超龄就业者工伤认定研究

发布时间：2018-03-14 12:34

本文选题：超龄就业者　切入点：工伤认定　出处：《西南政法大学》2016年硕士论文　论文类型：学位论文

【摘要】：当前,在世界老龄化问题日渐突显的形势下,超龄人员再就业已是大势所趋。中国作为人口大国,老年人口呈现基数大,增长快的趋势。鉴于我国的法定退休年龄较之于其他国家明显较低,超龄人员再就业现象在我国比较普遍。但是,我国有关超龄人员再就业相关的制度、立法以及政策并没有与之同步,超龄就业者的相关劳动权利并没有得到应有的保障。甚至,立法并没有将超龄就业者这一特殊群体纳入《劳动法》、《劳动合同法》以及《工伤保险条例》等关涉劳动者权利保障的法律法规的调整范围之内。对于“超龄就业者是否是适格的劳动者以及此类人员在劳动过程中因工受到人身伤害能否认定工伤”这一问题,学术界以及实务界众说纷纭。在学术界,目前有“劳动关系说”、“特殊劳动关系说”、“劳务关系说”、“社会保险挂钩说”等几种主要学说。而在司法实务中,对于超龄就业者能否认定工伤这一问题,各地法院对此也没有形成统一的裁判标准,同案不同判的现象比较严重。超龄就业者是老龄化趋势下的一个特殊群体,其作为劳动群体中的一员,基于从属性特征,理应被纳入《劳动法》、《劳动合同法》以及《工伤保险条例》的调整范围,成为适格的劳动者。不应以其超过法定退休年龄为由就将其拒之劳动者之外。更不能因该类人员享有退休金或基本养老保险待遇等因素,对其在工作过程中由于工作原因发生事故伤害不予工伤认定。因此,超龄就业者作为劳动群体中的一员,在工作过程中由于工作原因受到人身伤害时应该认定为工伤。同时为改变目前各地方法院同案异判局面,使每一位公民感受到司法的公平与正义,应该统一相关立法,对于超龄就业者这一特殊群体与用人单位形成的法律关系、此类人员因工受伤时能否进行工伤认定等问题做出比较明确统一的规定。
[Abstract]:At present, with the aging problem in the world becoming increasingly prominent, the re-employment of over-aged people has become the trend of the times. As a large population, China has a large population base for the elderly. The trend of rapid growth. In view of the fact that the legal retirement age in our country is obviously lower than that in other countries, the phenomenon of re-employment of over-aged people is relatively common in our country. However, the system related to the re-employment of over-aged people in our country, Legislation and policies are not in line with them, and the related labour rights of over-age workers are not guaranteed as much as they should. Legislation does not include overage workers as a special group within the scope of adjustment of laws and regulations concerning the protection of workers' rights, such as the Labor Law, the Labor contract Law and the regulations on Industrial injury Insurance. The question of whether the worker is a qualified worker and whether such persons can be identified as work-related injuries as a result of personal injury in the course of their work, There are different opinions in academic and practical circles. There are several main theories in academia, such as "labor relation theory", "special labor relation theory", "labor relation theory", "social insurance hook theory" and so on. With regard to the question of whether overage employment workers can be identified as work-related injuries, local courts have not formed a unified standard of adjudication, and the phenomenon of different judgments in the same case is relatively serious. Overage workers are a special group under the trend of aging. As a member of the labor force, it should be included in the adjustment scope of the Labor Law, the Labor contract Law, and the regulations on Industrial injury Insurance because of its subordinate characteristics. Should not exclude workers who are above the legal retirement age, nor should they enjoy pension benefits or basic old-age insurance benefits, and so on, not to mention that they should not be rejected on the grounds that they are above the legal retirement age. Therefore, as a member of the working group, overage employed persons should not be found to be injured at work because of accidents and injuries caused by work causes. At the same time, in order to change the current situation of different judgments in local courts and to make every citizen feel fair and just in the administration of justice, it is necessary to unify the relevant legislation. As to the legal relationship between the over-aged employed persons and the employers, whether such persons can be identified as work-related injuries or not is clearly and uniformly stipulated.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5

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