Study On The Applicable Relationship Of Industrial Injury Security And Tort Compensation By The Tort Of Third Party

Modern society is a risk society, with the development of economy, industrial injury accidents have also become a problem which cannot be avoided. Among them, accidents caused by the third party infringement are rising year by year. For example, workers were injured by others during working hours or hit by the motor vehicle on the way to work. In the cases of the third party infringement, the injured workers can ask the social insurance agencies or employers to pay for the industrial insurance compensation, so they have the right to request the industrial insurance compensation. At the same time, the injured workers can require the third party bear the tort liability according to the general rules of the tort liability law, so they have the right to request the tort compensation. However, this creates a concurrence between the industrial insurance compensation and tort compensation. The two claims belong to society and civil law respectively, the main obligations of compensation are also inconsistent, and since there are many differences in value and function of legal, the responsibility principle, compensation project and compensation standard, the principle of merger processing cannot be simply adopted for the applicable relationship between the injury insurance and tort liability.Throughout the national legislation, there are four modes that can be found in handling with the applicable relationship between the industrial insurance compensation and tort compensation. They are the alternative mode, the selective mode, the compatibility mode and the supplementary mode. The four modes have their own characters separately. Injuries will be compensated efficiently under the alternative mode, but it cannot compensate fully. The selective mode is a mode of privilege but less of feasibility and it makes the injured workers go into a dilemma of choice actually. The compatibility mode can maximize the injured workers’ compensation, but it is contrary to the filling principle of civil law. It may cause moral hazard and can waste industrial insurance fund. Although the supplementary mode has no same problems like the other modes, it mainly focuses on the total amount of compensation projects and pays no attention on the nature and purpose of the respective project, which appears too simple. Therefore, the supplementary mode should be improved in order to be applicable.By studying the regulation of our country about the applicable relationship between the injury insurance and tort liability, we can see that at the national legislative level, our laws, administrative regulations, departmental rules and judicial interpretations are not very clear and specific, which leads to the obvious differences in local legislation and even makes courts give different judgments in similar cases. By classifying and analyzing the judicial cases, we can see that the compatibility mode, the supplementary mode, the part supplementary mode and part compatibility mode are the main three modes which are used widely in judicial practice. Among them, the part supplementary mode and part compatibility mode takes the main part. Taking legislative status and judicial status into consideration, the part supplementary mode and part compatibility mode can be used as the basic principle for solving that concurrence problem which caused by the third party infringement. Injured workers usually suffer two forms of damage: property damage and non-property damage. The supplementary mode should be adopted for the property damage, such as medical treatment expenses, hospital food subsidies, transportation expenses, funeral expenses, etc. As these projects are actually incurred, they should meet the filling principle of civil law. Injured workers can obtain the compensation according to the principle of high. After compensating the property damage, industrial injury insurance agencies have the right of recourse to tort feasor. We can use the principle of compatibility to the non-property damage, such as the once-time invalidity allowance, disability allowance, the once-time death grant in the industrial injury security and disability compensation, death compensation, mental damage solatium in the tort compensation. People’s health is priceless and cannot be measured by money, when injured workers obtain double compensation on non-property damage, they do not constitute unjust enrichment. On the rules of procedure, injured workers should be entitled the right to choose which relief system firstly. The end of the industrial injury insurance procedure should not be put as a prerequisite in tort action. In this way, we can protect the legitimate interests of injured workers to the utmost extent. The tort action filed by the injured workers and the subrogation right litigation filed by the injury insurance agencies should be resolved within one procedure. In this way, the courts can identify the facts easily and the judicial resources can be saved effectively.