Rules for determining the liability of the parties involved in road traffic accidents in Jiangsu Province

Comment on the Rules for Determining the Liability of the Parties to Road Traffic Accidents in Jiangsu Province

Rules for Identification of Traffic Accident Responsibility-Evaluation of Jiangsu Provincial Traffic Police Corps 2006-5- 1

The Rules for Determining the Liability of the Parties in Road Traffic Accidents in Jiangsu Province (hereinafter referred to as "Jiangsu Rules") was successfully studied by myself for 8 years, and was officially promulgated and implemented by the Traffic Patrol Corps of Jiangsu Province on May 1 2006. This rule breaks through the traditional traffic accident identification theory and evaluates its role in causing traffic accidents from the behavior of the parties, thus forming a new traffic accident identification theory-road traffic accident avoidance theory. On this basis, Jiangsu rules are original in theory and operable in practice, which is unique among the identification rules formulated by domestic provinces (cities). The successful formulation of "Jiangsu Rules" shows that it is not far away to realize legal liability by formulating scientific and reasonable identification rules.

First, the characteristics of Jiangsu rules

1, there is a system theory.

The rules of traffic accident liability determination are different from the normative documents in the general sense. Normative documents in a general sense are mainly the norms of human behavior, referred to as codes of conduct. The code of conduct is mainly based on laws and regulations, ethics, public order and good customs, and makes specific provisions on what people should do, what they can do and what they are forbidden to do. Relatively speaking, such specifications are relatively common and easy to formulate. Responsibility identification rules are norms for evaluating human behavior, referred to as behavior evaluation norms. This norm is relatively rare in the legal system and difficult to formulate. This is because evaluating people's behavior is people's subjective understanding of objective phenomena and is based on life experience and experience accumulation. However, people's life experiences and experience accumulation are very different, so it is very common to make different evaluations of the same thing. As far as the evaluation of the role of the parties' behavior in causing traffic accidents is concerned, people often have different opinions and it is difficult to reach a consensus. It can be seen that the formulation of traffic accident liability identification rules can not only rely on the accumulated experience in practice, because practical experience can only have universal guiding significance if it rises to the height of theory. Therefore, the formulation of traffic accident liability identification rules must first solve theoretical problems. Without the support of system theory, it is difficult for the formulated rules to have a unified and standardized guiding role.

Based on the above understanding, in the process of formulating Jiangsu detailed rules, we should first start with the research on the theory of traffic accident identification, and on the basis of summing up, absorbing and sublating the existing theory of traffic accident identification, further explore ideas and boldly explore. Through the study of the formation track of traffic accidents, the general law and formation mechanism of traffic accidents are found, that is, traffic accidents are the mutual movement of two basic elements, namely, risk-causing behavior and risk-avoidance behavior, which is ultimately caused by the failure of risk avoidance, thus constructing a traffic accident model; The role judgment standard of traffic accidents caused by negligent behavior is established; Excavate the special phenomenon of traffic accidents-the law of shape determination; Then, according to the effect of form on wrong behavior, a systematic new theory of traffic accident identification-hedging theory is formed. The results of the above theoretical research have laid a solid foundation for the formulation of Jiangsu detailed rules.

Because of the theoretical support, Jiangsu rules have great vitality in practice. Since the implementation of "Jiangsu Rules", the responsibilities of the parties determined by the rules are objective and fair, which is convenient for the investigators to operate and acceptable to the parties involved in the accident. Traffic accident cases accepted by people's procuratorates and courts shall accept all responsibilities determined by applicable rules. Practice has proved that Jiangsu rules constructed by system theory can stand the test of practice. And with the passage of time, the applicability and operability of Jiangsu rules will become more and more obvious.

2. The traffic accident model is established.

In the face of complex and changeable traffic accidents, people have never outlined the basic framework and model of traffic accidents. The reason is that traffic accidents are too complicated, and its inherent, fundamental and regular composition principle has not been recognized by people. However, in the process of formulating Jiangsu rules, we firmly believe that any complex thing has its basic structure and motion law, and traffic accidents should not be an exception. In view of this, "Jiangsu Rules" starts with the most basic relationship between the parties' fault behavior and traffic accidents, and tries to find out the internal relationship between fault behavior and traffic accidents through cause analysis. However, the causes of traffic accidents caused by negligence are very complicated, and the timing, conditions and environment of each traffic accident are different, so it is difficult for people to find a regular relationship between negligence and traffic accidents.

Through further in-depth research, it is found that traffic accidents are all caused by wrong behavior, which is beyond doubt. However, it is an indisputable fact that most wrong behaviors have not caused traffic accidents, which deserves people's deep thinking. Why don't most wrong behaviors cause traffic accidents? This is a very common problem that few people think about. People have formed a habitual mode of thinking. Anyone who wants to analyze and study traffic accidents always looks for the answer from the traffic accidents that have happened, but the general law of traffic accidents has never been found.

Through this phenomenon, we find the basic trajectory of traffic accidents: the appearance of wrong behavior-causing different degrees of danger-risk aversion taking evasive measures-evading failure-traffic accidents. Through this trajectory, Jiangsu rules designed a traffic accident model, that is, "traffic danger+avoidance failure = traffic accident".

The establishment of traffic accident model is of great significance, which simplifies and models complex traffic accidents. Through the traffic accident model, people can intuitively see the basic core and composition of traffic accidents, thus unveiling the mystery of traffic accidents. As a result, people find that traffic accidents are complicated and ever-changing, but they are consistent. All traffic accidents are caused by the wrong behavior of the parties. Although there are many kinds and forms of the parties' fault behavior, there are only two types in terms of their nature: one is the behavior that causes danger, that is, the behavior that causes danger; One is risk aversion, that is, avoiding dangerous behavior. The two behaviors move with each other and fail to hedge, which eventually leads to traffic accidents. This is the fundamental law and principle of traffic accidents. Therefore, it can be considered that the establishment of traffic accident model has laid a foundation for the innovation of traffic accident identification theory.

3. The evaluation standard of function is established.

The reason why the same case has different conclusions is that the laws and regulations only stipulate the responsibility of traffic accidents in principle, that is, the responsibility of the parties is determined according to the role played by their actions in traffic accidents and the severity of their faults. However, there are no specific provisions and standards in laws and regulations on how to judge the role and fault, which is an embarrassment between law and practice. As laws and regulations, we can only make principled provisions, not specific to every detail. The specific details in practice are closely related to the principles of laws and regulations, so it is a subject that must be solved to make the principles of laws and regulations specific.

The correct way to realize the concretization of the principles of laws and regulations is to establish the evaluation standard of the role of wrong behavior in traffic accidents. Only by establishing standards can we unify the scale of traffic accident identification, and only by establishing standards can we unify the thinking of traffic accident identification. Therefore, establishing the evaluation standard of role is a task that must be solved in formulating the rules of responsibility determination.

It is so important to establish evaluation criteria, but the research in this field has been in a blank state for a long time, because traffic accidents are too complicated. Before summarizing the occurrence law and formation mechanism of traffic accidents, Jiangsu Rules is at a loss as to what the evaluation criteria are. However, after discovering the law and formation mechanism of traffic accidents, everything suddenly became clear.

The formation law and mechanism of traffic accidents remind us that no matter how complicated and ever-changing, whether a traffic accident finally happens depends only on the interaction between risk-causing behavior and risk-avoiding behavior. This kind of interaction is essentially whether the other party can successfully avoid the danger brought by wrong behavior. The appearance of the wrong behavior (dangerous situation) that the other party is difficult to take measures to avoid proves that it has a great role in causing traffic accidents; If the other party can take measures to avoid it, it proves that it has little impact on traffic accidents. It can be seen that the role of fault behavior in causing traffic accidents is closely related to whether the other party can successfully avoid it. It can be concluded that the objective criteria for judging the role of wrong behavior in traffic accidents can only be the danger of wrong behavior and the possibility of avoidance by the other party.

"Danger" and "possibility" are mutually confirmed, mutually causal and intrinsically related. The risk of wrong behavior is high, and the possibility of the other party avoiding it is small; On the contrary, the risk of wrong behavior is small, and the possibility of avoidance is high. It can be seen that the danger of the wrong behavior and the possibility of the other party's avoidance objectively reflect the causal relationship and function between the wrong behavior of the parties and the traffic accident. Therefore, using this standard to judge the role of the parties' behavior in causing traffic accidents, its judgment conclusion fully conforms to the recognition principle stipulated by laws and regulations.

4. The concretization of evaluation criteria has been realized.

There are usually two evaluation criteria: one is quantitative criteria; The first is qualitative criteria. Quantitative standards are intuitive and clear, and will not produce ambiguity, which is the first choice for formulating standards. However, the role of judging traffic accidents caused by the actions of the parties can not be quantified. Therefore, the criterion for judging "role" can only be qualitative. The advantage of qualitative evaluation is that through comparison, we can dig out some deep thoughts and make the conclusion of scientific analysis more comprehensive and profound. Taking drunk driving as an example, we can simply judge whether we are drunk or not, and we can draw a conclusion through the quantitative analysis of alcohol content in blood. However, the actual impact of drunk driving on traffic accidents can only be accurately judged through qualitative analysis, and quantitative analysis cannot be done. The deficiency of qualitative evaluation is that it does not have the indisputable nature of quantitative evaluation and is often easy to cause different opinions. Therefore, if we can't concretize the qualitative evaluation criteria, even with the evaluation criteria, it is difficult to operate.

The evaluation of the role of the parties' behavior in causing traffic accidents is actually the evaluation of people's behavior. Judging behavior from different angles will lead to different conclusions. Judging the role of the parties in causing traffic accidents from the severity of their illegal acts, the conclusion is that the more serious the illegal acts, the greater the role of causing traffic accidents. This judgment perspective has been proved to be simple and superficial by practice. Judging the role of the parties' behavior in causing traffic accidents from the perspective of "right of way", the conclusion must be that whoever violates the right of way will have a great role, and this judgment perspective has also been proved to be metaphysical. Therefore, in order to concretize the qualitative evaluation criteria, it is necessary to provide a perspective that can clearly judge the "danger" of the wrong behavior of the parties and the "possibility" of the other party's avoidance. This perspective is the morphological characteristics of the parties' behavior.

Through the analysis and study of a large number of traffic accidents, Jiangsu Rules found that the role of the parties' behavior in traffic accidents is expressed in certain forms, and different forms show different functions, thus confirming a unique phenomenon of traffic accidents-the law of shape determination. For example, when a motor vehicle approaches, pedestrians cross the road, and its sudden morphological characteristics determine its great role in causing traffic accidents (the other party has no time to avoid it); For another example, when there is a car coming from the opposite side, the morphological characteristics of its emergency oppression on the other side also determine its great role in causing traffic accidents (the other side has no room to avoid). For another example, pedestrians standing or walking normally in motor vehicle lanes have little impact on traffic accidents due to the stability of their morphological characteristics (the other party has time and space to avoid). In a word, shape determination is not only an objective phenomenon of traffic accidents, but also an objective law that is independent of people's subjective will.

The discovery of the shaping law has fundamentally changed the concept and thinking of traffic accident identification. Since then, people are no longer confused by the diversity and complexity of the wrong behavior of the parties, nor by the abstraction of causality. When determining the responsibility of traffic accidents, people don't have to consider the influence of the severity of the parties' illegal behavior on traffic accidents, nor do they have to consider the causal relationship between the parties' behavior and traffic accidents in an abstract way. As long as the form of the party's behavior at the time of the accident is determined, the "danger" of the party's wrong behavior and the "possibility" of the other party's avoidance will be clear at a glance, thus finally realizing the concretization of the evaluation standard. The theoretical basis of the role classification of the parties' fault behavior in Jiangsu Rules is the law of "shaping the role".

5. The fault behavior classification is operable and applicable.

Judging from the final result, the fault behavior of the parties plays a greater or lesser role in causing traffic accidents, and there is no third case. But if we want to classify the wrong behavior, we can't simply divide it into two categories: big role and small role. Because many wrong behaviors will play different roles in different traffic accidents, this is an objective phenomenon. For this kind of behavior, it can neither be classified as big nor small. For example, when an overloaded vehicle is hit by a vehicle traveling in the opposite direction, it is undoubtedly a wrong case to confirm that the overloaded behavior has a great influence. On the other hand, if the overload behavior is classified as a small influence, when the braking distance is prolonged due to overload and the accident that could have been avoided cannot be avoided, it is also a wrong case to confirm the small influence of overload behavior. So this kind of behavior can only be classified into one category.

The "Jiangsu Rules" divides the fault behavior into three categories: one is the behavior with great influence; One is the behavior with little effect; There is another kind of behavior, which may have a big or small impact. This is the uniqueness of Jiangsu rules. It is precisely because of this single category that Jiangsu rules have wider applicability and operability. For example, behaviors such as drinking, driving without a license, overloading, speeding, and "driving with illness" of vehicles are all classified as a category that may have great or little effect. Therefore, we can objectively and accurately evaluate the specific role of this kind of behavior in traffic accidents and avoid the tendency of simplification and extremism.

Classifying behaviors that play different roles in different traffic accidents not only enhances the applicability and operability of the rules, but also makes the application of the rules more flexible. Due to the complexity of traffic accidents, the roles of both parties in some accidents are not clearly defined, and the responsibilities of both parties in some accidents are often vague. If the rules themselves are not flexible, it is quite difficult to identify such accidents. For example, a cyclist crossing the road was knocked down by a motor vehicle and died. There is evidence that cyclists crossing the road are in an adjacent state. There is no problem with the driving route, speed, loading and disposal measures of the motor vehicle, but the braking does not meet the safety technical standards after inspection. When analyzing the cause of the accident, one thing is that even if the braking of the motor vehicle reaches the standard, the accident is inevitable. However, no one can tell whether the failure to meet the brake standards will have an impact on the consequences of death, that is, the failure to meet the brake standards will not cause death. So there are different views on how to determine the responsibility. One opinion is that the motor vehicle side is not responsible, and there is nothing wrong with this opinion; There is nothing wrong with the view that the motor vehicle side bears secondary responsibility. From the point of view that it is beneficial to the compensation for the aftermath, it is obviously more appropriate to let the motor vehicle side bear the secondary responsibility. "Jiangsu Rules" stipulates this situation: omission behavior (failure to meet the brake standards is omission behavior) is inevitable for the occurrence of traffic accidents, which plays a secondary role or does not work. In other words, it is in line with the rules that the motor vehicle party has no responsibility or secondary responsibility, which provides space for properly handling such accidents. There have been no misjudged cases since the implementation of Jiangsu detailed rules, which should be directly related to such classification.

6. Classify the function of fault behavior formally.

Through the law of "shape determines function", people know that the role of the party's behavior in causing traffic accidents is expressed through its shape. However, what kind of morphology plays a big role and what kind of morphology plays a small role is still a subject that needs to be studied and solved.

Through the analysis of a large number of traffic accidents, Jiangsu Rules found that the function reflected by the form is determined by three elements: avoidance time, avoidance space and avoidance ability. The form of wrong behavior causes the hedger to have no time and space to avoid it, which plays a great role; On the contrary, its effect is small. If a traffic accident still occurs when there is time or space to avoid it, it proves that the evasive party lacks the ability to avoid it. It is through the judgment of avoidance time, avoidance space and avoidance ability that the Jiangsu Rules summarize the morphological characteristics of different fault behaviors as follows:

First, the fault behavior that causes traffic accidents has the characteristics of urgency, suddenness and initiative. Urgency reflects the closeness and urgency of both sides; Suddenness reflects the appearance of wrong behavior, which is difficult for the other party to foresee; The initiative reflects the rapid approach to each other. That is to say, when the two sides are already in a close state, one party has an unexpected wrong behavior and actively approaches the other party quickly. In this case, traffic accidents will be inevitable. Therefore, the fault behavior with the characteristics of urgency, suddenness and initiative plays an important role in causing traffic accidents.

Secondly, the fault behavior that has little influence on traffic accidents has the characteristics of performance, stability and passivity. Explicitly reflect the obvious fault behavior, which can be found by the other party in time; Stability reflects that the form of fault behavior remains unchanged and has not changed; Passivity reflects being in a passive position when an accident occurs. That is to say, when the wrong behavior can be discovered by the other party in time and is in a stable state of motion (static), the other party has enough time to take measures to avoid it. Therefore, the fault behavior with the characteristics of clarity, stability and passivity has little influence on traffic accidents.

Thirdly, the fault behaviors that will play different roles in different traffic accidents have the characteristics of concealment, persistence and duality. The concealment reflects the danger of this kind of fault behavior, such as lack of safe driving ability or other potential safety hazards, but it is difficult for the other party to find it in time. Such as unlicensed, drunk driving and so on. It continuously reflects that this danger is potential and always exists, and it is not fleeting and explosive. The duality reflects that this kind of fault behavior sometimes plays a big role in causing traffic accidents, and sometimes it plays a small role. When the danger of this wrong behavior is brought into play, it plays a great role in causing traffic accidents; When the danger of this wrong behavior doesn't work, it has little effect on causing traffic accidents. Therefore, the fault behavior with concealment, persistence and duality will play different roles in different traffic accidents.

Judging the size of function by shape actually shows that the evaluation of function is dynamic rather than static; It is dialectical rather than metaphysical. Simply comparing the provisions of laws and regulations, or mechanically applying the principle of right of way to determine the responsibility of the parties, obviously can not correctly reflect the dynamic and complex traffic accidents.

It is more objective and reasonable to divide the function size from the form than from the right of way. The first behaviors mentioned above are all violations of road rights, and it is of great significance to define them because of their urgency, suddenness and initiative. Most of the second behavior is also a violation of the right of way. Because it has the characteristics of stability, expressiveness and passivity in form, it is of little use to define it. It can be seen that it is also a violation of road rights and has different functions. The third category is all acts that do not infringe the right of way, but their forms are characterized by concealment, persistence and duality. The specific role is reflected in whether it can successfully avoid dangerous situations. Those who can avoid it but fail to avoid it will have great effects; It is hard to avoid and has little effect. It can be seen that the behavior of violating the right of way is not necessarily an effective behavior; Acts that do not violate the right of way are not necessarily small acts. In the final analysis, we should judge from the form of wrong behavior.

Second, the overall evaluation of Jiangsu rules

On the basis of summarizing the existing theory and practical experience of traffic accident identification, Jiangsu Rules further explores the new theory of traffic accident identification, from finding the basic trajectory of traffic accident formation to creating a traffic accident model; On this basis, the mechanism of traffic accidents is revealed, and the evaluation standard of traffic accidents caused by traffic fault behavior is established. Then sum up the law that form determines function, and then attribute the function of form to traffic fault behavior, and finally realize the concretization of the judgment function of traffic accident caused by traffic fault behavior. The above results make the Jiangsu Rules form a systematic theory and a rigorous and complete framework. Its design idea is clear, its theory is novel and solid, and it is a reliable, applicable and operable responsibility identification rule.

Third, the defects of Jiangsu rules.

(1) Jiangsu detailed rules are very theoretical. If we don't have a deep understanding of this theory in practice, it may lead to the implementation of the detailed rules. It is obviously unrealistic to ask the grassroots police to correctly understand the theory of rules. Therefore, how to express the theory of rules through easy-to-understand words is a problem that needs to be considered in the future of Jiangsu Rules.

(2) There are many unique features in the theory and design of Jiangsu Rules, which is the beauty of Jiangsu Rules. But some theories need to be elaborated carefully, and some formulations need to be scrutinized. For example, the induction of missing behavior patterns is not entirely appropriate. In which "persistence" is similar to the morphological characteristics of passive behavior. It should be changed to "abnormal". "Abnormal" reflects that this kind of behavior is abnormal because it lacks safe driving ability (such as drunk driving, driving without a license, fatigue driving, etc. ), and it doesn't know what to do or take the wrong measures when it encounters a situation, but when it brakes, it steps on the accelerator and should avoid to the right but to the left. For another example, if the passive behavior in the static state is difficult to be discovered by the other party in time and determined to play a major role in it, then it is no problem to define yourself. However, if the passive behavior in motion is difficult to be discovered by the other party in time, it needs further consideration whether it should also play the above-mentioned main role.

(3) According to the classification table of fault behaviors in Jiangsu Rules, the positioning of 170 behaviors is basically appropriate from the actual effect, but the positioning of individual behaviors seems inappropriate. Among them, the behavior that violates the first paragraph of Article 22 of the Road Traffic Safety Law, "Motor vehicle drivers should abide by the provisions of road traffic safety laws and regulations and drive safely and civilized according to operational norms", seems to be located in the category of omission.

Attached are the Rules for Determining the Liability of the Parties to Road Traffic Accidents in Jiangsu Province, which came into effect on May 1 2006.

Rules for Determining the Liability of the Parties to Road Traffic Accidents in Jiangsu Province (for Trial Implementation)

Article 1 These Rules are formulated in accordance with the Road Traffic Safety Law of the People's Republic of China and other relevant laws, regulations and rules in order to standardize the determination of the responsibilities of the parties involved in road traffic accidents, promote the justice of law enforcement in handling traffic accidents and safeguard the legitimate rights and interests of the parties concerned.

Article 2 The traffic administrative department of the public security organ shall determine the responsibilities of the parties according to their roles in traffic accidents and the severity of their faults.

Judging the role of the parties' fault behavior in traffic accidents and the severity of the fault should be based on the risk of traffic accidents caused by the parties' fault behavior and the possibility of avoidance by the other party.

Article 3 According to the morphological characteristics of the parties and their roles in traffic accidents, the fault behaviors of the parties can be divided into three categories: active, passive and absent (see Annex):

(1) Active behavior refers to a serious fault behavior that suddenly changes the state of motion when approaching the other party, or actively approaches the other party, making it difficult for the other party to avoid, which plays a major role in traffic accidents.

(2) Passive behavior refers to the general fault behavior that the other party can take measures to avoid when it is in a continuous and stable movement or static state in a traffic accident, which plays a secondary role or does not work. The passive behavior in the static state is difficult to be discovered by the other party in time, which plays the main role above.

(3) Absence behavior is a fault behavior that does not have the ability to drive safely or has potential safety hazards. Absence plays a major role in preventing traffic accidents that should have been avoided; Inevitable, secondary or invalid.

Judging whether traffic accidents should avoid absent behavior and whether passive behavior at rest can be discovered by the other party in time should be based on the requirements of laws and regulations for safe driving and the safe driving ability of ordinary drivers.

Article 4 The traffic administrative department of the public security organ shall, on the basis of on-site investigation, investigation and evidence collection, inspection and appraisal, identify the types and functions of the parties' fault behaviors according to the facts of traffic accidents and the provisions of Article 3 of these Rules.

If the parties have more than two kinds of fault behaviors at the same time, the responsibility of the parties shall be determined on the basis of the great role. However, the traffic accident certificate shall specify other wrongful acts.

Article 5 If a traffic accident is caused by the fault of one party, it shall be deemed as full responsibility.

Traffic accidents are caused by the fault behavior of both parties, and the responsibilities of the parties shall be determined according to the following rules:

(a) if the parties to a traffic accident have taken the initiative to make mistakes, they shall bear the main responsibility.

(two) if the parties have passive fault behavior in traffic accidents, they shall bear secondary responsibility. However, if the passive fault behavior in the static state is difficult to be discovered by the other party in time, it will bear the main responsibility.

(three) the parties to a traffic accident have a fault behavior of omission type, which fails to avoid the traffic accident that should be avoided, and bears the main responsibility; Inevitable, secondary responsibility.

(4) Both parties have played a major role in the wrong behavior, and each party bears the same responsibility.

If a traffic accident is caused by the fault of three or more parties, the responsibilities of the parties shall be determined with reference to the provisions of the preceding paragraph.

Sixth traffic safety laws and regulations have special provisions on the responsibility of the parties for traffic accidents caused by faults, and the responsibility of the parties shall be determined in accordance with the special provisions.

Article 7 Where a traffic accident is caused by a wrong act not listed in the annex to these Rules, the liability of the parties concerned shall be determined in accordance with the provisions of Article 2 of these Rules.

Article 8 When a motor vehicle has a traffic accident outside the road, the traffic administrative department of the public security organ shall, after receiving the report, determine the responsibilities of the parties with reference to these Rules.

Article 9 These Rules shall come into force as of May 2006. If a traffic accident occurred before this time is not recognized as an accident, the responsibilities of the parties concerned shall be determined in accordance with these rules.

Article 10 These Rules shall be interpreted by the Traffic Patrol Police Corps of Jiangsu Provincial Public Security Department.

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