学生实习期间因工受伤法律问题研究

发布时间：2018-05-04 15:51

本文选题：实习学生 + 劳动者　；参考：《东北财经大学》2016年硕士论文

【摘要】：随着我国教育体制的不断革新,高校大程度的扩招使每年毕业生人数较上年都有所增加,带来的好处是让更多的学生接受到了高等教育,但随之而来的就业的压力也会增加,因此也就产生了规模庞大的实习学生群体。通过实习,学生既可以积累实践经验,又可以丰富社会阅历,为真正适应社会生活做准备,在竞争愈发白热化的劳动力市场中脱颖而出。传统意义上的实习是指教学实习,属于学校教学培养计划的一部分,是学生把在书本上学到的理论知识应用于实践的一种实习方式。近年来,实习也衍生出了其他类型,不再仅仅是教学实习这一种类型,而是涌现出了诸如带薪实习、顶岗实习、就业实习等多种形式。劳动不可避免的伴随着风险,尤其是一些高危工作,学生在实习期间因工受伤的情况屡见不鲜,而实习生因工受伤后可否认定为工伤的关键是对其身份属性的认定。实习学生的法律身份依照实习类型的不一样而有所区别,其与实习单位之间是否真正建立起了劳动关系也要依照实习类型的不一样而具体分析。可是,我国现行的法律法规尚未对劳动者的含义下清楚的定义,对实习学生的法律身份也没作详细说明,这造成了实习学生法律身份属性不明的尴尬局面,导致就其是否具有劳动者资格这个争议性的问题众说纷纭,其与单位间的法律关系性质也不好确定,因而可否对因工受伤的实习学生进行工伤事故认定存在广泛的争议。司法实践中多数情况下是将实习学生认定为学生,而非劳动者,将其排除在《劳动法》的保护之外,因工受伤的解决途径一般只能是诉诸于民法。本文旨从《劳动法》意义上的"劳动者"角度出发,通过对相关法律条文的理解分析,探讨实习学生的法律身份及其与单位间的法律关系性质,以确定学生实习期间因工受伤后法律保障的依据,并借鉴其他发达国家的成功经验,提出保障我国实习学生因工受伤法律体系的完善构想。本文一共分为四个部分:第一部分在对学生实习期间因工受伤相关法律问题作出清楚解析的基础上,深入探讨了实习学生的法律身份属性及其与相关主体的法律关系。第二部分首先是对学生在实习期间因工受伤事故认定现状进行分析,继而找出造成其因工受伤认定困境的成因,然后归纳总结了实习学生因工受伤后的现有救济模式。第三部分主要是介绍域外关于学生在实习期间因工受伤的相关规定,以及值得我国参考借鉴的法律政策规定。第四部分是关于提出我国实习学生因工受伤保障体系的完善构想,包括法律精神、完善立法和具体措施三个方面。
[Abstract]:With the continuous reform of our country's educational system, the large increase in enrollment in colleges and universities has increased the number of graduates each year compared with the previous year. The benefit is that more students will receive higher education, but the pressure of employment will also increase. As a result, there is a large group of intern students. Through practice, students can not only accumulate practical experience, but also enrich social experience, prepare for the real adaptation to social life, and stand out in the increasingly competitive labor market. The traditional practice refers to the teaching practice, which is a part of the school teaching training plan. It is a practical way for students to apply the theoretical knowledge they have learned in books to practice. In recent years, the practice has also derived other types, not just the teaching practice, but has emerged a variety of forms such as paid internship, job placement practice, employment practice and so on. Labor inevitably accompanied by risks, especially some high-risk work, students in practice because of the situation of injury is common, and the intern can be identified as work injuries after the key is to identify their identity attributes. The legal status of the intern students is different according to the type of practice, and it should be analyzed concretely whether or not the labor relationship has been established between the intern units and the practice units. However, the current laws and regulations of our country have not yet clearly defined the meaning of the laborer, and the legal status of the intern students has not been explained in detail, which has caused the awkward situation that the legal identity of the intern students is not clear. As a result, there are different opinions on whether or not they have the qualification of laborer, and the nature of the legal relationship between them and the unit is also difficult to determine, so whether the injured students can be recognized as a work-related injury has a wide range of controversy. In the judicial practice, most of the practice students are regarded as students, not laborers, and they are excluded from the protection of Labor Law. The only way to solve injuries caused by work is to resort to civil law. From the angle of "laborer" in the sense of "labor law", this article aims to discuss the legal status of intern students and the nature of the legal relationship between them and their units through the understanding and analysis of the relevant legal provisions. In order to determine the basis of the legal protection after the students' work injury during the practice period, and to draw lessons from the successful experiences of other developed countries, the author puts forward the idea of perfecting the legal system to protect the students' injuries caused by work in our country. This paper is divided into four parts: the first part makes a clear analysis of the legal problems related to injuries caused by work during the practice of students, and probes into the legal identity of the students and their legal relationship with the relevant subjects. The second part is to analyze the status quo of students' identification of work-related injuries during practice, and then to find out the causes of the difficulties caused by work-related injuries, and then summed up the existing relief mode after the students' work-related injuries. The third part mainly introduces the relevant regulations about the students' injuries during the practice period, and the legal and policy provisions that our country can use for reference. The fourth part is about putting forward the idea of perfecting the security system of the injured students at work in our country, including three aspects: the spirit of law, the perfection of legislation and the concrete measures.
【学位授予单位】：东北财经大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D922.5

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