| Industrial injury is one of the crucial social problems in industrial society. For industrial injury compensation, the mechanism of compensation is changing from single way of regulation of traditional tort law to multiple way of regulation mechanism. In modern society, industrial injury compensation mechanism stretches to many fields like commercial insurance law, social security law and violence of behavior rights. One injury accident may have many kinds of compensation because industrial injury compensation has a double feature of industrial insurance and tort compensation. And therefore, it leads the overlap of commercial insurance compensation and tort compensation. It has not been clear in law in dealing with the two kinds of mechanisms in our country, and it brings difficulties in legal practice.Based on the basic problems like the definition of industrial accident and industrial injury, I explained the present condition of overlap of compensation in industrial insurance compensation and tort compensation and the different ways in dealing with the two problems in different countries. I suggested one method, that is to deal with the problem with a mode of replacement in accordance with my legal practice.I suggested an extra method of supplementary mode with the principle of industrial insurance compensation in the case of third one tort. In addition, I explained the idea of replacement of tort compensation with industrial one according to the system of industrial insurance in China.There are four chapters in this essay. In Chapter 1, I analyzed the basic problems of industrial insurance system and tort compensation. I make sure that the conception of industrial injury has experienced a process of development, and it has formed a univeral acknowledgement, that is workers has the industrial injury or professional disease in the process of production. And I also make further analyze on the conceptions of the two systems, and it paves the way for the overlap of analyzing industrial injury insurance and tort compensation.In Chapter 2, I introduced the present condition of the overlap of commercial insurance compensation and tort compensation, the four main modes of dealing with the overlap of industrial compensation. I pointed out that the overlap problem is the main problem which is troubling all countries in the world while dealing with industrial injury compensation. And people deal with the compensation with four modes of replacement, selecting, supplement, and addition.And Chapter 3 is the main part of this essay. I analyzed that the two overlap is a legal overlap in accordance with the legal system and the basic feature of the two basic rules. And I stated that the two rules are different in legal value, reasoning principal, items of compensation and deduction.Chapter 4 I analyzed the present condition of the overlap of commercial injury compensation and I pointed out a mode of complete industrial injury compensation provided with a company duty. In a case of third one tort, the injury can choose insurance compensation and tort compensation. And also he can choose tort compensation while choosing the industrial insurance compensation as a supplemental one. I also pointed out that improving industrial insurance system is the key to the industrial injury compensation. And I also make concrete thoughts how to perfecting the industrial insurance system. |
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