我国工伤认定法律制度实证研究

发布时间：2018-02-16 23:05

本文关键词： 工伤认定劳动关系 “48小时”条款认定程序　出处：《郑州大学》2017年硕士论文　论文类型：学位论文

【摘要】：随着我国工业化进程不断推进,社会保险法律法规不断完善,加大了对弱势劳动者的保护。但是在社会主义市场经济活动中,处于弱势地位的劳动者,其维权之路依然十分艰难,尤其是在工伤保险领域。由于历史和现实的原因,我国工伤认定法律制度还存在很多不足,并且随着社会的发展问题越来越凸出,日益成为人们关注的焦点。在我国工伤认定法律制度不完善的情况下,对存在劳动关系争议的工伤认定问题的处理,极易导致劳动者或其近亲属不能得到及时的救助而遭受二次伤害。工伤认定的复杂性集中体现在这一类型的案件中,同样这一类型的案件也集中反映了我国工伤认定法律制度存在的问题。本文分析了一个典型的背景案例,并根据案件中的焦点问题提出我国工伤认定过程中一直存在的三大难题,即工伤纠纷中劳动关系的认定问题;一直备受争议的“48小时”条款的适用问题;工伤认定程序的协调问题。本文通过对比分析劳动关系和其它相关概念,并结合案例探讨了在实践中要从实质要件出发合理认定劳动关系。关于工伤认定“48小时”条款的适用问题,本文从多角度进行了分析,发现主要原因在于,该条款立法技术粗糙导致人们对该条款的属性认识不一,加上我国工伤认定的基本原则不完善,而且缺乏宽严相济的指导理念,使得该条款在适用中过于僵硬而备受争议。在工伤认定程序方面存在的问题,主要表现为工伤纠纷中劳动关系认定程序与工伤认定程序的不协调,导致工伤认定机构权利架空及工伤认定的循环往复,结合学者们对工伤认定程序重置的构想,提出进一步完善工伤认定程序的建议,以期能够在实体上和程序上及时有效保障劳动者合法权益。
[Abstract]:With the continuous progress of industrialization in our country, the laws and regulations of social insurance have been continuously improved, and the protection of vulnerable workers has been increased. However, in the socialist market economy, workers in a weak position are in a weak position. The road to safeguarding their rights is still very difficult, especially in the field of industrial injury insurance. Due to historical and practical reasons, there are still many deficiencies in the legal system of industrial injury recognition in our country, and with the development of society, the problems become more and more prominent. It has become the focus of people's attention day by day. Under the condition of imperfect legal system of industrial injury identification in our country, we should deal with the problem of industrial injury identification which has labor relation dispute. It is easy to cause workers or their close relatives to be prevented from receiving timely assistance and suffer secondary injuries. The complexity of industrial injury determination is concentrated in this type of case. Similarly, this type of case also reflects the problems existing in the legal system of industrial injury recognition in China. This paper analyzes a typical background case. According to the focus of the case, this paper puts forward three difficult problems in the process of industrial injury identification in our country, that is, the identification of labor relations in industrial injury disputes, the application of the "48 hours" clause, which has been a controversial issue. This paper analyzes the labor relations and other related concepts through comparative analysis. Combining with the case, this paper discusses the reasonable identification of labor relations from the essential elements in practice. On the application of the "48 hours" clause of industrial injury identification, this paper analyzes from various angles, and finds that the main reasons are:. The rough legislative technique of this clause leads to different understanding of the property of the clause, coupled with the imperfection of the basic principles of industrial injury recognition in our country, and the lack of the guiding concept of combining leniency and severity. This clause is too rigid and controversial in its application. The problems in the procedure of industrial injury identification are mainly manifested in the disharmony between the procedure of determining the labor relations and the procedure of the identification of the industrial injury in the work-related injury dispute. This will lead to the overhead of the right of the industrial injury identification organization and the cycle of the industrial injury identification. Combined with the scholars' idea of resetting the procedure of the industrial injury identification, the paper puts forward some suggestions to further perfect the procedure of the industrial injury identification. With a view to substantive and procedural timely and effective protection of the legitimate rights and interests of workers.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.5

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