Study On The Liability Concurrence Between The Compensation For Work-related Injury Insurance And The Compensation For Torts

Before the establishment of the work-related injury insurance system, the court usually referees work-related injury cases as ordinary civil infringement ones. However, with the constantly development of social industrialization, the number of employees who suffer from work-related injury accident and occupational disease is increasing. In order to better preserve the victims’legitimate rights and interests, ease the labor and capital contradiction and promote the benign development of the social economy, the work-related injury insurance system emerges as the times require. Since then, there are two different right relief methods for the employees who suffer from work-related injury. Firstly, claim the tortfeasor to be liable for damages on the basis of civil trespass legal relation. Secondly, enjoy the work-related injury insurance benefits after the identification of work-related injury according to work-related injury insurance legal relation. Consequently, the legal liability concurrence between the compensation for work-related injury insurance and compensation for torts occurs.Discussing the legal liability concurrence between the compensation for work-related injury insurance and compensation for torts needs to distinguish different situations of work-related injury. The liability concurrence would not occur in such work-related injury accidents that the employee suffers from occupational disease or accident because of inexistence of acts of tort, but only occur in those ones caused by infringement of the employer, other employees in the same employment unit or a third party.Generally speaking, both of the work-related injury insurance system and the infringement damages compensation system regard the maintenance of the victims’ legitimate rights and interests as their own responsibility. However, they are different in the nature of legal relation, the scope of application, the subject of legal relation, the scope and standard of compensation, the criterion of liability, the resolution way of dispute, and the value and function of system. How to deal with the legal concurrence between those two systems is not only related to the protection of the rights and interests of the work-related injury victim, the employer, and the third party, but also related to the demonstration of judicial fairness and justice.There are four kinds of mode overseas to deal with the relationship between the compensation for work-related injury insurance and compensation for torts, the replacement mode which replacing the compensation for torts with the one for work-related injury insurance, the selection mode which entitling the victim to choose either of these two compensation methods, the cumulation mode which giving ultimate protection to the victim through obtaining both of the compensation for work-related injury insurance and compensation for torts, and the supplement mode which allowing the victim obtain full compensation through complementing each other. Our Chinese law has no uniform and specific provisions on the legal liability concurrence between compensation for work-related injury insurance and compensation for torts. For example, according to the provision of Law of the People’s Republic of China on Prevention and Control of Occupational Diseases and Law of the People’s Republic of China on Work Safety, the compensation for work-related injury insurance should take precedence over the one for torts in cases which have legal liability concurrence, and then the compensation for torts would complement the shortfall lower than the victim’s actual loss. That is the supplement mode. But the Interpretation of Trying Personal Injury Compensation Cases’Applicable Law and a Number of Issues promulgated by the Supreme People’s Court adopts the replacement mode, requiring that victims of work-related injury not caused by a third party can only claim to the benefits of work-related injury insurance rather than the compensation for torts. Judgements of such legal liability concurrence cases in the judicial practice are not all the same, which causes a huge impact on the legal system of work-related injury insurance.Comprehensively considering the merits and demerits of those four legislative modes abroad in combination with our current judicial practice, the author believes that the replacement mode which replacing the compensation for torts with the one for work-related injury insurance can extremely alleviate the labor and capital contradiction, safeguard the social fairness and promote the economic development on the basis of safeguarding the legitimate rights and interests of workers. And this is the right idea we should follow of the legislation reformation of the national work-related injury insurance. The specific application of the replacement mode still needs to distinguish different cases of work-related injury. In the case of infringement of the employer or other employees in the same employment unit, the tortfeasor’s tort liability can be totally replaced by the work-related injury insurance responsibility only if there is no subjective intention. In the work-related injury cases caused by a third party, social insurance agencies shall pay the employment injury insurance benefits to the victim, then the agencies shall get the right of recovery in the range of insured amount, in order to prevent moral hazard caused by vicarious liability and to reduce work-related injury due to a third party’s tort.