Author: Qiu Sujuan Lawyer 2016-12-28

Abstract: In order to effectively protect the victims of industrial accidents, most modern countries have established industrial injury insurance systems to protect their basic lives and those of their families. At the same time, industrial accident liability itself is a kind of tort liability, or the employer's tort liability to employees, or the third party's tort liability to employees, so there is a competition between industrial injury tort compensation and industrial injury insurance. Starting with the relevant concepts of industrial injury, this paper analyzes the applicable relationship between industrial injury insurance and civil damage compensation mechanism in various countries in the world, the current mode of industrial injury compensation in China, as well as the understanding and legislative suggestions of Article 12 of the Interpretation of Personal Injury Compensation, and tries to explore this issue in order to teach everyone.

Key words: industrial injury, industrial injury insurance, civil compensation liability

1、 Industrial injury and related concepts

Industrial accident is an unavoidable problem in modern industrial society, although people try their best to reduce its incidence. Generally speaking, industrial accidents and occupational disease hazards that cause personal damage to workers are called industrial injuries. ① The employment relationship has existed before the industrial society, which is regulated by the civil law, and the infringement of employees is also regulated by the tort law. An outstanding feature of industrial society is industrial employment. The industrial employment labor relationship is different from the traditional employment relationship. Because it is closely linked with industrialization, socialization and mechanization, in addition to the vital interests of the parties involved in the labor relationship, more complex social factors are also involved in the labor relationship. As a result, the traditional civil law has been unable to assume this function, and the labor law, a law that has both the attributes of public law and private law, originated from civil law and gradually became independent of civil law, came into being. The probability of industrial accidents and occupational diseases in industrial employment is greatly increased, and the consequences are often serious. In the early days, in order to meet the needs of primitive capital accumulation and rapid economic growth, efficiency was often exchanged at the expense of workers' interests, which was reflected in the principle of employers' fault liability for compensation for personal injury of victims in employment. Because this principle is extremely disadvantageous to workers, and the labor movement has repeatedly caused social unrest, many countries have adopted the principle of no fault liability as the principle of personal injury compensation for employees in employment. However, with the increasingly obvious drawbacks of employer tort compensation, the no fault compensation system has been put on the agenda. For example, some scholars have said that "in order to protect victims and respond to social and economic development, the no fault compensation system has been gradually established in Taiwan, and social security has been improved, forming a compensation or compensation system of three classes" ② including commercial insurance and industrial injury insurance compensation. Countries (regions) have introduced commercial insurance to share the losses of employers. However, the tort compensation filed against employers after industrial accidents often cannot meet the needs of victims for timely treatment and maintenance of basic life due to the complexity and length of litigation, and the victims are more helpless when the employers are unable to compensate. As a result, industrial injury insurance, a social security mechanism in which the society shares losses and responsibilities, appears in due course. Industrial injury insurance, also known as occupational injury insurance, refers to a social security system that provides material assistance and economic compensation to workers or their supporting relatives when an accident occurs at work or under legal special circumstances, or when workers are injured (or suffer from occupational diseases), disabled or dead due to occupational hazards. ③ It is a trinity system of industrial injury compensation, industrial injury rehabilitation and rescue, and industrial injury prevention.

At present, most countries in the world (including China) have established industrial injury insurance systems. After the establishment of the industrial injury insurance system, "there has been a sound social security system to compensate for the direct loss of personal injury caused by industrial accidents, but the function of this system can not be traced back to reducing the personal injury caused by industrial accidents. Implementing the legal concept of tort liability for personal injury compensation in industrial accidents can better safeguard the interests of workers". ④ In this way, in the field of industrial accident compensation, there is a problem of the concurrence of tort compensation and industrial injury insurance compensation. How to build a reasonable industrial injury compensation (compensation) system that can protect the legitimate interests of workers and promote the smooth development of social economy is a common concern of the whole society.

2、 The Applicable Relationship of the Industrial Injury Insurance and Civil Damage Compensation Mechanism in the World

On the issue of compensation for industrial accidents, countries around the world have experienced the evolution from the traditional unitary adjustment mechanism of tort law to the diversified adjustment mechanism. The coexistence of multiple damage compensation systems has produced a special phenomenon, that is, there may be multiple sources of compensation or compensation for the same damage. So, what is the applicable relationship between these different damage compensation or compensation systems, especially between industrial injury insurance and civil compensation? Relevant countries have four basic models in dealing with this problem:

（1） Alternative selection mode

After the industrial accident, the injured employees can choose to obtain the industrial injury insurance benefits or civil damages. If they choose the industrial injury insurance benefits, they can no longer request civil damages, and vice versa.

Although this mode gives employees with work-related injuries the right to choose compensation or compensation that is beneficial to them, due to the different nature of the two claims, the items and contents of compensation are different. Although the amount of compensation for infringement damage is large, it has to go through a long lawsuit. Although the amount of compensation for work-related injury insurance is small, it is reliable and timely. Once one of the claims is selected, the other claim will be excluded. There is no possibility that the two claims can be applied at the same time, so that the most satisfactory compensation can not be obtained. In fact, it is very detrimental to the injured. This model was once adopted in the early employee compensation laws of Britain and other Commonwealth countries, but has since been abolished.

（2） Exemption mode

Exemption mode: replacing tort liability with industrial injury insurance. That is to say, after an employee suffers from an industrial injury accident, he can only request the payment of industrial injury insurance, instead of claiming damages from the perpetrator in accordance with the provisions of the Tort Law. In other words, the liability of the tortfeasor is completely exempted, and the industrial injury insurance is replaced. However, the exclusion of tort liability is not absolute, but relative. The exclusion of tort liability only applies to specific persons (employers or persons employed by the same employer), specific types of accidents (accidents, occupational diseases or commuter traffic accidents), specific damages (usually limited to personal injuries) and specific causes of accidents (usually limited to minor negligence). ⑤ Countries that adopt this model mainly include Germany, France, Switzerland, South Africa, Norway, etc., of which Germany is the most typical.

（3） Both ways

After an industrial injury occurs, the injured employee can not only enjoy the benefits of industrial injury insurance, but also obtain civil tort damages from the employer at the same time, so as to implement dual protection. Compared with other models, the biggest advantage of this model is that it is extremely beneficial to the injured employees, that is, employees can obtain dual relief of industrial injury insurance payment and tort compensation at the same time due to industrial injury accidents, especially in the case of low industrial injury insurance benefits and civil compensation standards, it is extremely beneficial to the protection of the rights and interests of injured employees. ⑥ The countries that adopt this system are mainly Britain, but they are also subject to restrictions. At present, other countries rarely adopt this system. In the UK, victims can also claim half of the injury and disability benefits within 5 years in addition to tort damages. This provision on preferential treatment for workers was formulated due to the strong pressure exerted by the British trade unions on the government, and the main reason was that the workers themselves had to bear nearly half of the insurance premiums.

（4） Complementary mode

After an industrial injury occurs, the injured employee may claim both tort damages and industrial injury insurance payment, but the final compensation or compensation obtained shall be limited to the actual loss and shall not exceed the actual damage suffered. At present, countries adopting this model include Japan, Chile and Nordic countries.

3、 Current mode of industrial injury compensation in China

Although China has established the industrial injury insurance system since 1951, the scope of application has been very narrow, and the implementation object is only limited to employees of state-owned enterprises and collective enterprises. After 1969, because the insurance funds could not be implemented, the industrial injury insurance system actually became the industrial injury compensation system borne by enterprises themselves. After the reform and opening up, although the industrial injury insurance system has been restored, the current situation in China is that some employees have been included in the work insurance. After encountering industrial injury or occupational disease, they can only request the employer to pay compensation according to the relevant standards or claim through civil litigation. For example, the Reply of the Supreme People's Court on the Issue that Employment Contracts Should Strictly Implement Labor Protection Laws and Regulations identifies industrial accidents as violations, and in practice, a large number of cases have been adjudicated accordingly. However, the Trial Measures for Industrial Injury Insurance for Enterprise Employees issued by the Ministry of Labor in 1996 stipulates that enterprises in China must establish an industrial injury insurance system in accordance with the Measures, and work insurance compensation shall be implemented in accordance with the Measures after employees suffer from industrial injury or occupational disease. According to the provisions of Article 28 of the Measures, many people believe that industrial injury insurance compensation and civil damage compensation in China are the choice mode in practice, that is, industrial injury insurance compensation and civil damage compensation are incompatible, and only one of the two can be taken. However, as the Trial Measures for Industrial Injury Insurance for Enterprise Employees is only a departmental regulation with a low level of effectiveness, some local legislations at the same time are inconsistent with the provisions of the Measures. For example, the regulations of Guangdong Province are complementary, while those of Shenzhen City are both inclusive.

Moreover, the Law of the People's Republic of China on Work Safety and the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases promulgated in 2002 have different provisions from the Trial Measures for Enterprise Employee Injury Insurance. Article 48 of the Law of the People's Republic of China on Work Safety stipulates that: "In addition to enjoying the social insurance for work-related injuries according to law, the employees who have suffered damage due to production safety accidents and have the right to compensation according to relevant civil laws shall have the right to claim compensation from the unit." Article 52 of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases stipulates that: "In addition to enjoying the social insurance for work-related injuries according to law, the patients with occupational diseases have the right to claim compensation from the employing unit if they still have the right to obtain compensation according to relevant civil laws." There are two different opinions on the understanding of the relevant provisions of the above two laws: one view is that after the occurrence of production safety accidents or occupational diseases, workers first enjoy corresponding compensation according to the provisions of the labor contract and the social insurance contract for work-related injuries. If the industrial injury insurance compensation is not enough to compensate the personal injury and economic loss of the victim, and should be compensated according to the relevant laws, the worker or his close relatives have the right to request the production and business unit to pay compensation. Another view is that social insurance and civil compensation for work-related injuries cannot replace each other, and workers can enjoy dual protection. It can be seen that the understanding of the relationship between industrial injury insurance and civil tort compensation from the two perspectives is respectively the above supplementary model and the win-win model. It should be noted that, no matter whether the supplementary mode or the win-win mode is adopted, compared with the situation that the injured workers in China have almost no civil compensation beyond the insurance payment for a long time, there is much progress to be made, which indicates that the Faquan Production Law and the Law on the Prevention and Control of Occupational Diseases have really taken a big step in dealing with this problem. However, since this issue involves the huge interests of injured workers and employers, the dispute in practice seems to have just begun.

It is generally believed that the development of China's civil tort law and the lagging legislation of industrial injury insurance make the gap between industrial injury insurance and civil compensation for industrial injury gradually increase. In particular, on March 10, 2001, the Supreme People's Court promulgated and implemented the Interpretation on Several Issues Concerning the Determination of Liability for Spiritual Damage in Civil Torts, so that victims of personal injury can obtain more damages. In this way, the same industrial accident occurs. Employees who do not participate in the industrial injury insurance instead receive more compensation than those who participate in the industrial injury insurance. In particular, the cases in recent years show that the industrial injury employees who do not participate in the industrial injury insurance obtain a huge amount of tort damage compensation that is far higher than the industrial injury insurance compensation through civil litigation, a difference of 2-3 times ⑦. As a result, there is a huge gap between the workers who participate in the industrial injury insurance and those who do not participate in the industrial injury insurance in obtaining relief, causing social injustice. It is expected that with the full implementation of the social insurance for industrial injury and the further improvement of the tort compensation system in China, there will be more and more industrial injury cases that request tort compensation in addition to the payment of industrial injury insurance. It has become an urgent task to solve the applicable relationship between industrial injury insurance and industrial injury tort compensation.

4、 Understanding of Article 12 of the Interpretation of Compensation for Personal Injury

On December 26, 2003, the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (hereinafter referred to as the Interpretation of Personal Injury Compensation). Article 12 of the Interpretation stipulates the relationship between the social insurance benefits of industrial injury accidents and the application of civil damage compensation. If an industrial injury accident is caused by an employer, Workers or their close relatives file a lawsuit with the people's court to request the employer to bear civil compensation liability. The people's court does not support the lawsuit and tells them to handle it according to the provisions of the Regulations on Industrial Injury Insurance, that is, to apply for industrial injury insurance treatment from the government's industrial injury insurance affairs agency or the employer. However, "if a third person other than the employer causes personal injury to a worker, and the person with the right to compensation claims that the third person should bear civil liability for compensation, the people's court should support it." That is, if a worker suffers an industrial injury accident because of the infringement of a third person, the third person cannot be exempted from civil liability for compensation. These provisions will play an important role in unifying the practice of industrial accident relief, applying different relief methods and different legal provisions to different situations, and protecting the legitimate rights and interests of victims of industrial accidents.

However, the author believes that Article 12 of the Interpretation of Compensation for Personal Injury is still unclear, imperfect and difficult to operate in practice. Mainly:

（1） What kind of protection mode should be adopted for injured employees is the content of our laws and even the basic legal provisions

In fact, the judicial interpretation has established a system of replacing the relief mode with the dual relief mode supplemented conditionally. Judicial interpretation is the interpretation of the application of law. It should explain and clarify how to apply the law within the scope of the law. In the case that the law basically does not provide for the relief mode of industrial injury accidents, the judicial interpretation makes the above provisions, which seems to be beyond its authority and "offside".

（2） According to the provisions of the first paragraph of Article 12, the workers of the employing unit who should participate in the overall planning of industrial injury insurance according to law can only claim the benefits of industrial injury insurance for the damage caused by industrial injury accidents caused by the employing unit, but can not claim compensation for civil tort damage.

It is worth studying whether it has fully protected the interests of injured employees in the current situation of low civil tort damages and lower work-related injury insurance benefits in China. Moreover, according to the Regulations on Industrial Injury Insurance and the Interim Regulations on the Collection and Payment of Social Insurance Premiums, the employers that should participate in the overall planning of industrial injury insurance include a large number of enterprises and self-employed businesses with employees in China. However, many enterprises and individual businesses have not participated in insurance pooling, which is an unavoidable social reality. The injured employees of these employers mainly apply for industrial injury insurance benefits from the employers, and handle the disputes in accordance with the relevant provisions on handling labor disputes. Such employees neither enjoy the advantages of industrial injury insurance benefits nor receive higher compensation for civil infringement. Instead, it is uncertain whether they can get compensation from employers through arbitration, litigation and other processes. It is also worth studying whether it is fair and reasonable because of its many links, long duration, complicated procedures and high risks, which can only lead to lower industrial injury insurance benefits. Further, it seems that it is also worth studying whether such provisions are in line with the reality of our country and conducive to protecting the legitimate rights and interests of injured employees.

（3） According to the provisions of paragraph 2 of Article 12, the people's court shall support if the victim requests the third person to bear civil liability for compensation if the industrial injury accident damage is caused by the infringement of a third person other than the employer

However, it is unclear whether the victim can enjoy the work-related injury insurance benefits according to law, that is, whether the victim can receive double compensation. In combination with the provisions of the first and second paragraphs of article 12, it seems that the victim can obtain double compensation. If this understanding is in line with its original intention, then, the same industrial accident, just because the subject of the injury is different, so different treatment, resulting in a wide gap in compensation for the victims, is the reason sufficient? Does it make sense logically? Is it fair and reasonable? It is also worth further study.

5、 Legislative recommendations

Comparing the relief models of industrial accidents in various countries, the author believes that China should adopt the supplementary relief model in the relationship between the social insurance of industrial accidents and the application of civil tort damages. The main reasons are as follows:

（1） It is in line with the purpose of establishing the industrial injury insurance system and can give full play to the role of the industrial injury insurance system. In modern society, "industrial injury accidents are more violent than tigers", which occur frequently. The employers often pay full compensation and fall into economic difficulties, affecting the development of production and operation and reducing market productivity. Therefore, the industrial injury insurance system was established. Its main purpose is to replace the employer's liability for civil tort damages and disperse the risk of industrial injury. The supplementary relief mode is implemented. After the industrial injury accident, the injured employees first receive the industrial injury insurance benefits, and then claim civil tort damages according to the provisions of the Tort Act, but the industrial injury insurance benefits they have received should be deducted. Obviously, the supplementary relief mode is in line with the purpose of the industrial accident insurance system, which gives full play to the industrial accident insurance system, not only protects the legitimate rights and interests of victims, but also improves the ability of employers to resist industrial accidents, and ensures the normal development of the production and business activities of employers.

（2） It is consistent with the purpose of the civil tort damage compensation system, and gives full play to its role in sanctions and prevention. The system of personal injury compensation is to protect citizens' rights to life, body and health, restore them to the situation before they were injured, and punish the responsible person to prevent the infringement damage from happening again. The supplementary relief mode is implemented. After receiving the industrial injury insurance payment, the victim has the right to claim compensation for the difference between the compensation in the tort law and the compensation in the industrial injury insurance, which makes up for the low compensation in the industrial injury insurance and fully and comprehensively protects the legitimate interests of the victim; At the same time, retaining the civil liability for damages for industrial accidents will help to realize the disciplinary and preventive role of the law and prevent industrial accidents from happening again.

（3） Through the above comparison of the advantages and disadvantages of the relief models for industrial accidents in the world, it can be seen that the choice of the relief model has long been a historical relic, and the Commonwealth countries that once adopted this model have abolished it and adopted other systems; Few countries adopt the dual relief model; The countries that adopt the alternative relief model are all developed countries, and the three models mentioned above have many defects, which are not suitable for the reality of a backward developing country like us. The supplementary relief model has many advantages and few disadvantages. It is a modern rule of industrial accident relief and has been accepted by legislation and theory in many countries. China should also comply with this development trend and adopt the supplementary relief model.

In a word, in the relief of industrial accidents, the industrial injury insurance should provide the main source of compensation, while retaining the right of injured workers to obtain civil tort damages, taking it as a supplementary source, and taking the actual damage suffered by the injured workers as the maximum limit.

Notes:

① Zheng Shangyuan, Research on Legal System of Industrial Injury Insurance, Peking University Press, 2004 edition, page 30.

② Wang Zejian, Tort Law (Volume 1), China University of Political Science and Law Press, 2001 edition, page 24.

③ Zheng Shangyuan, Research on Legal System of Industrial Injury Insurance, Peking University Press, 2004 edition, page 32.

④ Chen Yu, On Compensation for Personal Injury in Industrial Accidents, China Civil and Commercial Law Network.

⑤ Wang Zejian, Civil Law Theory and Case Study, Volume 3, China University of Political Science and Law Press, 1998.

⑥ Lv Lin, Research on the relationship between industrial injury insurance and civil compensation, published in the 3rd issue of Legal and Commercial Studies, 2003

⑦ Jiang Junlu, Speech at the Seminar on the Theory and Practice of Industrial Injury Insurance Law, published in the People's Court Daily, December 17, 2003, first edition.

Lawyer Qiu Sujuan arranges