So far, the connotation and extension are not particularly clear.
According to Article 5 of the opinions of the Ministry of human resources and social security on Several Issues concerning the implementation of the regulations on work-related injury insurance (rsbf [2013] No.
This can avoid the administrative department for industrial injury identification from suspending the identification of industrial injury because the employment subject is not clear, which will lead workers into a long litigation process.
The relevant provisions on the responsibilities of the employing entity are as follows: 1.
Moreover, the identification of the responsibility of the employment subject is indeed the responsibility of the administrative department for industrial injury identification itself.
If a person employed by the contractor is injured on the construction site and cannot be identified as an industrial injury, he can claim for rights according to personal injury compensation.
After the labor relationship is confirmed according to law, the parties concerned shall submit the relevant legal documents to the social insurance administrative department that accepts the application for work-related injury identification, and the Department shall resume the work-related injury identification procedure from the date of receiving the effective legal documents.
But in the field of industrial injury identification, whether to bear the liability of the employing subject is a necessary prerequisite for industrial injury identification.
Leshan human resources and Social Security Bureau on work-related injury determination, which was discussed and adopted by the judicial committee of the Supreme People’s Court on September 19, 2016, the court held that the notice of suspension of work-related injury determination made by the administrative department for work-related injury determination was actionable if it caused the legitimate rights and interests of workers to be deprived of relief for a long time and had a substantial impact on their rights and obligations, And the guidance case finally revoked the notice of suspension.
In 2013, Article 7 of the opinions of the Ministry of human resources and social security on Several Issues concerning the implementation of the regulations on industrial injury insurance (rsbf [2013] No.
34), if the social insurance administrative department finds that there is a dispute in the labor relationship and cannot be confirmed after accepting the application for work-related injury identification, it should inform the parties that they can apply to the labor and personnel dispute arbitration committee for arbitration.
Is it within the scope of acceptance of the court to confirm the responsibility of the employment subject? The liability of the employing subject is not a legal concept, but a concept proposed by the labor administrative department.
The labor administrative department issued a notice stipulating that for construction and other employers who subcontract or subcontract projects (businesses) to natural persons or organizations that do not have the qualifications of employment subjects, these employers with the qualifications of employment subjects shall bear the employment responsibilities.
Can an administrative lawsuit be filed if the administrative department of work-related injury determination suspends the work-related injury determination? In practice, it is common for industrial injury administration to suspend the identification of industrial injury and let workers confirm the labor relationship first.
If the evidence on hand is complete, you can directly apply to the social insurance administrative department for identification of work injury..
The construction company does not manage the construction workers and does not pay them wages.
2.
3.
The employed workers are not employed by the construction company.
There is no unified authoritative view in the national judicial system on whether the responsibility of the employment subject should be determined by the administrative department of industrial injury determination or the court.
9), if the employer, in violation of laws and regulations, subcontracts the contracted business to an organization or natural person that does not have the qualification of an employment subject, and the employees employed by the organization or natural person are injured or killed due to work when engaging in the contracted business, the employer is the unit that bears the responsibility for work-related injury insurance; Article 5 if an individual is affiliated with other units for external business, and the employees are injured or killed due to work, the affiliated unit shall be the unit responsible for work-related injury insurance.
If a person employed by the contractor is injured on the construction site, can he choose between industrial injury and compensation? If it is a work-related injury caused by the infringement of a third party, as long as it is identified as a work-related injury, because there are no regulations at present that restrict the workers injured on the construction site from obtaining double compensation, they can also obtain double compensation.
According to Item 4 of Article 3 of the provisions of the Supreme People’s Court on Several Issues concerning the trial of administrative cases of work-related injury insurance ([2014] No.
3.
Therefore, in practice, it is generally not recognized that there is a labor relationship between the construction company and the construction workers.
Construction companies subcontract projects to contractors, and workers employed by contractors are injured on construction sites.
In the guiding case of Wang Mingde v.
03 lawsuit scheme for claiming the liability of the employing subject 1.
When the court no longer accepts the case of confirming the responsibility of the employing body, the behavior of the administrative department of work injury identification suspending the identification of work injury will lead to the long-term failure of workers’ legitimate rights and interests to get relief and directly affect their rights and obligations, Therefore, the worker can sue the administrative department that revoked the work-related injury recognition for suspending the work-related injury recognition.
2.
However, the author agrees that the identification of the responsibility of the employment subject should be the responsibility of the administrative department for industrial injury identification.
In practice, the administrative department of work injury identification often suspends the identification of work injury because the employing body is not clear, and guides workers to arbitration and litigation procedures, requiring them to confirm who should bear the responsibility of the employing body.
To sum up, industrial injury can be recognized even if there is no labor relationship.
During this period, the time limit for making the determination of work-related injury shall be suspended, and the party applying for the determination of work-related injury shall be notified in writing.
In this paper, the author focuses on the difficult problem of “how to claim the responsibility of the employing subject if the labor relationship does not exist in the work-related injury case”, and tries to make a brief analysis ~ ~ 01 how to identify the work-related injury if there is no labor relationship between the two parties? The answer is yes.
This is often the case in judicial practice.
In 2005, Article 4 of the notice of the Ministry of labor and social security on matters related to the establishment of labor relations stipulates that construction and mining enterprises and other employing units contract out projects (businesses) or business rights to organizations or natural persons that do not have the qualifications of the employing entity, and the employer with the qualifications of the employing entity shall bear the responsibilities of the employing entity for the laborers recruited by such organizations or natural persons.
02 problems encountered in the process of identifying work-related injuries 1.
34) stipulates that if a contractor with the qualification of the employment subject, in violation of laws and regulations, subcontracts or subcontracts the contracting business to an organization or natural person without the qualification of the standby labor subject, and the workers recruited by the organization or natural person are injured or killed due to work when engaging in the contracting business, The contractor with the qualification of the employment subject shall bear the work-related injury insurance liability that the employer shall bear according to law.
