Study On Concurrence Between Industrial Injury Indemnification And Personal Injury Compensation

Concurrence between the industrial injury indemnification and civil compensation, is one of the difficult problems in Civil Trial Practice and also the problem which has many argument on theory. To resolve the above problem appropriately is good for the protection of the industrial injury victims' legal rights,as well as the Employing Unit's legal rights.This article starts from the comparison between personal injury compensation dispute in a traffic accident case, then focuses on the research of right to claim indemnity to find the ideas and suggestion about the resolution.Also the aim of the paper is to resolve the disputes in the trail practice fairly and to maximum limit then to maintain the litigant (specially is industrial accident suffers injury worker) the legitimate rights and interests. This paper investigate the choice of new problem and difficult position in the appliacation of law when the concurrence happens between industrial injury insurance and civil compensation.As for the concurrence in the personal injury caused by the third party other than the employer, it does not belong to the discussion range of this paper. In the case of this article,the focal point is hot to identify the subject of compensation when the industry injury is caused by the right infringement of employer or the employee in the same unit. The Supreme People's Court's interpretation adopts the substitute pattern for the industry injury caused by the employer but it makes somehow unfair in the law's application even will cause the moral crisis.So it need to be explained extensively. The author thinks the right infringement caused by the employer in the industry injury insurance and civil compensation's concurrence should be divided into complete concurrence and incomplete concurrence. Then it can be applied in the law separately. In the theorists, the processing mode in the concurrence of industry injury's compensation right and civil compensation right has mainly four kinds: substitute mode, selection mode, supplement(partly substitute) mode and combined mode. Analyzes the above four kind of legislation pattern the good and bad points and the development course, simultaneously again competes the processing pattern developing process from our country related legislation regarding the workers' compensation insurance and the civil compensation which fashionable adopts to conduct the research, makes optimized in order to the plan choice. The author believed that, when the right infringement person is the employer or is the other workers who are employed in the identical employer, the complete and incomplete concurrence situation should be totally differentiated. Therefore, makeing concrete to present Supreme People's Court judicial interpretation stipulation, the proviso should be made on the Judicial interpretation's 12 the section. Regarding the civil compensation which should be taken by the responsibility subject other than the employer, the workers or their close relative can make the prosecution to request the responsibility subject for the civil compensation which has been deducted from the industry injury compensation. The legal right of the injured workers can be protected to the maximum limit under the existing law, simultaneous, it will not aggravate the employer the compensation responsibility .Finally, the author suggests to use supplement(partly substitute) mode in the future's legislation which is helpful to balance the benefits between employing units and the labors.