On The "48 Hours" Clause For The Determination Of Death At Work

Work-related injury,as an important issue that cannot be avoided in the industrial society,the determination of work-related injury is related to the fundamental interests of employers and workers,as well as the happiness and misfortune of a family and even the stability of the whole society.With the improvement of China's work-related injury insurance system,the work-related injury identification system is also continuously following up,but some deficiencies of the identification system are also gradually exposed in social practice.In particular,the first paragraph of Article 15 of the Regulations on Industrial Injury Insurance stipulates that workers who die of sudden illness or fail to rescue within 48 hours during working hours and jobs shall be treated as "work-related injury" and enjoy the treatment of "work-related injury".The purpose of this article at the beginning of its establishment was: although workers who died of sudden illness at work did not fall within the scope of work-related injuries,they were likely to be related to factors such as overwork and mental stress in their work,so this situation was regarded as an industrial injury to reflect the care and protection of workers' rights and interests.However,this clause has caused many contradictions and conflicts in the judicial practice,not only leading to constant disputes in academic circles,but also leading to different judgments in the same case and even opposite results in the practice of courts and administrative departments around the country,thus causing ethical and moral risks for employers and employees' families.Therefore,this paper analyzes the legal defects of the " 48 hours" clause in China's work related injury,draws lessons from the more mature work related injury accreditation standards,and puts forward relevant legal suggestions to improve China's work-related injury identification system so as to make it more acceptable and more in line with the requirements of the people-oriented era.The paper consists of three parts.The first part is a theoretical overview of the "48-hour" clause identified by work-related injury.by introducing the origin and meaning of the " 48-hour" clause,it leads to the discussion of the attribute of the " 48-hour" clause in academic circles and the debate over its retention and abolition,and based on the analysis of scholars' different opinions to leads the author's thinking and puts forward personal views.The second part introduces the defects of the "48-hour" clause in detail: First,it points out that the restrictive provision of "death within 48 hours" lacks theoretical basis and technical support and easily leads to legal and ethical conflicts.Secondly,it is unreasonable to replace "workplace" with " work post" and the definition of "work practice" is vague.There is a lack of rationality in working hours and jobs at the same time.Thirdly,the lack of "work reasons" causes the phenomenon that compensation should be paid without compensation,and compensation should not be paid gained the compensation.Finally,this paper analyzes the fuzziness of the definition of "sudden illness" and the disputes caused by it.The third part puts forward suggestions to improve the work-related injury identification system,such as abolishing the unreasonable restriction of " 48 hours",making a unified and legitimate judicial interpretation of " workplace during working hours",returning the elements of work causes,and excluding diseases of non-work causes,etc.Finally,this paper puts forward some suggestions to improve the identification mechanism of " sudden illness",on the one hand,judicial explanation will supplement and explain it,on the other hand,medical experts will be set up to identify " sudden illness",so as to realize more scientific and rigorous identification of work-related deaths and reduce mistakes and omissions in the practice of identification of work-related deaths.