Industrial Accident Cognizance And Its Consummation Judicial Review Institution

The industrial accident cognizance is the most important links in the insurance system of the industrial injury. Meanwhile, the result is still can determine whether the injured laborers could be compensated and relieved and whether they should start tort lawsuit or administrative litigation. Therefore, the industrial accident cognizance is the prerequisite procedure of the whole protection system of industrial injury. But our country is making the transition now and national power resources and the institutional improvement are still undeveloped at present, therefore the industrial accident cognizance problem and drawback in various degrees exist in the system. This text attempts to start with the shortcomings of this system, discuss the standard of the industrial accident cognizance and its relieves. This text is divided into three major parts altogether:In the part one, I have mainly introduced the generalization of the whole protection system of industrial accident. This part includes three points. Firstly, the analysis on the quality of industrial accident. Understand each key word in the definition can reveal the answer to a riddle of the industrial accident."Industrial " has indicated that the identity of the subject that injured."Injured"contain that injured with the professional stake."Accident " has got rid of any situation of feeling sorrow for oneself on purpose of laborers. Secondly, it has introduced the historical evolution of the protection system of the industrial injury. From Simple laborers pay for their own to employers afford their responsibility on purpose, until the Appearance of the industrial injury insurance system,the development of the protection system of the industrial injury is the epitome of the development of whole social system. Finally, I described the protection system of modern industrial injury. The present industrial injury protection system mainly includes two parts: the insurance of industrial injury and tort compensation lawsuit. The two parts have complementary function, but they have their own orders of starting in practice. The main basis that divided them is their own function, the insurance of industrial injury has quickly and universally compensation functions, suitable for starting first. Compared with industrial injury insurance system, tort compensation lawsuit is more helpful for fully restoration of damage, but because its procedure is more tedious, it is suitable for being regarded as and compensated the means. The one that should pay attention to is, our country's legislates have ignored the status of the two. that is the reason that caused the confusion in practice, in the future it should be an important question of the reform.In Part two, the important point is the industrial accident cognizance system. This part is divided into four points. First, the property of the industrial accident cognizance. The industrial accident cognizance mainly means the action as affirmation ,cognizance and prove by legal organization according to functions and powers after the industrial accident happens. It was pointed out in"insurance regulations of the industrial injury"that our country's organization The labor guarantees section. In addition, from cognizance behavioral form and consequence, industrial accident cognizance could be considered to be one administration confirm behavior. If you want to understand the concept truly, we must distinguish industrial accident with industrial accident, because the two all have similar places crossing in view of formal, function. But they all have enormous differences in subject implemented, the concrete procedure and legal consequence. Second, the procedure that the industrial accident cognizance. The Procedure of industrial accident cognizance are similar with procedure of administration confirm , what we should pay attention to is the behavior of the industrial accident applicant is fixed and completed in the legal files, but it seems too simple in cognizance the organ behaviors. The reason is that the"industrial injury insurance regulations"is aiming in helping injured laborers with their insurance compensate, so the lacking of detailed rules and regulations becomes the bottleneck of the whole industrial accident cognizance system. Thirdly, the standard of the industrial accident cognizance. The standard is the key question of industrial accident cognizance, it mainly includes two respects, work relation establish and the substance cognizance. The tenable legal work relation is not only needs the right dose of subject of both sides, but also need the legal content and form. The reasons that harshly restrict the work range of relation in the law are protecting labors benefits and prevent accidents. The substance cognizance which called"analogous to cause and effect theory"mainly means that care little of concrete space-time factors and guide cognizance according to abstract theory. Analogous to cause and effect theory regulate that the establishing of industrial injury, must have two important document following at the same time. The injure had take place when laborers offering course of labor service and it happens when the laborer is working for the company , or the danger is foreseeable according to general experiences. In the real work of cognizance, we judge the properties of damaged according to these two important documents. Fourth, had pointed out the industrial accident recognized system's insufficiency with consummates the conception.In part three, I try to explain the judicial censorship of industrial accident cognizance. This part is divided into three points. Firstly, whether the industrial accident cognizance can be prosecuting. It comes from the prosecution ability of administrative action. According to this conclusion, I derived the primary lawsuit conditions of industrial accident cognizance. Second, the content of administration of justice and examines of the industrial accident cognizance. The content of administration of justice and examines is an important point of this part. Because the content and procedure have already been explained, this text discusses industrial accident of the difficulty cognizance the situation emphatically. For example, accident injuring in the scheduled bus, clause conflict of"insurance regulations of the industrial injury ", etc. these details analysis will be helpful in practice. Only the completion of relevant legislation could bring the completion of the whole industrial injury cognizance the system, and then will complete the judicial censorship system. Therefore, I am appealing for the legislation in the industrial injury cognizance as soon as possible. Third, the industrial accident recognizes in the judicial review the hard problem and the system is perfect. The content includes, the industrial accident recognized the industrial accident recognizes the difference, the industrial accident with"the kind"to recognize that the conclusion in the civil tort lawsuit's potency, as well as the industrial accident recognized decides after deliberation the power to abuse the judicial review freely. The lawsuit majority should after the workers' compensation insurance procedure conclusion, was also after the industrial accident recognized the behavior, this recognized that the result did not have the binding force to the court, the court to start own"the kind of industrial accident to recognize", this"recognized that"in fact was the court lottery ticket process, did not have the direct relation with the workers' compensation insurance system.