Does primary school students need to take responsibility for shoving each other on campus during lunch breaks?

【Key analysis】

Article 1199 of the Civil Code of the People's Republic of China stipulates that if a person without capacity for civil conduct suffers personal injury during his study or life in a kindergarten, school or other educational institution, the kindergarten, school or other educational institution shall bear tort liability; however, if it can be proved that he has fulfilled his educational or management duties, he shall not bear tort liability.

Article 1200 provides: Where a person with limited capacity for civil conduct suffers personal injury during his study or life in a school or other educational institution, and the school or other educational institution fails to fulfill his or her educational or management duties, he shall bear tort liability.

Article 1201 provides: Where a person without capacity for civil conduct or a person with limited capacity for civil conduct suffers personal injury to a third party other than a kindergarten, school or other educational institution during his study or life, the third party shall bear tort liability; After kindergartens, schools or other educational institutions assume supplementary liability, they may seek compensation from a third party.

【Basic Facts】

Zhang Mou1 and Zhang Mou2 are both third-grade students of Gubei Primary School. At about 13:20 on November 2, 2018, when Zhang Mou1 and other students in the same class were playing and playing on campus, they accidentally fell down and prepared to get up, and were pushed and shoved by classmate Zhang Mou2, causing Zhang Mou 1 to break two front teeth.

On November 6, 2018, Zhang Mou1 went to Lu'an People's Hospital for treatment, spending a total of 800 yuan in medical expenses. On December 28, 2020, Anhui Chaoyang Judicial Laboratory evaluated the nursing period, nutrition period and follow-up treatment costs after Zhang Mou1's tooth injury, and after identification, Zhang Mou1 was pushed and fell and caused 11 to be folded and removed, 21 crown root folds, his nursing period was 9 days, and the nutrition period was 30 days; Zhang Mou1's follow-up crown roasting fixed bridge prosthesis repair treatment required medical expenses of about 27,000 yuan. Zhang Mou1 paid an appraisal fee of 1320 yuan.

It was also found that Gubei Primary School, as the district school under the jurisdiction of the school district center, paid insurance premiums to the insurance company, and the school district center insured the insurance company with school liability insurance, and the compensation limit per student was 300,000 yuan, and the insurance period was from September 1, 2018 to August 31, 2019, and Zhang Mou 1 was a student in the school liability insurance.

Zhang X1 filed a lawsuit with the court of first instance, requesting: Zhang X 2 and Zhang X 3 jointly compensated Zhang X 1 for medical expenses of 800 yuan, nursing expenses of 1219.50 yuan (9 days×135.50 yuan / day), nutrition fees of 900 yuan (30 days × 30 yuan / day), appraisal fees of 1320 yuan, transportation costs of 2000 yuan, post-repair treatment fees of 27000 yuan, and mental consolation funds of 5000 yuan, a total of 38239.5 yuan; The school district center assumes the liability for compensation corresponding to its fault on behalf of Gubei Elementary School; The insurance company is liable for compensation within the scope of the school liability insurance insurance underwritten by the insurance.

【The court held】

1. Zhang Mou1 was injured in school, and the responsibility of Zhang Mou2, Zhang Mou3 and Gubei Primary School was determined. Citizens enjoy the right to life and health. Article 39 of the Tort Liability Law of the People's Republic of China stipulates: "Where a person with limited capacity for civil conduct suffers personal injury during his study or life in a school or other educational institution, and the school or other educational institution fails to fulfill his educational or management duties, he shall bear responsibility." (This provision has now been replaced by the Civil Code)

In this case, Zhang X 1 and Zhang X 2 were both persons with limited capacity for civil conduct at the time of the accident, and according to their respective ages and cognitive abilities, both parties should be able to recognize the dangers that existed during recess playing and playing, Zhang X 1 accidentally fell down after playing, resulting in Zhang X 1's teeth being defective, Zhang X 1 himself failed to fulfill his duty of care, Zhang X 2 pushed Zhang X 1 to a certain degree of fault, and both parties should bear corresponding responsibilities according to the degree of their fault.

In addition, it can be seen from the statement of Gubei Primary School that the school stipulates that its teachers and students stay in school at noon to eat, and take a lunch break at school after dinner, the time of the accident in this case is around 13:20 noon, the teachers and students are on the school lunch break during this period, the students are on campus, whether it is class time or recess, living time, the school has the responsibility for safety education and management of students, from Zhang Mou2's statement, it can be seen that the school teacher was not present when the accident occurred, so Gubei Primary School did not fulfill its management duties. Corresponding responsibilities should be assumed.

Zhang Mou1 and Zhang Mou2 are young, their cognitive ability and control ability are relatively weak, so the education, supervision and management responsibilities of Gubei Primary School during the lunch break are correspondingly greater, and based on the specific circumstances of this case, it is determined that Gubei Primary School bears 80% of the responsibility, Zhang Mou2 bears 10% of the responsibility, and Zhang Mou 1 bears 10% of the responsibility.

Because Gubei Primary School does not have independent legal personality, its responsibility should be borne by the school district center according to law, and the school district center has school liability insurance in the insurance company, so the compensation costs that the school district center should bear should be compensated by the insurance company within the insurance liability limit; the insurance company argues that the case has exceeded the statute of limitations, and Zhang Mou1 also underwent corresponding treatment on August 14, 2020 after the accident involved in the case, so the above opinions of the insurance company are not adopted.

In addition, in accordance with the first paragraph of article 32 of the Tort Liability Law of the People's Republic of China, where a person without capacity for civil conduct or a person with limited capacity for civil conduct causes harm to others, the guardian shall bear tort liability. Where guardians fulfill their guardianship responsibilities, their tort liability may be reduced. Therefore, the compensation costs that Zhang X2 should bear shall be compensated by his guardian Zhang X 3; Zhang X 2 and Zhang X 3 argue that Zhang X 2 did not push Zhang X 1 down and should not bear the relevant compensation losses of Zhang X 1, which lacked evidence support and was not accepted.

2. Regarding the specific amount of compensation for Zhang Mou1's losses.

1. Medical expenses are identified as 800 yuan according to the invoice amount 2. Nursing fee, according to the appraisal opinion, the nursing period of 9 days, calculated according to 135.5 yuan / day, is determined; 3. Nutrition fee, according to the appraisal opinion nutrition period of 30 days, calculated according to 30 yuan / day, is determined; 4. The appraisal fee is 1320 yuan, which is recognized; 5. The transportation fee is supported by 400 yuan as appropriate according to the location of Zhang Mou1's medical treatment and the number of outpatient clinics; 6. The cost of dental restoration treatment in the later stage, based on the appraisal opinion of the judicial appraisal opinion, is determined to be 27,000 yuan; 7. The spiritual consolation payment is not supported because Zhang Mou1's injury does not meet the disability standard.

According to Zhang Mou1's appeal, combined with the facts of this case, the specific loss items and amounts of Zhang Mou1's injury were determined to be: medical expenses of 800 yuan, nursing expenses of 1219.50 yuan (9 days ×135.50 yuan / day), nutrition fees of 900 yuan (30 days × 30 yuan / day), appraisal fees of 1320 yuan, transportation costs of 400 yuan, and late dental restoration treatment costs of 27000 yuan, a total of 31639.50 yuan. It was determined that the insurance company would compensate 25311.60 yuan in the proportion of 80%, and Zhang Mou3 would compensate 3163.95 yuan in the proportion of 10%.

Judgment: 1. The Huainan Center Branch of Ping An Property & Casualty Insurance Co., Ltd. of China shall compensate Zhang X 125,311.60 yuan within 10 days after the judgment takes effect; 2. Zhang X 3 shall compensate Zhang X 13,163.95 yuan within 10 days after this judgment takes effect; 3. Reject Zhang X 1's other litigation claims.

【MicrofaRespective Commentary】

Weifa believes that Gubei Primary School stipulates that its teachers and students stay in school for lunch at noon and take a lunch break after meals. The time of the accident in this case was around 13:20 at noon, during which teachers and students were on lunch break. As a junior elementary school student, the school as an educational institution has the responsibility for the safety education and management of students on campus, whether it is class time, recess or school life time. Therefore, the Court found that the school's fault was justified.

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