Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in Trying Cases Involving Compensation for Personal Damage

最高人民法院关于审理人身损害赔偿案件适用法律若干问题的解释

Promulgating Institution: Supreme People's Court

Document Number: Fa Shi [2003] No. 20

Promulgating Date: 12/26/2003

Effective Date: 05/01/2004

颁布机关: 最高人民法院

文    号: 法释[2003]20号

颁布时间: 12/26/2003

实施时间: 05/01/2004

Text

正文

(Adopted at the 1299th Session of the Trial Committee of the Supreme People's Court on December 4, 2003; promulgated on December 26, 2003; and effective on May 1, 2004)

（2003年12月4日由最高人民法院审判委员会第1299次会议通过 2003年12月26日公布 自2004年5月1日起施行）

For the purposes of correct trial of cases involving compensation for personal damage and protection of the legitimate rights and interests of the parties concerned, we make the following interpretation regarding the issues concerning the application of laws in accordance with the General Principles of the Civil Law of the People's Republic of China (hereinafter referred to as the "General Principles of the Civil Law "), the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the "Civil Procedure Law") and other laws and regulations:

    为正确审理人身损害赔偿案件,依法保护当事人的合法权益,根据《中华人民共和国民法通则》以下简称民法通则、《中华人民共和国民事诉讼法》以下简称民事诉讼法等有关法律规定,结合审判实践,就有关适用法律的问题作如下解释:

   Article 1   Where a compensation claimant suffers harm to his/her life, health or body and files an action claiming compensation for resulting property losses and mental distress from the person obligated to compensate, the relevant people's court shall accept the action.

For the purposes of this Article, a compensation claimant means a victim who directly suffers personal damage due to an act of tort or any other cause of damage, or a person whom the victim is obliged to maintain and support in accordance with the law, or a close relative of the deceased victim.

For the purposes of this Article, a person obligated to compensate means a natural person, legal person, or other body that is required to bear civil liability in accordance with the law for an act of tort or any other cause of damage committed by the person or by any other person.

     第一条 因生命、健康、身体遭受侵害,赔偿权利人起诉请求赔偿义务人赔偿财产损失和精神损害的,人民法院应予受理。

    本条所称“赔偿权利人”,是指因侵权行为或者其他致害原因直接遭受人身损害的受害人、依法由受害人承担扶养义务的被扶养人以及死亡受害人的近亲属。

    本条所称“赔偿义务人”,是指因自己或者他人的侵权行为以及其他致害原因依法应当承担民事责任的自然人、法人或者其他组织。

   Article 2   When there is intent or negligence on the part of the victim for the occurrence or increase of the same damage, the liability of the person obligated to compensate may be reduced or exempted in accordance with the provisions of Article 131 of the General Principles of the Civil Law. However, when damage is caused as the result of the intent or gross negligence on the part of the tortfeasor, with only ordinary negligence on the part of the victim, the liability of the person obligated to compensate shall not be reduced.

When the provisions of Paragraph 3 of Article 106 of the General Principles of the Civil Law are applied to determine the liability of a person obligated to compensate, such liability may be reduced if there is gross negligence on the part of the victim.  

     第二条 受害人对同一损害的发生或者扩大有故意、过失的,依照民法通则第一百三十一条的规定,可以减轻或者免除赔偿义务人的赔偿责任。但侵权人因故意或者重大过失致人损害,受害人只有一般过失的,不减轻赔偿义务人的赔偿责任。

    适用民法通则第一百零六条第三款规定确定赔偿义务人的赔偿责任时,受害人有重大过失的,可以减轻赔偿义务人的赔偿责任。

   Article 3   When two or more persons have joint intent or joint negligence for causing damage to others or commit harmful acts that they don't have joint intent or joint negligence for but result in the same consequence of damage when directly integrated, their act shall constitute a joint tort, and they shall bear joint and several liability in accordance with Article 130 of the General Principles of the Civil Law.

When two or more persons separately commit several acts that they have no joint intent or joint negligence for but which result in the same consequence of damage when indirectly integrated, they shall bear compensation liability respectively in accordance with their respective negligence or their respective share of the causes of the damage.

     第三条 二人以上共同故意或者共同过失致人损害,或者虽无共同故意、共同过失,但其侵害行为直接结合发生同一损害后果的,构成共同侵权,应当依照民法通则第一百三十条规定承担连带责任。

    二人以上没有共同故意或者共同过失,但其分别实施的数个行为间接结合发生同一损害后果的,应当根据过失大小或者原因力比例各自承担相应的赔偿责任。

   Article 4   In the event that two or more persons jointly commit an act that endangers the personal safety of any other person and leads to a consequence of damage, they shall bear joint and several liability in accordance with Article 130 of the General Principles of the Civil Law if the person actually committing the damage is unable to be determined. The person who commits the joint act of danger but can prove that his/her act is not responsible for the consequence of the damage shall not be liable for compensation.

     第四条 二人以上共同实施危及他人人身安全的行为并造成损害后果,不能确定实际侵害行为人的,应当依照民法通则第一百三十条规定承担连带责任。共同危险行为人能够证明损害后果不是由其行为造成的,不承担赔偿责任。

   Article 5   Where a compensation claimant files an action against some of the joint tortfeasors, a people's court shall add other joint tortfeasors as co-defendants. Where the compensation claimant waives the claims against some of the joint tortfeasors, other joint tortfeasors shall not bear joint and several liability for the share of the compensation payable by the defendants against whom the claims are waived. Where the scope of the liability is difficult to be determined, it shall be presumed that the joint tortfeasors shall bear liability on an equal basis.

A people's court shall inform the compensation claimant of the legal consequences of waiver of the claim, and state the circumstances of such waiver in the legal documents.

Where a compensation claimant files an action against some of the joint tortfeasors, a people's court shall add other joint tortfeasors as co-defendants. Where the compensation claimant waives the claims against some of the joint tortfeasors, other joint tortfeasors shall not bear joint and several liability for the share of the compensation payable by the defendants against whom the claims are waived. Where the scope of the liability is difficult to be determined, it shall be presumed that the joint tortfeasors shall bear liability on an equal basis. A people's court shall inform the compensation claimant of the legal consequences of waiver of the claim, and state the circumstances of such waiver in the legal documents.

     第五条 赔偿权利人起诉部分共同侵权人的,人民法院应当追加其他共同侵权人作为共同被告。赔偿权利人在诉讼中放弃对部分共同侵权人的诉讼请求的,其他共同侵权人对被放弃诉讼请求的被告应当承担的赔偿份额不承担连带责任。责任范围难以确定的,推定各共同侵权人承担同等责任。

    人民法院应当将放弃诉讼请求的法律后果告知赔偿权利人,并将放弃诉讼请求的情况在法律文书中叙明。

   Article 6   In the event that a natural person, legal person, or any other organization that engages in the business operation activities such as accommodation, catering and entertainment or other social activities causes personal damage to another person due to failure to fulfill the obligation to ensure the safety to the reasonable extent, if the compensation claimant requests the former to bear the appropriate civil liability for compensation, the people's court shall support such request.

In the event of any consequence of damage due to an infringement by a third person, the third person that committed the act of infringement shall be liable for the compensation. If a person who is obliged to ensure the safety is at fault, such person shall bear the liability for compensation to the extent that such person is able to prevent or stop the damage. Such person may claim compensation from the third person after the assumption of the liability. Where the compensation claimant files an action against the person who is obliged to safeguard his safety, the third person shall be the co-defendant, except where the third person cannot be identified.

Where a compensation claimant files an action against the person who is obliged to safeguard his safety, the third person shall be the co-defendant, except where the third person cannot be identified.

     第六条 从事住宿、餐饮、娱乐等经营活动或者其他社会活动的自然人、法人、其他组织,未尽合理限度范围内的安全保障义务致使他人遭受人身损害,赔偿权利人请求其承担相应赔偿责任的,人民法院应予支持。

    因第三人侵权导致损害结果发生的,由实施侵权行为的第三人承担赔偿责任。安全保障义务人有过错的,应当在其能够防止或者制止损害的范围内承担相应的补充赔偿责任。安全保障义务人承担责任后,可以向第三人追偿。赔偿权利人起诉安全保障义务人的,应当将第三人作为共同被告,但第三人不能确定的除外。

   Article 7   Where a school, kindergarten, or any other educational institution that is obliged to educate, manage, and protect a minor pursuant to the law fails to perform its obligations within the scope of duty to the extent that the minor suffers personal damage or the minor causes another person to suffer personal damage, it shall be liable for compensation to the extent of its fault.

Where a third party's tort causes a minor to suffer personal damage, the third party shall be liable for compensation. Where an educational institution, such as a school or kindergarten, is at fault, it shall bear the appropriate complementary liability for compensation.

     第七条 对未成年人依法负有教育、管理、保护义务的学校、幼儿园或者其他教育机构,未尽职责范围内的相关义务致使未成年人遭受人身损害,或者未成年人致他人人身损害的,应当承担与其过错相应的赔偿责任。

    第三人侵权致未成年人遭受人身损害的,应当承担赔偿责任。学校、幼儿园等教育机构有过错的,应当承担相应的补充赔偿责任。

   Article 8   When the legal representative, responsible person, or any staff member of a legal person or any other organization causes damage to others in carrying out duties, the legal person or organization shall bear civil liability in accordance with the provisions of Article 121 of the General Principles of the Civil Law. If any of the above persons cause damage to others as the result of the person's conduct irrelevant to their duties, the person shall bear the liability for compensation.

In the event of any causes for compensation specified in the State Compensation Law, the provisions of the State Compensation Law shall apply.

     第八条 法人或者其他组织的法定代表人、负责人以及工作人员,在执行职务中致人损害的,依照民法通则第一百二十一条的规定,由该法人或者其他组织承担民事责任。上述人员实施与职务无关的行为致人损害的,应当由行为人承担赔偿责任。

    属于《国家赔偿法》赔偿事由的,依照《国家赔偿法》的规定处理。

   Article 9   When an employee causes damage to others in carrying out the activities in which the employee is engaged, the employer shall bear the liability for compensation; if the employee causes the damage due to his/her intentional act or gross negligence, the employee and the employer shall bear joint and several liability for compensation. The employer that has implemented the joint and several liability for compensation may claim compensation from the employee.

For the purposes of the preceding paragraph, "carrying out the activities in which the employee is engaged" means carrying out the activities of production and business operation or any other labor service activity within the scope as authorized or instructed by the employer. When an employee's act exceeds the authorized scope, but is shown as carrying out or internally relating to carrying out duties, the act shall be determined as carrying out the activities in which the employee is engaged.

     第九条 雇员在从事雇佣活动中致人损害的,雇主应当承担赔偿责任;雇员因故意或者重大过失致人损害的,应当与雇主承担连带赔偿责任。雇主承担连带赔偿责任的,可以向雇员追偿。

    前款所称“从事雇佣活动”,是指从事雇主授权或者指示范围内的生产经营活动或者其他劳务活动。雇员的行为超出授权范围,但其表现形式是履行职务或者与履行职务有内在联系的,应当认定为“从事雇佣活动”。

   Article 10   When the commissioned party causes damage to a third person or suffers damage in the course of accomplishing the commissioned work, the commissioning party shall not be liable for compensation. However, the commissioning party that is negligent in respect of the order or instruction or the selection of the commissioned party shall bear appropriate liability for compensation.

     第十条 承揽人在完成工作过程中对第三人造成损害或者造成自身损害的,定作人不承担赔偿责任。但定作人对定作、指示或者选任有过失的,应当承担相应的赔偿责任。

   Article 11   When an employee suffers personal damage in carrying out the activities in which the employee is engaged, the employer shall be liable for compensation. When a third person in the employment relationship causes personal damage to the employee, the compensation claimant may request either the third person or the employer to bear the liability for compensation. The employer that has implemented the liability for compensation may claim compensation from the third person.

When an employee suffers personal damage as the result of a production safety accident in carrying out the activities in which the employee is engaged, the contracting party or the subcontracting party that is or should be aware of the lack of relevant qualification or production safety condition on the part of the employer accepting the contracted or subcontracted businesses, shall be under joint and several liability with the employer for compensation.

The provisions of this Article shall not be applicable to labor relationships or work-related injury insurances that are governed by the Regulation on Work-Related Injury Insurance.

     第十一条 雇员在从事雇佣活动中遭受人身损害,雇主应当承担赔偿责任。雇佣关系以外的第三人造成雇员人身损害的,赔偿权利人可以请求第三人承担赔偿责任,也可以请求雇主承担赔偿责任。雇主承担赔偿责任后,可以向第三人追偿。

    雇员在从事雇佣活动中因安全生产事故遭受人身损害,发包人、分包人知道或者应当知道接受发包或者分包业务的雇主没有相应资质或者安全生产条件的,应当与雇主承担连带赔偿责任。

    属于《工伤保险条例》调整的劳动关系和工伤保险范围的,不适用本条规定。

   Article 12   In the event that a worker whose employer is required in accordance with the law to participate in the overall planning for work injury insurance suffers personal damage due to work accidents, if the work or his/her close relative files an action with the people's court claiming the civil liability for compensation against the employer, they shall be informed that the provisions of the Regulations on Work Injury Insurance apply.

If the compensation claimant requests a third person to bear the civil liability for compensation in respect of the worker's personal damage due to an infringement by the third person other than the employer, the people's court shall support such request.

     第十二条 依法应当参加工伤保险统筹的用人单位的劳动者,因工伤事故遭受人身损害,劳动者或者其近亲属向人民法院起诉请求用人单位承担民事赔偿责任的,告知其按《工伤保险条例》的规定处理。

    因用人单位以外的第三人侵权造成劳动者人身损害,赔偿权利人请求第三人承担民事赔偿责任的,人民法院应予支持。

   Article 13   When a person who has helped in the work who provides free labor services causes damage to others in carrying out the work concerned, the person who has been helped shall bear liability for compensation. When the person who has been helped who is helped clearly refuses the help in work, the person who has been helped shall not bear liability for compensation. In the event that the helper has acted intentionally or out of gross negligence, and the compensation claimant requests the helper and the person who has been helped to bear joint and several liability, the relevant people's court shall uphold such request.

     第十三条 为他人无偿提供劳务的帮工人,在从事帮工活动中致人损害的,被帮工人应当承担赔偿责任。被帮工人明确拒绝帮工的,不承担赔偿责任。帮工人存在故意或者重大过失,赔偿权利人请求帮工人和被帮工人承担连带责任的,人民法院应予支持。

   Article 14   When a person who has helped in the work suffers personal damage due to the help in work, the person who has been helped shall be liable for compensation. If the person who has been helped clearly refuses the help in the work, the person who has been helped shall not be liable for compensation, but may be required to make appropriate compensation within the beneficial scope.

When a person who has helped in the work suffers personal damage due to the tort committed by a third person, the third person shall be liable for compensation. If the third person cannot be determined or is unable to make the compensation, the person who has been helped may be required to pay appropriate compensation.

     第十四条 帮工人因帮工活动遭受人身损害的,被帮工人应当承担赔偿责任。被帮工人明确拒绝帮工的,不承担赔偿责任;但可以在受益范围内予以适当补偿。

    帮工人因第三人侵权遭受人身损害的,由第三人承担赔偿责任。第三人不能确定或者没有赔偿能力的,可以由被帮工人予以适当补偿。

   Article 15   When a person suffers personal damage as the result of protecting the lawful rights and interests of the State, the collectives or another person, the relevant people's court shall uphold the claim filed by the compensation claimant for appropriate compensation from the beneficiary within the beneficial scope on the grounds that there is no tortfeasor, the tortfeasor cannot be determined, or the tortfeasor is unable to make the compensation.

     第十五条 为维护国家、集体或者他人的合法权益而使自己受到人身损害,因没有侵权人、不能确定侵权人或者侵权人没有赔偿能力,赔偿权利人请求受益人在受益范围内予以适当补偿的,人民法院应予支持。

   Article 16   The following circumstances shall be governed by Article 126 of the General Principles of the Civil Law and the pertinent owner or manager shall be liable for compensation except where the owner or the manager could prove that it has no fault if:

(1) a road, bridge, tunnel, or any other man-made structure causes damage to any other person due to defect in its maintenance or management;

(2) a piled-up object rolls down, slides down, or collapses causing damage to any other person; or

(3) a tree falls down or is broken or its fruit drops causing damage to others.

With regard to the circumstances stated in Item (1) of the preceding paragraph, if the damage is caused due to the defects in design or construction, the owner or the manager shall bear joint and several liability with the designer or constructor.

     第十六条 下列情形,适用民法通则第一百二十六条的规定,由所有人或者管理人承担赔偿责任,但能够证明自己没有过错的除外:

    (一)道路、桥梁、隧道等人工建造的构筑物因维护、管理瑕疵致人损害的;

    (二)堆放物品滚落、滑落或者堆放物倒塌致人损害的;

    (三)树木倾倒、折断或者果实坠落致人损害的。

    前款第(一)项情形,因设计、施工缺陷造成损害的,由所有人、管理人与设计、施工者承担连带责任。

   Article 17   The person obligated to compensate shall compensate the victim who suffers personal injury for his/her expenses paid for medical treatment and loss of income due to absence from work, including medical expenses, loss of income due to absence from work, the nursing expenses, the travelling expenses, the accommodation expenses, the board expenses in hospital, and necessary expenses for food.

The compensation obligatory shall compensate the victim who becomes disabled due to the injury for his/her necessary expenses and pay for additional needs in living and his/her loss of income due to inability to work, including disability compensation, the expenses of disability aids, the living expenses of his/her dependants, as well as the necessary expenses of recovery, nursing, and continuing treatment actually occurred in follow-up treatment.

In the event of the death of the victim, the person obligated to compensate shall, in addition to making compensation for the relevant expenses specified in Paragraph 1 of this Article according to the facts of rescue and treatment, make compensation for funeral expenses, living expenses of any dependants, death compensation expenses, the travelling expenses and accommodation expenses paid and the loss of income due to absence from work incurred by the victim's relatives for funeral arrangements as well as other reasonable expenses.

     第十七条 受害人遭受人身损害,因就医治疗支出的各项费用以及因误工减少的收入,包括医疗费、误工费、护理费、交通费、住宿费、住院伙食补助费、必要的营养费,赔偿义务人应当予以赔偿。

    受害人因伤致残的,其因增加生活上需要所支出的必要费用以及因丧失劳动能力导致的收入损失,包括残疾赔偿金、残疾辅助器具费、被扶养人生活费,以及因康复护理、继续治疗实际发生的必要的康复费、护理费、后续治疗费,赔偿义务人也应当予以赔偿。

    受害人死亡的,赔偿义务人除应当根据抢救治疗情况赔偿本条第一款规定的相关费用外,还应当赔偿丧葬费、被扶养人生活费、死亡补偿费以及受害人亲属办理丧葬事宜支出的交通费、住宿费和误工损失等其他合理费用。

   Article 18   Where a victim or a close relative of the deceased suffers mental distress, and the compensation claimant files an action with a people's court claiming solatium for mental distress, such solatium shall be determined by applying the Interpretation of the Supreme People's Court on Certain Issues Concerning the Determination of Compensation Liability for Mental Distress in Civil Torts.

The right to claim solatium for mental distress shall not be transferred or succeeded, unless the person obligated to compensate has promised in writing to make financial compensation or the compensation claimant has filed an action with a people's court.

     第十八条 受害人或者死者近亲属遭受精神损害,赔偿权利人向人民法院请求赔偿精神损害抚慰金的,适用《最高人民法院关于确定民事侵权精神损害赔偿责任若干问题的解释》予以确定。

    精神损害抚慰金的请求权,不得让与或者继承。但赔偿义务人已经以书面方式承诺给予金钱赔偿,或者赔偿权利人已经向人民法院起诉的除外。

   Article 19   The expenses of medical treatment shall be determined based on the vouchers of the payment for medicines and hospitalization, etc. issued by the medical institution and by taking into consideration the relevant proof such as the medical records and the diagnosis certification, etc. The person obligated to compensate who opposes the necessity or rationality of the treatment shall bear the appropriate burden of proof.

The amount of compensation for the expenses of medical treatment shall be determined according to the amount actually occurred before the close of the court debate in the first instance. For the compensation for the necessary expenses of recovery of the functions of the injured human organs through exercise, the appropriate cosmetic expenses and any other follow-up treatment expenses, the claimant may file a separate action after such expenses have actually been occurred. However, compensation for the inevitable expenses determined on the basis of the medical treatment certification or expert conclusion may be paid together with the medical treatment expenses that have been occurred.

     第十九条 医疗费根据医疗机构出具的医药费、住院费等收款凭证,结合病历和诊断证明等相关证据确定。赔偿义务人对治疗的必要性和合理性有异议的,应当承担相应的举证责任。

    医疗费的赔偿数额,按照一审法庭辩论终结前实际发生的数额确定。器官功能恢复训练所必要的康复费、适当的整容费以及其他后续治疗费,赔偿权利人可以待实际发生后另行起诉。但根据医疗证明或者鉴定结论确定必然发生的费用,可以与已经发生的医疗费一并予以赔偿。

   Article 20   The expenses due to absence from work shall be determined according to the length of time when the victim is absent from work and his/her income status.

The length of time when the victim is absent from work shall be determined based on the proof issued by the medical institution from which the victim receives medical treatment. If the victim becomes disabled due to the injury and, as a result, is absent from work on a continuous basis, the time period for his/her absence from work may be calculated till the day before the disability is determined.

If the victim has a fixed income, the expenses due to absence from work shall be calculated according to the actual loss of income. If the victim has no fixed income, the expenses due to absence from work shall be calculated according to his/her average income during the last three years. If the victim is unable to provide evidence showing his/her average income during the last three years, the expenses due to absence from work may be calculated by reference to the average wages of the workers in the same or similar industry for the previous year at the place where the court accepting the case is located.

     第二十条 误工费根据受害人的误工时间和收入状况确定。

    误工时间根据受害人接受治疗的医疗机构出具的证明确定。受害人因伤致残持续误工的,误工时间可以计算至定残日前一天。

    受害人有固定收入的,误工费按照实际减少的收入计算。受害人无固定收入的,按照其最近三年的平均收入计算;受害人不能举证证明其最近三年的平均收入状况的,可以参照受诉法院所在地相同或者相近行业上一年度职工的平均工资计算。

   Article 21   The nursing expenses shall be determined according to the income status of the nursing attendants, the number of the nursing attendants and the nursing period.

If a nursing attendant has income, the nursing expenses shall be calculated by reference to the provisions on the losses in income due to absence from work. If a nursing attendant has no income or any nursing personnel are employed, the nursing expenses shall be calculated by reference to the local standard of the labor remuneration of the nursing personnel engaging in the same level of the nursing work. The number of the nursing attendants shall in principle be one. However, the number of the nursing attendants may be determined by reference to the clear opinions of the relevant medical institution or appraisal institution, if any.

The nursing period shall be calculated till the time when the victim has recovered the ability to take care of himself or herself in daily life. If the victim becomes disabled and, as a result, is unable to recover the ability to take care of himself/herself in daily life, a reasonable nursing period may be determined based on factors such as his/her age and health condition, etc., without exceeding 20 years at the longest.

After the victim is determined to be disabled, the level of the nursing needed by the victim shall be determined based on the degree of his/her dependence on the nursing and by reference to the equipment of aid for disability.

     第二十一条 护理费根据护理人员的收入状况和护理人数、护理期限确定。

    护理人员有收入的,参照误工费的规定计算;护理人员没有收入或者雇佣护工的,参照当地护工从事同等级别护理的劳务报酬标准计算。护理人员原则上为一人,但医疗机构或者鉴定机构有明确意见的,可以参照确定护理人员人数。

    护理期限应计算至受害人恢复生活自理能力时止。受害人因残疾不能恢复生活自理能力的,可以根据其年龄、健康状况等因素确定合理的护理期限,但最长不超过二十年。

    受害人定残后的护理,应当根据其护理依赖程度并结合配制残疾辅助器具的情况确定护理级别。

   Article 22   The transportation expenses shall be calculated based on the actual expenses of the victim and his/her companions needed to go to hospital for treatment or to transfer the victim to another hospital for treatment. Formal tickets shall be required to prove the transportation expenses and the relevant proof shall be consistent with the place, time, the number of the persons, and the frequency in respect of going to hospital for treatment.

     第二十二条 交通费根据受害人及其必要的陪护人员因就医或者转院治疗实际发生的费用计算。交通费应当以正式票据为凭;有关凭据应当与就医地点、时间、人数、次数相符合。

   Article 23   The subsidy for board expenses in hospital may be determined by reference to the standard of board subsidies for business trip for a ordinary staff member of a local State authority.

When the medical treatment in another place is necessary for the victim, but hospitalization is impossible due to any reason, the reasonable proportion of the actual expenses of accommodation and board of the victim and his/her accompanying persons shall be compensated.

     第二十三条 住院伙食补助费可以参照当地国家机关一般工作人员的出差伙食补助标准予以确定。

    受害人确有必要到外地治疗,因客观原因不能住院,受害人本人及其陪护人员实际发生的住宿费和伙食费,其合理部分应予赔偿。

   Article 24   The nutrition expenses shall be determined based on the situation of the victim's injury or disability and by reference to the opinions of the relevant medical institution.

     第二十四条 营养费根据受害人伤残情况参照医疗机构的意见确定。

   Article 25   The compensation for disability shall be calculated from the date of determination of the disability and for a period of 20 years. Such calculation shall be made based on the victim's loss of the ability to work or the grade of his/her injury or disability and according to the standard of the per capita disposable income of the urban residents or the per capita net income of the rural residents at the place where the court accepting the case was located during the previous year. However, if the victim is of or above the age of 60, one year shall be deducted from the period for each year of increase in age. If the victim is of the age of 75 or above, the period shall be calculated for a period of five years.

If the victim becomes disabled due to an injury but suffers no actual loss of income, or if the victim suffers a low grade of injury or disability but is grossly affected in his/her employment due to occupational impediment, the amount of compensation for disability may be adjusted accordingly.

     第二十五条 残疾赔偿金根据受害人丧失劳动能力程度或者伤残等级,按照受诉法院所在地上一年度城镇居民人均可支配收入或者农村居民人均纯收入标准,自定残之日起按二十年计算。但六十周岁以上的,年龄每增加一岁减少一年;七十五周岁以上的,按五年计算。

    受害人因伤致残但实际收入没有减少,或者伤残等级较轻但造成职业妨害严重影响其劳动就业的,可以对残疾赔偿金作相应调整。

   Article 26   The expenses for disability aids shall be calculated based on the reasonable expense standard for commonly applicable devices. In the case of any special requirement of the injury, a reasonable expense standard may be determined appropriately by reference to the opinions of the organization which manufactures the aiding device.

The cycle for replacing the aiding devices and the compensation period may be determined by reference to the opinions of the organization which manufactures the aiding device.

     第二十六条 残疾辅助器具费按照普通适用器具的合理费用标准计算。伤情有特殊需要的,可以参照辅助器具配制机构的意见确定相应的合理费用标准。

    辅助器具的更换周期和赔偿期限参照配制机构的意见确定。

   Article 27   The funeral expenses shall be calculated based on the monthly average wage of the workers at the place where the court accepting the case was located during the previous year, and shall be the total amount of such wages for six months.

     第二十七条 丧葬费按照受诉法院所在地上一年度职工月平均工资标准,以六个月总额计算。

   Article 28   The living expenses for a person receiving maintenance and support shall be calculated based on the degree of the loss of ability to work on the part of the person providing the maintenance and support and according to the per capita consumption-type expenditures of the urban residents and the per capita annual living expenditures of the rural residents at the place where the court accepting the case was located during the previous year. If the person receiving maintenance and support is a minor, such living expenses shall be calculated for a period up to the age of 18. If the person receiving maintenance and support has neither the ability to work nor other source of income, the period shall be 20 years. However, if the person receiving maintenance and support is of or above the age of 60, one year shall be deducted from the period for each year of increase in age. If the person receiving maintenance and support is of the age of 75 or above, the period shall be calculated for a period of five years.

A person receiving maintenance and support means a minor for whom the victim is obligated to maintenance and support in accordance with the law, or a victim's adult close relative who has lost the ability to work and has no other source of income. If the victim shares the maintenance and support with any other person, the person obligated to compensate shall only compensate the portion for which the victim is liable in accordance with the law. In the event of multiple persons receiving maintenance and support, the cumulative amount of annual compensation in total shall not exceed the amount of per capita consumption-type expenditures of urban residents or the amount of per capita annual living expenditures of rural residents for the previous year.

     第二十八条 被扶养人生活费根据扶养人丧失劳动能力程度,按照受诉法院所在地上一年度城镇居民人均消费性支出和农村居民人均年生活消费支出标准计算。被扶养人为未成年人的,计算至十八周岁;被扶养人无劳动能力又无其他生活来源的,计算二十年。但六十周岁以上的,年龄每增加一岁减少一年;七十五周岁以上的,按五年计算。

    被扶养人是指受害人依法应当承担扶养义务的未成年人或者丧失劳动能力又无其他生活来源的成年近亲属。被扶养人还有其他扶养人的,赔偿义务人只赔偿受害人依法应当负担的部分。被扶养人有数人的,年赔偿总额累计不超过上一年度城镇居民人均消费性支出额或者农村居民人均年生活消费支出额。

   Article 29   The compensation for death shall be calculated for a period of 20 years based on the per capita disposable income of the urban residents or the per capita net income of the rural residents at the place where the court accepting the case was located during the previous year. However, if the victim is of or above the age of 60, one year shall be deducted from the period for each year of increase in age. If the victim is of the age of 75 or above, the period shall be calculated for a period of five years.

     第二十九条 死亡赔偿金按照受诉法院所在地上一年度城镇居民人均可支配收入或者农村居民人均纯收入标准,按二十年计算。但六十周岁以上的,年龄每增加一岁减少一年;七十五周岁以上的,按五年计算。

   Article 30   When the compensation claimant provides evidence showing that the per capita disposable income of the urban residents or per capita net income of the rural residents at the place of his/her domicile or habitual residence is higher than the standard of the place where the court accepting the case is located, the compensation for disability or death may be calculated based on the relevant standard of the place of his/her domicile or habitual residence.

The relevant standards for calculating the living expenses of a person receiving maintenance and support shall be determined in accordance with the principles stated in the preceding paragraph.

     第三十条 赔偿权利人举证证明其住所地或者经常居住地城镇居民人均可支配收入或者农村居民人均纯收入高于受诉法院所在地标准的,残疾赔偿金或者死亡赔偿金可以按照其住所地或者经常居住地的相关标准计算。

    被扶养人生活费的相关计算标准,依照前款原则确定。

   Article 31   A people's court shall, in accordance with Article 131 of the General Principles of the Civil Law and Article 2 of the Interpretation of the Supreme People's Court on Certain Issues Concerning the Application of Law in the Trial of Cases Involving Compensation for Personal Damage ("Interpretation"), determine the actual amount of compensation for all property losses stated in Article 19 through Article 29 of the Interpretation.

The amount of compensation for property damage as determined in the preceding paragraph and the solatium for mental distress as determined in accordance with Paragraph 1 of Article 18 of the Interpretation shall be paid in principle in a lump sum.

     第三十一条 人民法院应当按照民法通则第一百三十一条以及本解释第二条的规定,确定第十九条至第二十九条各项财产损失的实际赔偿金额。

    前款确定的物质损害赔偿金与按照第十八条第一款规定确定的精神损害抚慰金,原则上应当一次性给付。

   Article 32   When the compensation claimant files an action with a people's court claiming the continuous payment of disability compensation beyond the determined period for payment of the disability compensation, the people's court shall accept the case. If the compensation claimant has neither ability to work nor source of income, the people's court shall order the person obligated to compensate to pay the relevant expenses for another five to ten years.  

     第三十二条 超过确定的护理期限、辅助器具费给付年限或者残疾赔偿金给付年限,赔偿权利人向人民法院起诉请求继续给付护理费、辅助器具费或者残疾赔偿金的,人民法院应予受理。赔偿权利人确需继续护理、配制辅助器具,或者没有劳动能力和生活来源的,人民法院应当判令赔偿义务人继续给付相关费用五至十年。

   Article 33   The person obligated to compensate that makes the request to pay compensation for disability by regular payments shall provide appropriate guaranty. The people's court may make a determination for the regular payment of the relevant expenses based on the payment ability of the person obligated to compensate and the guaranty that he/she provides. However, the expenses incurred prior to the close of the court debate in the first instance and the compensation for mental distress shall be paid in a lump sum.  

     第三十三条 赔偿义务人请求以定期金方式给付残疾赔偿金、被扶养人生活费、残疾辅助器具费的,应当提供相应的担保。人民法院可以根据赔偿义务人的给付能力和提供担保的情况,确定以定期金方式给付相关费用。但一审法庭辩论终结前已经发生的费用、死亡赔偿金以及精神损害抚慰金,应当一次性给付。

   Article 34   A people's court shall clearly define the time and method of regular payments and the rate of each installment. If there is any change to the relevant statistical data during the enforcement period, the payment amount shall be adjusted accordingly.

The regular payment shall be made according to the actual number of years during which the compensation claimant is alive, and shall not be subject to the limitation on the compensation period stated in the Interpretation.

     第三十四条 人民法院应当在法律文书中明确定期金的给付时间、方式以及每期给付标准。执行期间有关统计数据发生变化的,给付金额应当适时进行相应调整。

    定期金按照赔偿权利人的实际生存年限给付,不受本解释有关赔偿期限的限制。

   Article 35   For the purposes of the Interpretation, per capita disposal income of urban residents and per capita net income of rural residents shall be determined according to the relevant statistical data for the province, autonomous region, municipality directly under the Central Government, special economic zone, or specially designated city in the State plan, in the previous year promulgated by the government statistical department.

"The previous year" means the year of data collection prior to the close of the court debate in the first instance.  

     第三十五条 本解释所称“城镇居民人均可支配收入”、“农村居民人均纯收入”、“城镇居民人均消费性支出”、“农村居民人均年生活消费支出”、“职工平均工资”,按照政府统计部门公布的各省、自治区、直辖市以及经济特区和计划单列市上一年度相关统计数据确定。

    “上一年度”,是指一审法庭辩论终结时的上一统计年度。

   Article 36   This Interpretation shall become effective as of May 1, 2004. With regard to a first instance case involving compensation for personal damage newly accepted after May 1, 2004, the provisions of this Interpretation shall apply. Where a case involving compensation for personal damage for which an effective judgment has been rendered is retried in accordance with the law, the provisions of this Interpretation shall not apply.

     第三十六条 本解释自2004年5月1日起施行。2004年5月1日后新受理的一审人身损害赔偿案件,适用本解释的规定。已经作出生效裁判的人身损害赔偿案件依法再审的,不适用本解释的规定。

In the case of any discrepancy between this Interpretation and the judicial interpretations that have become effective prior to the implementation of this Interpretation, this Interpretation shall apply.

    在本解释公布施行之前已经生效施行的司法解释,其内容与本解释不一致的,以本解释为准。