试论乡村房屋建设中人身损害的主要问题与解决对策
发布时间：2018-11-21 16:41
【摘要】：在当代，构建社会主义和谐社会是社会发展的主题，在这样的发展背景下，就要注重以人为本，妥善化解社会纠纷，将各类矛盾扼杀于萌芽状态，促进社会平稳健康发展，为构建和谐社会创造有利条件。在我国，由于乡村自建房工程量小，，建筑企业压根提不起兴致，因此，乡村建筑队有着巨大的存在空间。但是，目前我国的乡村建筑市场鱼目混珠，主要以松散拼凑的临时队伍为主，安全意识薄弱，条件匮乏，不仅没有在工商部门注册登记，更谈不上建筑资质及专业技能培训，急需进一步规范。同时，相关的职能部门对其缺乏有效的监督管理，导致伤亡事故时有发生，由此引发的人身损害赔偿纠纷案件也逐年增长。该类纠纷调解难度大，诉讼费用高，极易给当事人带来巨大的创伤，甚至造成无法承受的经济负担，若未能及时处理妥当，恐将诱发新的社会矛盾。而反观当前的法学理论和司法实务，就如何妥善处理乡村房屋建设中的人身损害纠纷，并未达成统一的司法标准，同案不同判的现象严重。 本文根据所在基层法院在处理该类型人身损害纠纷的司法实践，探索总结我国乡村房屋建设人身损害的具体内涵、法律特征，并依据现行法律规定、对司法实践中的一些重难点问题提出相应的破解对策。除去引言和结语，本文一共分三章，详细内容阐述如下： 第一章主要对乡村房屋建设人身损害的内涵、法律特征、现行法律规定和司法现状进行阐述。首次将乡村房屋建设人身损害定义为：在乡村的房屋建设过程中发生的，造成自然人生命、健康、身体遭受损害的法律事实。 第二章通过一则典型的乡村房屋建设案例，分析论证乡村房屋建设人身损害的主要问题，辨析基本法律关系和衍生法律关系，对是否适用建筑法和合同法进行论证，并对乡村房屋建设合同的性质进行认定，确认房主和包工方的责任承担。 第三章针对我国乡村房屋建设的现状，提出解决现行乡村房屋建设人身损害问题的对策建议。包括：建立健全相关法律法规，规范乡村房屋建设监督检查制度，推行人身意外伤亡事故强制保险，加大建筑施工安全生产宣传教育力度等举措，尽最大可能地避免、控制事故的发生，妥善解决纠纷，为我国的社会主义现代化建设保驾护航。
[Abstract]:In the contemporary era, building a harmonious socialist society is the theme of social development. In such a development background, we should pay attention to people-oriented, properly resolve social disputes, nip all kinds of contradictions in the bud state, and promote the steady and healthy development of society. Create favorable conditions for building a harmonious society. In our country, because of the small quantity of self-built houses in the countryside, the construction enterprises can not raise their interest at all. Therefore, the rural construction team has a huge space for existence. However, at present, the rural construction market in our country is dominated by casual temporary teams, with weak safety awareness and lack of conditions. It is not only not registered with the industrial and commercial departments, but also without building qualifications and professional skills training. There is an urgent need for further regulation. At the same time, the lack of effective supervision and management by relevant functional departments leads to the occurrence of casualty accidents, and the number of personal injury compensation disputes caused by them increases year by year. This kind of dispute mediation is difficult, the litigation cost is high, it is easy to bring huge trauma to the parties, and even cause an unbearable economic burden. If it is not handled properly in time, it may induce new social contradictions. On the contrary, the current legal theory and judicial practice have not reached a unified judicial standard on how to properly deal with personal injury disputes in rural housing construction, and the phenomenon of different judgments in the same case is serious. According to the judicial practice of dealing with this kind of personal injury dispute in the grass-roots court, this paper explores and summarizes the specific connotation and legal characteristics of personal injury in rural housing construction in China, and according to the current legal provisions, To some important and difficult problems in judicial practice, the corresponding countermeasures are put forward. In addition to the introduction and conclusion, this paper is divided into three chapters, the detailed content is as follows: the first chapter mainly describes the connotation, legal characteristics, current legal provisions and judicial status quo of rural housing construction personal injury. For the first time, the personal injury of rural housing construction is defined as the legal fact that the natural person's life, health and body are damaged in the process of rural housing construction. The second chapter through a typical case of rural housing construction, analyzes and demonstrates the main problems of personal injury in rural housing construction, discriminates the basic legal relationship and derivative legal relationship, and demonstrates the applicability of building law and contract law. And the nature of the rural housing contract to confirm the responsibility of the owner and contractor. The third chapter puts forward the countermeasures and suggestions to solve the problem of personal injury in rural housing construction in view of the present situation of rural housing construction in China. Including: establishing and perfecting relevant laws and regulations, standardizing the system of supervision and inspection of rural housing construction, carrying out compulsory insurance against personal accidents, increasing publicity and education in construction safety and production, and avoiding to the greatest extent possible, Control the occurrence of accidents, properly resolve disputes, for the socialist modernization of China's escort.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.297;D923.6
本文编号：2347561
[Abstract]:In the contemporary era, building a harmonious socialist society is the theme of social development. In such a development background, we should pay attention to people-oriented, properly resolve social disputes, nip all kinds of contradictions in the bud state, and promote the steady and healthy development of society. Create favorable conditions for building a harmonious society. In our country, because of the small quantity of self-built houses in the countryside, the construction enterprises can not raise their interest at all. Therefore, the rural construction team has a huge space for existence. However, at present, the rural construction market in our country is dominated by casual temporary teams, with weak safety awareness and lack of conditions. It is not only not registered with the industrial and commercial departments, but also without building qualifications and professional skills training. There is an urgent need for further regulation. At the same time, the lack of effective supervision and management by relevant functional departments leads to the occurrence of casualty accidents, and the number of personal injury compensation disputes caused by them increases year by year. This kind of dispute mediation is difficult, the litigation cost is high, it is easy to bring huge trauma to the parties, and even cause an unbearable economic burden. If it is not handled properly in time, it may induce new social contradictions. On the contrary, the current legal theory and judicial practice have not reached a unified judicial standard on how to properly deal with personal injury disputes in rural housing construction, and the phenomenon of different judgments in the same case is serious. According to the judicial practice of dealing with this kind of personal injury dispute in the grass-roots court, this paper explores and summarizes the specific connotation and legal characteristics of personal injury in rural housing construction in China, and according to the current legal provisions, To some important and difficult problems in judicial practice, the corresponding countermeasures are put forward. In addition to the introduction and conclusion, this paper is divided into three chapters, the detailed content is as follows: the first chapter mainly describes the connotation, legal characteristics, current legal provisions and judicial status quo of rural housing construction personal injury. For the first time, the personal injury of rural housing construction is defined as the legal fact that the natural person's life, health and body are damaged in the process of rural housing construction. The second chapter through a typical case of rural housing construction, analyzes and demonstrates the main problems of personal injury in rural housing construction, discriminates the basic legal relationship and derivative legal relationship, and demonstrates the applicability of building law and contract law. And the nature of the rural housing contract to confirm the responsibility of the owner and contractor. The third chapter puts forward the countermeasures and suggestions to solve the problem of personal injury in rural housing construction in view of the present situation of rural housing construction in China. Including: establishing and perfecting relevant laws and regulations, standardizing the system of supervision and inspection of rural housing construction, carrying out compulsory insurance against personal accidents, increasing publicity and education in construction safety and production, and avoiding to the greatest extent possible, Control the occurrence of accidents, properly resolve disputes, for the socialist modernization of China's escort.
【学位授予单位】：华侨大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D922.297;D923.6
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