| Injury insurance is the country to protect laborer in working process because the job is direct,bring about accident to harm indirectly or when sill die even,obtain the system of social compensation,since a kind of compensation,also be a kind of help.The component of help is mainly reflected in the loss of the ability to work,the workers’ compensation can be used to help themselves and their families through the difficult period of tight income.Because the identification of work-related injury is the necessary procedure to obtain the compensation for work-related injury,coupled with the dual attributes of compensation and help,the judicial cases involving such identification are increasing day by day,and the disputes and differences are increasingly intensified.Many of these cases involve the provisions of Article 15,paragraph 1,paragraph 1,of the Regulations on Injury Insurance,namely the "48Hours" clause referred to in the article.This clause is regarded as the provisions of industrial injury,and the provisions did not explicitly mention the cause of work,the "Cause of Work","Job","Rescue Ineffective" and other elements are not clear explanation,its connotation and extension can not be determined,resulting in the judicial practice of the same case of different results.And,because of the provisions is the case that laborer dies of disease,when industrial injury is determined,the court’s support and negation decided the degree that laborer’s family gets compensation for industrial injury is "All Have" or "All Have No",the economic condition of the family after laborer dies of disease has extremely significant influence.Therefore,for this kind of case,the court needs to be more careful when judging and identifying.This article aims to enumerate typical cases,analyze the differences and disputes between different courts,and sum up four legal issues: one is the determination of "Working Hours";The second is the identification of "Working Position";Third,the identification of "Rescue Invalid";Fourth,the identification of the starting point of "48 Hours".On the cognizance of "Working Hours",the article combed between work and rest commute on the way whether can be regarded as "Working Hours" that these two controversial,and in taking coffee breaks the situation and subdivided into long time taking coffee breaks and the duty when not taking coffee breaks,the two circumstances according to these circumstances,the comparative analysis of the courts at all levels of the referee,Drawing on the practice of the corresponding case in the United States,the paper concludes that when the court determines whether the break is "Working Hours",it should consider whether the employer still has management and domination over the worker at that time.When the result is positive,it can be identified as "Working Hours".When determining whether the commute is "working time",the factors such as the working hours of the laborer at ordinary times,the accumulation of overtime hours,and the working intensity should be taken into account,and should be handled as appropriate,instead of being identified as "yes" or "no".For the cognizance of "Working Position",the article combed out on business and remote office the two different working situations controversy of "Working Position",although not all belong to both fixed office work area,but in reality working environment variable,diverse situations and so both the working status of a sudden disease there are still differences,And inclination of the court when handling these two kinds of situations are different,in this paper,through the contrast analysis,think the court in dealing with the employee on a business trip on business location is in line with the scope of "Working Position",should consider the nature of work,job responsibilities,laborer to work and work discipline and so on,these factors do not need to meet at the same time,as long as you meet the one,It would be considered a "Working Position";As for the identification standard of "Working Position" in telecommuting,the article thinks that the interpretation should be appropriately broadened.As long as the distance between working and non-working area is short and does not break through the reasonable range of normal people’s understanding,it can be identified as "Working Position".For the cognizance of "Rescue Invalid",the article combed the home save your case and give up the rescue of the two kinds of situations,the typical cases of selected representative a disputed point,discuss the different court reason,sorting out the deal with similar problems in the academic circles and judicial practice of different point of view,will decide how to "Rescue Invalid",it is concluded that the most appropriate standard,In other words,when determining the situation of self-help at home,the court should proceed from the original intention of the legislation and consider whether the reason for the worker’s not going to the hospital is justified.When the reason is valid,the court should moderately expand the scope of interpretation of "Rescue Invalid " and tendentiously protect the worker.For the situation of giving up treatment,the court should examine two points in the determination,one is whether the family members actively rescue the behavior,the other is whether the consequences of rescue is the result of presumed inevitable death,and in accordance with these two points,it can be identified as "Rescue Invalid ",without considering the subjective motivation of the family members to give up treatment at that time.Finally,the article combed the "48 Hours" to count points in the areas of controversy in judicial cognizance,namely for the regulation of "The Time of Initial Diagnosis of Medical Institutions",the court to explain and apply different reason,analyzed one by one,from the perspective of legal theory,legislative intent,and for convenience,to discuss different interpretations of laborers,to the enterprise,the different influence on society,In the end,it is suggested that the starting point of "48Hours" should be the issuing time of the diagnosis. |
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