| For a long time,whether in the theoretical field or in the judicial practice,how to deal with the tort damages and injury insurance compensation when the competition is reasonable and appropriate,has been controversial in the judicial practice and theoretical research field.At present,countries mainly adopt four modes in dealing with this competition,namely,selection mode,substitution mode,concurrent mode and supplementary mode.China's laws also have relevant provisions,according to the provisions of the Social Insurance Law of the people's Republic of China: workers due to third-party reasons for industrial accidents,the third party does not make compensation,industrial injury insurance fund to pay compensation,compensation can be recovered from the third party.We can learn that the aggrieved party can obtain both tort damages and injury insurance compensation in addition to the compensation for industrial injury insurance.The provisions of the Supreme People's Court on the hearing of certain issues in administrative cases of industrial injury insurance stipulate that after the worker is injured,the social security department does not confirm the worker's application for work injury because the worker has filed a lawsuit against the infringer and obtained civil compensation,and the people's court does not support it.After the laborer is injured,the social security department recognizes as inductrial injury,the laborer has not brought a lawsuit against the infringer,has not received the tort compensation,directly brings a suit to the people's court,requests to obtain the inductrial injury insurance treatment,the people's court should support.If the worker is injured at work,the social security institution does not pay the work-related injury insurance on the grounds that the worker has brought a lawsuit against the infringer,and the people's court does not support it,except that the infringer has already paid the laborer medical expenses.The Supreme Court made a special statement by issuing a judicial interpretation,which was also provided in the Interpretation by the Supreme People's Court of certain issues concerning the application of the law in cases of personal injury compensation.Some of the above legal and judicial interpretations can solve the applicable legal problems of tortcompensation and injury insurance compensation to some extent.However,this legal issue involves multiple legal relationships and remedies.In the specific judicial practice,the application of the law is inconsistent,and the result of the judgment is not small,which leads to the discussion one after another,which seriously affects the authority of the law.Therefore,in view of the increasing number of such competing incidents,it is of great significance how to solve such incidents smoothly,to protect the rights of ordinary workers to the greatest extent,to optimize the relationship between workers,employers and the state society,and to embody the superiority of the socialist legal system.This paper attempts to compare and analyze the basic concepts and differences between industrial injury insurance compensation and tort compensation,from the case,analyze the advantages and disadvantages of the existing competitive treatment model,draw lessons from the advanced experience of foreign countries and regions,combine the current situation of development of our country,give the applicable methods to solve the tort compensation and injury insurance compensation competition,and suggest that our country adopt part of the concurrent model,in line with the current situation of our country,can protect workers' rights to the greatest extent.The first part of the introduction part,combined with the historical background,introduces the workers in the process of injury after the various processing models,development process,leading to the topic discussed in this paper.The second part of this paper expounds the meaning,basic theory and development course of compensation for industrial injury insurance and compensation for tort damage,analyzes their advantages and disadvantages,and compares them through the form of tables.The third part of this paper starts from the case analysis,introduces and analyzes a case of industrial injury insurance compensation and tort damages compensation,and analyzes the causes of industrial injury insurance compensation and tort damages compensation.This paper makes a comparative analysis of the four models adopted in the competition of compensation for industrial injury insurance and compensation fortort damage.The four models are selection model,substitution model,concurrent model and supplementary model,and analyzes the advantages and disadvantages of various models.The fourth part of this paper analyzes the legal provisions and the model adopted in China when dealing with the compensation of industrial injury insurance and tort damages,enumerates and evaluates the relevant laws of China since the founding of the people's Republic of China dealing with the compensation of industrial injury insurance and the competing compensation of tort damages.The fifth part of this paper gives some suggestions on how to deal with the competition of compensation for industrial injury insurance and compensation for tort damages. |
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