On The Relations Between Employment Injury Insurance And Tort Compensation

The thesis consists of 5 sections.Section 1 (The right to employment injury insurance being a part of the rights to social security) introduces a concise research into the social security system. It analyzes the legal relations in social security, and holds the view that citizens fall into the category of the subject of rights in social security, and the state and societal community the subject of liabilities. The section outlines the social security structures in a great many countries in the world. In accordance with the universally acknowledged classification, social security is classified into 5 categories: social insurance system, universal guarantee system, means-testing mechanism, public administered funds, and employer liability based scheme. According to the design of social security system and relevant provisions of the Labour Law, in China, social insurance is the main form of social security, and employment injury insurance constitutes a significant part in social insurance. Therefore, this section draws the conclusion that the right to employment injury insurance is one part of the rights to social security, and employees' entitlement to employment injury insurance is a fundamental right.Section 2 (Analysis of employment injury compensation) traces the origin of employment injury compensation system. Based on the differences in the liability entities and the liability principle, it classifies the basic mode of employment injury insurance into employer negligence liability based employment injury compensation, employer non-negligence liability based employment injury compensation, and social insurance based employment injury compensation. This section presents an analysis of the creation and development of these three schemes and outlines their common practices and features. Employer negligence liability based employment injury compensation has the longest history among the three. In effect, it means that the employee claims for damage for civil tort under the law concerning negligence-led tort. In accordance with the negligence liability principle, the injured worker has to prove the existence of tort arising from employer's negligence if he intends to claim for damage. Employer non-negligence liability based employment injury compensation is employer liability based employment injury compensation in its narrower sense. While maintaining employer as the sole liability entity, it applies non-negligence liability principle, and the employer is responsible for compensation for employment injury accidents. Employer's negligence is not required as a condition, and on the other hand, the employer cannot deny his liability for employee's negligence. This system takes in 3 forms at different period in various countries: a) employment injury compensation based on non-negligence liability of an individual employer, b) employment injury compensation based on non-negligence liability of collective employers; c) employment injury compensation of employer liability based commercial insurance. Social insurance employment injury compensation scheme isshortened as employment injury insurance scheme in the name. Despite that different countries differ somehow in their employment injury schemes, they share some common practices: it is compulsorily implemented by state law, some government departments or supervisory institutions take in charge of the employment injury insurance administration, and the auditing, examination and appraisal procedure concerning making claims are clearly laid out. The legislation has stipulated the coverage of employment injury compensation, including occupational hazards and occupational diseases. The fund is mobilized in a pool and the risks are mutually shared. All the employers covered by employment injury legislation have to participate compulsorily, and make their due contributions to the employment injury insurer in accordance with the law. The injury and death benefits should be borne by employment injury fund, medical costs could be borne either by the employer or em...