第三人侵权下工伤保险与人身损害赔偿竞合关系之研究

发布时间：2019-01-30 18:42

【摘要】：现代社会,随着科技水平的不断提高及工业化、市场化的不断推进,工伤事故持续增多。在所有的工伤事故中,由第三人侵权引起的工伤事故频频发生,已成为现代社会工伤事故的重要特征,比如在居民小区进行路边绿化作业的物业职工被小区内来往的车辆撞伤,在这种情形下,凭据不同的法律规则,会导致工伤保险待遇给付请求权和人身损害赔偿请求权两种请求权的竞合。在理论上,关于这两种请求权的竞合问题存在四种处理模式:第一种是选择模式,在此模式下,两种请求权是相互排斥的关系,工伤职工只能在这两种请求权之间择一行使,给予工伤职工自由选择的权利;第二种是替代模式,在此模式下,只有工伤保险待遇给付一种请求权,强行排除人身损害赔偿请求权的适用,工伤职工没有选择的余地;第三种是补充模式,在此模式下,工伤职工可以同时适用两种请求权,但依据我国侵权责任法的损益相抵原则,最后获得的赔偿总额不得超过其实际遭受的损害;第四种是兼得模式,在此模式下,工伤职工也可以同时适用两种请求权,但无需遵循损益相抵原则,从而获得双重利益。本文主张,采取兼得模式是解决当前我国第三人侵权下两种请求权竞合问题的正确途径,这既符合我国人权保障的要求,也能更好地发挥法律的惩罚预防功能,在实际上也更有利于工伤职工。本文共分为五个部分:第一部分引言,通过分析比较两个典型案例,指出我国目前的司法实践关于相关案件的判决结果不一,缺乏明确的法律依据和理论指导,急需相关理论的研究;第二部分,通过比较两种制度之间的差异,分析产生两种请求权竞合的原因,为后文解决两种请求权的竞合问题提供理论依据;第三部分是工伤保险与人身损害赔偿竞合处理模式之比较分析,通过论述和比较理论界处理两种请求权竞合的四种模式,评析我国学术界所主张的观点以及我国立法实践中的具体规定,总结利弊,为后文提出具体的解决途径打下铺垫;第四部分,提出本文所主张的观点,即采取兼得模式是解决当前我国第三人侵权下两种请求权竞合问题的正确途径,作出一定的理论分析并提出具体的解决思路;第五部分是结语,用来总结上文的观点。
[Abstract]:In modern society, with the development of science and technology, industrialization and marketization, industrial accidents continue to increase. Among all industrial accidents, the frequent occurrence of industrial accidents caused by the infringement of the third person has become an important feature of industrial accidents in modern society. For example, property workers engaged in roadside greening in residential areas have been injured by vehicles travelling in the residential areas. In this case, according to different legal rules, it will lead to the coincidence of two kinds of claim rights: the right to claim for compensation for injury insurance treatment and the right to claim for compensation for personal injury. In theory, there are four ways to deal with the problem of the concurrence of the two claims: the first is the choice mode, in which the two claim rights are mutually exclusive, and the work-related injury workers can only exercise one of the two claims. The right to free choice of workers at work injury; The second is the alternative mode, under this mode, only one kind of claim right is paid for the treatment of industrial injury insurance, and the application of the claim right for personal injury compensation is forcibly excluded, so the injured workers have no choice; The third is supplementary mode, under which the injured workers can apply two kinds of claim rights simultaneously, but according to the principle of profit and loss of tort liability law of our country, the total amount of compensation obtained in the end must not exceed the actual damage suffered by them; The fourth is the mode of concurrent acquisition, under which the injured workers can also apply the two kinds of claim rights, but do not need to follow the principle of profit and loss offset, thus obtaining double benefits. This paper argues that the adoption of a concurrent mode is the correct way to solve the problem of competing claims under the infringement of the third party in our country, which is not only in line with the requirements of human rights protection in our country, but also can play a better role in the punishment and prevention of the law. In fact, it is also more beneficial to workers at work. This article is divided into five parts: the first part of the introduction, through the analysis and comparison of two typical cases, points out that the current judicial practice of our country about the relevant cases judgment results are different, lack of clear legal basis and theoretical guidance. The research of relevant theories is urgently needed; The second part, by comparing the differences between the two systems, analyzes the causes of the two claims, and provides the theoretical basis to solve the problem of the two claims. The third part is the comparative analysis of the competing modes of industrial injury insurance and personal injury compensation. Comment on the viewpoints advocated by our academic circles and the specific provisions in our legislative practice, summarize the pros and cons, and lay the groundwork for putting forward concrete solutions for the following articles; The fourth part puts forward the point of view advocated in this paper, that is to say, adopting the concurrent mode is the correct way to solve the problem of the two kinds of claim concurrence under the infringement of the third party in our country at present, make a certain theoretical analysis and put forward the concrete solution thought; The fifth part is the conclusion, which is used to sum up the above point of view.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D922.55;D923

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