Study On The Liability For Traffic Accident Damage Caused By Improper Operation And Management Of Expressway

In the past 30 years,with the continuous investment of highway construction funds in China,highway construction has developed rapidly and made great contributions to economic and social development.However,due to the non-standard operation and management of the expressway,and the lack of awareness of traffic safety among traffic participants,the traffic accidents on the expressway have remained high.Among them,traffic accidents account for a considerable proportion due to the inherent defects of highway road,incomplete supporting functional facilities,road obstacles hindering traffic,inadequate response to unexpected situations such as human and Animal Crossing highway,bad weather and so on.At present,the general mechanism of compensation for damage caused by public facilities in China is still in the process of being established.There are still great differences in the subject of liability,the scope of compensation,the principle of imputation and the burden of proof in academic circles.Due to the traffic police and judge shave a vague understanding of this problem as well as the phenomenon of different judgments on the same case is widely exist,The victims or relatives of accidents are more likely to have suspicions about the law enforcement departments that are not standardized,transparent and unfair,which affects social harmony and legal credibility,and also affects the enthusiasm of highway management units to increase investment in human resources and equipment and strengthen management measures.On the basis of sorting out the cases of disputes over liability for compensation for traffic accidents caused by improper operation and management of expressways in recent years,this paper analyses the theoretical divergence in academic circles and the focus of disputes between parties,explores the value orientation and orientation of corresponding legal norms,explores the proper handling mode of similar cases,and raise up suggestions for system improvement.The text is divided into five parts.The first part analyzes 80 typical cases in the past five years.The author combs the dispute between the academic circles and the judicial practice about whether the highway management unit is the proper responsibility subject,the legal nature and legal status of the road traffic accident recognition,the judgment standard that the expressway management unit should manage the obligations,and how the responsibility is shared between the expressway users and the management unit.point out the argumentation of this paper,and get prepared for the following detailed discussion.The second part focuses on the definition of improper management of highways,starting from the analysis of the concept and characteristics of improper management of highways,according to the "eclectic theory".It is pointed out that there should be three basic characteristics such as the defects of the expressway itself or the absence of the management,the occurrence of damage results,and the causal relationship between the management vacancy and the damage.The concrete manifestations are six specific situations such as traffic accident damage caused by pedestrians and animals entering the expressway,traffic accident damage caused by prohibited vehicles entering the expressway,and traffic accident damage caused by obstacles on the highway etc.On the judgment of the legal relationship between the two parties,the author believes that it is not possible to generalize and It should be judged by specific circumstances,Some may constitute liability for breach of contract,some may constitute tort liability,and some are a combination of default and tort liability.The third part aims to demonstrate the source of management obligations of highway management units.This paper introduces the two main types "Chongqing model"and "non-Chongqing model".By analyzing the conceptual characteristics of the main body of civil legal relations and the general nature of traffic accident identification,it points out that the expressway management units are both enterprises and institutions.Both of them have corresponding legal obligations and are suitable litigation subjects.This paper combs the four main types and sources of the duties of safety and security,reminding and warning,road inspection and cleaning,and the duty of ensuring the integrity of roads and supporting facilities.The fourth part is the core part of this article,and is also the main focus of the dispute between the parties-the attribution mechanism.This part includes three levels of issues,the principle of attribution,the standard of measurement,the burden of proof.The author combs through the historical changes of the corresponding attribution principle,and then demonstrates the relationship between the levels and legal status of Article 37 and Articles 76 and 89 of the Tort Liability Law from two aspects:the content of the articles&style arrangement,and the legislator’s legislative intention.In this way,three types of attribution principles such as accidents caused by pedestrians entering the expressway,traffic accidents caused by road obstacles,and accidents caused by animals entering the expressway and inherent defects of the road are determined.The second issue is to discuss the criteria for determining whether highways have fulfilled their management obligations within a "reasonable limit".Starting from the basic point of urging the management department to fulfill its obligations diligently and preventing excessive burden of responsibility,the author believes that the highway itself should be fully pay attention to the high degree of closure,high risk and the inescapable nature of those responsible for management.Meet the general driver "high speed+safety" the basic pursuit of the highway,the priority of good management standards.In the specific operation,it is not only necessary to strictly examine whether it is professional and diligent,but also can’t "result theory",resulting in a de facto no-fault standard.Secondly,the author believes that special standards should be applied to the minors affected by the expressway and the perpetrators who illegally enter the expressway.Not only special protection for minors,but they also fully respect the "freedom" of adults in violation of the law,and they are given priority responsibility for their "freedom" behavior.And for the general regularized non-professional management behavior,it can’t be too harsh,should adapt to the general standards.The third issue is the allocation of the burden of proof.Considering that the victim’s evidence relies to a large extent of highway monitoring records and related personnel’s work logs,and according to the corresponding legal norms,the author believes that the burden of proof for the part of proving whether the business management unit has fulfilled its obligations is more appropriate to be provided by the business management unit.,If necessary,the people’s court may,on its own initiative,investigate and collect,or make on-the-spot surveys to verify the evidence.In the fifth part,aiming at the problem of system defects,the author puts forward some judicial suggestions such as expanding the scope of identification of the parties involved in traffic accidents and exploring the social security system of compensation for traffic accidents on highways.