Change on the roads

By Pan Haixia

Shanghai Star. 2005-01-13

DRIVERS who collide with cyclists or pedestrians could face charges of up to 90,000 yuan (US$10,800) to compensate their victims, even if they aren't at fault for the accident, according to a draft version of the city's new traffic regulation.

Of this sum, 40,000 yuan (US$4,800) would be covered by Public Liability Insurance, a compulsory insurance scheme covering all drivers in the city. The remaining 50,000 yuan (US$6,000) would probably have to come out of the drivers' own pockets.

Shanghai is the third area in the country - following Beijing and Jiangsu Province - to formulate its regional traffic regulations after the national Traffic Law, which was passed in December 2003 and maps out the basic principles.

The national law has made it clear that if an accident occurs between an automobile and a pedestrian (or a cyclist), it is the automobile driver who has to take responsibility.

Such responsibility may be reduced if the driver has evidence showing the pedestrian violated traffic laws, that the violation at least partly accounted for the accident and that the driver took all necessary measures to avoid a collision.

The only exceptions, in which drivers would shoulder no responsibility, are those accidents deliberately caused by the pedestrian or those involving parked cars.

Blameless drivers

The new rules represent a big change to the old traffic regulations, which judged the allocation of responsibility simply by the degree of fault found on either side when an accident occurs. The old regulation, issued by the State Council in 1991 and still in use today, has been subjected to increasing criticism from academic commentators.

Based on this regulation, in 1999, Shenyang in Northeast China's Liaoning Province drafted a regional rule entirely exculpating drivers in cases where an accident was caused by pedestrians breaking traffic rules. It wasn't long before many other cities followed suit, including Shanghai.

One representative case was found in Central China's Henan Province in 2001. A woman accompanied by her young son crossed an expressway away from the proper crossing. As she was climbing over the fence to leave the road, the boy was struck by a fast-moving car. The court judged that all responsibility lay with the pedestrians because they had violated the traffic rules, so the driver had no responsibility to pay any compensation.

According to the old practice, blameless drivers had no responsibility to make any compensation payments unless serious injuries or death had occurred. In these cases, the payments were called "moral compensation", said Sun Jianxin, a director with the Legal Office of the Shanghai Public Security Bureau.

"The implication was actually that a pedestrian's right to live could be equated with a driver's right of way, which is inhumane," said Ding Wei, an official with the Shanghai Municipal People's Congress (SMPC).

"When an accident occurs, pedestrians are almost always much more seriously affected than drivers. Fortunately, the new national traffic law, to be implemented in May, has given full attention to this problem. One radical change is that drivers are now assumed to bear greater responsibility for accidents than pedestrians or cyclists."

Drivers' concerns

Despite the fact that academic experts have warmly welcomed the changes, many drivers have found the new principles hard to accept, after having become accustomed to the old standard over many years.

Lu Fengming, a white-collar employee of a local joint venture, bought his car two years ago. He said: "It is unfair. I can understand the law's intent to protect vulnerable pedestrians. But is it fair to penalize a law-abiding driver for an accident caused by jaywalking pedestrian who suddenly dashes out into the road?"

According to the draft version of the regulations, which was submitted to last week's regular meeting of SMPC for the first review, Public Liability Insurance can cover a maximum of 40,000 yuan (US$4,800) compensation. But in Shanghai, the compensation for traffic accidents resulting in fatalities can be as much as 400,000 yuan (US$48,000). How to cover this gap has become a matter of deep concern among local drivers.

According to the regulations, there are two special circumstances in which the responsibility of drivers will be greatly reduced.

The first is when accidents occur on enclosed roads such as expressways, where pedestrians are prohibited entirely (so in any accident the fault lies predominantly with pedestrians). Even in these cases drivers must have taken all possible measures to avoid accidents if they are to be considered blameless.

In such accidents, if compensation to the victim, based on the calculations of judicial sector, exceeds the level covered by public liability insurance, the driver needs only pay 5 per cent of the excess, to a maximum 10,000 yuan (US$1,200).

The second circumstance is when pedestrians are entirely to blame for an accident, due to violation of traffic rules - for instance, by jaywalking - occurring on a non-enclosed (ordinary) road and the driver takes all possible measures to avoid a collision. In these cases drivers have up to 90 per cent of their responsibility eliminated and the upper limit of their compensation liability above and beyond the level of public liability insurance cover is restricted to 50,000 yuan

(US$6,000).

"But even this 10,000 (US$1,200) or 50,000 yuan (US$6,000) is by no means a small sum, especially when the driver bears no fault for the accident," Lu said.

"It is impossible to buy commercial insurance to cover this risk, since commercial insurers, in contrast to liability insurance, only pay out for traffic accidents in which drivers are found at fault."

Responsibility on roads

This issue also stimulated heated discussion when reviewed at the SMPC meeting. Some worried that a new type of "unfairness" could result, an anxiety echoing the many complaints from automobile owners and taxi drivers.

However, in the eyes of Huang Yu, vice-director of the Legal Affairs Committee of the SMPC, it is proper for the law to place greater responsibility with automobile drivers.

"According to China's General Principles of the Civil Law, people doing dangerous work such as those involving flammable, explosive or poisonous substances ... or high speed vehicles, should bear the civil responsibility if their activities damage other people, unless there is evidence showing that the damage was deliberately caused by the victim," Huang said.

"It is quite reasonable for those who drive automobiles, which by their very nature pose risks to others, to take more responsibility on the road."

The new national law represents great progress by showing the country's respect for the weaker party, commented Wu Dong, a lawyer.

"Laws always play an important role in guiding people's actions, and this law will no doubt lead more Chinese drivers to be careful on the road."

Reasonable road design

But Wu said some of the urgent changes needed went beyond legislation, for instance in the country's road infrastructure. Problems here include the flawed design of traffic lights - which sometimes change too quickly - dangerously narrow pavements, a lack of cycle-lanes and badly located crossings which unnecessarily inconvenience pedestrians, encouraging them to jaywalk.

"If all these issues can also be dealt with, long existing road safety problems may show some definite improvement," he said.

Official figures show that the city had over 24,600 traffic accidents last year, about 2,900 between automobiles and pedestrians or cyclists.



Copyright by Shanghai Star.