论工伤保险赔偿与民事侵权赔偿之间的适用关系

发布时间：2018-06-06 12:59

本文选题：工伤保险赔偿 + 民事侵权赔偿　；参考：《复旦大学》2009年硕士论文

【摘要】： 现代社会中,人们聚集在工厂、建筑工地等场所共同劳动,机器成为主要生产工具。随着技术、经济的迅猛发展,工伤事故的发生日渐频繁且后果日益严重,成为现代社会严重的社会问题。工伤损害救济机制已由原先的一元化逐渐向多元化发展,涉及侵权行为法和社会保险法等多个领域,形成多种制度并存的局面。尤其是工伤保险赔偿与民事侵权赔偿之间适用关系的处理问题,因关系到劳动者、用人单位、其他侵权人、社会保险经办机构等多方利益,而似乎难以调和兼顾。目前各国解决工伤保险赔偿与民事侵权赔偿之间适用关系问题的方法主要有选择、免除、兼得和补充四种模式。本文认为,任何一种模式的适用都不存在法理上的障碍,只是每种模式适用的环境不同、看待分析每种模式的角度不同和选择每种模式所追求的价值取向不同而已。在我国,相关的立法对工伤保险赔偿与民事侵权赔偿的适用关系虽有一些规定,但法条之间还是存在明显的矛盾,给司法实践带来了诸多困难,出现“各依各的规定,各判各的案件”的现象。因此,在分析有关理论的基础上,研究工伤保险赔偿与民事侵权赔偿的适用关系并提出完善我国适用方面的法律制度是本文的核心和归宿。本文将从分析工伤事故的性质、研究工伤责任的演变着手,分析比对两种赔偿的区别与联系,具体阐述工伤保险赔偿与民事侵权赔偿之间的适用关系,并结合我国的现实国情及未来发展,提出在我国无论是在(第三人侵权引致的)用人单位无因性工伤事故中还是在(用人单位负有故意或重大过失情形的)用人单位有因性工伤事故中,在工伤保险赔偿与侵权损害赔偿适用的关系上,都可采用兼得模式。分析兼得模式的理论基础,其适用既不违背侵权法中的损益相抵原则,也不违背保险法中的禁止得利原则；且兼得模式的适用既是对生命权和人权特别保护的体现,也是适应我国国情和索赔效率的需要。
[Abstract]:In modern society, people gather in factories, construction sites and other places to work together, machines become the main means of production. With the rapid development of technology and economy, the occurrence of industrial accidents is becoming more and more frequent and the consequences are becoming more and more serious, which has become a serious social problem in modern society. The mechanism of compensation for injury at work has gradually developed from the original monism to the diversification, involving the tort law and the social insurance law and other fields, forming a situation of coexistence of various systems. Especially the problem of dealing with the applicable relationship between industrial injury insurance compensation and civil tort compensation is difficult to reconcile with the interests of workers, employing units, other infringers, social insurance agencies and so on. At present, there are four ways to solve the problem of the applicable relationship between the compensation of industrial injury insurance and the compensation of civil tort in various countries, such as choice, exemption, acquirement and supplement. This paper holds that there are no legal obstacles to the application of any one of the models, except that each model is applied in a different environment, the angle of analysis of each model is different and the value orientation of choosing each model is different. In our country, although there are some provisions on the applicable relationship between industrial injury insurance compensation and civil tort compensation in relevant legislation, there are still obvious contradictions between the provisions of the law, which bring many difficulties to the judicial practice. The phenomenon of each case being adjudicated. Therefore, on the basis of the analysis of relevant theories, it is the core and end-result of this paper to study the applicable relationship between the compensation of industrial injury insurance and the compensation for civil tort and to put forward the perfection of the legal system of our country's application. This article will analyze the nature of industrial injury accident, study the evolution of industrial injury liability, analyze the difference and relation between the two kinds of compensation, and expound the applicable relationship between the compensation of industrial injury insurance and the compensation of civil tort. And combined with the reality of our country and its future development, It is proposed that in China, whether in the case of an employer's uncaused industrial injury (caused by the infringement of a third party) or in a situation where the employing unit has intentional or gross negligence, the employer has a work-related injury as a result of the accident. In the industrial injury insurance compensation and tort damages applicable to the relationship, both can adopt a concurrent mode. The application of this model is not contrary to the principle of profit or loss in tort law, nor to the principle of prohibition of gain and gain in insurance law, and the application of the model is the embodiment of the special protection of the right to life and human rights. It is also the need to adapt to the situation of our country and the efficiency of claims.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D922.55

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