How to deal with the competition between work related accidents and third party torts

Because of the infringement of a third party, if the traffic accident is determined to be a work-related injury, double compensation can be made.

If a worker is injured as a result of a traffic accident caused by a vehicle other than the performance of his or her work tasks, and it is determined that it is a work-related injury, he or she shall claim compensation for personal injury from a third party, and after receiving compensation for the personal injury of the party causing the accident, he may enjoy work-related injury insurance benefits other than work-related injury medical treatment.

Social Insurance Act

Article 42 Where a work-related injury is caused by a third party, and the third party does not pay the medical expenses for the work-related injury or the third party cannot be identified, the work-related injury insurance shall pay in advance. After the work-related injury insurance** is paid in advance, it has the right to recover from a third party.

Supreme People's Court.

Provisions on Several Issues Concerning the Trial of Administrative Cases of Work-related Injury Insurance

Legal Interpretation 2014 No. 9.

Article 8: Where an employee is injured due to a third party, and the social insurance administrative department makes a decision not to accept an application for determination of work-related injury or not to recognize a work-related injury on the grounds that the employee or his close relatives have already filed a civil lawsuit against the third party or obtained civil compensation, the people's court will not support it.

Where an employee is injured due to a third party, and the social insurance administrative department has already made a determination of work-related injury, and the employee or his close relatives have not filed a civil lawsuit against the third party or have not yet received civil compensation, and the lawsuit is filed to demand that the social insurance agency pay work-related injury insurance benefits, the people's court shall support it.

Where an employee suffers a work-related injury due to a third party, and the social insurance agency refuses to pay work-related injury insurance benefits on the grounds that the employee or his close relatives have already filed a civil lawsuit against the third party, the people's court will not support it, except for the medical expenses already paid by the third party.

Except for personal injury compensation, one can be claimed, and all others can be claimed.

Legal basis: Civil Code of the People's Republic of China

Article 120:Where civil rights and interests are infringed upon, the infringed party has the right to request that the infringer bear tort liability.

Article 183:Where oneself is harmed by protecting the civil rights and interests of others, the infringer bears civil liability, and the beneficiary may give appropriate compensation. Where there is no infringer, the infringer has escaped, or is unable to bear civil liability, and the victim requests compensation, the beneficiary shall give appropriate compensation.

Article 1167:Where the tortious conduct endangers the safety of others' persons or property, the infringed party has the right to request that the infringer bear tortious liability such as stopping the infringement, removing obstructions, or eliminating dangers.

Article 1168:Where two or more persons jointly commit tortious acts, causing harm to others, they shall bear joint and several liability.

Article 8 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Involving Work-related Injury Insurance provides that if an employee is injured due to a third party, and the social insurance administrative department makes a decision not to accept an application for recognition of work-related injury or not to recognize a work-related injury on the grounds that the employee or his close relatives have already filed a civil lawsuit against the third party or obtained civil compensation, the people's court shall not support it.

Where an employee is injured due to a third party, and the social insurance administrative shield department has already made a determination of work-related injury, and the employee or his close relatives have not filed a civil lawsuit against the third party or have not yet received civil compensation, and sue the social insurance agency to pay work-related injury insurance benefits, the people's court shall support it.

Where an employee suffers a work-related injury due to reasons attributable to the third Chunzhou, and the social insurance agency refuses to pay work-related injury insurance benefits on the grounds that the employee or his close relatives have already filed a civil lawsuit against the third party, the people's court shall not support it, except for the medical expenses already paid by the third party.

It can be seen that when the work-related injury and the third-party infringement are competing, the injured employee can enjoy double compensation.

Notice of the Jinan Intermediate People's Court on Printing and Distributing the Minutes of the Symposium on the Application of Law in Labor Dispute Cases in the Courts of the Whole City.

If an employee of an enterprise is injured by a third party in the performance of his duties, he may, on the one hand, claim damages from the perpetrator in accordance with the Tort Law, and on the other hand, he may claim insurance payment in accordance with the provisions of work-related injury insurance. Claims for payment of work-related injury insurance benefits and claims for tort damages are different in terms of the basis of the claim, and the principle of attribution and the scope of protection of rights are different. The former is subject to the principle of no-fault liability, while the latter is subject to the principle of fault liability. The former cannot claim moral damages, while the latter can.

The former does not apply to mixed faults, while the latter applies to offset faults. Due to the above differences, there are controversies in trial practice as to how the two are applied.

The first opinion holds that the legitimate rights and interests of workers should be fully protected and their right to choose should be respected, that is, workers can claim rights against either party. However, rights may not be asserted against both parties at the same time.

The second opinion holds that, according to Article 12 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, if an employee of an employer who is required to participate in the overall planning of work-related injury insurance in accordance with the law suffers personal injury due to a work-related accident, and the worker or his close relatives file a lawsuit with the people's court requesting the employer to bear civil liability for compensation, he or she shall be informed to handle it in accordance with the provisions of the Regulations on Work-related Injury Insurance. Where a third party other than the employer infringes upon a worker's personal injury, and the compensation rights holder requests that the third party bear civil liability for compensation, the people's court shall support it. Work-related injuries and third-party torts based on labor relations are two different legal relationships, so the employee can claim rights against the employer and the tortfeasor at the same time, and at the same time get the work-related injury benefits and compensation given to the employee by the employer and the tortfeasor.

However, for items that have already been compensated, such as medical expenses already received, we will not support repeated claims.

There is no competition between the work-related injury and the third-party infringement, and in the case of the third-party infringement and the work-related injury is determined, the work-related injury insurance compensation and the third-party tort compensation can be obtained at the same time. If an employee is injured in an accident or suffers from an occupational disease due to work-related reasons, and the work-related injury is recognized, he or she shall enjoy work-related injury insurance benefits; Among them, those who lose their ability to work after the appraisal of their ability to work enjoy disability benefits. Where the perpetrator infringes upon the civil rights and interests of others and causes harm due to his fault, he shall bear tort liability.

Article 1165 of the Civil Code of the People's Republic of China: Where an actor infringes upon the civil rights and interests of others due to fault and causes harm, he shall bear tort liability. Where it is presumed that the actor is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.

Legal basis: Regulations on Work-related Injury Insurance

Article 14 An employee shall be deemed to have suffered a work-related injury under any of the following circumstances:

1) Being injured in an accident during working hours and in the workplace due to work-related reasons;

2) Being injured in an accident while engaging in work-related preparatory or finishing work in the workplace before or after working hours;

3) Injured by violence or other accidents during working hours and in the workplace due to the performance of work duties;

4) Suffering from occupational diseases;

5) Injured or unaccounted for in an accident while away for work;

6) Injured in a traffic accident or an accident involving urban rail transit, passenger ferry, or train for which they are not primarily responsible;

7) Other circumstances that laws and administrative regulations provide shall be recognized as work-related injuries.

Article 30 Employees who are injured in accidents or suffer from occupational diseases due to work shall enjoy medical treatment for work-related injuries.

Employees who are injured at work shall seek medical treatment in the medical institution that has signed the service agreement, and in case of emergency, they can first go to the nearest medical institution for first aid.

**If the expenses required for work-related injury meet the requirements of work-related injury insurance diagnosis and treatment items, work-related injury insurance drug catalog, and work-related injury insurance hospitalization service standards, they shall be paid from work-related injury insurance**. The catalogue of work-related injury insurance diagnosis and treatment items, the catalogue of work-related injury insurance drugs, and the hospitalization service standards of work-related injury insurance shall be prescribed by the social insurance administrative department in conjunction with the health administrative department, the food and drug supervision and administration department and other departments.

The food subsidy for the hospitalization of the employee for the work-related injury, as well as the certificate of the medical institution and the consent of the handling agency, the transportation, accommodation and accommodation expenses required for the injured employee to seek medical treatment outside the co-ordination area shall be paid from the work-related injury insurance, and the specific standard of payment shall be stipulated by the people of the co-ordination area.

Injured employees are not entitled to medical treatment for work-related injuries and shall be dealt with in accordance with the basic medical insurance measures.

If the work-related injury employee goes to the medical institution that has signed the service agreement to carry out the work-related injury**, if it meets the requirements, it shall be paid from the work-related injury insurance**.