An Empirical Study On Law Application Of Over-aged Laborers Of Injury And Death Because Of Working

Work-related injury certification is the precondition of enjoying injury insurance treatment,and the labor relation is the precondition of being identified as work-related injuries.The identification of labor relations is therefore paramount to being identified as work-related injuries and enjoying injury insurance treatment.Although,in the cases that the over-age laborer applies for industrial injury recognition due to industrial injury,the labor administrative department and the court are more supportive of the work injury recognition,the identification of inductrial injury tends to produce results that are supported for recognition of work injury,but not involve labor relations.Seemingly,that labor relation is the premise that inductrial injury cognizance is questioned.The nature of the labor relationship between the over-aged laborer and the employer is not clear,that defined as an obstacle to the applicable injury insurance regulations,and the result of excessive dependence on the labor relationship that is determined by subject qualification is ignored for the purpose or function of the establishment of work-related injury insurance.Besides,legislative uncertainty and judicial application of chaos and mechanization are serious,consequently and finally,the rights and interests of the over-aged workers are not guaranteed.The legal application of labor casualties of over-aged workers is related to the recognition of work-related injury insurance and the treatment of work-related injury insurance,this article is based on the statistics of administrative litigation cases in which the over-aged workers apply for the recognition of work-related injuries,analyzes the problems arising from the application for industrial injury due to the casualties of over-aged workers,and according to this one viewpoint that the labor relation is precondition of being identified as work-related injuries,respectively from three parts including the legitimacy that the labor relation is precondition of being identified as work-related injuries,present situation,obstacles and characteristics of the relationship between overage workers and employers,and the necessity that regulations on worker's compensation insurance for overage workers,elucidate the difficulties of finding labor relations and applying the insurance regulations which in the case of labor casualties,the over-aged workers are confronted with,and puts forward the perfect measures for the legal application of over-aged workers from the three aspects of legislative judicial administration.In addition to the introduction and conclusion,the thesis is divided into six parts:Part one,by the statistics of the judgment,this section analyzes the status of the referee of the workers' injury due to industrial injury,and raise question :The statistics found that the support for the injury is extremely high,however,the determination of labor relations is not the content of investigation;in the cases of identifying labor relations,mainly examine the fact labor relations,but the rest of the judgment that determine the work injury without involving the labor relation,the recognition of the fact labor relations is ignored;counting where and where the over-aged workers were killed or injured,personnel casualties situation,whether over-aged worker attends inductrial injury insurance,how badly they are injured,and amount of litigation,it is found over-aged workers suffer from heavy casualties and their rights and interests are not guaranteed.The problem of legal application of over-aged workers due to work-related casualties is urgently needed to be solved.Part two,this part analyzes the reasons of legislative and judicial:Through the statistics and summary of central legislation and local legislation,it is found that the central legislation does not specify whether the over-aged workers are re-employed or whether the work-related injury insurance regulations are applicable for them;there are also obvious differences in the regulations on the casualties of over-aged workers;in the judicial practice,because of the unclear formulation,the judges appear mechanized in the application of the law,unable to protect the interests of over-aged workers.Part three,this section discusses legitimacy that the labor relation is the precondition of being identified as work-related injuries and enjoying inductrial injury insurance treatment:through retroactive labor relation and inductrial injury insurance system generation,it is found that rmployment and industrial injury insurance are closely linked,the standard of occupational injuries in all countries is the result of work,and compared with other social insurance,inductrial injury insurance and labor relation have more close relation.Labor relation should be the premise condition that inductrial injury decides and apply inductrial injury insurance.Part four,this section discusses the relationship between over-aged workers and employers:On the basis of the summary of the views on the relationship between the over-aged workers and the employers,this article analyzes the obstacles faced by labor relations,labor relations between workers and enterprises are neglected in the agreement,and article 18 of the work-related injury insurance regulations shall be the fact labor relations.Finally,the conclusion is that if the over-aged laborer provides the labor with thesubordinate attribute to the employer,the two parties should form the labor relation.Part five,this part analyzes the legitimacy of legal application of the over-aged laborer due to industrial injury from jurisprudence:From the development of industrial injury insurance,it is necessary for the employer to bear the responsibility of the workers for casualties;according to the consideration of various factors,it is the most beneficial that when over-aged workers suffer casualties,the administrative department of work-related injury shall pay compensation according to inductrial injury insurance regulation;From the perspective of social insurance concept and the purpose of establishment,over-aged workers should apply inductrial injury insurance regulation because of industrial injury based on the purpose of survival,the theory of social association,and the intention of state intervention.Part six,from legislative,judicial and administrative means,this part puts forward the suggestions and measures about over-aged worker applying inductrial injury insurance regulation because of worker casualties:In terms of legislation,legalize the labor relations between the over-aged workers and the company,and over-aged workers should apply inductrial injury insurance regulation because of industrial injury;judicially,issue guidance cases timely,and apply discretion in the aspects of employee protection oriented,the determination of labor relations,and work-related injury certification;in administration area,the administrative department should be given the right to determine the labor relations,and gradually develop the prohibition against litigation;Finally,the article looks into the relationship between labor law and social insurance law.Last,the conclusion part reaffirms the problems existing in the legal application of over-aged workers due to industrial injury and death,the importance of de facto labor relationship and the legitimacy that over-aged worker applies for inductrial injury insurance regulation because of worker casualties.