Concurrence Problem Of Compensation For Personal Injury And Compensation Of Work-related Injury

Modern society is a society with high risks,in which work-related accidents happen frequently.According to the 14th article of Bylaw on Work-related Injury Insurance,traffic accident occurs to the employee during the commute,for which the employee is not responsible,belongs to work-related accidents.Nevertheless,when traffic accidents occur,compensation for personal injury will also appear,according to relevant provisions in Tort Liability Law.In this case,the injured victim has two different rights of claim respectively based on different legal provisions due to one legal fact.Such a case is the source of so-called concurrence problem of compensation for personal injury and compensation of work-related injury insurance.However,in relevant legal provisions in our country,how to apply the law to solve the concurrence problem of the two is not clearly regulated.It is only partly mentioned in the 12th article of Interpretation of Some Issues Concerning the Application of Law for the Tirial of Cases on Compensation for Personal Injury issued by the Supreme People's Court that,if a worker,belonging to the employing unit which ought to take part in the overall planning of industrial injury insurance according to law,suffers from personal injuries due to work-related accidents and then the worker or his/her close relative proceeds against the employing unit for civil liability compensation in the people's court,it is necessary to inform him/her to cope with the case according to Bylaw on Work-related Injury Insurance.If the personal injury is caused by the infringement of a third party except the employing unit,and the claimant claims civil liability compensation from the third party,the people's court shall uphold the claim.Since the second provision in this article does not point out clearly how this article can be specifically applied to better solve the concurrence problem of the two,different judges tend to make different judicial decisions according to their own understanding of this article in judicial practice and this has given rise to the chaotic situation where there are different written judgments for similar cases nationwide,impacting the legislative authority as well as judicial credibility.Therefore,it is theoretically and practically meaningful to figure out the solutions of solving the concurrence problem of personal injury compensation and industrial injury insurance compensation in traffic accidents.By consulting relevant literature and judicial precedents,it is discovered that there are four major solutions to the concurrence problem of the two:selection,supplementation,combination and substitution.Although each solution has its own advantages,the drawbacks cannot be ignored.In terms of the solution of substitution,the compensation amount in this solution is relatively small,which fails to make sure that the worker receives the complete compensation.Besides,the infringement liability of the third party is exempted in this solution,which is likely to result in moral risks in the society.It also indulges the infringer and thus violates the sanctioning and preventive functions of Tort Liability Law.It seems that the solution of selection gives the injured worker certain freedom and fully plays by the basic principle of autonomy of the will in civil area,yet the tedious process of tort liability compensation is likely to force the injured worker to choose the industrial injury insurance process which is paid faster with smaller amount of money.The efficiency of the solution of supplementation is comparatively low.Besides,for the damage relief of personal injury compensation and industrial injury insurance caused by the infringement of a third party,the injured worker has to institute the damage relief procedure twice in the two institutes respectively in this solution,which,to some extent,makes it more difficult for the victim to receive the compensation and also wastes the judicial resource.In the solution of combination,the injured employee can receive double compensations,so the money the employee eventually receive is definitely higher than the loss he/she suffers,which violates the general principle that"the victim shall not gain extra benefits due to his/her loss".When traffic accident occurs,the most urgent desire of the victim is to get the compensation as soon as possible so that he/she could get timely relief.The failure of formulating a reasonable solution in law is not only harmful to realize the right of the victim,but also detrimental to guarantee his/her human right.Based on this,an improved supplementation method is proposed in this paper:compensation of industrial injury insurance should come first,followed by personal injury compensation.In addition,institute of industrial injury insurance compensation is endowed with certain right of indemnity.This solution can rely on the principle of no-fault liability for compensation for work-related injury insurance so that injured workers can quickly get compensation in the initial stage of injury so as to continue to accept necessary assistance and avoid the adverse impact that the treatment was delayed due to the inability to receive timely compensation for personal injury because of the tedious and cumbersome judicial process for personal injury compensation.In addition,give work injury insurance agencies and employers certain rights of recovery so that they can demand back the payment paid by them and that should be paid by infringers.This avoids the formation of the embarrassing situation that social insurance agencies and employers pay for third party infringements.Finally,because of the existence of the rights of recovery,when victim workers bring a suit against infringers during the limitation period,the parties paying in advance can join in the litigation together,which will help to save judicial resources and relieve some pressure on the judicial institutions with heavy tasks.