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The Possibility Of Substituting Civil Tort Compensation For Work Injury Insurance Compensation In China

Posted on:2021-03-21Degree:MasterType:Thesis
Country:ChinaCandidate:Y RuFull Text:PDF
GTID:2416330647450315Subject:Economic Law
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With the continuous development of industrialization and the production of large machines in modern society,industrial injury accidents are becoming more frequent.How to compensate for personal injuries in industrial accidents is an issue that countries need to resolve.The first chapter of the article puts forward the issues discussed in the thesis,and points out that this article analyzes and discusses the differences and connections between tort law and work injury insurance law based on China's current work injury insurance related laws and regulations.The article clarifies the possibility and necessity of insurance treatment replacing infringement compensation by referring to the German alternative model.The second chapter is the elaboration and analysis of current legislative and judicial disorder in China.How to deal with the relationship between insurance compensation and civil tort compensation in a work-related accident has been widely discussed in our academic circles for a long time,but it has not been conclusive.The ambiguous statement of <The Supreme People's Court's Interpretation of Several Issues concerning the Application of Law in the Trial of Compensation for Personal Injury Cases> and its inconsistencies with the provisions of <The Law on Occupational Disease Prevention> and <Control and the Work Safety Law> have caused confusion in judicial decisions.The third chapter is a comparison of the Work Injury Insurance Law and the Tort Law,the purpose of which is to explain the difference and connection between the two,and to lay the foundation for the following.The Work Injury Insurance Law was born out of the Tort Law.Compensation for the personal injury of a injured worker,who injured for work,is one of the important contents of the law.Therefore,the purpose of many compensation items for work injury insurance is consistent with the compensation for tort damage.The specific provisions are also affected by general theories of tort law to a certain extent.But on the other hand,the work injury insurance law has a different social law attribute from the tort law,and it plays a role in balancing the freedom of corporate behavior required for economic development and the protection of vulnerable workers.The fourth chapter is a detailed description of the alternative model.The alternative model means that after an industrial accident,an injured employee can only request an industrial injury insurance agency to pay for industrial injury insurance benefits,and cannot claim damages from the infringer in accordance with the tort law.Most scholars in China believe that this model has obvious advantages,including timely relief for injured workers,avoiding operating risks of employers,reducing labor conflicts,and saving social litigation resources.But at the same time,there are certain hidden dangers,such as harming the prevention of work injury because of excessive exemption of the employer's liability,damaging the interests of workers because of abandoning the "comprehensive compensation principle" in the tort law.By analyzing the German law,which ist a typical representative of alternative models,it can be found that the German work injury insurance system places restrictions on the persons exempted from liability,the degree of fault of the subject causing the work injury,and the types of claims that can be excluded.In addition,the application of the German alternative model is based on the fact that it meets certain prerequisites from the perspective of the overall work injury insurance system.These conditions include the establishment of a relatively independent compensation system between the employer and the worker to fully play the role of the alternative model,the calculation of disability annuities through abstract calculation methods to at least partially compensate for mental damage,the calculation of work injury insurance benefits regardless of the workers' degree of fault and other methods to maintain the equivalence between work injury insurance benefits and general civil compensation,and build a complete work injury prevention system including the right to recourse of work injury insurance institutions.It is these system designs that further ensure the legitimacy and rationality of the alternative model.The fifth chapter is the analysis of the possibility and necessity of the application of alternative models in China.In view of the complex role of the employer in the work injury insurance system in China,the apparent difference between work injury insurance benefits and civil damages compensation,and the incomplete work injury prevention system,I believe that China cannot currently apply an alternative model.What is most suitable for the current situation should be the supplementary mode,that is,applying for work injury insurance treatment preferentially,and filing a separate lawsuit for the difference between the compensation and the general civil compensation to obtain supplementary compensation.However,the disadvantages of the supplementary model are also very obvious.No matter the operating risk of the employer cannot be transferred reasonably,the litigation model will consume a lot of social costs,under the current situation of the weak laborers in China,it may be difficult to put the adscititious compensation through the lawsuit into effect,what is not conducive to the protection of workers.In the conclusion of Chapter 6,I believe that although the supplementary model is a more appropriate choice in the current situation,China still needs to amend relevant laws and regulations and apply the alternative model in the future.
Keywords/Search Tags:work injury insurance, labor law, civil tort, alternative model
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