工伤保险与第三人侵权赔偿竞合问题循证研究

Research on Occupational Injury Insurance and the Testimony Traced by the Third Person Co-opetition in Compensation

工伤保险与第三人侵权责任赔偿竞合问题历来成为研究的热点,司法实践中也形成了选择型、兼得型、替代型、补充型等四种救济模式。但是由于我国现行的法律法规中对上述问题的规定比较模糊,各地出台的地方性规定也五花八门,形成了各种混合的模式,由此产生了如自由裁量权过大等问题。而实践中究竟采用何种模式必须充分考虑第三人侵权的实际各种情况,不能笼统概括加以简单规定,要区分不同性质的侵权行为才能确定使用何种模式。

The problem of co-opetition in the third person＇ s compensation and the occupational injury insurance has been hotly debated. In practice, there are four categories of relief, including choice type, gaining type, alternative type as well as compensation type. But due to blurring regulations on this issue and various regional rules, all types are mixed which resulted in excessive free discretion. It is necessary to consider the reality of the third person＇ s violating rights, which determines which types of relief adopted. It is mainly dependent upon which kind of violation of rights.