Research On Relief Of Injury At Work

In modern society, people congregate to work together in places such as the factories, mines or construction sites etc. The industrial accidents become more and more serious and frequent. Relief of injury at work has become a severe social problem. Our country's legal system of insurance against injury at work is newly established. Research on relief of injury at work in the theoretical circle of science of law is far from sufficient. The courts'protection to the victims of the industrial accidents is also far from strong. Therefore, to deepen the research on the injury at work and explore the best model for the relief of injury at work entails theoretical and practical significance to properly solve this social problem of relief of injury at work, to protect the social stability and to promote the economic development. Our country's Labor Law has not defined the concept of injury at work clearly. The author thinks that any laborer in the enterprises, companies in China, who suffers from the accidental injury when at work or in production, or encounters the unexpected incidental violence due to the implement of his responsibility, or suffers from the unexpected injury due to the transportation accidents on the road to work or back home, thus becoming injured, disable or suffered from death, or suffers from sudden disease death due to the professional diseases caused by the working environment, are laborer who suffers from the injury at work. In respect of injury at work, five basic relief methods will be carried out in different countries or regions: 1.Payment for the injury at work due to the responsibility of rights violation. 2. Payment for the injury at work through the social insurance. 3. The laborer who suffers from the injury at work gets the double compensation of rights violation injury and the social insurance. 4. The laborer who suffers from the injury at work makes a choice between the rights violation compensation and the social insurance compensation. 5. The rights violation injury compensation complements the insufficiency of the social insurance compensation. Among these five relief methods, the social insurance method is compatible to the trend of the historical development and the process of the industrialized development, and it is beneficial to the laborers. It also takes the interests of the managers into consideration. Till 1995, it has been adopted by 159 countries. Like most countries in the world, our country applies the method of social insurance to provide relief to the laborers suffering from the injury at work. However, the public-owned economy differentiates from the non public-owned economy. The employees in the non public-owned enterprises (including partnership enterprises, private-owned enterprises, township enterprises, village enterprises and different kinds of enterprise contractors, laborers employed by the contractors), if suffered from injury or death at work, are not regarded as the employees who suffer from injury at work, and thus do not get the payment from the insurance against the injury at work. The laborers at the equal status who should enjoy the equal rights cannot equally get the relief of the injury at work due to the different identities. The author thins that the accidents of injury at work exist in all workplaces, they should not be distinguished into different economic types, and the identities of the laborers or workers should not be strictly distinguished as such. If the laborers suffer from the injury at work, they should have the equal right to get the relief promptly and efficiently. Our country's existent relief system of injury at work has the following problems: 1. The scope of the injury at work is relatively narrow and limited. The relative codes fail to list all the situations of the injury at work. 2. The explanation made by the labor administrative departments to the scope of the injury at work is usually restrictive explanation. And the already narrow scope of injury at work is further limited. 3. The arbitration effectiveness system and the litigation effectiveness system regulated by the Labor Law form a very strict restriction to relief of injury at work. 4. The requirement of the injury at work affirmation and payment of injury at work by the injured laborers and their relatives as the labor dispute cases are limited by the litigation terms of the courts. To solve the difficulties of the relief of injury at work for the laborers, the author puts forward a proposition on the levels of procedural law andsubstantive law in light of the existent problems and personal trial practice. Assumptions on the levels of the procedural law: 1. Enlarge the scope of the affirmation of the injury at work for the laborers. The concrete method is: clarify the connotation of the concept of injury at work and enlarge its extension. 2. Reduce the limitation to the relief of the injury at work. The concrete method is: clarify that the appeal of affirmation and payment of the injury at work does not entail the problem of period of effectiveness; the judge applies the regulations of the civil law which are beneficial to the injured laborers and their relatives on the effectiveness of the litigation ( The period of effectiveness of litigation of the appeal of protection of their civil rights by the party concerned to the courts is two years); as for the cases in which the laborers can not get the affirmation and payment of injury at work arbitrated by the labor dispute arbitration committee, if the court affirms that the relationship between the laborer and the employer is actual, the court should hear the case and make the finality. 3. Transform the current payment method of relief of the injury at work. The concrete method is: permit the injured claimants at work who pay the full-amount insurance money against the injury at work to put forward the requirement directly to the insurance organizations against injury at work. The relative organizations directly pay for the insurance money to the injured laborers. Assumptions on the levels of substantive law: 1. Establish a relief system of injury at work which combines the compensation of the insurance against injury at work and the compensation the labor rights violation injury. As there are many industrial accidents happened in the non public-owned economy, and the laws or codes have no clarified regulations to the implement of the insurance against injury at work in the non public-owned economy, some managers try every means to lower the insurance salary, and some managers do not carry out the insurance against injury at work for the laborers at all. So it is necessary to establish a relief system of injury at work which combines the compensation of the insurance against injury at work and the compensation the labor rightsviolation injury. The concept of labor tort: Any manager of the non public-owned economy in the process of pursuing their own interests through the work of the labors, if exist the following problems: â‘ use the simple, crude or flaw production equipment or labor tools, â‘¡the labor safe sanitary conditions and the labor protection utilities provided do not accord with the natural regulations, â‘¢nonconforming conductions or enforced risk work to the laborers, â‘£the malevolent, improper employment behavior which involves the labor regulations or rules violating the laws or codes and leads to the happening of the injury at work, and the injury to the laborers can be regarded as the labor tort of violation of the laborer's personal rights out of faults. When the managers have no faults, however, the compensation the victim of the injury at work have received has manifested injustice and entailed the possibility of arousing a severe social problems according to the special regulations of law and social customs, this behavior can be regarded as the labor tort. Labor tort compensation methods: â‘ When the compensation the injured laborers and their relatives receive is obviously insufficient, they can require the labor tort compensation from the managers but the received compensation for the injury at work should be deducted. â‘¡when it is impossible for the victim of the injury accident at work to receive the compensation for the injury at work, the labor tort compensation should substitute the compensation of insurance against injury at work completely. Labor tort compensation principles: â‘ fault responsibility principle. â‘¡Non-fault responsibility principle â‘¢Fault counterbalance principle. â‘£Impunity conditions (when the laborers are injured or die due to crime, violation of the public security management, fighting, drunk, deliberate violations of regulations, self-disablement, suicide or force majeure, the managers can be free from responsibility. 2. The application of the labor tort compensation. The employers, contractors (leaseholder), the illegal employment subject, the shareholders under the negation of the character of the company law, the relative laborers with severe negligence all belong to the subject of the labor tortcompensation responsibility. The third party who caused the injury at work due to the tort should solely shoulder the responsibility of tort injury compensation. 3. Permit the injured laborers at work and their relatives to claim the mental injury compensation. Our country's insurance against injury at work does not have the quality of the mental injury compensation. However, the injury, disability or death of the laborers caused by the injury at work will bring mental injuries to the victim and their relatives just as the crimes and the civil tort. The supreme court enacted successively and , which makes breakthrough in the judicial protection to the personal rights of the natural persons in our country. The judges can cite the relative regulations from the damage claim litigation of injury at work to support the injured victim's appeal on the mental injury compensation. The opinions and proposition in this article may be not ripe, but the author believes that they will be beneficial to the laborers and the society. In the trial practice, the judges should cherish the social injustice and the sympathy to the weak in their hearts, reasonably apply the legal complement principles, properly try to "make the law"and try their best to make their contributions to the construction of a harmonized society.