海峡两岸工伤补偿先行支付法律制度比较——兼论大陆工伤保险基金先行支付立法完善进路

The Contrastive Legal Systems of Advance Payment of Work-related Injury Compensation across the Taiwan Straits——With a Review of the Mainland Legislative Approaches of Improving the Advance Payment System of the Worker's Injury Insurance Foundation

2010年颁布的《中华人民共和国社会保险法》首次确立了工伤保险补偿先行支付制度,2011年人力资源和社会保障部又颁行《社会保险基金先行支付暂行办法》配套先行支付制度的实施。但是由于法律规定的疏漏,完善工伤保险补偿先行支付制度成为紧迫的课题。台湾地区工伤保险法律制度设置细腻,注意到制度的完整性、福利性、合法性与公平性,其通过"职业灾害劳工保护法"设置的兜底性补偿制度在诸多方面值得借鉴。通过法理分析和比较,大陆工伤保险基金先行支付应确立政府责任,立法应遵循及时性、公平性等原则,并应加强处罚力度,保障工伤保险基金的安全和先行支付制度的有效实施。

Social Insurance Law promulgated in 2010 established the advance payment system of work-related injury insur- ance foundation for the first time. Then the Ministry of Human Resources and Social Security promulgated the Interim Proce- dures about the Advance Payment of Social Insurance Foundation in order to support the advance payment system. However, as a result of the flaws in law,the improvement about the advance payment system of worker＇s injury insurance compensation has been the urgent issue in reality. The worker＇s injury insurance system of Taiwan Region is designed in detail. It pays attention to the integrity, welfare,legality and fairness of the systems. In addition, it is worthy to refer to its Law on Protection of Labors Suf feredfrom Occupational Damage which set up the interception compensation system in many aspects. Through the legal analysis and contrast,the paper holds,the mainland＇s advance payment system of worker＇s injury insurance foundation should establish the governmental responsibility, and the legislations should follow the principles of promptness and fairness. Besides,it is also necessary to strengthen the punishment in order to secure the safety of the worker＇s injury insurance foundation and the effective implementation of the advance payment system.