Study On The Relationship Between The Applicable Relationship Of Industrial Injury Insurance Compensation And Tort Compensation

Up to time now, the relief of inductrial injury accident has been from unified to diversified. A single compensation system has been replaced by composite compensation system. After Inductrial injury accident, according to the work-related injury insurance system,the hurting worker can make a work injury compensation claim.Meanwhile, according to the provisions of the civil law,the hurting employee has the right to ask the employer or the third person for compensation for damage. But about these two relief system, there is no definite conclusion in current Chinese law. To find out the divergence in current law, this article starting from the existing laws in China, analysises concerning specifics in laws or judicial documents. And on this basis, making empirical investigation on juridical practice of every province and city and discus the reason why the same or similar case has been given different judicial judgment in different area. At the end of the article, in order to provide some useful reference on industrial injury accident relief there is a discussion about the current judicial processing mode and some other issues eg.the right of recovery and Commercial Insurance.Besides the introduction and conclusion, the article includes three parts, each part is as follow:The first part is a legal source investigation about the applicable relationship between compensation for work injury insurance and tort damages. This part firstly introduces the historical development of laws and regulations about the relief of inductrial injury accident by discussing the reason why our country use different patterns in different historical periods, thus drawing a conclusion that the applicable relationship between compensation for work injury insurance and tort damages should develop constantly with the development of the society and be adapted to a country's basic national conditions.Secondly, this part introduces the current legal provision to point out that the main reason why the same or similar case has been given different judicial judgment in different area is that the legislation is inconsistent.The second part is empirical analysis about applicable relationship between compensation for work injury insurance and tort damages. This part firstly introduces relevant autonomous regional laws and regulations in Beijing, Shanghai, and other regions, and divided it into two modes:Part of both models and Supplementary models. In addition, based on the combination of relevant cases, this part analyzes four aspects of problems in judicial practice. The first is when employer is liable for employment injury accident, in judicial practice, part of the court judge according to Both compensate model, part of the court judge according to the alternative mode. The second is when the third party is liable for the accident, some court judge according to limited both model, some court judge according to supplementary model. The third is for the accident caused by the third person, inductrial injury insurance agency organization will get subrogation right after pay the medical bills, however there is no any specific provision about how to exercise the right in current legislation. Finally, for the sequence of both two damage compensation claims, some court think it should be ordered, some court think it depend on the holder of the rights-holders.The third part puts forward some legislative proposal according to present judicial situation. For the accident within the employer's scope of liability, it raises these accidents should be given different verdict according to whether the employer is faulty. For the accident caused by the third party,it advices that the victim's loss can be divided into Property loss and non-pecuniary loss. For the property loss, it can be compensated by the "principle of higher".For the non-pecuniary loss, it can be compensated by "principle of both" Furthermore, in combination with the judicial practice, this part also put forward some ideas about whether should set up time order between inductrial injury insurance compensation and tort damage compensation. And what's more is how inductrial injury insurance agency organization exercise subrogation right.