Research On Identification Of Work-related Injury When Rescue Fails Within 48 Hours

Since the enactment and implementation of the 2003 Regulation on Work-related Injury Insurances,the "rescue fails within 48 hours" clause has been controversial and has been pushed to the forefront of public opinion.After the amendment of the Regulation on Work-related Injury Insurances in 2010,this article has not been improved,so that there is no relatively uniform standard for the application of this provision with detailed implementation rules,and the individual cases are usually complicated.In the legal practice of work-related injury identification,how to understand and apply this article has encountered various problems and may even trigger moral hazard.There is always a lag in the article of the law,so it is impossible to cover all the content,which is a fact cannot be changed.However,the legal regulations can be explained in the specific application,so that the clause can solve the practical problems more fairly and reasonably.Therefore,based on the analysis of a large number of cases,this paper summarizes the judicial application status of the "rescue fails within 48 hours" clause,then conducts a step-by-step analysis of the basic elements of the article,and discusses the improvement of the "48 hours" clause.This article is divided into the following four parts:The first part: Introduces the basic theory of the identification of "48 hours" work-related injuries,including the identification and basic value analysis of work-related injuries,and the special principles to be followed in exercising the discretion of "48 hours" clause,including grasp of the spirit of legislation,the emphasis on work-related principles,and the principle of fairness.The second part: Analyzes the current situation and problems of the application of the "48 hours" clause in judicial judgment.There are mainly some controversial issues,such as whether the brain death within 48 hours can be identified as the application of work-related injury,unclear definition of working hours and positions,as well as the abandonment of treatment and refusal of treatment.The third part: Analyzes the causes of the dispute over the "48 hours" clause.The historical "48 hours" clause and the lack of subjective initiative in the determination of industrial injury cases in judicial practice caused the dispute.Also,the "48 hours" clause is not perfect enough lead to the dispute.The fourth part: In order to improve the clause,suggestions are made in the following three aspects.First of all,the legislation should emphasize the reasons for the work and refine the existing provisions.In the light of China's local conditions,this paper puts forward the essential standard of industrial injury identification,which is to strengthen the cause of work.Formulates more detailed operational implementation rules and makes a clear and relatively unified interpretation of each element.Secondly,from the perspective of administration and judicature,the cognizant should give full play to his subjective initiative,correctly exercise the discretion,and realize the supplement and relief to the deficiencies of the existing provisions.Finally,from the point of view of practice,this paper puts forward to strengthen the supervision of employers to fully implement the operation of the industrial injury insurance system,and pays attention to the prevention of sudden disease awareness.It is hoped that the above methods can provide some useful references for the application of the "48 hours" clause in practice.