未遵守考勤规定情形下“途中工伤”的认定

The Identification of"Work-related Injury on the Way to or Back from Work"under the Circumstance of Violation of Attendance Regulations

劳动者违反考勤规定情形下的途中工伤的认定在司法实践中存在同案不同判的问题,产生此问题的主要原因是行政机关、人民法院对上下班途中“合理时间”要素的理解侧重点不同,并且未能正确考察违反考勤规定对工伤因果关系的实质影响。根据工伤保险制度的立法初衷,“合理时间”应当理解为劳动者在实际工作前后的在途状态,而非劳动合同内容意义上的时间段。但如果劳动者违反考勤规定已改变其上下班的性质,则该“途中”状态与工作之间已然失去连接,伤害与工作之间不具有因果关系,因而不应认定为途中工伤。

In judicial practice,the identification of work-related injury on the way to or back from work under the circumstance of violation of attendance regulations leads to the problem of different judgments for similar cases.The reasons for this problem are as follows:the administrative agencies and people's courts have different understandings of the"reasonable time"on the way to or back from work,and fail to properly examine the substantial effects of violation of attendance regulations on the causality of work-related injury.According to the legislative intent of work-related injury insurance system,"reasonable time"should be understood as the state of laborers in the way before and after the actual work,instead of the time period from the perspective of labor contract.But if the violation of attendance regulations has changed the nature of commuting,the"on the way"state will lose its relevance to work,and there will be no causality between the injury and work.So the injury should not be identified as the work-related injury on the way to or back from work.