Whether the accidental injuries suffered by retirees in re-employment due to work reasons are identified as work-related injuries, we must first determine whether there is a labor relationship between retirees and their current units. Where there is a labor relationship, the Regulations on Work-related Injury Insurance shall be applied to identify work-related injuries. However, the employment relationship between retirees who enjoy the old-age insurance benefits and their current units does not constitute a labor relationship and does not fall within the scope of adjustment of the Regulations on Industrial Injury Insurance. Therefore, retirees who have enjoyed pension insurance benefits should not be identified as work-related injuries, and the employer should bear the liability for personal injury compensation.
[case]
Plaintiff: Li Moumou
Defendant: Chengdu Labor and Social Security Bureau (hereinafter referred to as the Municipal Labor and Social Security Bureau)
Third Party: Chengdu Electromechanical Equipment Manufacturing Co., Ltd. (hereinafter referred to as Electromechanical Company)
The plaintiff Li Moumou is an employee of 7304 Factory of an aerospace industrial company. On June 5438+ 10, 2003, he went through retirement formalities due to enterprise bankruptcy and enjoyed basic old-age insurance benefits in the provincial social security bureau. After retirement, Li Jingren was introduced to work in an electromechanical company. On September 17 of the same year, Li was accidentally injured at work. Li Moumou applied to the Municipal Labor and Social Security Bureau for work-related injury identification, and the Municipal Labor and Social Security Bureau made a decision on work-related injury identificationNo. 100 1. (2008) 07- 1 (hereinafter referred to as 07- 1) June 6, 2008. The main contents of the decision are as follows: According to the relevant provisions of the Notice on Establishing Labor Relations. 2005 12 issued by the Ministry of Labor and Social Security, the official reply of the Sichuan Provincial Department of Labor and Social Security on the identification of work-related injuries of people over the statutory retirement age. 200326 1 (hereinafter referred to as the reply number. 26 1), retired (including retired) personnel are working. Labor relations are not established, which does not belong to the adjustment scope of labor law and relevant laws and regulations. The labor relationship between the injured Li Moumou and an electromechanical company cannot be determined, so the nature of the injury is not a work-related injury or is not regarded as a work-related injury. Li Moumou refused to accept and filed a lawsuit in this case.
Li moumou, the plaintiff, claimed that he had established a labor relationship with an electromechanical company, and the nature of his injury was a work-related injury. The labor law does not deprive retirees of their right to work. Reply number. The 26 1 relied on by the municipal labor insurance bureau conflicts with the labor law of the superior law, and requests to cancel the industrial injury determination decision No.07-1made by the municipal labor insurance bureau and order it to make a new industrial injury determination.
The defendant, the Municipal Labor and Social Security Bureau, replied that Li was a retiree who had already enjoyed pension insurance benefits, and could not be the subject of labor relations, and there was no labor relationship with an electromechanical company. On this basis, the Municipal Labor and Social Security Bureau made a correct decision on 07- 1 and requested the court to maintain it.
The third person, an electromechanical company, said that Li was a retiree who enjoyed the basic old-age insurance benefits, and the employment relationship formed by his re-employment in a third-party company did not fall within the adjustment scope of the Labor Law and the Regulations on Industrial Injury Insurance. The accidental injury he suffered during his work should not be regarded as a work-related injury, and he requested the court to maintain the 07- 1 work-related injury determination decision made by the Municipal Labor and Social Security Bureau.
[trial]
The People's Court of Longquanyi District, Chengdu held that according to Articles 2 and 61 of the Regulations on Work-related Injury Insurance, employees of various enterprises and individual industrial and commercial households in China have the right to enjoy work-related injury insurance benefits in accordance with the regulations; The term "employees" as mentioned in these Regulations refers to workers with various forms of employment and various employment periods who have labor relations with employers. Accordingly, the Regulations on Industrial Injury Insurance does not exclude workers who retire and enjoy basic old-age insurance benefits from employees, nor does it prohibit employers from recruiting retirees. Therefore, there is a factual labor relationship between Li and an electromechanical company, and he should enjoy the treatment of work-related injury insurance because of his work injury. The decision made by the Municipal Labor and Social Security Bureau not to recognize work-related injuries is improperly applied to the law. Therefore, according to Article 54 (2) (2) of the Administrative Procedure Law of the People's Republic of China, it is decided to cancel the 07- 1 work-related injury determination decision made by the Municipal Labor and Social Security Bureau; And ordered the Municipal Labor and Social Security Bureau to make a new work-related injury determination decision within 15 days after this judgment came into effect.
After the verdict was pronounced, an electromechanical company refused to accept it and appealed to the Chengdu Intermediate People's Court on the grounds that there was no labor relationship between Li and an electromechanical company. As a retiree, Li Moumou is not a qualified subject of labor relations. If he is accidentally injured when he is re-employed, he should be relieved through civil channels. The court of first instance found that there was a labor relationship between Li and an electromechanical company, which was a mistake and requested a revision of the judgment according to law.
The Chengdu Intermediate People's Court held that, according to the second paragraph of Article 5 of the Regulations on Work-related Injury Insurance, the Municipal Labor Insurance Bureau has the administrative appraisal authority for work-related injuries caused by accidents within its jurisdiction. According to Article 61 of the Regulations on Work-related Injury Insurance, the premise of determining a work-related injury is that there is a labor relationship between employees and employers. According to the reply number. 26 1, the injury accident of retirees in the process of work is not established, and it does not belong to the adjustment scope of the Labor Law and relevant laws and regulations. In this case, Li went to work in an electromechanical company after retirement, and his employment relationship with the company did not fall within the scope of labor relations adjusted by the Industrial Injury Insurance Ordinance. Therefore, Li's accidental injury at work should not be regarded as a work-related injury. According to the reply. 26 1 and relevant laws and regulations, the original defendant, the municipal labor and social security bureau, made a decision on the determination of work-related injuries of 07- 1, which determined that Li's injury was not a work-related injury and should be maintained. If the application of laws and regulations in the original judgment is wrong, the judgment shall be revised according to law. According to the second paragraph of Article 61 and the first paragraph of Article 54 of the Administrative Procedure Law of the People's Republic of China, the judgment is as follows: 1. Revoke the administrative judgment (2008) Longquan Criminal Chu Zi No.23 of the People's Court of Longquanyi District, Chengdu. 2. Maintain the Decision on Work-related Injury issued by Chengdu Labor and Social Security Bureau (2008) No.07-1.
[argument]
There is no clear stipulation in the law of our country on the determination of work-related injuries of retirees who are re-employed and enjoy pension insurance benefits, and there are disputes in relevant administrative departments and judicial practice. We believe that the prerequisite for applying the Regulations on Work Injury Insurance to identify work-related injuries is that the injured employee and the employer form a labor relationship, and then consider whether the injured person's injury meets the legal conditions for identifying work-related injuries. Specific to this case, after repeated research, the judge in charge believes that the employment relationship between retirees who have enjoyed pension insurance benefits and employers does not constitute a labor relationship and should not be considered as a work-related injury; This employment relationship is more in line with the characteristics of civil employment relationship, and the employer can be liable for the injuries suffered by retirees due to work through civil compensation for personal injury. This understanding is appropriate, and it also provides an exemplary adjudication rule for standardizing the trial of similar cases.
First, retirees who have enjoyed pension insurance benefits are re-employed, which does not constitute a labor relationship with the current employer.
Although according to the constitution of our country, labor is a basic right that citizens should enjoy, it is not different because of the age of citizens, the existence of employers and whether they should be paid. However, the Constitution also stipulates that citizens have the right to rest and social security. Therefore, the state has made restrictions on the labor relationship between citizens and employers in labor laws and regulations. According to the provisions of the Labor Law, the Labor Contract Law and other laws, labor in the sense of the Labor Law means that citizens with working ability engage in certain social activities with remuneration or income according to law within the legal working age; Laborers in the sense of labor law refer to citizens who have the right and ability to work within the legal working age. At the same time, according to the provisions of Article 21 of the Regulations for the Implementation of the Labor Contract Law, the labor contract is terminated when the employee reaches the statutory retirement age. For the re-employment of retirees, Article 13 of the Notice of the Ministry of Labor and Social Security on Several Issues Concerning the Implementation of the Labor Contract System clearly stipulates that when retirees who have enjoyed the pension insurance benefits are re-employed, the employer shall sign a written agreement with them to clarify the rights and obligations such as work content, remuneration, medical care and labor treatment during the employment period. Article 2 of the "Request for Instructions from the General Office of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System" stipulates that according to Article 13 of the "Notice of the Ministry of Labor on Several Issues Concerning the Implementation of the Labor Contract System", the employment agreement can clarify the rights and obligations of retirees who have enjoyed the pension insurance benefits, such as work content, remuneration, medical care and labor protection benefits. Retirees and re-employment units shall fulfill the obligations stipulated in the employment agreement. If the written agreement is terminated in advance in the employment agreement, it shall be handled as agreed by both parties. If there is no agreement, it shall be settled through consultation. The termination of the employment agreement of retirees cannot be carried out according to Article 28 of the Labor Law. Document No.26 1 of the Sichuan Provincial Department of Labor and Social Security "Reply on the Identification of Work-related Injuries of Persons Over the Statutory Retirement Age" clearly stipulates that the labor relationship of retired (including resigned) personnel in the course of work is not established, which is not within the scope of regulation and control of labor law and relevant laws and regulations. Based on the above-mentioned laws, regulations and rules, it can be seen that retirees who have enjoyed the pension insurance benefits are not legal workers in the labor contract relationship, and they cannot become parties to the labor contract and are not protected by the labor contract law. This is because endowment insurance is a social insurance system established by the state to solve the basic life of workers after they reach the working age limit stipulated by the state and terminate their labor obligations, or because they lose their ability to work because of old age. It is a social responsibility of the state to retired workers and a social welfare system provided by the government, and the state finance should give corresponding subsidies. If retirees have enjoyed the pension insurance benefits, it means that they have enjoyed the corresponding social security and welfare provided by the state, and they cannot establish labor relations with employers in the sense of labor law when they re-employment.
Two, re employment of retirees who have been injured by accidents and have enjoyed pension insurance benefits, can get relief through civil compensation.
China's constitution stipulates that citizens have the right to work, and relevant laws and regulations do not prohibit employers from recruiting retirees to participate in labor. Judging from China's current national conditions, with the continuous improvement of living standards and medical conditions, people's average life expectancy has also been extended, and most retirees are healthy and can still play their skills. In addition, some retirees with low retirement benefits can't fully meet the basic needs of their families only by their retirement wages, and re-employment is a common situation. If retirees are excluded from the identification of work-related injuries, will their rights and interests as workers not be guaranteed and relieved? We believe that the employment relationship between retirees' re-employment and employers conforms to the characteristics of civil employment relationship, and the accidental injuries they suffered during their work can be relieved through civil compensation. The so-called employment relationship refers to the control, domination and subordination between employers and employees. Employers designate workplaces, provide labor tools or equipment, limit certain working hours and pay labor remuneration regularly. The labor provided by laborers is an integral part of the production and business activities of employers. Employment relationship belongs to the category of civil legal relationship, which embodies the agreement of autonomy between equal civil subjects for one party to provide services to the other party and get paid. As long as the two sides reach an agreement, the employment relationship will be established, and the state will not interfere with the agreed treatment, retirement age and participation in social security. Therefore, the employment relationship between retirees who have enjoyed pension insurance benefits and current employers does not belong to labor relations, and their work-related injuries can no longer enjoy work-related injury insurance benefits in theory and practice. However, according to the civil employment relationship between the employer and the employer, the employer should be required to bear the liability for personal injury compensation. The opinions of the Organization Department of the Central Committee, the Propaganda Department of the Central Committee, the United Front Work Department of the Central Committee, the Ministry of Personnel, the Ministry of Science and Technology, the Ministry of Labor and Social Security, the General Political Department of the People's Liberation Army, and the China Association for Science and Technology (2005) No.9 also clearly pointed out: "When retired professional and technical personnel are employed, they will be properly handled by the employer with reference to the relevant treatment standards of work-related injury insurance; If there is a dispute between a work-related injury and the employer, it can be handled through civil litigation. " Judging from this case, Li worked in an electromechanical company after retirement and reached an employment agreement with the company on work content, working hours, labor remuneration and other matters. The nature of the agreement accords with the characteristics of civil employment relationship. If Li is injured at work, he can ask an electromechanical company to bear the corresponding liability for personal injury.
Three, more than the statutory retirement age but did not enjoy the pension insurance benefits of migrant workers can be identified as work-related injuries.
In this case, in addition to the re-employment of retirees who have enjoyed the old-age insurance, there are a large number of farmers who have exceeded the legal retirement age but have not enjoyed the old-age insurance benefits, such as the general phenomenon that employers recruit over-age migrant workers. We believe that the identification of work-related injuries of over-age migrant workers who have not enjoyed retirement benefits should be different from those who have enjoyed pension insurance benefits: those who have enjoyed retirement benefits are not identified as having a labor relationship with the employer, and their work-related injuries should be compensated for personal injuries through their employment relationship with the employer; For the situation of work-related injuries of over-age migrant workers, the Regulations on Work-related Injury Insurance can be applied to identify work-related injuries according to specific conditions, so as to fully protect the rights and interests of vulnerable groups of migrant workers. In this regard, the Jinniu District People's Court of Chengdu issued a judicial suggestion to the Chengdu Labor and Social Security Bureau, suggesting that the bureau should treat urban retirees who have enjoyed the pension insurance treatment differently from rural workers who have not, and it is appropriate to limit the identification of work-related injuries beyond the statutory retirement age and the enjoyment of work-related injury insurance treatment to migrant workers. Retirees who enjoy pension insurance benefits are told to solve their work-related injuries through civil litigation.
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