未参保单位职工职业伤害法律问题研究

Studies on Occupational Injuries of Non-occupational Industrial Injury Insurance

我国现行《工伤保险条例》将参加工伤保险和未参加工伤保险的工伤问题进行统一规定,但未明确规定未参加工伤保险的单位职工职业伤害的事实如何确定,责任怎样承担。未参保单位职工职业伤害符合工伤事故构成要件,应属于工伤,工伤事故作为法律事实,应当由劳动争议仲裁机构或人民法院认定。基于工伤的社会风险属性,未参保单位职工职业伤害应当实行法定的工伤待遇,而不能要求民事侵权赔偿。现行《工伤保险条例》应当在主体、劳动争议仲裁与裁后民事诉讼的关系、加大保护力度、实现制度创新等方面进一步完善。

Occupational injuries of participants in industrial injury insurance and those who do not participate in are regulated in Ordinance of Industrial Injury Insurance. For those who do not participate in injury insurance, how to determine the facts and how to shoulder the responsibility are not clearly regula- ted. The occupational injury of non - occupational injury insurance has elements of industrial accident, and it should be work - related injuries. As facts it should be determined by labor dispute arbitration committee or people＇ s court. It should be the legal treatment of work - related injuries, but not tort compensation in the occupational injury of non - occupational injury insurance for its social risk. In addition, the current rules should be further improved in areas such as qualification, relation of labor dispute arbitration committee and civil procedure, efforts increasing to protect rights, institutional innovation, etc.