Research On Legal Issues Of Employee Injury Insurance For Flexible Employees In The New Business Format

The new business format is to meet the needs of diversified,diversified and personalized products or services,and rely on technological innovation and applications to derive new links,new chains and new activity forms from the existing industries and fields,which are manifested as a platform economy,Sharing economy,etc.Under the new business economy,employees have more flexible working hours,more relaxed working conditions,and more employment options.However,the flexible employees in the new business format face many occupational risks in their work.However,the current legal system of work injury insurance,which is tied to standard labor relations,cannot effectively respond to and protect their occupational disasters.In this context,the employment injury protection system should respond to the needs of flexible employees in the new industry.In the "Opinions on Dealing With Employment and Entrepreneurship Work for the Present and Future Periods" issued by the State Council in 2017,it was clearly stated that we should explore ways to protect the unemployment and work injury insurance to adapt to flexible employment.The 2019 State Council executive meeting once again emphasized the need to promptly clean up and abolish unreasonable restrictions on flexible employment,and launch a pilot for occupational injury protection for new employment personnel.It is of direct practical significance to study the issue of work injury insurance for flexible employees in the new business format.The biggest difference between the flexible employment of the new industry and traditional laborers is the identification of subordinate attributes.Thanks to the new business model,flexible employees can decide whether to accept orders,the working hours and work content tend to be flexible,which will inevitably weaken the personal and organizational subordinate attributes.Does the new flexible employment belong to the labor category,Whether it can be used as an insured person for work injury insurance is still a matter of controversy in academic circles and judicial practice.Through the empirical analysis of judicial cases,in practice,the focus of the dispute on the lawsuits filed by new-type employment employees due to work-related injuries is basically to confirm whether there is a labor relationship between flexible employees and platform enterprises.In this regard,the judges’ decisions based on different discretionary attributes can be described as polarized.At present,there is a gap in the legislative level of the work injury protection system for flexible employees in the new industry in China.Only pilots have been conducted in Nantong City,Taicang City,Wujiang District,Suzhou City and Weifang City,Shandong Province.By summing up the pilot experience and combining the differences of judicial rulings,it is found that there are the following difficulties in applying employment injury insurance for flexible employers: Firstly,the labor relationship is tied to employment injury insurance,and labor relationship has become a prerequisite for applying employment injury insurance;Secondly,the identification of injuries to flexible employees is also more vague due to their flexibility.Thirdly,in terms of the main body and method of payment,whether the government pays or the individual bears the burden,and whether it is bundled with other social insurance for flexible employees or a single collection cannot be determined.Fourth,in terms of payment of benefits,who should bear the part that was originally paid by the employer,and how to determine a reasonable level of payment of treatment.Inspection of the employment injury protection system for flexible employees abroad may have some implications for China.Germany has established a comprehensive coverage of the employment injury insurance system,and some self-employed persons are also included;Italy includes temporary workers in employment injury insurance coverage by deducting employment injury insurance fee from the remuneration of temporary workers;the United Kingdom and Japan both have methods for flexible employees to join employment injury insurance.China can study and learn from its beneficial experience.The following ideas can be adopted in the path selection: Firstly,The current "Employment Injury Insurance Regulations" cannot be directly applied to flexible employees in the new business format.A separate legislative model should be adopted to formulate occupational injury insurance for flexible employees.Remove the preconditions for the identification of labor relations that apply for industrial injury protection;in terms of specific design,identify industrial injuries in combination with the working characteristics of flexible employees,take the government as the lead,adopt a payment method that encourages co-payment with other social insurance,and choose scientific and reasonable payment standards.Introduce commercial insurance agencies.Finally,attention should also be paid to the occupational injury prevention system.Flexible employees should raise their awareness of safety,enterprises should strengthen safety promotion,and establish a floating rate mechanism for the industry.