Exploring The Path Of Work-related Injuries And Deaths For Over-age Workers

With the increasing aging in China, there are more cases in which workers exceeding mandatory retirement age get injured while working, so there has been more emphasis on the research on legal protection for this group of people. There has been no specific legal provision and inconsistent practice in regard to whether these people's injuries and deaths in the line of duty can be recognized as work-related injury. Based on the research on Chinese laws about work-related injury, together with the administrative and judicial explanation of such labor relations, it is found that, under the existing legal norms and system design, there are various obstacles to provide legal protection on recognition of work-related injury for workers exceeding mandatory retirement age. This paper starts with the case of Han who dies in the line of duty, and goes on to give in-depth analysis on obstacles to recognize Han's death as work-related injury from administrative and judicial perspectives. From the perspective of the difference between labor relation and the legal relation of labor, this paper points out that there is labor relation, but no legal relation of labor, between workers exceeding mandatory retirement age and the employer, so these workers' injury and death in the line of duties cannot be regarded as work-related injury. At the same time, the paper puts forward that, although their injury and death in the line of duties cannot get protection from related system on work-related injury, it is necessary to give workers exceeding mandatory retirement age legal protection. It is proposed that, under the current circumstance when China's laws and regulations do not give specific provisions, protection should be given to workers exceeding mandatory retirement age, and reference can be made to the treatment of injury and death of “illegal employment” provided in the Regulation on Work-Related Injury Insurance. This paper is divided into three parts:The first part is the basic information and dispute of the case, mainly including the cause of action, description of the case, divergent opinions and dispute focus, etc. This part focuses on the different views whether Han, as a worker exceeding mandatory retirement age, had labor relation with the employer, whether Han's death in the line of duties can be recognized as work-related injury, and whether Han can get work-related injury insurance and corresponding compensation. This part concludes that the dispute focus of this case is the nature of labor relation of a worker exceeding retirement age, and the legal protection of worker-related injury. The second part is the nomological analysis of this case, mainly elaborating on the dispute focus. This part firstly analyze whether workers exceeding mandatory retirement age are qualified as employees, and reaches the conclusion that they are eligible employees, and that they can establish labor relation with employer. Then this part goes on to discuss the difference between labor relation and legal relation of labor, and points out that workers exceeding mandatory retirement age and employer forms a combination of labor force with means of production in order to realize labor process, and such a social relation is labor relation. But legal relation of labor, as superstructure, refers to the labor rights and duties formed during the adjustment of labor relation by labor laws and regulations. Such a relation does not exist between workers exceeding mandatory retirement age and employer, so their injuries and death in the line of duties cannot be recognized as work-related injury.The third part is the reflection on legislation based on this case. First, this part discuss the obstacles from the perspectives of the recognition of labor relation in Labor Law, the recognition of work-related injury in Regulation on Work-Related Injury Insurance, and work-related injury insurance and compensation in Regulation on Work-Related Injury Insurance, and analyzes the predicament of giving legal protection for the injury and death in the line of duties of workers exceeding mandatory retirement age.Next, this part analyses the necessity of giving legal protection for workers exceeding mandatory retirement age, and points out that this both meets the demands of citizens' constitutional right relief, and also is beneficial for social harmony and stability. Also, giving protection does not exceed the legislative intent of the Labor Law.Finally, this paper points out that, within current legal system framework, legal protection should be given to workers exceeding mandatory retirement age, and reference can be made to treatment of injury and death of “illegal employment” provided in the Regulation on Work-Related Injury Insurance. Analysis is also made in the legitimacy, rationality, timeliness and efficiency of such protection.