On The Choice Of Laws Between Workers' Compensation And Civil Damages

Since the Industry Revolution, the development of the human society is always accompanied by lots of on-the-job injury accidents. Not only hurts the laborers, on-the-job injury also puzzles the employers, society and the governments. It is often an important task for the theory circle as well as the practice departments to conduct researches on how to entitle the casualties to remedy and thus solve the social problems caused by industrial injury as much as possible. During the evolution of industrial injury system, there mainly developed two remedy systems, which are called Civil Damages and Workers' Compensation. However, as to how to make a selection between Workers' Compensation and Civil Damages so as to offer remedy of impairment to the casualty of on-the-job injury (to call as choice of laws in short in the following) still perplexes both the theory circle and practical departments. At present, there are altogether four legitimate models in the whole world and no agreement has been reached yet concerning with what is the best choice.With China's reform and opening up, lots of industrial injury accidents also happened, which caused great attention of the Communist Party as well as the government. After theWorkers' Compensation Act was formulated, the industrial injury becomes a hot spot of research and Choice of laws is one of the hottest focuses. However, China is relatively lagging behind in this area and no uniform model has been developed. On the contrary, different laws and regulations have been made by different departments, some of which even conflict between each other. Moreover, deeply affected by the theory of private law, civil substantive and procedural laws both surpass their positions, which lead to both the failure in economizing costs of legal system and the weakness of its function to protect the weaker parties. These faults exert a negative affect not only on the practice but also on the theory. So it is of great theoretic and practical significance to make a research and offer constructive suggestions on choice of laws.This dissertation, taking into consideration of legislative and judicial experience, brings forward a wholly new idea of legal remedy for on-the-job injury with the research findings of Social Law. That is, a dual adjustment pattern which giving a priority to regulation of law. In this pattern, Workers' Compensation is a common and first method and Civil Tort Damages are supplementary method with restrictions. Meanwhile, according to subjects who assume responsibility, the author divides legal relation of industrial injury into employer's tort and the third part's tort.This paper is composed of three parts.The first chapter is about the relation between Workers' Compensation and Civil Damages. The author first gives an introduction on the four legislative models in the world so that a clear understanding about the current theory and legal system can be got. And then, comparing with the four models, the author analyzes China's current legislation as well as the faults in it. Finally, the author studies the various factors affects the formation of such kinds of legislative models mentioned above, which can be a good guide for China.The second chapter is about the choice of laws providing the employer commit theVItort. In the first section, referring to the theory of standard law and from the visual angle of social law's opinions about nation and interest, the author, taking the history of industrial injury system and the needs of economizing costs into full consideration, brings about the adjustment pattern which gives a priority to Workers' Compensation In the second section, with regard to the fact that workers' compensation act can only serve as a standard and basic compensation and it does not have the function of preventing industrial injury accidents, the author brings about the idea that civil tort damages can serve as the supplementary method in some special situations so that corrective justice can be realized and the aim to balance interests and pre...