Research On The Relief Of Employment Injury Insurance For The Post-substituted Interns Who Suffered Occupational Injury

The post-substituted interns mean graduating students of colleges and universities who have finished all the theoretical courses at school,and then accept the arrangement of school to start a long term and full-time work in the employer with the purpose of obtaining employment.This kind of interns can basically replace the regular staff to work in the post,and the content,requirements,intensity of the work are the same as those of the regular staff.Due to the distinct particularities of the post-substituted interns,the argument about whether the interns have identities of laborer or not,establish labor relationship or not,and undertake relief through employment injury insurance or not never stops.There are positive and negative opinions on these issues.The current labor laws in our country lacking of corresponding constraints and guidance,which make interns excluded from the protection of labor law frequently.So the current mainstream academic viewpoint insists negative side.Among the 50 cases searched by author,the intern got relief through tort damage compensation rather than employment injury insurance after they suffered occupational injuries.Although tort damage compensation can make interns to get the corresponding compensation in a certain extent,but compared with the simple and efficient system of employment injury insurance,tort damage compensation have the disadvantages of high cost,long period and great uncertainty.Obviously,it cannot protect the post-substituted interns who as the vulnerable groups in an effective method.On that account,the author tries to provide some theoretical support for the inclusion of post-substituted interns into the insurance coverage of employment injury insurance from the perspectives of theoretical standards and practical standards.Studying the case of Mr.Hang v.Chuangyu machinery company,based on relevant theories and existing laws,this paper analyzes the legal issue of the interns whether or not can obtain compensation of the employment injury insurance after they suffered occupational injuries.The paper mainly uses the literature-research method and case-study method to have a discussion,and through the mode of “Induction—Deduction—Induction” to write the content.The whole paper can be divided into three parts except the introduction.The first part is a specific introduction of the case,briefly describes the basic facts of the case.Then author extracts the main issues according to the case in this paper.The main issue is the interns whether or not can obtain compensation of the employment injury insurance after they suffered occupational injuries.The key to solving this issue is to recognize the identity of post-substituted interns and the relationship between interns with employers.The second part is the analysis for the basic concepts in the case.This part analyzes the concept of the post-substituted internship and distinguishes it from the educational internship,work-study program.Meanwhile,this part defines the post-substituted intern's legal identity that he can be identified as the special worker.What's more,this part compares the three main relief approach in China to prove the superiority of employment injury insurance and elaborates the implementary actuality of relief approach for the post-substituted interns.The third part as main body of this paper,analyzes the laborer' qualification,the subordination of labor relationship,Notice on Matters Relating to the Establishment of Labor Relationship,the identification of employment injury accident.After the detailed analysis,this part elaborates the legitimate reason of post-substituted interns can be included in the coverage of employment injury insurance.At last,this part makes a comprehensive analysis of the court's wrong viewpoint in the verdict and summarizes this case.The fourth part is a conception about the employment injury insurance relief system for post-substituted interns.This part puts forward the four concrete measures to establish this system,namely the legislators should define the status of intern as laborer and these interns should be included in the coverage of employment injury insurance.In addition,the legislators should also determine the reasonable payment standard and payment subject of employment injury insurance for these interns.Finally,it is necessary to enact the scientific compensatory items and compensatory standards for them.