Bus slip
Clamped to death a 72-year-old brush truck worker
On August 15, a No. 236 bus in Harbin City slipped into the terminal station and collided with the rear of the front car, killing a bus brush worker who was brushing the car on the spot. On August 16, the reporter learned from the captain of the No. 236 bus team that the driver did not operate properly when he returned to the terminal station, only used electronic brakes, and did not pull the hand brake, resulting in the death of a 72-year-old brush worker.
How does the Civil Code view work injuries?
One. Overview of Work Injury Liability Management
The provisions of laws and administrative regulations such as the Social Insurance Law and the Regulations on Work-related Injury Insurance imply insurance compensation as the employer's no-fault liability. With the continuous improvement of laws and regulations, people's legal awareness has also been continuously enhanced, the number of work injury cases has been increasing, and the disputes over compensation for work injuries have also increased. After a worker suffers a work-related accident, the specific compensation standard for his work-related injury treatment has been clarified by the Regulations on Work-related Injury Insurance, as well as local regulations of various provinces and a large number of normative documents. It seems that for employers and employees, there is no longer any dispute over the payment of work-related injury insurance benefits.
In fact, this is not the case, and whether some special entities can determine the appropriate entity responsible for the work injury, the division and recovery of compensation related to the work injury accident caused by the infringement of a third party, the confirmation of the validity of the work injury compensation agreement, and the confirmation of the nature of the employer's advance payment of medical expenses have always been the main points and difficulties of the work injury insurance dispute. At the same time, the confirmation of the nature of the one-time disability benefit for the deceased employee also affects other civil legal relationships such as inheritance.
In the Civil Code, inheriting and improving the provisions of "special legal persons", "revocable civil acts", "unjust enrichment civil acts" and the newly formulated "self-willing risks" in the General Provisions of the Civil Code have an impact on the management of work injury liability from a macro perspective, which is both a challenge and an opportunity for employers and needs to be paid attention to.
Two. The impact of the Civil Code on the management of work-related injury liability
(1) The subject responsible for the work injury
1. Villagers' committees and residents' committees
To determine the liability for work injuries, the first element is whether the parties are eligible subjects, one party is a qualified employer, and the other party is a qualified worker who has been injured by an accident due to work reasons. Previously, both the Labor Law and the Labor Contract Law stipulated the scope of employers in Article 2, namely enterprises, individual economic organizations, private non-enterprise units and other organizations within the territory of the People's Republic of China, including state organs, public institutions and social organizations. Villagers' committees and residents' committees, as grass-roots mass autonomous organizations for self-management, self-education, and self-service of villagers and residents, are neither political power organizations nor dispatched organs of grass-roots political power, so they do not have the nature of state organs. Whether the two can be regarded as employers and become qualified subjects of work injury liability has long plagued the handling of labor disputes. In reality, there have also been some cases of workers recruited by villagers' committees and residents' committees who have been injured by accidents due to work reasons, whether they constitute work injuries has long plagued the judicial circles, and different adjudication calibers have been formed throughout the country.
The provisions of Article 101 of the Chapter 3 of the General Provisions of the Civil Law on Legal Persons grant the legal person status of the grass-roots mass autonomous organizations of residents' committees and villagers' committees for the first time. The compilation of the Civil Code inherits the above provisions, and in Article 101, it is clear that residents' committees and villagers' committees have special legal personality, that is, residents' committees and villagers' committees have the capacity for civil rights and civil conduct in accordance with the law, can participate in civil activities in accordance with the law, enjoy civil rights and independently assume responsibility, and naturally can become qualified subjects of work injury liability.
It is worth noting that with the promulgation and implementation of the Property Law, the awareness of the rights of real estate owners has gradually awakened, and local governments at all levels have also vigorously promoted the universal establishment of owners' committees. The Civil Code has not yet clarified the issue of the qualification status of the owners' committee, so whether the owners' committee can become the subject of work injury liability still needs to be further studied and explored in judicial practice.
2. Persons without capacity for civil conduct and persons with limited capacity for civil conduct
From the time of birth to the time of death, natural persons shall have the capacity for civil rights, enjoy civil rights in accordance with law, and undertake civil obligations. Therefore, persons without capacity for civil conduct and persons with limited capacity for civil conduct will not lose their capacity for civil rights because they cannot independently carry out or cannot fully independently carry out civil juristic acts.
According to the provisions of the Agency Chapter of Chapter VII of the Civil Code, when a worker becomes a person without capacity for civil conduct or a person with limited capacity for civil conduct in the event of a work-related accident, he or she is entitled to the relevant work-related injury insurance benefits. However, because a person without capacity for civil conduct cannot recognize his own conduct, his or her legally-designated representative shall act as his or her legally-designated representative to carry out the civil juristic act; a person with limited capacity for civil conduct shall not be able to fully identify his own conduct, and the execution of a civil juristic act shall be represented by his legally-designated representative or posthumously recognized by his legally-designated representative. However, its legal representative only acts on behalf of the relevant acts, and the final subject of work injury liability is still a person without capacity for civil conduct or a person with limited capacity for civil conduct.
3. Workers who have died at work
Unlike persons without capacity for civil conduct and persons with limited capacity for civil conduct, workers lose their capacity for civil rights when they die at work. The Regulation on Work-related Injury Insurance stipulates that if an employee dies as a result of work, his close relatives may receive a funeral benefit, a pension for dependent relatives and a one-time work-related death benefit from the Work-related Injury Insurance Fund. Article 1040 of the Civil Code stipulates: "Spouses, parents, children, siblings, grandparents, maternal grandparents, grandchildren and maternal grandchildren are close relatives. Therefore, the close relatives of the above-mentioned deceased workers are claiming rights in their personal names, and the main system of work injury liability in work-related accidents is the close relatives of the deceased workers, not the deceased workers.
(2) Liability for compensation for work injuries
1. The construction industry bears the responsibility for the work injury of migrant workers in illegal subcontracting
In the construction field of illegal contracting and subcontracting, whether there is an employment relationship between the construction enterprise and the workers recruited by the actual construction personnel is a difficult point in practice, and there is no complete unified opinion among the judicial organs and social insurance administrative departments, the civil trial departments and administrative trial departments of the courts, and even the civil trial departments of the same court. Determining whether there is an employment relationship is also a prerequisite for the enterprise to bear the liability for compensation for work injuries.
In practice, the following views mainly exist: First, there is no clear provision on whether there is an employment relationship, but it is stipulated that according to the actual situation, the actual contractor and the contract issuer and subcontractor bear the responsibility together. For example, the Opinions of the Zhejiang Provincial Higher People's Court on Several Issues Concerning the Trial of Labor Dispute Cases (for Trial Implementation) stipulates that in the subcontracting or subcontracting of construction projects at all levels, where a labor dispute arises between a natural person who is the actual builder and the worker he has recruited, the unit with the qualification of a legal employing entity in the recent subcontracting or subcontracting relationship at the previous level shall be the party; the natural person in the actual construction and the illegal subcontractor and subcontractor may also be regarded as the joint parties according to the needs of the case. The second is to clearly state that there is no labor relationship, only bear the main responsibility of the employment, and the scope of the main responsibility is wages and work injury insurance. For example, the Guangzhou Intermediate People's Court's "Reference Opinions on the Trial of Labor Dispute Cases" stipulates that if the contracting party awards the construction project to a contractor who does not have the qualifications of the employing entity, an employment legal relationship is formed between the employee and the contractor, and there is no labor legal relationship between the contracting party and the employee. However, according to the Regulations on wage payment in Guangdong Province and the Regulations on Work-related Injury Insurance in Guangdong Province, the contractor has the statutory obligation to pay the wages and remuneration of the workers and bear the responsibility for work-related injury insurance. [1]
Although the above views are divergent, they also have their unity. That is, if an enterprise illegally issues contracts, subcontracts or subcontracts construction projects, it shall bear the legal obligation of compensation for work injuries. Article 791 of the Civil Code also clearly stipulates the prohibited matters of contracting, contracting and subcontracting of construction projects. [2]
2. Work-related injury insurance competes with third-party tort liability
As mentioned above, the law proposes to make the work injury insurance compensation as the employer's no-fault liability, and the principle of fault liability is mostly applied to tort damages. If an employee suffers personal injury due to infringement by a third party and is found to be injured at work, he may file a lawsuit for compensation for infringement and an action for compensation for work injury insurance respectively. Although the two apply different compensation systems, there are many competitions in compensation items. Such as nursing expenses in tort damages and nursing expenses during the period of suspension of work and pay; hospital meals during the period of suspension of work and pay, medical transportation and accommodation expenses in other provinces and cities, and food and transportation expenses in tort damages; funeral benefits and funeral expenses in tortious damages.
Civil compensation follows the principle of filling in the blanks, that is, the loss is fully compensated, the amount of the right holder's loss, the amount of the infringer's compensation, so that the right holder will not suffer economic losses, except for some special provisions, the right holder will not excessively obtain benefits due to compensation. Therefore, in practice, there is a problem of competition in the handling of disputes over the treatment of work-related injury insurance and third-party tort disputes, and the model of "double compensation and total compensation" is adopted, and for competing compensation items, according to the calculation principle of the amount of compensation that the employee should receive as the higher amount of the two, the workers of other projects can claim it separately. After the employer has fulfilled the corresponding compensation obligation in accordance with the judgment, it may obtain the right of recovery for the part of the duplicate compensation that the employee has actually obtained from the infringement case. The employer may recover the remaining part after deducting the amount of compensation to be received by the employee determined in accordance with the principle of high, but the amount of compensation recovered shall not exceed the total number of duplicate compensation items actually paid by the employer. [3]
3. Be willing to risk
Article 1176 of the Civil Code stipulates: "If the person voluntarily participates in a cultural or sports activity with a certain risk and is damaged by the acts of other participants, the victim shall not request the other participants to bear tort liability; except where the other participants have intentionally or grossly negligently committed the occurrence of the damage." The liability of the organizer of the event shall apply to the provisions of Article 1198-1201 of this Law. "We note that the "self-indulgence risk" clause established in the Civil Code only explicitly raises the standard of responsibility for "other participants" in "cultural and sports activities", and there is no significant change in the standard of responsibility for "event organizers".
If the enterprise organizes a cultural and sports activity with certain risks, and the employee voluntarily participates in the work injury and is damaged by other participants, if it is determined to be a work injury, the employee may claim compensation from the enterprise for the work injury. However, if it cannot be determined to be a work injury, the enterprise, as the organizer of the activity, should bear the tort liability, and unless the infringer is intentional or grossly negligent, it cannot be held liable.
(3) The nature of the work-related injury compensation payment
1. Workers' compensation
The Civil Code 1063 provides that compensation for personal injury suffered by one party or compensation for personal injury is the personal property of one of the spouses. The essence of work injury is actually that citizens suffer personal injury, but because there are some special conditions, it is recognized as a work injury, so the compensation for work injury should also belong to personal property, not the joint property of husband and wife. If the husband and wife divorce, the workers' compensation payment is not divided.
2. The nature of the one-time death benefit
The first paragraph of Article 1122 of the Civil Code clearly stipulates: "An inheritance is the lawful property of an individual left over from the time of death of a natural person. "In our view, 'legacy at the time of death' indicates that the 'estate' is property that the citizen had owned prior to his or her death. However, the compensation for the one-time work-related death benefit occurs after the death of the citizen and the close relatives may request to pay the work-related injury insurance benefits in accordance with the provisions of the Regulations on Work-related Injury Insurance. As mentioned above, at this time, the employee has died due to work, and his civil rights capacity has also been lost, that is, he cannot exercise the right to claim compensation for work injury treatment in his own name to obtain a one-time work-related death benefit. Therefore, the one-time death benefit does not arise at the time of the employee's death, its nature is not an inheritance, and the creditors of the deceased worker's life cannot claim to pay off the personal debts of the deceased worker within the scope of the compensation after the close relatives have obtained the one-time work-related benefit. Therefore, we believe that the one-time death benefit is a compensation for the loss of life of a family member who is financially dependent on the deceased due to the loss of his or her expected wages. [4]
(4) Error correction mechanism after payment of work injury compensation
1. Revocation of Workers' Compensation Agreement
It is the legal right of an employee to enjoy the treatment of work injury insurance in accordance with the law after suffering a work injury, but in practice, in order to alleviate the economic pressure caused by the work injury in a timely manner, some workers will choose to sign a compensation agreement with the unit before the work injury is determined, and the unit is generally willing to agree to sign and pay in advance if it meets the statutory compensation standard. However, due to the signing of the compensation agreement before the recognition of the work injury and the appraisal of the ability to work, the employee cannot determine the extent of the damage to himself, and the employer may deceive, mislead or even coerce the employee, resulting in a serious imbalance between the rights and obligations of the employee and the employer. Articles 147 to 151 of the General Provisions of the Civil Code provide for revocable civil juristic acts, including material misunderstandings, fraud, fraud by third parties, coercion and manifest unfairness. In our opinion, if the above circumstances exist in the work injury insurance compensation agreement, the employee has the right to apply for revocation of the work injury compensation agreement.
Among them, it is relatively easy to determine the situation of fraud, fraud by a third party, or coercion, but due to the major misunderstanding of the injured employee or the obvious unfairness of the work injury compensation agreement, in judicial practice, the judge has a greater discretion. Among them, for major misunderstandings, judges mostly consider factors such as whether the injured employee can foresee follow-up treatment and the complications that may be caused by subsequent treatment; if it is obviously unfair, it is mostly determined from the difference between the amount agreed in the agreement and the compensation standard for the treatment of work-related injury insurance. Some scholars believe that as long as the amount agreed in the agreement is lower than the statutory standard, that is, the table is obviously unfair, the agreement can be revoked. In our view, this is actually not conducive to protecting the interests of workers. If the compensation agreement can be revoked as long as the amount agreed in the compensation agreement is lower than the statutory compensation standard, the enterprise is reluctant to sign a compensation agreement with the injured employee [5]. Workers need to go through lengthy and complicated litigation procedures to obtain the final judgment of the court, which is not only not conducive to resolving disputes, but also deprives some injured workers of the right to choose to obtain compensation in a timely manner, which is more likely to cause social conflicts.
2. Application of Unjust Enrichment
Due to the infringement of a third party, as a result of the work-related accidents, more enterprises have advanced medical expenses, living expenses and other expenses that should be paid by the work-related injury insurance fund and the third party for the injured employees out of humanitarian reasons. If an injured worker subsequently receives excess compensation through infringement lawsuits and obtains work-related injury insurance benefits, the enterprise's advance payment for the employees should be regarded as a gift or can be unjustly enriched and required to be returned by the employees?
Article 985 of the Civil Code stipulates that if the beneficiary has not obtained an improper benefit without a legal basis, the person who has suffered losses may request the profiteer to return the benefits obtained. If the employee is found to be injured as a work injury due to infringement by a third party, medical expenses, living expenses, etc. are not expenses that the employer should bear, and there is no legal basis for the employee to obtain the above benefits paid by the employer. It was due to the employer's advance payment due to the need for timely treatment of the employee for care, and the employer did not have the awareness of the gift. Therefore, if an injured worker is overpaid through infringement lawsuits and obtains work-related injury insurance benefits, the enterprise has the right to demand that the employee return the work with unjust enrichment.
Three. Suggestions and risk tips for the management of employers' work injury liability
(1) Restrictions on "self-indulgent risk"
The expression of the provision "willing to risk" in the Draft Civil Code (Second Reading Draft) is "voluntary participation in hazardous activities is impaired". In contrast, it can be found that the "cultural and sports activities" are finally clarified through formal regulations, and it is obvious that the legislators are narrowing the scope of application of "self-willing risks", so we cannot expand the interpretation of "cultural and sports activities". At the same time, the reason why the Civil Code stipulates that citizens "willing to take risks" can exclude the liability of tortious perpetrators who are not intentional or grossly negligent is that the victim still chooses to participate when he knows that there is a risk, and he should bear corresponding responsibility for his "self-risk" behavior. It can be seen that "voluntariness" is an important prerequisite, but when enterprises organize cultural and sports activities, they often require workers to participate in such as "withholding various bonus subsidies" and "not participating as absenteeism", in this case, the "self-willing risk" clause cannot be applied, that is, the liability of the infringer cannot be exempted, but this does not mean that the enterprise can also reduce the liability. Therefore, it is recommended that employers still need to improve their risk awareness in organizing cultural and sports activities, and avoid and reduce the risk of work injuries by strengthening safety prevention and control, purchasing commercial insurance, etc.
(2) Risk warning of workers' compensation agreement
Since the work-related injury compensation agreement is signed before the work injury is determined, the enterprise should not only pay attention to the fact that the work-related injury compensation agreement has been revoked due to material misunderstandings, obvious unfairness, etc., but also assess the risk that the employee may not be recognized as a work injury. To avoid unnecessary disputes due to failure to recognize the work injury. For example, the Regulation on Work-related Injury Insurance stipulates that during working hours and at work, sudden illness deaths or deaths within 48 hours after ineffective rescue are regarded as work injuries. Regarding the death of an employee within 48 hours after ineffective rescue, there are different views on "brain death" and "cardiopulmonary death" in judicial practice, and there is uncertainty as to whether an employee can be recognized as a work injury under this condition.
(3) Risk warning for advance payment of work-related injury expenses
In the case of work-related accidents caused by third-party infringement, because the injured employee's claim for infringement compensation to the third party often needs to go through litigation procedures, it is quite laborious, and when the injured employee falls into the situation of "running out of food", he will turn to the employer to ask the employer for expenses such as lost work expenses (suspension of wages) that should be borne by the third party, and a considerable proportion of the employer will also agree out of humanitarian or social responsibility. While appreciating this kind of kindness, we also recommend that employers sign an agreement with employees to clarify the nature of the advance payment, the period for repayment and the method of return. If the injured employee is unwilling to return the advance payment after receiving full compensation from a third party, the employer may safeguard its legitimate rights and interests through litigation in accordance with the provisions of the Civil Code on unjust enrichment.
(4) Risk warnings for the owners' committee to recruit workers on its own
Since the Civil Code does not specify that the owners' committee has the qualification of the main body of the employer, for some residential owners' committees, they should try to avoid recruiting workers in their own name before signing a service agreement with the property company. One is that it is impossible to pay social insurance for the employee to avoid the risk of work injury liability, and the other is that the employee may choose to defend the rights of all the owners as co-defendants after being injured, causing trouble to the owners and causing mass social conflicts. It is recommended that the Industry Committee avoid risks by purchasing services from third-party employers with subject qualifications.
exegesis:
[1] He Guohua: "Determination of Labor Relations in Illegal Contracting and Subcontracting of Construction and Mining Enterprises".
[2] Article 791 of the Civil Code: The contract issuer may conclude a construction project contract with the general contractor, or may conclude a survey, design and construction contract with the surveyor, designer and builder respectively. The contract issuer shall not divide and contract to several contractors a construction project that should be completed by one contractor in several parts.
The general contractor or the survey, design or construction contractor may, with the consent of the contract issuer, entrust part of the work contracted by itself to a third party to complete. The third party shall be jointly and severally liable to the contract issuer for the work results it has completed with the general contractor or the survey, design and construction contractor. A contractor may not subcontract all the construction projects it has contracted to a third party or subcontract all the construction projects it has contracted to a third party in the name of subcontracting after it has been dismembered.
Contractors are prohibited from subcontracting projects to units that do not have the corresponding qualifications. Subcontractors are prohibited from subcontracting their contracted projects. The construction of the main structure of the construction project must be completed by the contractor himself.
[3] Zhang Liyu, "Research on the Competition between Work Injury Insurance and Third Party Tort Liability", in Research on the Rule of Law of Property Rights, No. 01, 2019.
[4] Jia Haifeng, "Legal Attributes, Distribution Principles and Dispute Responses of One-time Work-related Death Benefits", in Legal System and Economy, No. 01, 2019.
[5] Wu Xuewen, "Determination of Whether the Workers' Compensation Agreement Is Revocable", people's court newspaper, August 5, 2015.
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