Research On The Application Of Work Injury Liability System In Illegal Subcontracting Cases

Recently,there are lots of irregular phenomenon in the industry,including illegal subcontracting and layer subcontracting.The general contractor will try their best to subcontract the project in order to compress the cost and make more profits.In most cases,the project will be subcontracted to units without the qualifications and individuals.As to the lacking of qualification,they can't offer enough labor security to the workers.As results,the safety accidents occurred frequently.It is a great important whether the rights and interests of the injured workers can be relieved effectively when safety accidents happen.There are two traditional kinds of mode.One is the injured workers need to establish labor relations with employers and apply for ascertaining of work-related injury.Another one is claim the compensation for personal damage.However,it is not plenty and effectively the right-defending way for the injured workers in legal practice.The Supreme People's Court has enacted the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Administrative Cases on Work-Related Injury Insurance.The law stipulates that illegal subcontracting enterprises shall bear the liability of work-related injury insurance.It provides a new way of defending rights for the injured workers.To a certain extent,the provisions break through the labor relations identified as inductrial injury and It clarifies the subject of responsibility and the specific legal responsibility.However,the new judicial interpretation leads to the breakthrough in the above cases and avoid the drawbacks of the above mode.This leads to the conclusion that the new judicial interpretation should be applied for illegal subcontracting cases of work-related injury.However,the administration still insists injury takes labor relation as premise.As a result,the new law does not apply effectively to such cases.To be specific,the problem about administration of work-related injury and application of judicial interpretation.Then,the problem about administration of work-related injury and identification of subcontracting.The last is the problem about scope of injury benefits.The paper will further analysis the legal reasons for the difficulties.It mainly includes three aspects.Firstly,the effect of judicial interpretation is limited and cannot be used as the basis of administrative enforcement.Secondly,Investigation and verification by administrative organs is not a necessary procedure for industrial injury identification.And the administrative organ of inductrial injury lacks authority basis to the investigation of illegal subcontracting.Thirdly,the employer's responsibility is not equal to the labor relationship and the essence is a kind of vicarious liability.Although there are various difficulties in the application of the new judicial interpretation,it is necessary to apply the case of illegal subcontracting to determine the work-related injury.This provision fully interprets the legislative purpose of the social security law to favor the protection,breaks through the obstacles of the original industrial injury liability system,and takes into account that the court enjoys the judicial power of final adjudication of administrative disputes,under the premise of not breaking through the limitation of the scope of application of judicial interpretation,proper reference and adoption become inevitable.However,how to effectively apply the new judicial interpretation to the administrative field of industrial injury,we must break through the existing problems one by one.Through the implementation of joint interpretation and limiting the administrative discretion of the inductrial injury determination department toanalyzes the feasibility of the application of the provisions on the determination of inductrial injury in the administrative level.Finally,coordination and perfection of industrial injury liability system in illegal subcontracting.Firstly,improving the judicial interpretation of the application of industrial injury administration.When revising the regulations on work-related injury insurance,the new judicial interpretation was included and joint interpretation by judicial and administrative organs shall be implemented.Secondly,coordinating the problem of worker injury identification and subcontracting work injury.We will strengthen the powers of investigation and verification,set up necessary investigations,and expand law enforcement powers and punishment mechanisms.Finally,improving the treatment of subcontracted workers.We will expand the scope of application for advance payment of work-related injury insurance,and include the subject of illegal subcontracting and illegal employment into the security system.