The Conflict And Resolution Between Executive Power And Judicial Power In The Work-related Injury Certification

On January 1,2004,the implementation of the Regulation on Work-Related Injury Insurances provided a special-purpose legal basis for protecting the legitimate rights of laborers affected by work accidents.In 2011 the Decision of the State Council on Amending the Regulation on Work-Related Injury Insurance has been adjusted the regulation,and simplified the procedures for the identification and dispute settlement.According to the “Regulation on Work-Related Injury Insurances”,China assigned the power of industrial injury identification to the Social Insurance Department,and the nature of injury identification is the specific administrative act made by the administration;in regard of Regulation on Regulation on Work-Related Injury Insurances,if there is any dissatisfaction with the conclusion of identification on industrial injury,the related units or individuals can apply for administrative reconsideration or institute an administrative lawsuit to complete their right relief.The main purpose of such a judicial review system is to help supervise administrative power under the exercise of judicial power,in order to ensure the legitimacy,impartiality and rationality all contained in conclusion of identification.However,due to the procedural defect in administrative proceedings of China,it results in a significant conflict between executive power and judicial power in regard of identification of industrial injury;in the occasion of when the parties do not agree with the identification conclusion made by administration,an action of administrative proceedings is brought up to get their relief;and the fact that court can never change the identification conclusion but to only judge a withdrawn and decree to review the conclusion with a proper procedure in administrative act could lead to a litigation loop since administration have every right to make an exactly same conclusion.In this aspect,the harmed laborers might not get their benefits of industrial injury in an effective way and thus creating more damage to them.Accordingly,the conflict and the possible solution between executive power and judicial power in settling identification of industrial injury are the major focuses of China's social security areas;this essay is mainly concerning the above objects,thus having important theoretical value and practical significance.This essay is divided into the following parts:The introduction briefly illustrates the background and the selecting reasons of the research topics,narrates the research of theory and practice significance,introduced this research topic's present situation and made an evaluation on it,also showed the problems and the possible innovation of this study,and finally points out the train of thought and research methods of this study.The first part of the body is the raise of problem.Through the analysis of a typical case,part one could introduce the core issue of this paper,which is the existence of the conflict in the judicial practice procedure of industrial injury between executive power and judicial power.The second part of the body is the core of the article.This part points out the pattern of forms in conflict between executive power and judicial power,also defines the problem of power conflict as well as the sever outcome caused by the conflict.This part is focusing on explaining the reasons of conflict which is a misplace of industrial injury's social law attributes by considering it as a public law.The body of the third part is the theoretic part of this essay.Main properties of employment injury insurance and its theoretic basis are analyzed,and the mechanism of the distribution,logic,and necessity of industrial injury are explained.The conclusion that administrative organizations are not an ideal choice of identification institution is made in this chapter,and it needs a socialize rebuilt in social insurance agency to complete its related duties.Meanwhile,based on the principle of judicial final settlement,the final right of identification of industrial injury should be given the judicial organizations.The fourth part is the countermeasures and suggestions.In this part,a solution to the conflict between executive power and judicial power of industrial injury identification is illustrated from a macroscopic aspect--that is to relocate the decision organization of industrial injury identification to socializing organization,and setting up a judicial remedy procedure at the same time.Compared with the basis of a related system in Germany,the conclusion of rebuilding a socialize organization of social insurance agency as well as the specific plans in building an independent social trial organization is made in this part.At last,the summarize concludes and reiterates above view,at the same time it is hoped to have a deeper research in this aspect in the future,to help establish the social security procedure into a more detailed and complete basis,thus to change the chaos status of social security system in China.In conclusion,the main findings of this paper is: 1.In order to protect the worker's lawful rights and maintain the safety of funds of employment injury insurance,the present industrial injury insurance system has located the decision right to administration,and supervise it with the administrative litigation,thus creating an overlap and conflict between executive power and judicial power in industrial injury identification,resulting in an increase in the complexity of the system and running cost,and damaging laborer's rights and interests;2.The fact that industrial injury insurance system is a part of the social security system,that is to say the identification of industrial injury should apply the same basis as industrial injury insurance system,which both should be based on basic conception of the social security act,fully using the three parties principle,then it can reach a reasonable social autonomy principle and judicial final settlement principle;3.The actual operation of industrial injury insurance system,is to transfer the social rights of the parties to a social organization,rather than their social rights to public rights;executive power in China due to interest,position,professionalism,credibility,information dilemma and other aspects,is difficult to perform the relevant duties,the socialization of identification industrial injury and the social law settlement is a scientific system arrangement.In this paper,we have came to the conclusion that,to solve the conflict of industrial injury identification between executive power and judicial power,the most fundamental method is to make identification of industrial injury out of the administrative procedures.Instead,it should establish the neutral,professional,social institutions to run identification of industrial injury,and design it in adhere to the principle for protection of the laborers to form the organization and procedure.At the same time,by setting up a special labor court in court,it should be given the final right to review and change on identification of industrial injury.