我国工伤保险待遇先行支付制度研究

发布时间：2018-06-28 15:33

本文选题：工伤保险 + 先行支付　；参考：《安徽大学》2017年硕士论文

【摘要】：作为保障工伤职工及时有效获得工伤补偿的一种制度,工伤保险待遇先行支付制度确立近六年来仍难达其目的。任何一种制度经过六年的发展都将接近成熟,而先行支付制度在实施过程中仍出现很多问题,致其难以落实,直接原因在于立法的不完善,而根本原因则在于制度设立的背景使其难以扎根。在先行支付制度的内容、实施条件及程序方面,我国立法尚不完善,由此表现出两大方面的问题,即符合先行支付条件的工伤职工仍然无法及时受偿、工伤保险经办机构对先行支付申请持消极对待态度,前者显然并未实现制度设立的初衷,而后者则显示出了制度实施过程中存在一系列阻碍。这些问题的存在使得先行支付制度至今难以"落地"实施。究其根本,主要有制度基础不牢固、制度设计不合理以及制度保障机制的不完备三方面原因。全民强制参加工伤保险是国家得以试行和落实先行支付制度的根本条件之一,但强制缴纳措施不力和较低参保率现象不光加重了国家财政压力,更会滋生许多违法行为,危害社会整体的稳定;作为先行支付制度的主体部分,制度的内容设计存在缺陷,主要表现为工伤职工申请先行支付时,对申请事由举证困难,以及从发生工伤到申请期间历时较长,这种对劳动者来说长时间、高难度的制度实际上并不能完全达到保护职工权益的目的。制度在先行支付启动条件及举证责任设定的不尽合理,启动条件中对两种责任主体不支付的划分在实践中会产生竞合,从而陷入两难境地,制度要求先行支付申请人负有申请条件的举证责任无疑加重了本就处于劣势的劳动者的负担,导致原本符合申请条件的劳动者难以成功申请先行支付,这样根本无法实现制度的价值意义;强效而有力地追缴措施对先行支付资金的保护是具有举足轻重的意义,而目前我国立法和行政执法方面的不足致使工伤保险基金对用人单位及第三人的追偿权难以实现,此时工伤保险基金一方面向劳动者先行支付工伤保险待遇,但却无法期待该笔资金有效收回,严重威胁了工伤保险基金的稳定性,而工伤保险基金作为先行支付工伤保险待遇的主体,其安全性也反向关系到整个先行支付制度的稳定实施。基于社会保险本质理论,国家应当保障每位公民有获得社会保障的权利,应当保障每位劳动者有获得工伤保险保护的权利,因此严格落实工伤保险强制性是必要且必须的。而针对先行支付的内容设计问题,并结合制度内在价值,得出目前制度的完善需要集中于先行支付的及时化。除此之外,在维护工伤保险基金安全性方面,除了完善行政方面的立法和执法,还需引入刑法规范,体现国家公权力。希望在本文研究基础上,先行支付制度能愈加完善并良性运行,从而"不忘初心"。
[Abstract]:As a system to guarantee the employees to obtain the compensation in time and effectively, the advance payment system of industrial injury insurance is still difficult to achieve its goal in the past six years. Any kind of system will be nearly mature after six years of development. However, there are still many problems in the implementation of the advance payment system, which makes it difficult to implement. The direct reason lies in the imperfection of the legislation. The fundamental reason is that the background of the establishment of the system makes it difficult to take root. In terms of the content, implementation conditions and procedures of the advance payment system, the legislation of our country is still not perfect, thus showing two major problems, that is, the injured workers who meet the conditions of advance payment are still unable to receive compensation in time. The agency of industrial injury insurance takes a negative attitude towards the application for advance payment. The former obviously does not realize the original intention of the establishment of the system, while the latter shows that there are a series of obstacles in the process of implementing the system. The existence of these problems makes it difficult to implement the advance payment system. There are three main reasons: the system foundation is not firm, the system design is unreasonable, and the system safeguard mechanism is not complete. Compulsory participation in industrial injury insurance by the whole people is one of the fundamental conditions for the country to try out and implement the advance payment system. However, the lack of compulsory payment measures and the low rate of participation in insurance not only increase the state financial pressure, but also breed many illegal acts. Endangering the stability of the society as a whole; as the main part of the advance payment system, the content design of the system is flawed, which is mainly manifested in the difficulty of proving the cause of the application when the work-related injury workers apply for the advance payment, And from work injury to the application for a longer period of time, this kind of workers for a long time, the high difficulty of the system can not completely achieve the purpose of protecting the rights and interests of workers. The system is not reasonable in setting up the starting condition and the burden of proof in advance payment. The division of the two kinds of non-payment in the starting condition will be competing in practice, so it is in a dilemma. The burden of proof that the system requires the applicant to pay in advance has undoubtedly increased the burden of workers who are already at a disadvantage, resulting in difficulties for workers who originally met the requirements for the application to apply for advance payment successfully. In this way, it is impossible to realize the value significance of the system. At present, the lack of legislation and administrative law enforcement in our country makes it difficult for the Industrial injury Insurance Fund to realize the right of recourse to employers and third parties. At this time, the Industrial injury Insurance Fund on the one hand pays workers the treatment of industrial injury insurance in advance. However, it is impossible to expect the funds to be recovered effectively, which seriously threatens the stability of the industrial injury insurance fund, which is the main body that pays the benefits of industrial injury insurance in advance. Its security is also related to the stable implementation of the whole advance payment system. Based on the essential theory of social insurance, the state should guarantee the right of every citizen to obtain social security and the right of every laborer to obtain the protection of industrial injury insurance, so it is necessary and necessary to strictly implement the compulsory work injury insurance. In view of the content design of the advance payment and the intrinsic value of the system, it is concluded that the perfection of the current system needs to focus on the timeliness of the advance payment. In addition, in maintaining the safety of industrial injury insurance fund, in addition to improving the administrative legislation and law enforcement, it is necessary to introduce criminal law norms to reflect the public power of the state. Based on the research of this paper, I hope that the advance payment system can be more perfect and run well, so as to "not forget the original ideals and aspirations."
【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

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