On The Treatment Of Concurrence Of Personal Injury Compensation And Industrial Injury Insurance Compensation

With fast development of China economy, the protection of labor’s legitimate rights and interests is attracting more and more attentions, especially in case that the labor is injured, how to compensate the injured in a fast, scientific and effective way is the issue to be solved. In most of industrial accidents, the injury is caused by the third party, but not the employer. In this case, the industrial accident insurance indemnification and personal injury compensation are the primary and significant remedies. How to structure the relationship therebetween is directly related to the value orientation and the function selection of the industrial injury remedy. Therefore, there is important theoretic effect to China. In China, due to the lack of express provisions in the laws and regulations, it is an issue in judicial practice whether the labor can enjoy the industrial injury treatment after being paid the civil torts compensation or obtain the civil torts compensation after enjoying the industrial injury treatment. Substitute model, concurrent model supplement model and option model appeared in the cases of the courts in China.Based on one effective civil judgment, the author analyzes the nature of case in which the industrial injury insurance compensation and personal injury compensation are involved. Referring to the applicable models of industrial injury compensation and personal injury compensation in foreign countries and considering the current legislation in China, the author is discussing the applicable law where the industrial accident insurance and personal injury concur in a case. The author’s opinion is that the legislation should clearly provides which law should be applied in this case in order to protect the labor to most extent and structure a scientific remedy model for industrial injury. On the one hand, a reasonable regime of industrial injury and tort compensation should be built up; on the other hand, the right of subrogation to the third party should be granted to the insurance institutions of industrial injury. The conclusion is that the labor can apply the concurrent model to obtain the double compensations where the industrial injury is caused by the third party’s infringement, and the right of subrogation for the actual expenses should be granted to the insurance institutions of industrial injury.