工伤待遇外“剩余损失”之合理分配——以权衡工伤保险与民事赔偿体系为视角

Reasonable Distribution Of Remaining Losses beyond Work-related Injury Insurance——Taking the Medical Treatment Cost beyond the Medical Catalogue as an Example

工伤保险重在维持生存保障,其保险给付大多不足以弥补工伤职工的全部损害,剩余部分到底由谁负担,已成现实困扰。医药目录外的救治费用即是典型一例。此时,保险给付之有限性(保险人免责)不可简单等同于投保人(雇主)责任之限定或免除。后者之免除可能及免除程度,必须以国情为基础,综合考量:先谨慎评估保险给付所能达到的保障程度,剩余损害之宏观比例及填补需求,同时权衡工伤保险与民事赔偿之体系、价值定位,再以此为基础理清民法“补充”的存在必要、存在形式及作用范围,最终找出它与保险给付相结合、相衔接的适当角度与适当方法。以我国国情来看,应当以保守补充模式为参考,优先保障工伤保险制度之核心地位,同时以民事赔偿弥补其不足,并通过归责原则、举证责任等手段,合理控制其“补充”维度,把握劳资之间的倾斜角度与利益平衡。

The work-related injury insurance focuses on maintaining survival and the insurance benefit is always insufficient for compensating all losses suffered by the injured worker.That who will cover the remaining part has become a realistic problem.The medical treatment cost beyond the medical catalogue is an typical case.In this case,the limitation of insurance benefit(the insurer’s immunity)shall not be equivalent to limiting or exempting the insurance applicant(employer)’s liability.The possibility of exempting the latter and the degree of exempt must be comprehensively decided on basis of the national situation:firstly,to carefully evaluate the security degree of the insurance benefit,macro proportion of the remaining losses and the need to make up;at the same time to measure the system and value orientation of work-related injury insurance and civil compensation;on basis of this,to clarify the necessity,mode of the existence of and the scope of function of the supplement by civil law;finally,to find the appropriate perspective and method for the combination and connection of supplement by civil law and insurance benefit.From the view of the national situation of China,we should make references to the conservative mode of supplement,guarantee the core position of work-related injury insurance system,and at the same time,take civil compensation as supplement,and reasonably control its"supplementary"dimension through the principle of imputation,the burden of proof and so on,so as to subtly maintain the unbalanced protection and balanced interests between employers and employees.