社会法视角下的上下班途中工伤制度

发布时间：2018-07-10 17:49

本文选题：上下班途中工伤 + 工伤保险　；参考：《华东政法大学》2014年硕士论文

【摘要】：本文以社会法的视角探究上下班途中工伤法律制度，致力于回答法律应当如何调整上下班途中工伤的核心问题。为了解决这一问题，第一章将首先梳理和总结从1996年《企业职工工伤保险试行办法》起,到2010年颁布的新版《工伤保险条例》为止的，我国行政法规与部门规章中的上下班途中工伤制度的立法演变历程，以及这些演变背后的现实考量与学术争议。然后，对上下班途中工伤的工伤属性、上下班途中工伤中劳动者的过错归责、交强险与工伤保险保障范围的竞合、上下班途中工伤的事故类型限制等学界争议的焦点问题进行逐一论述，阐明和分析各方观点，并给出作者的意见。在此基础上，文章的第二章将跳出学界在研究上下班途中工伤问题时的公法思路、公法逻辑，从社会法的视野重新审视相关问题，并结合社会法相关理论明确上下班途中工伤法律制度的社会法属性。然后，根据社会法的三层次调整模式，尝试构架上下班途中工伤法律制度应有的基准法、集体协议、劳动合同三层次的调整模式；阐述基准法规定上下班途中工伤构成要件和保障标准，，再由工会、劳动者和雇主约定上下班路线与时间等细节的调整方式；明确基准法层面上下班途中工伤应有的认定标准、构成要件和限制性规定。通过对这些问题的研究，第二章可以回答以社会法的视角，法律应当如何构建调整上下班途中工伤的法律体系的问题。第三章研究在上下班途中工伤事故是由第三人侵权行为造成的情况下，工伤者可以请求的工伤保险待遇和第三人侵权赔偿竞合的问题。通过讨论处理工伤待遇与第三人侵权赔偿竞合的四种模式的选择、竞合双方主次责任之分、受害人双重索赔的限制等问题，回答工伤保险基金在上下班途中工伤赔偿中应当承担怎样的责任的问题。最后，本文的第四章将结合上文的研究结论，为我国相关法律法规的进一步完善，提出了修订现行上下班途中工伤制度关于劳动者过错归责的规定、进一步明确工伤保险基金向第三人追偿的权利等合理化建议，纠正现行法规的误区，呼吁我国社会保险立法回归社会本位，为保护劳动者合法权益和构建和谐劳动关系做出贡献。
[Abstract]:From the perspective of social law, this paper probes into the legal system of work-related injuries on the way to and from work, and devotes itself to answering the core question of how the law should adjust the work-related injuries on the way to and from work. In order to solve this problem, the first chapter will first sort out and sum up the new edition of the regulations on Industrial injury Insurance promulgated in 2010 from the 1996 "trial measures on Industrial injury Insurance for Enterprise employees". The legislative evolution of the work injury system during commuting to and from work in China's administrative regulations and departmental regulations, as well as the realistic considerations and academic disputes behind these changes. Then, as to the attribute of industrial injury on the way to and from work, the blame of the worker's fault in the work-related injury on the way to and from work, the competition between the strong traffic insurance and the scope of the industrial injury insurance, In this paper, the author's opinions are discussed one by one on the basis of the limitation of the types of work-related injuries on the way to and from work. On this basis, the second chapter of the article will jump out of the academic research work injury on the way of public law, public law logic, from the perspective of social law to re-examine the relevant issues. Combined with the relevant theory of social law to clarify the legal system of work-related injuries on the way to work the attributes of social law. Then, according to the three-level adjustment model of social law, this paper tries to set up the adjustment mode of the standard law, collective agreement and labor contract in the legal system of work-related injury on the way to and from work. The basic Law stipulates the constitutive requirements and protection standards of work-related injuries on the way to and from work, and then the labor unions, workers and employers agree on the ways to adjust the details of the commuting route and time, and make clear the standards for the determination of work-related injuries due to the work injury during the commuting to and from work in the basic Law, Constituent elements and restrictive provisions. Through the study of these questions, the second chapter can answer the question of how the law should construct the legal system to adjust the work-related injuries during the commute from the perspective of social law. In the third chapter, the author studies the problem of the compensation of the third party's tort and the compensation of the third party's tort. In the case of the injury accident caused by the third party's tort during the commuting to and from work, the compensation of the injury insurance and the compensation of the third party's tort can be claimed. By discussing the choice of four modes of dealing with the competing compensation for injury at work and the tort compensation of the third party, the selection of the primary and secondary responsibilities of the two parties, the limitation of the double claim of the victim, etc., Answer the question of what kind of liability the Industrial injury Insurance Fund should bear in the compensation for injuries on the way to and from work. Finally, the fourth chapter of this article will combine the above research conclusion, for the further improvement of the relevant laws and regulations of our country, proposed the revision of the current commuting work injury system on the liability of workers fault provisions, To further clarify the rationalization of the right of the industrial injury insurance fund to claim compensation from the third party, to correct the misunderstanding of the existing laws and regulations, and to call on our social insurance legislation to return to the social standard. To protect the legitimate rights and interests of workers and build harmonious labor relations to make contributions.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.55

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