Chongqing Fifth Intermediate People's Court Judgment Tang Xiaolan v. Chongqing Jiulongpo District Economic and Data Commission House Damage Compensation Case

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If the file storage unit loses the personnel files of its workers, it shall bear tort liability, and in the event the personnel who have reached the legal retirement age can not get pleasure from the pension and health-related insurance coverage of the enterprise workers, they're able to refer towards the insurance coverage premiums of comparable personnel and related insurance coverage to decide the loss from the correct holder and judge Ordered by the archives preservation unit to create a one-time compensation.

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In December 1990, plaintiff Tang Xiaolan was transferred for the Chongqing Xingguang Thermal Electric Appliance Factory, a township-run enterprise, and his personnel file was received by the Jiulongpo District Township Enterprise Administration of Chongqing Municipality. The bureau's functions have already been changed numerous times by the defendant's Chongqing Jiulongpo District Financial and Data Commission. Due to the fact the defendant lost Tang Xiaolan's individual files, Tang Xiaolan could not take pleasure in pension and medical insurance immediately after reaching retirement age in September 2000. After becoming coordinated by the defendant, Tang Xiaolan only applied for pension insurance for over-aged men and women, and received a monthly pension of 500 yuan. This is clearly different from Tang Xiaolan’s month-to-month pension insurance coverage pension received by retired employee Li, whose age, work experience and seniority are related. . Tang Xiaolan's repeated claims failed, and filed a lawsuit inside the Jiulongpo District People's Court of Chongqing, requesting compensation for 70,000 yuan in pension losses from October 2000 to September 2009, and monthly compensation for 900 yuan of difference losses given that October 2009 Yu Yuan till Tang Xiaolan's death; in the same time, he requested to reissue the health-related insurance coverage private account storage quantity of five,000 yuan from October 2000 to September 2009 and reimburse the future medical expenditures.

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Just after trial, the Jiulongpo Court held that the defendant had failed to execute appropriate storage duties and lost Tang Xiaolan’s personnel files and needs to be liable for compensation. With regards to the loss of pension insurance, Tang Xiaolan’s pension insurance added benefits are affected by variables for example his operating years, payment standards and time, and policy modifications. Consequently, Tang Xiaolan’s lawsuit requesting the defendant to compensate his retirement salary loss on a month-to-month basis just isn't supported. Tang Xiaolan's present pension insurance for over-aged persons has created up for the loss to a specific extent. As for the healthcare insurance coverage advantages, Tang Xiaolan couldn't explain the calculation approach, typical and precise loss quantity of the healthcare insurance coverage losses he advocated. In view that Tang Xiaolan did in actual fact suffer financial losses, the defendant was ordered to award 30,000 yuan in compensation.

Tang Xiaolan refused to accept the judgment with the very first instance and appealed.

Soon after assessment, the Fifth Intermediate People's Court of Chongqing held that the defendant really should bear the liability for tort compensation for Tang Xiaolan in line with law. Refer to equivalent personnel with related experience to Tang Xiaolan's organization to figure out that the plaintiff's pension insurance coverage losses totaled 170,000 yuan; in line with the relevant healthcare insurance coverage policy, the health-related insurance treatment loss was determined to become 62,000 yuan, and Tang Xiaolan will go through the corresponding health-related insurance procedures to resolve Reimbursement of health-related costs within the future. The judgment from the initially instance was unfair and really should be corrected in line with law. He then changed the sentence for the defendant's one-time compensation for Tang Xiaolan's economic loss of 232,000 yuan.

Comment

The personnel file is a historical record of your employee's education, operate expertise, rewards and punishments, etc. It can be an important basis for personnel to spend social insurance and take pleasure in relevant treatment. In genuine life, the archives maintaining unit loses personnel files from time for you to time. In the event the file storage unit fails to fulfill its proper storage obligations, resulting in damage or loss of personnel files, it shall be liable for compensation. The infringer must initial bear the obligation to rebuild the archives and bear the associated charges, and lead to other losses towards the ideal holder, he ought to be liable for compensation. Mainly because the worth of an archive lies in the data it records as opposed to the archive itself, lost and damaged archives are various from other house damage compensation. They have neither industry value for reference, nor can they be determined through evaluation. How you can figure out the loss with the correct holder is definitely the difficulty of hearing such cases. In this case, the fact of infringement is clear, and also the essential is ways to identify the losses triggered by the plaintiff’s inability to enjoy pension and healthcare insurance remedy.

There is certainly a view that this case is an ordinary tort case, and the plaintiff need to offer proof to prove that each of the infringement damages constitute the vital components. The plaintiff ought to present proof to prove the fact of damage, like the scope and size with the harm. If the proof cannot be proved, the plaintiff’s claim ought to be rejected.

This view clearly violates fairness and justice, and is not conducive to resolving conflicts and promoting social harmony. The theory of tort liability law typically believes that if the fact of infringement exists, but the amount of harm caused by the infringement can't be determined or is hard to decide, if the special civil law (including the trademark law and copyright law) stipulates the principles and requirements of compensation, it must be in accordance together with the current In the event the law does not specify it, you may combine some indirect evidence and also other information on the case, comply with the skilled ethics of your judge, use logical reasoning and day-to-day life encounter, and adequately identify the amount of compensation that the infringer must bear.

In this case, Tang Xiaolan’s losses consisted of pension insurance therapy and healthcare insurance treatment losses.

Concerning the pension insurance coverage added benefits, as a consequence of the effect of several things for example operating years, retirement time, payment amount and years, social safety policies along with other factors on the pension insurance positive aspects, there are apparent individual differences that can't be accurately calculated, but it might be referred for the pension insurance positive aspects enjoyed by folks of age and work practical experience are determined. The plaintiff enjoys over-age pension insurance coverage. The difference between the pension plus the typical pension insurance coverage is usually regarded because the loss on the plaintiff. Combined with the typical life expectancy of our country, the defendant decides as soon as. Tang Xiaolan compensated 70,000 yuan of pension insurance losses from October 2000 to September 2009 and one hundred,000 yuan of distinction losses immediately after October 2009, for a total of 170,000 yuan.

About healthcare insurance remedy loss. Two elements had been considered inside the second-instance judgment. Initially, the plaintiff applied for higher-grade personal basic medical insurance coverage premiums. Because the plaintiff could not apply for employee medical insurance coverage, the defendant should pay the insurance coverage premium to Tang Xiaolan. Tang Xiaolan ought to go through the insurance coverage procedures in his own name to protect his future medical expenditures. Depending on the payment of personal fundamental healthcare insurance, the higher degree of insurance premium (about 58,000 yuan) is determined because the plaintiff's loss. Second, due consideration ought to be offered for the premiums for huge amounts of mutual medical insurance. In line with relevant regulations, even though participating in fundamental health-related insurance coverage, individuals can also participate in mutual help insurance coverage for large amounts of health-related expenses. This sort of insurance coverage is employed to cover portion on the medical costs with the insured personnel above the limit paid by the healthcare insurance pooling fund. recovery pen drive software free download of insurance is according to the typical social salary 1% payment, pay for life. Combined using the actual predicament of this case, it really is determined that the insurance premium for this insurance form is calculated till Tang Xiaolan reaches the typical life expectancy, which can be about 4,000 yuan. The total of the two products, the healthcare insurance coverage remedy loss is 62,000 yuan.

In summary, the losses determined by the second-instance judgment are affordable as well as the judgment is fair.

The case variety of this case: (2010) Jiufaminchuzi No. 1974; (2011) Yuwuzhong Faminjunzi No. 1809

Case writer: Hu Zhiyong, Fan Shiqiong, and Dai Zhenkui from the Fifth Intermediate People's Court of Chongqing Municipality