| Under the background of sustained and high-speed development of China’s economic development, as one of the metropolitans who sits at the front line of China’s economic development, although Shanghai has actively and intentionally took measures to control the number of motor vehicles, the uptrend of motor vehicles quantity seems difficult to be effectively curbed. The swift increase of motor vehicle quantity leads to a deterioration of transportation conditions, a continuous increasing of motor-related transport accidents and a continuous large number of death and personal injuries cases. The most prominent problem is the increasing proportion account by the claims for personal injuries in the total claims under motor insurance of various insurance companies. These accidents and claims are of importance and difficulties in motor insurance claims of various insurance companies.The indemnity of personal injuries of motor insurance is becoming a problem of social well-being. The high loss ratio in this regard has raised the premium rate of motor insurance. The cost of claims is growing with the economic development. Also, the frequent fraudulent claims caused a lot of undue indemnities which seriously infringe the insurance company’s profit and the vehicle owner’s interest who shall be subject to the burden of high premium rate. This fact is actually endangering the sustainable and stable development of the motor insurance industry and therefore hampered the construction of China’s harmonious society.The author is graduated in the major of forensic medicine and has ten years claims service work experiences in insurance company circle, and has focused on the relatively high loss ratio of Shanghai motor insurance personal injuries claim in a long term manner. Through analyzing abundant "first-hand" data and precedents which collected from CIRC Shanghai, Shanghai Insurance Association, property and casualty insurance companies and brokers, together with the author’s personal practical experiences, the author has carried out a relatively solid and meticulous research for judicial identification of personal injury and related legal countermeasures about the indemnity of personal injuries of motor insurance. Therefore this paper intends to start from the following three aspects.Section one, analyze the problems and reasons of the judicial identification of the motor insurance claims.Current market competition and identification of institutions who pursuit the profit and other factors leads to the judicial identification of market chaos layer and the problem identification continues to appear. To analysis the main reasons, there are the following seven aspects.1.the choice of assessment time has a greater impact on the identification conclusions.There is no authoritative department in our country to make a specific, standardized interpretation of the evaluation time. In actual operation, the identification of the end of clinical treatment for the same object was always different conclusion by expert witness’ different understanding and cognition. In addition, the differences of the rehabilitation time and rehabilitation results of different patients were also different, and due to the large time span, the conclusion of the re appraisal is not consistent with the conclusion of the initial identification.2. unilateral application by the injured person.In accordance with the existing road traffic accident process in Shanghai, the injured could require traffic accident treatment department to issue a disability letter of authorization or recommendation and he can choose the judicial identification institution by himself. However, this free choice of practice has many drawbacks. Firstly, some injured compare the number of identification institutions conclusion, or take a bride to the expert witness to get the higher grade identification. Secondly, most of the identification institutions are self financing entries and they would like to show good to the application to get more clients. Thirdly, “personal injury scalpers” will pursue the familiar judicial identification to see for higher grade identification.3.the problem of different the expert witness’ qualities.In the current judicial appraisal management standard, there is no specific requirement for the expert witness’ legal literacy and ethics of the personnel.For example, for some identification institution which usually is called as social institution, mostly they are operated by hospitals or companies with the characteristics of anchored or contracted operation. So the daily identification skills and legal literacy and ethics are controlled by the expert witness himself, and this is easy to appear different expert witness’ qualities situation. In addition, these institutions completely rely on the market, they usually provide the lower identification and with high rate of distortion.4. the evaluation criteria of degree of disability are too old to be optimized and improved.Firstly, because of the passage of time and the corresponding interpretation standard are not detailed enough and other reasons, the content of assessment of disability for road traffic accidents in our country could not be adapted to the current situation. Secondly, for the judicial expertise opinion about the injury mostly will be decided by the expert witness’ subjective cognitive level for the injury participation rate. The result is often quite different from the different expert witness’ judicial expertise opinion.5. the problem of the difference between subjective judgment and objective facts.The disability degree assessment or identification is a professional knowledge of personnel based on the corresponding objective material to make the identification, the subjective cognitive explanation. Only by the experience of the expert, too much dependence on the identification of the subjective examination, the result is that each of the identification of a different conclusions. It is hard to find if the expert witness negligence or intentional concession.6. the expert witness disdains to appear in court, it is not easy to apply for the re-identification.According to the existing legal provisions and judicial practice, the judicial relief measures for the judicial identification of the views are mainly the following two:The first one is the confrontation of the expert witness appearing in court or with the assistant of the professional expert. But in the judicial practice, the expert witness seldom appears in court, and the professional expert wouldn’t like to appear in court either. So in generally, the parties or the courts are more inclined to re-identify. The other one is about re-identification. In current law, there are no clear rules about what kind of situations can be re-start the process of identification, and no clear legal basis about the related judging standard and how to choose the identification institution and expert. This is easy to bring the doubt for the judicial identification opinion and the justice of court decision.7.the absence of administrative supervision and self-discipline management.As a professional technical field of activity, it is quite difficult for judicial expertise to supervise the administrative supervision. Supervision and management are often not implemented. It is difficult to effectively monitor the quality of the disability appraisal. It is also difficult to carry out substantive supervision and restraint to the identification of institutions and the identification of human behavior. And the judicial authentication Association, as the industry self regulatory body, the legal effect of the punishment circular is lower, and the problem of the professional technical field is obviously insufficient.Section two, foreign experience for reference.1.the experience in Holland and Germany.China is a country of continental legal system which is the same with Holland and Germany, compared the judicial identification of people’s assessment of access standards, Holland and Germany have a higher standard.The first one is Holland experience. Firstly, in Holland, the judicial identification of the access and assessment has the higher requirements, the richer training content and longer time span. Beside the necessary areas of knowledge and experience in the implementation of the identification of the practice, the expert witness is also required a certain knowledge of the relevant laws. Secondly, it is qualification period. Generally, the judicial expert witness qualification certificate and registration is valid for 4 years, after the expiration, they need to re apply for registration. This means that qualification is not is for life.The second one is Germany experience. The judicial expert witness should be divided into different levels according to public trust from high to low, the higher the level, the higher the requirement on integrity and moral conduct to the expert witness. For the highest level expert witness, who is not only strictly required the professional technical knowledge and legal regulations of the assessment, but also investigated the integrity of the applicant’s past and moral conduct. Secondly, the applicant must make a public oath before the applicant. Finally, the German litigation law also gives the specific provisions of the priority to choose the high level expert witness.2.the experience in South Korea.In the early years, the situation of insurance fraud in South Korea is similar with our current situation. Therefore, it is realistic significance to understand the solution of South Korea.Firstly, it is organizational structure security. They establish the department of the special event of joint insurance policy, different departments cooperate together. Secondly, they establish the insurance fraud identification system to analyze the investigation information for insurance fraud comprehensively, such as insurance contract, accident and insurance payment. It can realize trending analysis and early warning, and search for the collusion between the suspects. Furthermore, they establish the insurance crime reporting center. General publish is widely appeal to provide information and clues, if the information is helpful to expose the suspects, all of insurance association and companies will provide reward.Section third, realize the countermeasures research for the judicial identification of the claims.1.the unified Judicial Identification Law should be formulated to realize strict legal regulation.In the case of the current judicial appraisal activities, we should speed up the establishment of a unified Judicial Identification Law or approve the local legislation in advance, and the following aspects of regulation,Firstly, we should improve the judicial identification of the access standards, and strengthen the judicial identification of people’s basic quality requirements. Secondly, we should unify the application of forensic identification, commissioning, acceptance, the implementation of the standard of operation to exclude the interference of human factors on the judicial appraisal conclusion. Thirdly, we should construct multi levels of judicial appraisal system:(1) to classify the judicial expertise and institution;(2) To support the authority of the identification of institutions, improve the mechanism of re appraisal review;(3) To establish the authority of the individual "national team" rating agencies in certain appraisal projects, in some projects, the identification of the institution is only accepted by the re appraisal or the court’s commission.In addition, we should also develop a standard specification for collecting opinions for judicial identification.(1) We should make the collecting opinion standard for judicial identification and also make the expert witness appearing in court rules by the courts and judicial administrative agencies together.(2) We should establishment of medical professional and technical officer system.(3) We should establish special supervision and management mechanism.(4) We should establish a clear judicial expert responsibility system, and the wrong identification and correction mechanism.The oath method is helpful to remind and bind the expert and is able to uphold the law’s authority. Therefore, it is feasible to build an oath measure for judicial expert.2.make Anti Insurance Fraud Laws, and establish anti insurance fraud system.First of all, we should formulate a unified Anti Insurance Fraud Laws, clear the concept and scope of the insurance fraud, which is good for the competent department unified understanding of the insurance fraud and take effectively action. Secondly, we should establish a network platform for the anti fraud work of the judicial identification, and shear the exchange information to the corresponding department. Thirdly, establish the reporting center of the judicial identification to realize prize report to achieve the social effects of prevention and treatment.3.improve the self regulatory mechanism of the judicial identification industry and strengthen the administrative supervision and control mechanism.To develop a complete set of administrative measures to improve the supervision and control of the whole course of the judicial expert witness and the institution, in order to improve the internal self-discipline mechanism and external supervision mechanism:(1) To strengthen the construction of morals, advocating perfect self-discipline management mechanism.(2) To strengthen the linkage supervision and management mechanism, such as the establishment for the identification system and the identification of the black list system to assess each identification mechanism and expert witness publicly.4.strengthen the internal construction of the insurance industry and explore new mechanisms for dealing with disputes.Establish a complete insurance claims operation system and dispute settlement mechanism, and cooperate with the judicial system to reduce the judicial resources occupation from motor insurance claims.Firstly, we can build a special network data platform for motor insurance injury cases, with the way of big data analysis, supervise the whole judicial process, to enhance the transparency of judicial identification and improve the objective justice. Secondly, we can establish a new type of quick handing mechanism for insurance contract disputes, and considering from the timeliness, impartiality, authority, legitimacy of the multi dimension considerations, it is a good way to set up a special arbitration court.This paper mainly focus on the detailed discussion and analysis of improving the thinking and strategies of judicial identification of personal injuries claims under motor insurance by using the methods of original analysis and empirical analysis, learning from the judicial identification systems of Holland and Germany, the Korean insurance anti-fraud measures. This paper also provides relevant legal strategies and suggestions from multiple aspects of system, policies and techniques to the aforesaid issues to improve the jurisprudence and authority of judicial identification and promote the advancement of anti-fraud business in motor insurance claims and the steady growth of motor insurance for further realization of the value of judicial identification, the maintenance of China’s justice and the construction of a trusty and harmonious society. |
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