On The Application Of Concurrence Between The Liability For Work-related Injury Insurance And The Civil Liability Under The Circumstances Of The Tort By The Third Party

The work-related injury caused by the third party infringement belongs to legal relations, that is, social insurance law and civil infringement indemnification. When the third party inflicts an injury or injuries on victims during the work, the victims can demand the employer s and the fund for compensation for work-related injury insurance in accordance with work-related injury insurance law. They can also demand the infringing party for civil compensation in accordance with tort law. Facing the situation of the concurrence between the two rights of Claim, how to apply the law, current Chinese laws stipulations of this settlement are short of explicit provisions. Therefore, according to the legal application and practice of work-related injury resort, the author provides the theory basis of the"Double Modes". At last, the author mentions the concrete speculations.Chapter One introduces work-related injury and the work-related injury insurance, the history of work-related injury insurance and its significance. Firstly, it defines the concept of work-related injury and the work-related injury insurance; then, it briefly introduces the development of work-related injury system and the legislation significance of establishment of work-related injury system since the foundation of People's Republic of China.Chapter Two summarizes the different settlement patterns of the concurrence between the compensation for work-related injury insurance and the civil compensation in the world. The thesis introduces four patterns and the theoretic basis followed by other countries, then, analyzes the advantages and disadvantages of them.Chapter Three analyses the legislations and relevant judicial practices in this field in our country. Firstly, it combs and compares the relevant provisions which are similar to the concurrence, and judges the present legislative trends. Secondly, it reveals the completely different pattern and procedure of compensation of dealing with this issue in our judicial practices.Chapter Four proves the"Double Modes"to be an optimal pattern of resolving the issue. This part is the key of the article, which is analyzed from legal principle,protection of workers' rights, interests, Chinese condition and so on.Chapter Five further discuses the application of the"Double Modes". Firstly,"Double Modes"can not be used under the case of the work-related injury caused by the employer, but by the third party infringement. Secondly, it defines the scope of compensation of the"Double Modes", and proposes a theory of"Limited Double Modes", that is applied the"Double Modes"to the physical nature of damage and applied the"Selection Mode"to the property nature of damage. Thirdly, it can neither force civil compensation to be placed before the work-related injury insurance compensation nor force the work-related injury insurance compensation before the other. Otherwise, it will not be helpful to take advantage of the both systems.Chapter Six summarizes the current legal problems of the application and raises the future legislative proposals. Firstly, it summarizes the vague legislation in our country and different courts'rulings from region to region. And represents that victim can not be compensated when mentally damaged because of the contradictive legal terms. Secondly, in order to improve the use of the"Double Modes", it puts forward several proposals for future legislation. It should make clear the use of the"Double Modes", and make new determination of the nature of the disability benefits and death compensation. Finally, it proposes a unified framework of the compensation for work-related injury insurance.