劳务派遣工伤赔偿制度研究

发布时间：2019-06-18 10:38

【摘要】：在经济全球化的今天,全球市场竞争也日益激烈,为了获得利润最大化,全球的企业也在为了如何最大限度地缩减企业的用工成本而绞尽脑汁。劳务派遣用工形式因其成本低、用工灵活等特点受到了各大企业的青睐,并在各行各业中迅速发展壮大起来。劳务派遣作为人力资源服务业的重要内容在许多方面都具有明显的优势,如刺激灵活性就业,调节劳动力市场配置,促进产业结构转变,降低用人单位管理成本等方面,而这些又恰好顺应了我国经济发展的需要,从而在我国进入了快速发展繁荣的时期。然而被派遣劳动者队伍在不断壮大的同时,劳务派遣用工形式的弊端也日益暴露,突出表现为被派遣劳动者的工伤保险权利缺乏有效的保护。近年来,我国的相关法律法规对劳动者的工伤保险问题进行了专门的、较为全面的规制,但是并未针对劳务派遣工这一特殊用工群体进行单独规定。劳务派遣当中的绝大部分劳动者会被派遣至一线工作,他们遭受工伤损害的几率较之一般的劳动者会更高,然而,我国立法并没有针对他们的工伤赔偿问题进行专门的规定。文章首先介绍了相关的基本理论,为下文的观点建立起理论支撑,然后结合被派遣劳动者工伤赔偿制度在我国的立法及司法现状,详细阐述了我国目前劳务派遣工伤赔偿制度存在的四大问题:第一,工伤保险费的缴纳主体规定不合理;第二,工伤赔偿中连带责任的规定过于笼统;第三,工伤赔偿的程序规定不合理;第四,异地劳务派遣中工伤保险容易断保。紧接着,分析了当前劳务派遣工伤赔偿制度存在的问题之原因:派遣单位、用工单位和被派遣劳动者之间法律关系的规制混乱不清;其次,普遍性立法掩盖了劳务派遣工工伤赔偿的特殊性;再次,立法的缺失以及执法不严;最后,现实中被派遣劳动者加入工会组织的机会比正规职工少。针对被派遣劳动者工伤赔偿制度在我国存在的问题以及经过对这些问题存在的原因进行分析,并在对美、德、日三国工伤赔偿制度吸收借鉴的基础上,本文对我国劳务派遣工伤赔偿制度的进一步完善提出了几点建议:第一,确立工伤保险缴纳的连带保证人责任制度。借鉴德国的立法经验,通过设置连带保证人责任来保护被派遣劳动者的工伤赔偿请求权;第二,确立工伤赔偿中连带责任的划分依据。双方对外承担连带责任后应根据自己的过错承担相应的赔偿责任,无过错一方可以向有过错一方全额追偿;第三,将用工单位纳入工伤认定申请主体范围之内。在保留现行的工伤认定申请主体的前提下,理应将用工单位纳入申请主体的范围,同时还应对其申请顺序进行明确的规定;第四,删除异地劳务派遣中用工单位代为缴纳工伤保险的主体地位;第五,立法应确立劳动保障部门优先确认劳动关系的职权,从而使其工伤赔偿权益获得最大程度的保护。为缩减工伤认定程序耗费的时间,在处理工伤认定过程中,劳动保障行政部门在各权力主体中具有优先认定权,并且将该项规定上升到立法层面,提高其法律位阶;第六,强化劳动保障行政部门的监督检查权。确保劳务派遣中有关保护劳动者权益的相关立法得到正确的实施,是建立一个健康、和谐的劳务派遣市场的一项有效举措;第七,促进行业协会与工会职责相衔接,共同保障被派遣劳动者工伤损害得到有效赔偿。
[Abstract]:In the economic globalization, the global market competition is also becoming more and more intense. In order to maximize the profit, the world's enterprises are in order to minimize the cost of the enterprise's employment. As a result of its low cost and flexible employment, the form of labor-dispatch employment has been favored by the major enterprises and developed rapidly in all walks of life. The important content of the labor dispatch as the human resource service industry has obvious advantages in many aspects, such as stimulating the flexible employment, adjusting the labor market configuration, promoting the transformation of the industrial structure, reducing the management cost of the employing unit, and the like, And these, in turn, conform to the needs of our country's economic development, so that it has entered a period of rapid development and prosperity in our country. However, while the workforce of the dispatched workers is growing, the abuse of the form of labor dispatch employment is also increasingly exposed, and the outstanding performance is the lack of effective protection of the injury-related injury insurance rights of the dispatched workers. In recent years, the relevant laws and regulations of our country have made a special and comprehensive regulation on the work-related injury insurance of the workers, but do not specify the special employment group for the labor dispatch workers. Most of the workers in the service dispatch will be dispatched to the first line, and their chances of injury to work-related injuries are higher than those of ordinary workers. However, our legislation does not specifically provide for their work-related injury compensation. The article first introduces the related basic theory, establishes the theoretical support for the following point of view, then combines the labor injury compensation system of the dispatched worker in our country's legislation and the current situation of the judicial, elaborated the four major problems of the current labor dispatch injury compensation system in our country: first, The subject of the payment of work-related injury insurance fees is unreasonable; the provisions of joint and several liability in the second and the work-related injury compensation are too general; the third, the procedure for compensation for industrial injury is unreasonable; and fourthly, the work-related injury insurance in the off-site labor dispatch is easy to cut off. Then, the reason of the problem of the current labor dispatch injury compensation system is analyzed: the regulation of the legal relationship between the dispatched unit, the employing unit and the dispatched worker is not clear; secondly, the general legislation covers the particularity of the work-related injury compensation of the labor-dispatching workers; and again, The lack of legislation and the lax enforcement of the law; in the end, the opportunity to send workers to the trade union organization in reality is less than that of the regular staff. In view of the problems existing in the work-related injury compensation system of the dispatched workers in China and the reasons for these problems, and on the basis of the reference to the injury compensation system of the three countries in the United States, Germany and Japan, In this paper, some suggestions are put forward for the further improvement of the compensation system for the labor-related work-related injury in China: first, the system of liability for the worker's duty to pay the work-related injury insurance is established. Based on the experience of Germany's legislation, the right of compensation for the work-related injury of the dispatched worker is protected by the establishment of the guarantor's responsibility, and the second part establishes the basis for the division of the joint and several liability in the compensation of the industrial injury. After the two parties are jointly and severally liable, the two parties shall bear the corresponding liability for compensation according to their own fault, and the party with no fault may recover the full compensation to the party with the fault; and thirdly, the employing unit shall be included in the scope of the main body of the industrial injury identification application. Under the premise of keeping the current work-related injury identification application subject, the employing unit should be included in the scope of the application subject, and the application sequence should be clearly specified; the fourth, the position of the employing unit in the off-site service dispatch to pay the work-related injury insurance shall be deleted; and the fifth, The legislation should establish the authority of the labor relation to confirm the labor relation, so that the rights and interests of the work-related injury can be protected to the maximum extent. In order to reduce the time taken by the work-related injury identification procedure, in the process of handling the work-related injury, the labor security administrative department has the right of priority determination in the power main body, and the provision is raised to the legislative level and the legal order of the administrative department is improved; and the sixth, To strengthen the supervision and inspection right of the administrative department of labor security. To ensure the correct implementation of relevant legislation related to the protection of the rights and interests of the workers in the labor dispatch, which is an effective measure for establishing a healthy and harmonious labor-dispatching market; and 7, promoting the connection between the trade associations and the trade union responsibilities, And jointly guarantee that the dispatched worker's work-related injury is effectively compensated.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.55

【相似文献】