工伤赔偿与第三人侵权责任竞合相关问题研究

发布时间：2018-03-01 09:13

本文关键词： 工伤赔偿第三人侵权赔偿模式　出处：《吉林大学》2016年硕士论文　论文类型：学位论文

【摘要】：《工伤保险条例》修订后,增加了职工在上下班途中,受到非本人主要责任的交通事故伤害的,应当认定为工伤的规定。我国单位在职职工因第三人侵权导致工伤的案例呈上升趋势。因第三人侵权造成对劳动者的伤害,劳动者被认定为工伤的情形下,基于侵权责任法及劳动法的规定,同时产生第三人侵权赔偿责任及工伤保险经办机构或者用人单位的工伤赔偿责任的竞合,劳动者基于两种不同的法律关系既可以向第三人请求人身损害赔偿,又可以向用人单位或工伤保险经办机构请求工伤保险待遇补偿。在司法实践中,工伤赔偿与第三人侵权赔偿竞合的情况下,其赔偿范围、赔偿方式的冲突成为亟待解决的问题。对于工伤赔偿与民事侵权竞合情况的处理,直接关系到劳动者与用人单位、社会保险制度及负有侵权责任的第三人之间的利益平衡。但是,在存在第三者侵权赔偿责任的情况下,工伤保险待遇赔偿的赔偿范围该如何确定,在诉讼程序中,两种赔偿之诉又如何街接,对此我国现在理论界争议较大,国家层面立法模糊不清,地方立法差异较大,各地法院在司法实践中针对类似问题的处理也大相径庭,这一问题也一直困扰着审判实践,严重影响了司法公信力,也容易给工伤职工的合法权益带来损害。根据最高人民法院颁布的《关于审理人身赔偿案件适用法律若干问题的解释》的相关规定,在工伤保险赔偿请求权与第三人侵权损害赔偿请求权竞合的情况下,第三人的侵权责任不能免除,对此普遍无争议。但对于如何处理两种请求权的关系,理论界及审判实务中观点不一,差异较大,现主要存在三种观点:1、选择模式;2、并行兼得模式;3、补充模式。其中,补充模式又分成了两种意见,即总额补差原则和有限双赔。对于赔偿模式的选择,我国在立法上曾出现过“补充模式”,后又确立了用人单位作为侵权人的“兼得模式”,最高法院亦通过答复的形式肯定了“兼得模式”,但在2011年实施的《社会保险法》中直接否定了“兼得模式”,对医疗费的给付上,立法上再次确立了“补充模式”。在司法实践中,很多法院实际采用的是“补充模式”,但做法并不相同,部分法院采取了分项补差的原则,部分法院采取了总额补差的原则。因此,本文旨在研究工伤保险赔偿请求权与第三人侵权损害赔偿请求权的性质和两者的关系,力求确定统一的处理模式,充分发挥各项制度的功能。
[Abstract]:After the revision of the regulations on Industrial injury Insurance, it has increased the number of workers who are injured by traffic accidents which are not their primary responsibility on the way to and from work. It should be recognized as the regulation of work-related injury. The cases of the on-the-job workers and staff members in our country as a result of the infringement by the third party are on the rise. Under the circumstances where the worker is recognized as an industrial injury because of the injury caused by the infringement of the third party, Based on the provisions of the tort liability law and the labor law, at the same time, there is a competition between the liability of the third party for tort compensation and the compensation liability of the industrial injury insurance agency or the employer, Based on two different legal relationships, the laborer can not only claim compensation for personal injury to the third party, but also apply to the employer or the industrial injury insurance agency for compensation for the treatment of the injury insurance. When the compensation for industrial injury is competing with the tort compensation of the third party, the conflict between the compensation scope and the way of compensation becomes an urgent problem to be solved. The handling of the concurrence between the compensation for industrial injury and the civil tort is directly related to the workers and the employing unit. The balance of interests between the social insurance system and the third party with tort liability. However, in the case of the existence of liability for tort by a third party, how to determine the scope of compensation for the treatment of industrial injury insurance, and how to determine the scope of compensation in the proceedings, How to connect the two kinds of claims in the street? in view of this, the theoretical circles in our country are controversial, the legislation at the national level is vague, the local legislation is quite different, and the treatment of similar problems in the judicial practice by local courts is also quite different. This problem has been bothering trial practice, which has seriously affected the credibility of the judiciary. It is also easy to bring harm to the legitimate rights and interests of work-related injury workers. According to the relevant provisions of the Supreme people's Court on the interpretation of certain issues concerning the applicable Law applicable to personal compensation cases issued by the Supreme people's Court, In the case that the claim for compensation for industrial injury insurance is competing with the claim of the third party for tort damages, the tort liability of the third party cannot be exempted, which is generally undisputed. However, how to deal with the relationship between the two claims, The views of the theoretical circle and the trial practice are different and quite different. At present, there are mainly three kinds of views: 1: 1, 2 / 2, 3 / 2 / 2, and 3 / 3 / 3, respectively. Among them, the supplementary mode is divided into two kinds of opinions. That is, the principle of total compensation difference and limited double compensation. For the choice of compensation model, In our country, there has been a "complementary mode" in legislation, and then the "concurrent mode" of employing units as infringers was established. The Supreme Court also affirmed the "concurrent mode" in the form of replies, but in 2011, the "Social Insurance system" was implemented. The law directly negates the "dual access model" and pays for medical expenses. In the judicial practice, many courts actually adopt the "supplementary model", but the practice is not the same. Some courts adopt the principle of subdivision compensation. Some courts have adopted the principle of total compensation. Therefore, the purpose of this paper is to study the nature and relationship between the claim for compensation for industrial injury insurance and the right of the third party to claim for compensation for tort damages, and to determine a unified mode of handling. Give full play to the functions of various systems.
【学位授予单位】：吉林大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.55

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