprinciple, nor do they put up a special name for liable party. Since regulations aiming tosolve concrete problems are surely impossible to include all the conditions, when newsituation comes into being, they will turn out to be the restriction. I hereby advise tomake use of the Japanese theory and formulate definite principle in the tortuousbehavior part of our own civil code.II. The responsibility types of liable party in the traffic accident damages inour countryConsidering all the drawbacks in the responsibility of paying early and repaid laterin <Regulation>,<The road traffic security law> abolished the application of thisresponsibility and make the automobile party liable, at the same time, it has set up thesystem of mandatory insurance of the third party and the social funds and subsidies intraffic accidents. In practice, because the lack of relative regulations and systems, thelaws and regulations are impossible to be enforced, moreover, the responsibility ofpaying early and repaid later for the automobile’s owner has been abolished, as a result,the benefits of the injured cannot be actually protected. In my opinion, in our practice,we can make the owner of the automobile operated take the responsibility in advance.In fact, the complicated situations of different automobile party have broughtdifficulties to the identification of the liable party in traffic accident damages, so I willprobe in this thesis how to identify the liable party in different typical conditions, asfollows:No.1, identification of liable party in special ownerships, including: 1, condition ofpayments by installment;2, condition of rent and lending;3, condition of collectingmoney for rent;4, condition of the owner in fact and in name.No.2, identification of liable party in the behavior of duty and business, including:1, the liable party in the relationship of employment;2, the official responsibility in theduty behavior.No.3, identification of liable party in some special situations of control, including:1. period of repair;2. automobile as pledge;3. automobile in storage;4. automobile incontract.No.4, identification of liable party in the condition of being registered in thename of others.No.5, identification of liable party when automobile is out of control, including: 1,driving without the owner’s permission;2. driving stolen automobile.No.6, identification of liable party in the situation of picking up someone in goodwill.In my opinion, we should learn experience from the legislative practice indeveloped countries and improve relative laws and regulations in our country. The bestresolution is to work out a rule of identification of the liable party, so that the judicialofficials can judge on this when the specific regulation lacks, and then protect thebenefits of the injured.III. The liable party problem of insurance company under the system ofmandatory insurance of the third party in traffic accident damages<The Road traffic Security Law> has set up the system of mandatory insurance ofthe third party for the first time, and at the same time, forward the injured direct petitionto the insurance company, which means that the insurance company becomes the liableparty in the road traffic accident damages. That is, as the liable party, the insurer shouldpay the injured in the limitation of his responsibility without any excuse. In practice,since the <Regulation of the mandatory insurance of the third party >is to be publishedand carried out, this method is still in debate.In my eyes, before the regulation comes into being, the injured remain to berelieved in time, because the accident will not disappear for the lack of relativeregulations. In a word, the insurance company can only turn to the article of the thirdparty’s insurance for help, in order to perform the regulation of mandatory insurance ofthe third party in the newly-born < The Road traffic Security Law>. And the adjustmentcan be made according to the regulations when the <Regulation of the mandatoryinsurance of the third party> is officially carried out.IV. Social funds and subsidies in traffic accidents<The Road traffic Security Law> has set up the system of social funds andsubsidies in traffic accidents in China, and creates the responsibility of paying inadvance by the funds and subsidies.The responsibility of paying in advance by the funds and subsidies owns somefeatures of law. At present, the funds and subsidies in traffic accident has not been raisedin our country, so this thesis will only make some probe on theory.