Relief Path Analysis Of The Third Party Infringement Caused By Work Injury

Modern society can also be known as risk society.For the workers under such a society,safety is in the first place to be considered.When workers ' personal safety is harmed by the industrial injury accident caused by the infringement of the third party,there are two kinds of relief approaches for(the same)one damage: industrial injury insurance treatment and tort damage compensation,which may lead multiple compensation paths to one damage.How to deal with the relationship between the two relief paths under the above circumstance? That is of great significance.It is not only for solving the problems arising from the junction of social security law and tort law,but also for setting a good example of smoothing the relationship between tort law and other legal areas.In order to find the highest ideal method to solve the problem proposed in this article,this paper takes the third party infringement injury relief path exploration as the research topic,inspects the choices of relief path from different countries,and combines our country trial practice.In terms of writing style,the paper is divided into four parts:In the first part,we raise the question of the above topic and defines the domain.Starting from the analysis of legal relationship in industrial injury accidents caused by the infringement of the third party,we find that the problem should be reviewed.Can the injured workers get the insurance and the compensation at the same time? How todetermine the scope of compensation when two kinds of claims coexist? And whether does two kinds of claim have exercise successional order? The discussion of these key issues needs to be clearly discussed,for the reason that it is necessary to lay a simple foundation for the specific concepts such as labor relations and the third party infringement on the premise of the identification of industrial injury.In the second part,by comparing judicial practice and sorting out the controversial points in relevant legislative norms,we found that for the choice of two relief paths of third party tort damage compensation and industrial injury insurance payment,mode of supplement plays an important role,so does mode of cumulation.Apart that,the scope of compensation for the mode of supplement or supplement does not reach to an unanimous agreement.The dispute of the modes is mainly focused on supplement and acquisition.Moreover,a third mode of judgment has come into judicial practice--the compromise mode of partial compensation and partial acceptance.In the third part,from the origin and development of the system,we analyze the common points and differences(basic ideas,value orientation,compensation scope)of the two relief paths of the third party tort compensation and industrial injury insurance.On this basis,the specific contents and advantages and disadvantages of four different modes—substitution mode(industrial injury insurance replaces tort compensation for relieving the tortfeasor),cumulation mode(industrial injury insurance and tort compensation have both)and supplementation mode(choose the higher one between industrial injury insurance and tort compensation,close the gap of damage)— are analyzed one by one.Combined with the nature of China's semi-social insurance and the relationship between the two systems,anyone may be limited by its own limitations,which cannot effectively solve the legal problems of the coexistence of this type of compensation.The emergence of the compromise mode began to become a feasible way to solve the problem of the third party tort and industrial injury insurance concurrent payment under the nature of semi-social insurance.Although this model emerged relatively late,it began to be recognized by more courts in practice.In the fourth part,according to the content of the compromise mode,we must confirm which compensation items belong to the specific compensation and which belong to the abstract compensation,so as to apply the supplementation and cumulation modes respectively.In the distribution of responsibility,profit and loss offset and fault offset has not been excluded.In order to improve the judicial efficiency and reduce the burden of litigation,the way of industrial injury insurance first and subrogation compensation later should be adopted.