On the issue of industrial injury compensation, all countries in the world have experienced the evolution from a single adjustment mechanism of traditional tort law to a multiple adjustment mechanism. With the emergence of industrial injury insurance system, there are two ways to remedy industrial injury accidents: industrial injury insurance compensation and personal injury compensation in tort compensation. Such a legal situation also exists in China: As an administrative regulation, the Industrial Injury Insurance Ordinance stipulates that the victim has the right to request the payment of the industrial injury insurance fund, and the Supreme People's Court's judicial interpretation on personal injury compensation ([2003] No.20) stipulates that the victim has the right to request the third person to bear the compensation responsibility for general personal injury if the third person causes damage. Then, what is the relationship between these two kinds of liability for compensation or the victim's right to claim in double indemnity, how the administrative department and the judicial department apply the relevant laws under the current legal system in China, how the victim should correctly exercise his rights, and how to construct the relevant legal system in the future have all become questions that must be answered scientifically in theory.
First, the comparison of industrial injury insurance compensation and tort compensation system
Industrial injury insurance refers to a social security system that provides material help and economic compensation to workers or their dependent relatives when they have accidents at work or under special legal circumstances, or when they are injured (or suffer from occupational diseases), disabled or die due to occupational harmful factors. Compensation for personal injury caused by industrial accidents and occupational diseases by industrial injury insurance has obvious advantages: the victim can get compensation quickly, and both the victim and the employer can avoid expensive civil litigation procedures, and the compensation will not be reduced because of the general negligence of the victim. At the same time, the responsibility of industrial accidents belongs to a kind of tort liability, and the victim can claim tort liability for personal injury caused by industrial accidents according to the provisions of the Tort Liability Law. Compared with industrial injury insurance compensation, ordinary personal injury compensation has wider compensation scope, higher compensation standard and larger compensation amount. However, there are many limitations in this relief method: the victim faces the risk of being unable to prove and execute, the litigation process is long and costly, and the application of the negligence offset rule will greatly reduce the compensation obtained by the victim. Specifically, the difference between industrial injury insurance compensation and tort compensation is reflected in the following two aspects:
(A) the legal value is different
The system of tort damages belongs to the legal system in the field of private law, and the principle of imputation of general tort is the principle of fault liability. It reflects the negative evaluation and criticism of the law on the actor's violation of legal ethics, infringement of social interests and the interests of others. Through the way of damages, the purpose of punishing and educating the actors is achieved. The key point is to balance individual interests and realize distributive justice.
The compensation system of industrial injury insurance belongs to the legal system in the field of social law. Through social insurance, the employer pays a certain insurance premium according to the accident rate, and the personal responsibility of the employer is transferred to the insurance institution, and the main body of responsibility is still the employer. Its legislative purpose is not to investigate who is at fault, but to compensate the victims by raising insurance premiums. Because the behavior that causes damage is "a necessary economic activity in modern society, there is no illegality at all", and its focus is on the overall interests of society, not specific personal interests.
(2) The scope and standard of damages are different.
The purpose of tort compensation is to punish the infringer and fill the damage of the victim. The legislation of all countries basically adopts the principle of comprehensive compensation, including material damage compensation and mental damage compensation, and the compensation standard is also high. The compensation of industrial injury insurance is to realize social justice and ensure the minimum living standard of employees. The compensation scope of industrial injury insurance is limited to material losses, and does not involve compensation for mental damage. The standard of compensation is determined by combining the laborer's own labor ability and the minimum social standard, and it is compensatory, not compensatory. Therefore, the compensation amount is limited, and the general tort damages are higher than the compensation amount of industrial injury insurance.
Two, foreign industrial injury insurance compensation and tort compensation system processing mode and evaluation
(A) the alternative model
Substitution mode refers to the compensation of industrial injury insurance replacing the employer's tort compensation. After an accident at work, employees can only claim compensation for work-related injuries, and the employer cannot be required to bear tort liability. However, under special circumstances, if the employee's work-related injury is caused by the employer's intentional or gross negligence, the victim also has the right to request tort damages from the employer according to the provisions of the Tort Liability Law. If the insurer pays the treatment of work-related injury insurance in advance, it enjoys the right to claim compensation from the employer within the scope of payment, and of course, the insurer can also give up the claim according to its calculation. Countries that adopt the alternative model include Germany, Switzerland and other countries. The advantages of this model are: firstly, it conforms to one of the purposes of establishing the industrial injury insurance system, that is, exempting employers from tort liability, because they only need to pay a certain amount of industrial injury insurance premiums, so that the society can share the losses caused by their industrial accidents; Second, it is in line with the fundamental purpose of the industrial injury insurance system, that is, to meet the basic living security of industrial injury victims in a short time, because compared with the litigation method of tort compensation, the application method of industrial injury insurance is very simple. Of course, this model also has its shortcomings: first, the treatment of industrial injury insurance is generally lower than the amount of tort damages, and the alternative model actually deprives the victims of the right to receive full compensation; Secondly, in this mode, as long as the employer pays the insurance premium, it will no longer bear any responsibility, which is very unfavorable for urging the employer to take active measures to prevent the occurrence of work-related injuries and sanction the behavior that leads to work-related injuries.
(2) Selection mode
The choice mode means that the victim can only choose between tort damages and industrial injury insurance compensation. On the surface, this model gives the parties the freedom to choose the way that is beneficial to them. In fact, due to the defects of industrial injury insurance compensation and tort compensation, it is very unfavorable to the parties. Because it is simple and convenient to apply for compensation from industrial injury insurance, the amount of compensation is generally low. Although the amount of tort compensation is high, it is often achieved through complicated and lengthy litigation procedures. For victims who urgently need money to treat work-related injuries, maintain themselves and support their relatives' basic livelihood, it is indeed far from quenching their thirst. Moreover, even if the lawsuit is won, it is uncertain whether it can be really implemented. In this way, victims can only seek stability, accept lower compensation from industrial injury insurance, or take great risks for higher compensation. There is no doubt that this is unfair. This model was once implemented in Britain, but it has now been abolished.
(3) have it both ways
The mode of "having both" means that the victim's claim to either party of tort compensation or industrial injury insurance compensation does not affect his claim to the other party, and the victim has the right to obtain the double benefits brought about by it. The advantage of this model is that it gives the victims sufficient or even excessive protection. There are also two critical views on this model: first, this model completely deviates from the purpose of establishing industrial injury insurance, which is to reduce the responsibility of employers and socialize them, while the combined model not only does not exempt employers from their responsibilities, but increases the burden on employers. Secondly, in this mode, the victim can get double indemnity, and the total compensation may exceed the actual damage, which violates the principle that "the victim shall not get unexpected benefits due to infringement".
Supplementary mode
Supplementary mode means that after an industrial accident, the injured employee can claim tort damages and industrial injury insurance payment at the same time, but the final compensation or compensation shall not exceed the actual damage he has suffered. Generally speaking, compensation is accepted according to the following procedures: after an industrial accident, the injured employee first receives industrial injury insurance money, and then claims tort damages according to the tort law, but the industrial injury insurance compensation he has received should be deducted. That is to say, after receiving the compensation from work-related injury insurance, the injured workers have the right to file an infringement lawsuit on the difference between the relief in tort law and the compensation in work-related injury insurance. At present, countries adopting this model are Japan, Chile, Northern Europe and so on.
Supplementary mode is a modern industrial injury compensation rule, which has been accepted by legislation and theory in many countries. The purpose of establishing supplementary mode is: on the one hand, to prevent victims from obtaining double benefits, to reduce the burden of work-related injuries of employers and to save limited social resources; On the other hand, it can ensure that victims get full compensation and maintain the disciplinary and preventive functions of relevant legal systems. It is the product of long-term running-in of modern tort liability system and industrial injury insurance system, which is more logical than the above three models and more in line with the concept of social fairness and justice.
Third, the understanding of the relevant provisions of China's industrial injury compensation
The provisions of Article 28 of the Trial Measures for Industrial Injury Insurance for Enterprise Employees 1996 (which has been replaced by the Regulations on Industrial Injury Insurance) promulgated by the Ministry of Labor in August have essentially determined the principle that civil compensation for traffic accidents is the mainstay, supplemented by industrial injury insurance payment, which belongs to the supplementary mode. However, this model has not been inherited by the later Regulations on Industrial Injury Insurance. The Law on the Prevention and Control of Occupational Diseases, which came into effect on May 1 2002, deals with the relationship between industrial injury compensation and civil compensation for the first time. Article 52 of the law stipulates: "In addition to enjoying work-related injury insurance benefits according to law, patients with occupational diseases still enjoy work-related injury insurance benefits according to relevant civil laws.
Have the right to get compensation and claim compensation from the employer. The Law on Work Safety promulgated by the National People's Congress on June 29th, 2002 is the earliest legislation in China to stipulate the relationship between industrial injury insurance compensation and civil tort compensation. Article 48 of the law stipulates: "Employees who are injured by production safety accidents have the right to claim compensation from their own units in accordance with relevant civil laws, in addition to enjoying work-related injury insurance according to law." This provision of the Law on Work Safety should be understood as: "After a work safety accident occurs, employees should first enjoy the corresponding remuneration in accordance with the stipulations of the labor contract and the work-related injury insurance contract. If the work-related injury insurance money is not enough to compensate the victim for personal injury and economic loss, and compensation should be given in accordance with relevant civil laws, employees or their relatives have the right to claim compensation from the production and business operation entity. " This belongs to the auxiliary mode.
In 2003, the Supreme People's Court Judicial Interpretation of Personal Injury Compensation explained the relationship between industrial injury insurance compensation and ordinary personal injury compensation. Article 12 of the judicial interpretation stipulates the compensation for personal injury in the process of labor. Paragraph 1 of Article l2 stipulates: "If the employee of an employer who should participate in the overall planning of industrial injury insurance according to law suffers personal injury due to an industrial accident, and the employee or his close relatives bring a lawsuit to the people's court, requesting the employer to bear the civil liability for compensation, they shall be informed to handle it in accordance with the provisions of the Regulations on Industrial Injury Insurance." The second paragraph stipulates: "If a third party other than the employer infringes and causes personal injury to the laborer, the people's court shall support the obligee's request that the third party bear civil liability for compensation." Chen Xianjie, a senior judge in the Supreme People's Court, said: The judicial interpretation "adjusts the relationship between industrial injury insurance and civil damages in a mixed mode. The essence of mixed mode is to replace civil damages with complete industrial injury insurance within the scope of employer's responsibility. However, the worker's work injury is caused by the tort of a third party, and the third party cannot be exempted from civil liability. " This explanation is very appropriate.
Four. Tentative ideas on constructing the compensation system of industrial injury insurance and tort compensation
On the basis of protecting the basic interests of employees, giving consideration to fairness and justice, coordinating the interests of infringers and social insurance institutions, achieving the purpose of safeguarding the interests of employees and punishing infringers, so that the resources of industrial injury insurance funds of social insurance institutions can be allocated efficiently. In the relationship between the two, we should adopt a complementary model, that is, the benefits obtained by employees are only based on the maximum amount of compensation for work-related injuries or civil compensation for infringement. At the same time, it is stipulated that the compensation amount of insurance institutions is the difference between the maximum amount and tort compensation (excluding tort compensation for mental damage), allowing employees to compensate or compensate the actual infringer or insurance institution first, and requiring the insurance institution or the actual infringer to make up the insufficient part, and the insurance institution enjoys the right of subrogation for the excess part of the actual infringer within the scope of compensation. The reason for this is the following：
First, it conforms to the purpose of industrial injury insurance system and personal injury compensation legislation. If the supplementary mode is adopted, industrial injury insurance is the main compensation mechanism, and civil compensation is only a supplement, which embodies the idea of partial substitution and conforms to the purpose of establishing industrial injury insurance. At the same time, this can not only punish the infringer's behavior, but also ensure that the injured employees get the protection they deserve, and will not lead to different compensation for infringement between the injured employees and non-employee natural persons, which is in line with the purpose of personal injury compensation legislation.
Second, it conforms to the legislative purpose of protecting the weak. Employees are weak relative to employers or industrial injury insurance institutions. In order to get timely and effective compensation for their own interests, employees should be allowed to pay compensation for work-related injuries to their insurance institutions first, and then claim compensation from the infringer for the insufficient part. Because the infringer may not be able to compensate or the infringer's escape whereabouts are unknown, it is actually impossible to obtain compensation. Moreover, it takes a long time to ask the infringer for compensation, which consumes a lot of energy and cost, and employees can't get compensation in time and quickly. Therefore, injured employees should be allowed to claim tort damages and industrial injury insurance at the same time. Injured employees can choose to ask insurance institutions to pay in advance according to work-related injury insurance. After compensation, the social insurance institution obtains the right of recourse against the infringer, and the right of recourse should be limited to the part paid by the social insurance institution to the employees. If the compensation obtained from social insurance institutions is less than the compensation for infringement damages, the employees have the right to compensate the infringer again. The injured employee can also choose to claim tort damages from the infringer first. If the compensation is insufficient or the actual compensation cannot be obtained, the victim has the right to claim the difference from the insurance institution.
Thirdly, from the perspective of rational and effective allocation of social resources, it is a waste of limited social resources to adopt the mode of having both, so that injured workers can get double indemnity for the same injury, and most national legislation explicitly prohibits this practice. On the contrary, under the supplementary mode, although the compensation obtained by the workers with work-related injuries can come from both work-related injury insurance compensation and civil compensation, the total compensation they get does not exceed their actual losses, and there will be no so-called "unexpected gains", resulting in unreasonable distribution of social resources.
Verb (abbreviation of verb) conclusion
Industrial injury insurance compensation has undoubtedly played a progressive role in solving the efficiency of workers' claims, but its system does not take into account the personality requirements of workers. If the law blindly emphasizes that industrial injury insurance covers civil compensation for industrial injuries, it is necessary to raise the compensation standard of industrial injury insurance, but the improvement of the standard still cannot fundamentally solve the personality claim of workers. Therefore, for industrial injury victims, the law should allow industrial injury insurance to provide the main source of compensation, while retaining the right of industrial injury workers to obtain civil compensation (continued from page 35) (continued from page 70), with civil tort compensation as the supplementary source and the actual damage suffered by industrial injury workers as the maximum limit.
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