Research On The Legal System Of Advance Payment Of Work-related Injury Insurance Fund

The advance payment system of industrial injury insurance fund began with the provisions of Article 41 and Article 42 of the Social Insurance Law of the People’s Republic of China in 2011.The system aims to solve the relief problem of uninsured injured workers when the employers pay insufficient treatment for industrial injury insurance,or the third party pays insufficient medical expenses.However,ten years after the establishment of the system,which has still not been effectively implemented throughout the country,and the majority of uninsured workers are still difficult to obtain effective relief,and the original intention of the legislation has not been fully realized.Therefore,it is necessary to discuss the system,analyze the difficulties and root causes of its implementation,and seek the path to improve it,so that it is implemented,benefiting hundreds of millions of workers free from the industrial injury insurance.This paper adopts the case analysis method,data analysis,comparative analysis method,with the advance payment stipulated in Article 41 of the Social Insurance Law as the main research object,explore the dilemma and root cause of advance payment from the perspective of law implementation,analysis of the two levels of legal relationship in the industrial injury relationship——labor relationship,social security constitutional relationship,concluding that the function positioning of advance payment should be from mixed with "insurance payment" back to "social security payment",in the scope of advance payment,the concept of guaranteeing the basic and wide coverage should be followed,and the administrative punishment mode of "charging punishment for raising" should be proposed to replace the recovery system in terms of fund guarantee.This paper contains three parts except for the introduction and the conclusion:The first part takes the difference of the judicial views of the advance payment case as the starting point,summarizes and analyzes the conflict between the judicial views of the court and the defense opinions of the social security department in the premise,responsibility source and functional positioning of the advance payment,reflects the root cause of the contradiction between the current situation of legislation and practice lies in the incompatibility of the implementation environment of legislation and law,which leads to the stopping of the advance payment system at the individual case and the failure to realize the purpose of the system.The second part analyzes the difficulties existing in the implementation of the current advance payment system,such as the difficulty in implementing the supporting implementation system of local governments,the cumbersome application procedures,the controversial scope of advance payment,the lack of ability of fund management institutions,the difficulty of recovery after advance payment,the negative response of social security departments,and analyzes the root causes of the dilemma,points out that the legislation of the advance payment system is divorced from the national conditions and has congenital defects,which is manifested in the lack of basic support,the absence of state responsibility,the procedure and the original intention of the system are reversed,and does not adapt to the theory of social insurance rights.The third part puts forward the legislative path to improve the advance payment system.Drawing on the experience of the Taiwan region,by analyzing the existence of two legal relations in the field of industrial injury: the labor relationship between the employer and the injured workers,and the constitutional relationship between the state and the social security of the injured workers,concluding that the legislative thinking of the advance payment system should be changed,that is,while clarifying the subject status of national obligations,the function positioning of advance payment should be from mixed with "insurance payment" back to "social security payment".Accordingly,the legislative key points of improving the advance payment system are proposed,First,to establish a fund guarantee system with relatively independent fund setting,the administrative punishment mode of "charging punishment for raising" to replace the recovery system,and clarifying the responsibility of national financial subsidies;Second,the scope of advance payment should comply with the concept of basic and wide coverage of insurance,and the formation of multi-level industrial injury insurance protection;Third,the advance payment procedure should reflect the purpose of the system.