Study On The Application Of "48 Hours Clause" In The Determination Of Work-related Injury

Industrial injury insurance usually refers to a kind of social insurance system in which workers or their families get material help from the state and society when they suffer from accidental injury or occupational diseases and lead to temporary or permanent loss of working ability and death.Industrial injury insurance not only has the nature of compensation,but also has the nature of material assistance and social security.It is an important part of the national social security system.Among them,the identification of industrial injury is a necessary procedure involving industrial injury insurance.Therefore,one of the necessary conditions for workers to enjoy industrial injury insurance is that the damage they suffer conforms to the identification of industrial injury.In practice,the identification of industrial injury is a more complex process.In judicial practice,the identification of industrial injury lacks specific and clear standards.The Enlightenment of the two typical cases listed in this paper from the level of judicial judgment is that similar cases,different judgments,specific differences exist in the judge's understanding and understanding of the provisions of the first paragraph of Article 15 of the "Regulations on work injury insurance".The specific legal issues involved are: the first is the standard for the determination of death;the second is "48 The application of " hour clause ".Because" 48 These two problems make the use of this clause in the specific judicial judgment,such as mechanically applying the legal provisions,adhering to the "one size fits all" operation,insufficient subjective initiative of judicial judgment,and difficult to meet the actual judicial practice.In the process of industrial injury identification,it also causes the violation of the original legislative intent of the industrial injury insurance regulations and leads to ethical conflicts and ethics Moral risk,the rights and interests of workers and their families can not get effective relief,and the industrial injury insurance system can not be effectively implemented in practice.On this basis,this paper puts forward suggestions to solve the above problems from the aspects of legislation,judicial application and legal liability.In terms of legislation,we should learn from foreign legislative experience and provide relevant legislative provisions;in judicial application,we should pay attention to the substantive standard of industrial injury identification and introduce the judgment standard of "brain death";in terms of legal liability,it is suggested to ensure that employers pay industrial injury insurance premiums for workers in a timely manner,and strengthen the supervision ofemployers in industrial injury protection.