Study On Compensation Of Personal Injury Of Employee In Individual Business

With the development of market economy, the role of individual business is more and more important in the market economy, but the stipulation of compensation for the personal damage of employee by individual business in current law is in confusion. Pursuant to the relevant provisions in Labor Law and Tort Liability Law, the employment relationship between employer unit and employee is regulated by Labor Law and Labor Contract Law, but according to civil law practice work injury is recognized as tort action, this judgement was also recognized in the cases listed in Approval and Answer to Rigorous Implementation of Labor Law and Regulations in Employment Relation issued on the Supreme People Court Communique. Article 73 in Labor Law clearly prescribes the insurance which should be taken by the employee in employer unit. Based on item 3 in article 73, namely"the insurance treatment and standard enjoyed by workers shall be stipulated by labor law and regulations", personal injury of employee in individual business will be applied Regulation on Work-Related Injury Insurances. Previous to the Tort Liability Law took force, Interpretation of Several Issues in Trying the Case of Compensation for Personal Damage by Supreme people's Court and Regulation on Work-Related Injury Insurances were mainly used to deal with above problems in legal practice, but the compensation standard in the former was much higher than that of the latter. In case trying stage, due to different perceptions of above two legal documents by judges in practice, different judges apply different rule in trying cases, which also leads the distinction of compensation.The provisions on tort compensation in Tort Liability Law taking force in 2010 are clearer. Tort Liability Law directly substitutes some prescriptions in Interpretation of Several Issues in Trying the Case of Compensation for Personal Damage by Supreme people's Court. Especially the stipulation o"fsame compensation standard can be adopted in a series of actions of a tort", namely the standard of"same price before same life", is considered as a huge progress in legislation. Article 34 in the Tort Liability Law provides that employee causes injury to others the employer should bear the liability, but as to the work related injury of employee in the business activities, it provides noting. How to shoulder the liability of personal injury of providers of labor in labor relations is stipulated in article 35, based on current law, employment relation is only applicable to individual employment and not applicable to labor relation formed between employer unit and workers. On the basis of article 34 of Tort Liability Law, employer unit involves individual economic organization and the latter involves individual business, so this article can not be applied to the personal injury of employee in the relation between employee and individual business employer which is a part of employer unit.New Regulations on Work Related Injury Insurances was promulgated in 2011, it dramatically raised the compensation standard of work related injury. However, national uniform standard also brought many problems which will be illustrated in part 2 of this paper.The author starting from safeguarding the legitimate interest of workers for individual businesses, analyses the application difference between Tort Liability Law, Regulation on Work-Related Injury Insurances and Interpretation of Several Issues in Trying the Case of Compensation for Personal Damage by Supreme people's Court, refers to the foreign judicial practice and put forward some advice on completing the issues proposed in this paper.