Analysis Of The Legal Plight Of Migrant Workers' Labor Injury Relief In China And Its Countermeasures

Migrant workers are a special group of laborers in China.They mainly refer to workers who are still in rural areas,who engage in non-agricultural production in the region or go out for cross region work for 6 months or more.With the development of the economy and society,more and more farmers have entered the city to work and become industrial workers.In 2016,the number of migrant workers in China has reached 281 million.The growth of migrant workers has contributed greatly to the rapid development of China's economic construction.On the other hand,it has also brought many social problems,which has become a hot topic of social concern.The social security of migrant workers is especially prominent.In the social security problem,because the industrial injury insurance is mainly to protect workers from medical injury and occupational disease,and get medical assistance and economic compensation,and promote industrial injury prevention and occupational rehabilitation,it has more important practical significance for migrant workers.China's industrial injury insurance system has been continuously developed and perfected,the "labor law","labor contract law","industrial injury insurance regulations","occupation disease prevention law","social insurance law" and other laws and regulations have been issued,the construction of China's industrial injury insurance system and its framework and platform provides relief.The necessary protection for injured workers.But because migrant workers are common cultural level is not high,a skill training is relatively low,the employment is narrow,the majority concentrated in the manufacturing industry,construction industry and other labor-intensive industry,and the low signing rate of labor contract,social insurance rate,union ratio is low,causing the majority of migrant workers especially in construction after the injury suffered in the industry of migrant workers labor relations is difficult to confirm,difficult to identify work-related injuries,to achieve a series of cumbersome procedures for treatment of work-related injuries caused by the existing system and the law is not perfect in the plight of relief.The workers' occupational injury insurance and its legal relief have become the typical and prominent social and legal problems,which need to be solved urgently.It is of great practical significance,legal significance and social benefit to study the industrial injury relief system for migrant workers,analyze the existing problems of migrant workers' industrial injury relief system,and seek ways to improve and solve the legal difficulties of migrant workers' industrial injury relief.Taking migrant workers in construction industry as an example,this paper takes typical cases,data analysis,induction and other research methods to study the legal relief dilemma caused by industrial injury system for migrant workers in China,which is divided into four chapters.First of all,of migrant workers and industrial injury relief are introduced,starting from the definition of migrant workers in China,the development history,characteristics,analysis of factors affecting the rights of migrant workers to exercise;industrial injury relief from the injury definition,is divided into two parts,the first part of the work injury case recognized in China"industrial injury insurance regulations" are introduced,in the "basic regulations" injury insurance listed on the ascertainment of a work-related injury situation,summarizes the characteristics of the industrial injury.Next,to make an analysis of the nature of the injury,introduces the main theories about the nature of the injury,including the labor insurance relationship and special tort theory,based on the brief analysis of the two,in favor of labor insurance,but that there is relationship between labor insurance and tort and the tort in a certain time.In the second part,the development process of the system of industrial injury relief in China is introduced.First,it expounds the concept and characteristics of relief,introduces the ways of legal relief for industrial injury and the legal process and treatment contents that need to be experienced in the implementation of work-related injury insurance benefits.The second section introduces the four stages of the development of China's industrial injury relief system,the embryonic stage(1949-1965),the failure stage(1966-1977),recovery phase(1978-1994)and stage(1994-present),and the laws and regulations promulgated in each stage are introduced.The progressive in based on the overview of China's migrant workers,especially migrant workers' compensation situation are introduced,statistics from 2007 to 2016 construction workers the number of accidents and deaths,through data analysis,focused on the construction of migrant workers with low insurance rate and high risk occupation.The narration is divided into the introduction of the legislative situation and the introduction of the judicial status.In the legislative status quo introduction,pointed out that at present our country has no specific laws and regulations of migrant workers industrial injury relief,according to the special provisions of industrial injury insurance for migrant workers mainly scattered in various departments of the file,and the main specifications of the injuries involving migrant workers makes a systematic review.In the introduction of judicial status,from litigation and arbitration two aspects to explain,litigation,through the recent years labor dispute,social insurance aspects of the statistical analysis of cases,highlight the industrial injury insurance treatment,the number of social insurance disputes accounted for 71.90%of the number ratio.At the same time,the article gives a brief account of the labor arbitration and litigation procedure involved in the insurance relief for migrant workers.In order to deeply analyze the legal dilemma of migrant workers industrial injury relief and facing the problems and reasons of China's industrial injury relief system exists,in the third chapter of China's migrant workers industrial injury relief legal dilemma and cause analysis in the introduction of a typical case,representative Zhou Fu Postan and construction company is selected(the original Yili construction company)injury treatment of disputes case is described in detail.In the case,Zhou Fu spent 20 years in the construction industry migrant workers and the industrial injury treatment dispute with Bostan construction company.The process is tortuous.All the legal procedures faced by migrant workers to achieve industrial injury insurance benefits and all legal procedures need to be involved are reflected in this case.Through the typical case analysis,the article points out that the process of migrant workers obtain legal relief and Realization of industrial injury insurance benefits in the reflected and the general treatment of inductrial injury insurance disputes more prominent dilemma:labor is not standard in labor relations is difficult to confirm the work-related injury insurance;insurance mechanism is not strong operability due to low coverage rate industrial injury insurance;low level of legislation,solve the mechanism leading to poor work insurance benefits to achieve.The difficulty of solving the mechanism includes high cost,complicated procedure and unreasonable law,and the various reasons that cause the above difficulties are analyzed in detail.On the basis of the analysis,this paper on how to improve China's migrant workers industrial injury relief system also gives his own solution,pointed out that the improvement of migrant workers industrial injury relief system,the focus is not separate legislation for the migrant workers industrial injury relief,but on the basis of perfecting the existing laws,so that migrant workers have equal status and corresponding treatment.The first is to improve the legislative level of industrial injury insurance and to modify the relevant law,first of all,from the two aspects of necessity and feasibility.Secondly,to perfect the legal provisions,from the change of legislative idea,modify,two aspects of the relevant legal provisions are discussed in this part of the paper,some controversial content such as the definition of work-related injury,on work-related injury behavior,labor relations exist for work-related injuries that pre condition,the compensation pattern,"48 hours" the terms presented their own views.The second is to reform the industrial injury insurance mechanism and increase the coverage of industrial injury insurance.From the priority principle of industrial injury insurance,reducing the rate of industrial injury insurance,improving the operability and strengthening publicity of the insurance policy for industrial injury insurance.The third is to regulate labor management and clear labor relations.From the aspects of improving the signing rate of the labor contract,standardizing the management of subcontracting projects,standardizing the management of labor dispatch and strengthening the intensity of labor supervision,respectively.The fourth is to standardize the procedure of industrial injury relief,including differentiating the period of industrial injury identification,simplifying the process of industrial injury relief,eliminating the conflict between administrative power and judicial power,and reasonably distributing the burden of proof.On the basis of literature research,analyze the relevant data,the typical case analysis,and tried to found the problem to improve the existing legal basis in revising and,put forward the corresponding solutions,in order to achieve equal access to migrant workers industrial injury remedy procedure,the purpose of the entity.