A Study On The Legal Regimes On Remedies For The Injured At Work

The legal regime on remedies for work-related injury refers to such a legal regime as apply to the remedies or compensation to the employee injured at work after such work-related accident. At present, the legal regime on remedies for work-related injury as recognized by the People's Republic of China (hereinafter "China") mainly include the legal regulations on the compensation for work-related injury, the insurance for the employer's liability as well as the work-related injury insurance, etc. The legal regime on remedies for work-related injury involves the contract law, tort law, labor law as well as the social security law, and in most cases is put on the verge of theoretical research, thus the research achievements thereon are almost fruitless. The problems existing in the remedial regime of our country are as follows: in the legislation, the regulations on the compensation for work injury are rather complex and confusing, the social security regulations on the work injury insurance are relatively weak, it is difficult to identify a legal foundation for the claim for the work injury relief, and the rights of the injured employee is hardly guaranteed;in the judicial practice, especially on the determination of the work injury insurance treatments, the responsible subject and the remedial scope in the cases of remedies for work injury are currently identified based on the imputation principles and compensation standards established by the traditional tort law, thus making the enterprise generate a feeling to defy the current legal regime on the work injury insurance, the relationship between the employees injured at work and the enterprise an outstanding social issue which is the key factor creating conflicts and giving rise to appeals, as well as directly affecting the social harmony and the national economic development. Therefore, the author attempts to identify the existing problems in the legal regime on the work injury remedy of our country and to propose an acceptable solution thereto through the jurisprudential and value orientation analysis of the key legal regime on the remedy for work injury, and in the light of the judicial practice of our country, and also put forward certain suggestions for improving the legal regime on the remedy for work injury of our country. This whole article is made up of four parts and has about 45,000 Chinese characters.The Chapter 1 is about the key legal regime on work injury. The basic legal regime on work injury mainly includes the following: the definition, scope of the work injury, the identification of work injury, as well as the labor capability, etc, which are the legal foundation for the exercise of the claim for remedies for work injury. This Chapter, through analysis and elaboration on the said legal regimes, identifies the defects of the legal regimes and proposes certain improvement suggestions.The Chapter 2 is about the formation and evolution of the legal regime on the remedies for the injured at work. In general, the regime on the remedies for the work injury has experienced such an evolution process as from the blank to the availability, from the fault-based liability to the non-fault liability, as well as from the sole model to the combined model. The existence of each kind of the remedial regime which is deeply influenced by the relationship between the employees and employer, the social and economic development plays a significant role in the ease of social contradictions. The compensation for injury at work and the insurance indemnity for the work injury are the two basic models of the legal remedial systems for work injury. However several issues, including without limitation the unclear application criteria and improper remedial philosophy, exist in the legal remedial regime of our country for the work injury, which adversely affect the effects of the currently available remedies.The Chapter 3 is about the scope and criteria of the remedies for work injury.Owing to the difference between the philosophy and functions of the two models of work injury remedy, the scopes and criteria thereof are surely not identical. The nature of the remedy scope is determined after comparing the scope and criteria of the work injury remedy, which is vital to the resolution of the concurrence of rights in the cases of remedies for the injured at work.The Chapter 4 is about the concurrence of rights in the remedies for the injured at work. The concurrence of rights in the remedies for the injured at work is not only disputed in the theoretical doctrines, but also is a rough issue existing in the judicial practices of the remedies for the injured at work. The Chapter, through a theoretical analysis on the claim right concurrence, points out that the remedy for work injury of our country shall adopts the "the doctrine of free concurrence of the claim", and in the light of the nature of the scope of such remedies and the theories on the remedies of the same kind, concludes that the comprehensive model of the "supplementary doctrine" shall be adopted in determining the scope and criteria of the remedies for work injury in our country.