案情简介
1.基本案情
2019年4月，涉案烧烤店发生火灾，火灾烧毁烧烤店及其附近铺面合计15间，烧毁部分家具、电器等物品。后消防大队作出《火灾事故认定书》，认定起火部位在涉案烧烤店内，起火原因“排除放火、小孩玩火、吸烟、雷击、自燃等引发火灾的可能，不排除电气线路故障引发火灾的可能。”In April 2019, a fire broke out at a grill, which destroyed the grill and nearby stores, the number of burned rooms totaling fifteen. The fire also burned some furniture, electrical appliances and other items. Then, the fire brigade made the Fire Accident Identification Letter, identified that the initial point of spread of the fire was in the grill, the cause of the fire “Exclude the possibility of someone setting fire, children playing with fire, smoking, lightning, spontaneous combustion etc., but can not exclude the possibility of the fire caused by faulty electrical wiring.”
2020年3月，21名村民以被烧毁的15间铺面所有权人身份向法院起诉，形成业主索赔
案，诉请供电企业以及最先起火烧烤店经营者（承租人）承担房屋损失赔偿责任。与此同时，其他6名被烧毁铺面的承租人亦向法院起诉，形成租户索赔案，诉请供电企业以及起火烧烤店承租人承担因本次火灾对其造成的损失。租户索赔案中，法院依职权追加业主索赔案21名村民中除在租户索赔案中具有原告身份的2名村民外的其余19名村民作为租户索赔案第三人参加诉讼。In March 2020, 21 villagers sued the court as the owners of the 15 burnt stores to form an owner’s claim case, and requested the power supply company and operator (tenant) of the grill where caused the fire to bear responsibility for housing damage. At the same time, the other six tenants of the burned store also filed a lawsuit in court to form a tenant’s claim case, and requested that the power supply company and the tenant of the grill where caused the fire bear the losses caused by the fire. In the tenant’s claim case, the court ex officio added 19 villagers to the lawsuit as third parties, those who are the remainder of the 21 villagers in the owner's claim, except the 2 villagers with plaintiff status.
2.处理结果
本案诉讼经过一审、二审、重审一审三个阶段最终结案。重审一审法院认为：供电设施的运行维护管理范围，应按照产权归属确定。涉案电力线路产权不属于供电企业，故供电企业在本案中不应承担任何赔偿责任。业主索赔案，判决烧烤店经营者承担70%赔偿责任，同时判决业主自行承担30%损失；租户索赔案，判决烧烤店经营者承担70%赔偿责任，同时认定第三人应当承担30%赔偿责任，但未直接判决第三人对原告承担责任。
The lawsuit was finally concluded after three stages of the first instance, second instance and the retrial first instance. The court of retrial first instance held that the scope of operation and maintenance management of power supply facilities should be determined by the ownership of property right. The property right of the power line in question does not belong to the power supply company, so the power supply company should not bear any compensation responsibility in this case. In the case of the owner's claim, the grill operator was ruled to bear 70% of the liability, while the owner was ruled to bear 30% of the damages himself. In the case of the tenant’s claim, the operator of the grill was ruled to bear 70% liability, while the third party was identified to bear 30% liability, but the third party was not directly ruled to bear liability to the plaintiff.
2
法律评析
争议焦点一：本案起火原因是否可以认定为电气线路故障？Issue 1: Whether the cause of the fire in this case be identified as an electrical wiring fault?
本案中，消防大队作出的《火灾事故认定书》，认定起火原因“排除放火、小孩玩火、吸烟、雷击、自燃等引发火灾的可能，不排除电气线路故障引发火灾的可能。”那么，就该认定，在民事诉讼中是否可以直接等同于起火原因为电气线路故障？本案一审程序中，一审判决根据原告方主张，认定本案起火原因为电气线路故障。对此，供电企业不予认同：本案并无任何证据证明涉案火灾事故由电气线路故障引起；相反，有鉴定意见等相关证据能够证明本案火灾并非由电气线路故障引起，一审判决认定事实错误。In this case, the fire brigade made the Fire Accident Identification Letter, that the cause of the fire “Exclude the possibility of someone setting fire, children playing with fire, smoking, lightning, spontaneous combustion etc., but can not exclude the possibility of the fire caused by faulty electrical wiring.” In that case, can the cause of the fire be directly equated to faulty electrical wiring in a civil suit? The case in the first instance proceeding, the first instance judgment identified that the cause of the fire was electrical wiring fault according to the plaintiff’s claim. For this, the power supply company disagree and believed that: the case doesn’t have any evidence to prove that the fire accident was caused by electrical wiring fault. On the contrary, there is an identification opinion and other relevant evidence to prove that the fire is not caused by electrical wiring fault, the first instance judgment identified facts were wrong.
其一，本案有相反证据可推翻涉案《火灾事故重新认定书》。相关司法鉴定中心出具的《司法鉴定意见书》明确载明，本案没有证明火灾系电气火灾的一次金属熔痕；相反，具有证明火灾不是电气火灾的二次金属熔痕。根据《电气火灾痕迹物证技术鉴定方法》相关规定，能够说明火灾发生之前并未发生电力线路短路。就消防大队作出的《火灾事故重新认定书》，虽没有认定起火的具体原因，但认为不排除电力线路故障引发，这与鉴定意见存在直接矛盾，不应作为证据采信。同时，《火灾原因认定规则》(GA1301-2016)第8.1.4条规定，“对起火原因无法查清的，应写明有证据能够排除的起火原因和不能排除的起火原因。”该《火灾事故重新认定书》却公然违反前述规定，对没有证据排除的起火原因予以排除，对有证据（鉴定意见书）予以排除的原因（电气火灾）却不予排除，具有非常突出和明显的错误。
First of all, there is contrary evidence in this case to overturn the Fire Accident Re-identification Letter involved. The relevant forensic identification center issued the Forensic Identification Opinion Paper clearly contains that the case did not prove that the fire is an electrical fire of the primary metal melt mark. On the contrary, there are secondary metal melt mark which prove that the fire is not an electrical fire. According to the Technical Determination Methods for Electrical Fire Evidence relevant provisions, it was able to show that the fire was not preceded by a short circuit in the power line. In the Fire Accident Re-determination Letter made by the fire brigade, although the specific cause of the fire was not identified, it was believed that the power line failure is not excluded. This is in direct contradiction with the identification opinion and should not be accepted as evidence. At the same time, the Rules for Fire Cause Determination (GA1301-2016), Article 8.1.4 states, "If the cause of the fire can not be determined, both the cause of the fire that can be ruled out with evidence and the cause of the fire that can not be ruled out shall be written." The Fire Accident Re-identification Letter blatantly violates the aforementioned provisions, excluding the cause of fire without evidence, and not excluding the cause (electrical fire) with evidence (Forensic Identification Opinion Papery), which has very prominent and obvious errors.
其二，《火灾事故重新认定书》系如何作出的不明确，疑点重重，不能作为证据使用。具体表现为：没有任何证据证明该《火灾事故重新认定书》作出前根据《火灾原因认定规则》第4.2条、第5.3条由参加火灾调查的专家出具了专家意见，没有通过专家意见排除《火灾事故重新认定书》认定意见与物证鉴定意见之间的矛盾并与火灾事实相符；没有任何证据证明该《火灾事故重新认定书》可以排除“放火、小孩玩火、吸烟、雷击、自燃等引发火灾的可能”，没有任何理由说明在《司法鉴定意见书》认定本案没有电气火灾引发的一次金属熔痕而只有其他起火原因引发的二次金属熔痕的情况下，仍然“不能排除电气线路故障引发火灾的可能”的正确性。Secondly, it is unclear how the Fire Accident Re-identification Letter was made, this paper is doubtful and cannot be used as evidence. The reasons are as following: a)there is no evidence that an expert opinion was issued by an expert participating in the fire investigation in accordance with Rules 4.2 and 5.3 of the Rules for Fire Causes Determination before the Fire Accident Re-identification was made；there is no expert opinion to rule out the contradiction between the opinion of the Fire Accident Re-identification Letter and the opinion of the physical evidence identification which is consistent with the facts of the fire. b)Then there is no evidence to prove that the Fire Accident Re-identification Letter can exclude "the possibility of someone setting fire, children playing with fire, smoking, lightning strike, spontaneous combustion, etc.".c) in the case of the Forensic Identification Opinion Paper that there is no primary metal melt mark caused by electrical fire but only secondary metal melt mark caused by other causes of fire, there is no reason why it is still true that "the possibility of a fire caused by a faulty electrical wiring cannot be ruled out".
其三，《火灾事故重新认定书》系因烧烤店经营者提出复核申请而作出，未合法送达供电企业，不对供电企业产生法律约束力。Thirdly, the Fire Accident Re-identification Letter was made due to the review application submitted by the grill operator's, which was not legally served to the power supply company, it shall not have legal binding force on the power supply company.其四，《火灾事故重新认定书》关于“不排除电气火灾可能”的描述，是不能延伸解释得出“就是电气火灾”结论的，这是对文字表达应有的基本理解和基本的生活常识。Fourth, the description of the Fire Accident Re-identification Letter that "does not exclude the possibility of electrical fire" can not be extended to conclude that "it is an electrical fire", which is the basic understanding of the words and basic general knowledge of life.供电企业代理人认为，原一审判决对于起火原因为电气故障引起的认定显然依据不足。但是，在重审一审程序中，法院在进行判决时，回避了起火原因认定问题。The agent of the power supply company argued that the original judgment of the first instance found that the cause of the fire was electrical failure, which obviously did not have sufficient basis. However, in the retrial first instance proceeding, the court avoided the issue of the cause of the fire when making its decision.
争议焦点二：供电企业是否应承担本案赔偿责任？Issue 2: Should the power supply company be liable for the compensation in this case?
如争议焦点一所述，本案起火原因并不能认定为电气线路故障，无法认定涉案火灾事故与供电企业存在任何关联。退一步讲，假定本案事故系电气火灾引起，但鉴于起火电气线路系用户产权，且由用户管理维护，根据《供电营业规则》第四十七条、第五十一条等规定，供电设施的运行维护管理，以及在供电设施上发生事故引起的法律责任，按产权归属确定。就本案事故，供电企业依法不应承担任何赔偿责任。As mentioned in issue 1, the cause of the fire in this case can not be identified as a fault in the electrical wiring, and it also can not be identified that there is any connection between the fire accident and the power supply company. Even to say the least, it is assumed that the accident in this case is caused by electrical fire, but the property right of the electrical wiring on fire is owned by the user also managed and maintained by the user. According to Article 47 and Article 51 of the Electricity Supply Business Rules, the operation and maintenance management of power supply facilities and the legal liability arising from the accident on power supply facilities are determined according to the ownership of property right. About the accident in this case, the power supply company shall not bear any compensation responsibility according to the law.
3
管理启示
1.发生火灾事故后，各相关方应当及积极协助消防部门对火灾事故进行调查，对火灾事故认定结果有异议的，应及时申请复核1. After a fire accident, all relevant parties should actively assist the fire department to investigate the fire accident. If disagreement with the identification results of the fire accident, the party should apply for a review in time.火灾事故发生后，各相关方应积极配合消防等机关进行调查。在此过程中，需重点注意证据的收集和保全，尽量协助和促成消防机关正确认定起火原因，避免相关起火原因可以排除而不被排除，能够认定而不被认定。同时，相关方对于消防机关在火灾事故认定书中所认定的起火原因有异议的，应当在火灾事故认定书送达之日起十五日内，及时提出书面复核申请。After a fire accident occurs, all relevant parties should actively cooperate with the fire department and other organs to conduct investigations. In this process, all relevant parties need to focus on the collection and preservation of evidence, and try to assist and facilitate the fire organ to correctly identify the cause of the fire, so that avoid the causes of fire can be eliminated but not eliminated, and can be identified but not identified. At the same time, the relevant parties have objections to the cause of fire identified by the fire organ in the fire accident identification, should promptly submit a written application for review, within fifteen days of the date of delivery of the fire accident identification.
2.供电方和电力用户在《供用电合同》中应当明确产权分界、运维责任、事故责任2. The power supplier and the power user should clarify the demarcation of property right, operation and maintenance responsibilities, and accident responsibilities in the Power Supply Contract.在建立供用电关系时，供电企业与用户应当对电力设施产权分界、管理维护、出现事故的责任承担等问题进行协商，并明确约定在《供用电合同》中。多数的《供用电合同》以供电方格式合同的形式出现，对于格式合同，法律有着特别规定，需要依法操作。在签订时，对于重要的条款，供电方应当明确标出，并对用户进行提示说明；对于责任划分的条款，应当依据《电力法》《供电营业规则》等规定依法进行约定。When establishing the electricity supply and consumption relationship, the power supply company and the customer should negotiate on issues such as property right demarcation, management and maintenance of power facilities and responsibility for accidents, these conventions should explicitly agree on the Power Supply Contract. Most of the Power Supply Contract are format contract provided by the power supplier, for which the law has special provisions and needs to be operated according to the law. When signing, the power supplier should clearly mark the important terms out and prompt the user with instructions. The terms of responsibility division also should be agreed according to the Electricity Law, the Electricity Supply Business Rules and other provisions.
3.对司法不公应坚决维权到底3. The parties should firmly safeguard their rights against judicial injustice to the end.对于公正司法，党中央三令五申。最高人民法院在《关于在人民法院工作中培育和践行社会主义核心价值观的若干意见》中亦指出，“公正是法治的生命线，是司法公信和司法权威的基石。要以严格司法规范司法行为，审慎行使自由裁量权，确保公正司法。要坚持实体公正与程序公正并重，处理各类诉讼案件，要坚决做到认定事实清楚，适用法律正确，裁判结果公正，审判程序合法，裁判说理充分，法律文书规范。”但实践中，部分地方法院在进行案件审判时，时常出现基于同情受害方或者为了所谓“案结事了”的社会效果，在裁判时偏袒受害方或者弱势一方，而有的当事人在明显不应承担责任的情况下被迫“分担”案件责任。这样的判决实际上鼓励和支持了“谁死谁有理，谁弱谁有理”的不当价值取向和不良社会风气。对此，作为诉讼参与人，在遇到相关不公正的裁判后，应积极采取措施维护自身权益，及时通过上诉、申请再审或者通过申请抗诉等程序维护自身合法权益。For fair justice, the Party Central Committee repeated it many times. The Supreme People's Court in "Some Opinions on Cultivating and Practicing the Core Socialist Values in the Work of the People's Courts" also pointed out that "Justice is the lifeline of the rule of law, is the cornerstone of judicial credibility and judicial authority. To strictly regulate judicial behavior, the prudent exercise of free jurisdiction power to ensure fair justice. To adhere to substantive justice and procedural justice, handling all kinds of litigation cases, to resolutely achieve a clear determination of the facts, the application of the law is correct, the outcome of the decision is fair, the trial procedure is legal, the decision is fully reasoned, the legal instruments standardized." However, in practice, some local courts when adjudicating cases, often appear to be biased in favor of the injured party or the weaker party based on sympathy for the injured party or the social effect of so-called " Case Closed with Matter Resolved", while some parties are forced to "share" the burden of the case when they clearly should not. Such a verdict actually encourages and supports the inappropriate value orientation and bad social culture of " The dead and the weak are more justified ". In this regard, a participant in the lawsuit should actively take measures to protect their rights and interests, timely through the appeal, application for retrial or by applying for a protest and other procedures to protect their legitimate rights and interests after encountering the relevant unjust decision.本
案案件承办人为许灿虎、汪卫平律师。The case undertakers of this case are lawyer Xu Canhu and lawyer Wang Weiping.
本期撰稿：许灿虎
本期译稿：张 川、解 佳
本期编辑：尤 喆
