On The Accounting Of The Applicable Law Of Industrial Injury Insurance And The Tort Compensation

This thesis is divided into five parts:The first part:①Definition of the concept of industrial injury insurance and tort compensation.②Elaborating the appearance of the application of industrial injury insurance and tort compensation. This part involves three elements:the employer’s liability insurance, industrial injury insurance compensation, compensation for tort. Separately discussing the basic connotation of employer’ liability insurance and the initiation and advantages of the industrial injury insurance. Summary:the basic relationship of related concepts③Comparatively analyzing the industrial injury insurance and tort compensation.Part two:The employer liability insurance, industrial injury insurance compensation and compensation for tort should be coordinated application.Part three:Describing the four main modes:alternative models, selection mode, complementary pattern, both mode. Analyzing the advantages and disadvantages of different models. Describing the foreign legislative example. Among them, with Germany, France, Britain, Japan, making a brief analysis on its application. Germany applies the incompletion substitute mode. The employee can file a civil tort litigation when employer has the intent or gross negligence. Japan takes the complementary mode. Workers can sue employers for the reason that the injury insurance system does not contain damage. On Compulsory Insurance,the " Employer’s liability insurance" and "Employee’s hurt Compensatory Insurance " become one. Commercial insurance institutions will complement compensations to employees after they received the industrial injury insurance compensation. according to the employer contracts and civil law.The fourth part:Analyzing the application questions of the China’s industrial injury insurance compensation and tort compensation in the legal provisions. Dividing two part to elaboration:one is beginning with the understand of " occupation disease prevention law" and "safety production law",meticulously elaborating employer responsibility problem, finally drawing the understanding of law, namely:the exclusion of the application of the substitution pattern and choice mode, the understanding of both mode or complementary mode of are justified. Secondly, based on the relevant provisions of the Supreme Court" The interpretation of the application of on the trial of personal injury compensation case" in2003as the breakthrough point. Analyzing several important issues:①the industrial injury insurance has priority.②The concurrence relationship of industrial injury insurance and tort compensation does not exist.③The amount of compensation on tort compensation should take the loss of laborers as standard.④Elaborating the process mode of industrial accident when non-third party and third party infringed others. This thesis will discuss how to apply complementary pattern.The fifth part:come to the conclusion:The industrial accident of the infringement of non-third party and third party apply the complementary model. Workers should draw the compensation of industrial injury insurance firstly, then, they shall request the feason to bear the compensation responsibility of infringement damage where the insufficient part between the industrial injury insurance compensation and the actual loss and the insufficient for Compensation for Mental Loss. Giving the Industrial injury insurance agencies right of recovery to the third party.