Study On The Ways Of Workers’ Injury Relief In Illegal Subcontracting Cases

The existence of illegal subcontracting is universal,which causes the dilemma of industrial injury relief.In 2014,the Supreme People’s Court issued the Provisions on Several Issues Concerning the Trial of Administrative Cases Concerning Work-related Injury Insurance(hereinafter referred to as the Provisions),which holds that the illegal subcontractor with the qualification of the labor subject shall bear the liability of work-related injury insurance for the accident of labor injury or death hired by the actual constructor.Although this regulation is reasonable,but there are many problems,such as the separation of the relationship between labor relations and industrial injury identification,in the content and procedure in violation of the provisions of the upper law.In addition,Article 4 of the Notice on Matters Related to the Establishment of Labor Relations(hereinafter referred to as the Notice)and Article 7 of the Opinions on Several Issues concerning the Implementation of the Regulations on Work-related Injury Insurance(hereinafter referred to as the Opinions)are confusing in terms of "employer’s liability" and "Work-related Injury Insurance liability" and lack unified legal support.Cause the judge in the judicial process and the Human Resources and Social Security Bureau in the identification of industrial injury in the process of "the same case is different." Some people’s social security bureaus still take the "Regulations on Industrial Injury Insurance" of The State Council as the basis when determining work-related injuries.Instead of investigating whether there is illegal subcontracting,they directly decide not to recognize work-related injuries on the ground that there is no labor relationship between the workers and the illegal subcontractors.Some human resources and Social security bureaus recognize industrial injuries according to the guiding spirit of the Supreme People’s Court and the Ministry of Human Resources and Social Security,regardless of the labor relationship between the illegal subcontractor and the worker.When the court examines whether there is a labor relationship between the laborer and the illegal subcontractor,the judgment basis is numerous and not uniform,the judgment reasoning is different,and the judgment results are also very different.In addition,the procedure of industrial injury relief is lengthy and repeated,which will lead to inadequate and incomplete workers’ relief.The main reasons for the relief predicament of illegal subcontracting are the difficulty in judicial interpretation and the complicated and lengthy relief procedure caused by the absence of labor relations.The Human Resources and Social Security Bureau ignored the provisions of the Supreme People’s Court on the liability of the illegal subcontractor for work-related injury insurance,and still determined that the illegal subcontractor and the worker had no labor relationship and thus did not constitute work-related injury according to the standards of Work-related injury Insurance Regulations of The State Council.The fundamental reason is that the judicial interpretation and the law do not have the same effect.The judicial interpretation of the Supreme People’s Court cannot be used as a basis for administrative law enforcement.The employer’s liability is embodied in the field of work-related injury insurance.The parties responsible for the labor subject do not have the agreement to establish a labor relationship,nor do they have the subordination.Therefore,there is no labor relationship between the illegal subcontractor and the worker,and the liability of the labor subject is only a kind of alternative compensation liability.The reason for the lengthy and repeated injury relief procedure is that the illegal subcontracting cases do not standardize the employment.The compensation system of illegal subcontracting work injury should be reconstructed under the premise of determining labor relations.First of all,it is particularly important to clarify the relationship between the illegal subcontractor,the actual builder and the worker and the way of responsibility.When the actual constructor is a unit or individual industrial and commercial enterprise with the qualification of the employer,it shall bear the liability of work-related injury insurance for the injured or injured workers.When the actual builder is an individual,he or she shall establish an employment relationship with the laborer,and he or she shall bear the liability of compensation for the personal damage of the injured or injured laborer.There is no agreement to establish a labor relationship between the illegal subcontractor and the worker,nor does it conform to the subordinate elements of the labor relationship,so there is no labor relationship.However,the illegal subcontractor shall bear joint and several liability for the casualties of the workers under certain circumstances.Secondly,in order to reduce the burden of litigation,the laborer can directly Sue the people’s court for compensation for industrial injuries.The court also has the right to directly determine whether there is a labor relationship between the laborer and the illegal subcontractor and whether the injury of the laborer should be recognized as an industrial injury.Finally,the procedure of industrial injury relief should be reformed so that the rights and interests of injured and injured workers can be more comprehensively protected.