工伤行政案件举证责任倒置规则探析--以工作场所外发生的工伤为视角

《工伤保险条例》以列举的形式和概括的语言,规定了构成工伤、视同工伤以及不构成或认定工伤的各种情形。为了保护职工合法权益,《条例》第十九条第二款又规定:"职工或者其直系亲属认为是工伤,用人单位不认为是工伤的,由用人单位承担举证责任。"该条被普遍认为是举证责任倒置规定,但实践中工伤认定行政案件形态多样,其复杂情况远远超过法条所表述的基本情况。因此,对于一些发生在工作场所外的工伤行政案件,不应机械适用举证责任倒置规则,而应根据举证责任倒置的特点,结合具体案情,分析案件相关当事人证明义务与证明能力后,再决定是否适用举证责任倒置规则。

The Ordinance on Industrial Injury Insurance provides various situations that should be indentified or regarded as industrial injury and those that should not be considered as industrial injury by listing and generalized wordings. To protect employees＇ legal rights and interests, the Ordinance stipulates in the second paragraph of Article 19th that, if the employee or his im- mediate relatives hold that it is industrial injury, whereas the employer denies, the employer bears the burden of proof. Such a stipulation has been widely regarded as a reverse of burden of proof. However, in practice, the administrative cases con- cerning industrial injury have many forms, which have been far more complicated than those basic situations provided in law. Therefore, the rule of reversing the burden of proof should not be mechanically applied to those administrative cases concerning industrial injury taking place outside of working sites. Whether the burden of proof should be reversed should be determined based on the characteristics of this rule, the specific situation of those cases, and analysis of proof duties and capacity of relevant parties.