Study On The Legal System Of The Identification Of Industrial Injury While Going Out Taking Into Consideration Both Public And Private Interests

The proportion of administrative cases of work injury insurance in social security administrative cases has increased year by year,and the standard of work injury determination has been the core issue and the focus of dispute in dealing with such cases since the promulgation of the"Work Injury Insurance Regulations"in April 2003 and the"Social Insurance Law"promulgated in October 2010.The core issues and controversial focus.At this stage,China can neither strictly follow the Legalism nor blindly expand the interpretation of the standard of work injury determination due to the constraints of social and economic development.The purpose of the work injury identification system shall be to maximize the protection of the non-subjective workers who have the right to social security after being injured or suffering from occupational diseases due to the interests of the work or employers.The introduction part introduces the background of the topic and the purpose and significance of the research.It attempts to reflect the controversy in the judicial practice about the standard of work injury determination for the laborer's dual purpose,that is,"taking into consideration both public and private interests"in this part.The paper briefly summarizes the legislative experience of the United States,Germany,France and Japan with comparing of work injury identification standards horizontally,and then reference to theirs advanced work injury identification systems through a literature review of domestic and foreign research.Finally the paper studies how to construct a work injury identification standard in line with China's national conditions.The first part introduces a case that a party Tang accuse the Human Resources and Social Security Bureau and the government of some city,summarizes three bones of contention:(1)Whether going out to buy a wrench before assigned is a business trip;(2)Whether Liu's death because of the traffic accident is conforming to Item 5 and 6,Article 14 of The Regulation on Work Injury Insurance;(3)Whether the burden of proof is on the accuser.Then,some questions,such as the lack of clear standards for the identification of work injury and the ambiguous responsibility of proof are proposed by comparing this case with four casualty cases about going out taking into consideration both public and private interests,thereby laying a foundation for the following detailed theoretical analysis.The second part mainly dwells on four main questions in the identification practice of work injury because of going out taking into consideration both public and private interests:not highlighting work reasons in law application,the dilemma of proof burden in the phases of injure identification and administrative litigation,not conforming to the legal requirement of justice in setting of work injury identification institution,etc.The third part analyzes the factors that need to be considered in work injury identification during going out taking into consideration both public and private interests,lists several casualty cases during going out taking into consideration both public and private interests,and summarizes the basic principles and main factors that need to be considered in work injury identification to answer the questions mentioned above.The forth part pertinently proposes some reasonable suggestions to make our country's law system of work injury identification more scientific and rigorous,such as judging a business trip by the principle of work reasons,introducing a process mechanisms mainly including a cross-examination procedure among three parties,establishing evidence rules of administrative litigation about work injury identification,and the people's court shall be entitled to the final right of work injury identification,thereby protecting lawful rights and interests of workers.