Case introduction1998165438+10/0/2 1 day, the daughters of plaintiffs Hu and Gao came home from work by bike from the defendant Hangzhou XX Clothing Co., Ltd., and were later found in the village of Fengdong Village, 30 meters away. After the incident, although the relevant departments conducted an investigation, they failed to determine the real cause of Hu XX's death. The traffic police department speculated that this was a traffic accident and the vehicle escaped, but the vehicle and the corresponding responsible person were not seized.
On June 5438+February 2, 20051,Xiaoshan Traffic Patrol (Special) Brigade made a road traffic accident confirmation, and determined that the hit-and-run party was fully responsible for the accident, and Hu XX was not at fault and was not responsible for the accident.
From June 5438 to February 26, 2005, Xiaoshan Labor and Social Security Bureau issued a notice not to accept the application for work-related injury identification, on the grounds that the time from the date of accident injury or the date of diagnosis and identification of occupational disease to the date of application for work-related injury identification has exceeded 1 year.
On February 28th, 2005, Xiaoshan District Labor Dispute Arbitration Committee issued a notice of rejection, on the grounds that Hu XX had no work-related injury, and the plaintiff asked the defendant to implement the work-related injury treatment, which was insufficient.
On February 29th, 2005, 65,438, the plaintiff sued the court, demanding that the defendant pay the funeral expenses of 9,344.5 yuan, one-time work injury1134 yuan, and support relatives of 224,268 yuan, totaling 345,746.5 yuan, and bear the litigation costs.
Focus of controversy
1. Did Hu Xx die in a traffic accident?
The plaintiff believed that Hu XX died in a traffic accident on the grounds that it was a traffic accident according to the traffic police's accident certificate.
The defendant believes that Hu Xx's death belongs to the crime of causing traffic accidents or other criminal cases, and we can't jump to conclusions at present. There are many doubts in this case. At present, the vehicle involved has not been identified, the driver involved has not been found, and there are no witnesses. How does the traffic police department determine that this case is a traffic accident? How to identify the traffic accident escape? Why is the hit-and-run party responsible for Hu XX's death? According to the current situation, it is not excluded that Hu Xx's death has other criminal offences. Before finding out the cause of death of Hu XX, it is impossible to determine that the cause of death was a traffic accident.
Two. Is the Road Traffic Safety Law applicable to this case?
The plaintiff believes that the Road Traffic Safety Law is applicable to this case. The reason is that the traffic police department has identified the accident. This is a traffic accident. The driver who caused the accident escaped, and the escaping party took full responsibility for the accident.
The defendant believes that the Road Traffic Safety Law is not applicable to this case. The reason is:
The Road Traffic Safety Law is a law that regulates the relationship between road pedestrians and motor vehicle drivers, regulates the behavior of road traffic management personnel, and clarifies the service content of road traffic management institutions. The road it refers to is not the road in the usual sense, but has a specific meaning. Article 1 19 of the Road Traffic Safety Law stipulates that "roads" refer to expressways, urban roads and places where social motor vehicles are allowed to pass, including squares, public parking lots and other places for the public to pass. In this case, according to the road traffic accident certificate provided by the plaintiff, the place where Hu Xxx died was 30 meters south of Lu Zhi Village Committee in Fengdong Village, Ningwei Town, that is, the place where Hu Xxx died was on the village road, not the "road" as mentioned in the Road Traffic Safety Law. Therefore, the road traffic safety law is not applicable. The traffic police department has no jurisdiction over industrial accidents that occur on "village roads". According to law, the police station sent by the public security organ or the public security and criminal investigation departments shall make a conclusion. If it is unintentional killing or injury, it should also be a negligent death, not a general traffic accident.
Three. Is the Trial Measures for Industrial Injury Insurance for Enterprise Employees or the Regulations on Industrial Injury Insurance applicable to this case?
The plaintiff believes that although Hu Xx died at1998165438+10/2 1, it has not been determined whether his death constitutes a work-related injury, and the Regulations on Work-related Injury Insurance should be applied. The defendant believes that the trial measures for industrial injury insurance for enterprise employees should be applied to this case. The reason is:
Non-retroactivity of laws is a basic principle of the rule of law, that is, new laws are only valid for events and behaviors after promulgation, but not for events and behaviors before promulgation. The death time of Hu Xx is1998165438+1October 2 1. If the plaintiff wants to identify a work-related injury, it should apply the laws at that time, that is, the Trial Measures for Enterprise Employment Insurance 2 1 12 1. The Regulations on Industrial Injury Insurance came into effect on June 5, 2004+10/October 6 +0. According to the principle of non-retroactivity, the Regulations on Industrial Injury Insurance does not apply to this case.
Four, whether the plaintiff's work-related injury identification and compensation exceeds the limitation of action.
The plaintiff believes that the traffic accident confirmation was made on February 2, 20051,and the plaintiff filed a lawsuit with the court on February 28, 2005, which did not exceed the limitation of action. The defendant believes that the plaintiff's work-related injury identification and compensation have exceeded the limitation of action. The reason is:
Article 10 of "Trial Measures for Industrial Injury Insurance in Enterprises" 5 12_72 stipulates: "Employees or their relatives who suffer from industrial injuries shall apply to the local labor administrative department for industrial injury insurance benefits within 15 days from the date of accident or diagnosis of occupational diseases. Under special circumstances, the application period can be extended to 30 days. " In this case, the death time of Hu Xx is1998165438+10/2/0/. According to the above provisions, if the plaintiff wants to identify a work-related injury, he should submit it before1998 65438+February 2 1 at the latest, even if it is in accordance with the new ". That is, no later than1999165438+1October 2 1, but the plaintiff didn't file the work-related injury identification until June 65438+February 2005, which was far beyond the time limit stipulated by law.
Verb (abbreviation of verb) Does Hu Xx's death constitute a work-related injury?
The plaintiff believes that Hu XX died in a car accident on his way home from work, and his death constitutes a work-related injury. The defendant believes that the plaintiff believes that Hu XX's death constitutes a work-related injury and lacks factual and legal basis. The reason is:
1. The plaintiff claimed that Hu Xx's death constituted a work-related injury, and there was no evidence to prove it. Xiaoshan District Labor and Social Security Bureau has replied to the plaintiff's claim, which was not accepted because it was beyond the limitation of action and was not recognized as a work-related injury.
2. According to the provisions of Article 8 of the Trial Measures for Industrial Injury Insurance for Enterprises (2 123 1), if an employee has a road traffic motor vehicle accident at the specified time and the necessary route to and from work, it shall be deemed as an industrial injury. In other words, only on the way to and from work, a road traffic motor vehicle accident is a work-related injury, and other injuries are not. In this case, Hu Xx died on the village road, not on the "road" referred to in the Road Traffic Safety Law, and it cannot be considered as a motor vehicle accident injury in road traffic, but other injuries. Therefore, Hu XX's death is not a work-related injury.
According to the current situation, the death of Hu Xx in this case does not rule out the possibility of other criminal offences. Before finding out the cause of death of Hu XX, it is impossible to determine that the cause of death was a traffic accident. Therefore, Hu XX's death is not a work-related injury.
Six, the plaintiff claims whether the work-related injury compensation should go through the work-related injury identification procedure.
The defendant believes that the identification of work-related injuries is a necessary procedure for claiming compensation for work-related injuries. The reason is:
Article 2 of the Measures for the Identification of Work-related Injuries stipulates that "the administrative department of labor security shall identify work-related injuries in accordance with these Measures", and Article 15 stipulates that "the administrative department of labor security shall make a decision on the identification of work-related injuries within 60 days from the date of accepting the application for the identification of work-related injuries". The determination decision includes the determination of work-related injuries or work-related injuries as well as those that are not work-related injuries or work-related injuries. Article 19 stipulates that "employees or their immediate family members or employers who are dissatisfied with the determination decision or the determination of work-related injuries may apply for administrative reconsideration or bring an administrative lawsuit according to law". According to the above provisions, in China, it is the authority of the labor administrative department to identify work-related injuries. Only by identifying work-related injuries can we determine whether the injuries suffered by workers belong to work-related injuries, and only by identifying them can we make compensation for work-related injuries according to the Regulations on Work-related Injury Insurance. Therefore, if workers want to claim compensation for work-related injuries, they must first identify work-related injuries. If you are dissatisfied with the identification of work-related injuries, you may bring an administrative reconsideration or administrative lawsuit. Identification of work-related injuries is a necessary procedure to apply for compensation for work-related injuries.
Seven. Is the amount claimed by the plaintiff correct?
The defendant thinks that the amount claimed by the plaintiff is wrong, specifically: (1) The one-time death pension should be 93,445 yuan. (2) The plaintiff has no right to claim the pension for supporting relatives. According to Article 3 of the Provisions on the Scope of Dependent Relatives of Workers who Died at Work, one of the conditions for applying for dependent relatives pension is that the parents of workers who died at work are over 60 years old and the woman is over 55 years old. In this case, the two plaintiffs do not meet this condition and have no right to claim pensions for their relatives.
Trial judgment
After mediation by the court, the defendant voluntarily compensated the plaintiff for RMB70,000, and the plaintiff voluntarily gave up the remaining claims.
Classical analysis
In this case, Hu XX died inexplicably on his way to work, but the perpetrator has not been found so far. The traffic police department can only speculate that he died in a traffic accident, which brings difficulties to the handling of this case.
Theoretically, people define "industrial injury" as the injury caused by work, also known as occupational injury, which refers to the injury, disability, death or occupational disease suffered by workers in the process of productive labor because of work, performance of duties or activities related to productive labor. In practice, people further simplify "work injury" as "injury during working hours and work" and emphasize "work-related injury".
According to the "Trial Measures for Industrial Injury Insurance for Enterprise Employees" and the "Regulations on Industrial Injury Insurance", if an employee dies in a motor vehicle accident on the way to and from work, it can be recognized as a work-related injury. However, whether there is a work-related injury must first be determined by the labor department, and then the work-related injury treatment can be implemented.
In China, the determination of work-related injuries is the authority of the labor department, not the court. Only when the work-related injury is determined can we talk about the implementation of work-related injury treatment. The labor dispute arbitration commission refused to accept the plaintiff's application for labor dispute over work treatment on the grounds that Hu XX had no work-related injury. The particularity of this case is that the perpetrators have not been found so far. After the accident, the plaintiff has been asking the traffic police department to find the perpetrators, but so far no perpetrators have been found. The plaintiff did not apply to the labor department for work-related injury identification within this time. Therefore, it should be said that the plaintiff missed the time limit for work-related injury identification. Because of this, when the plaintiff applied to the labor department for work-related injury identification, the labor department issued a notice that the application for work-related injury identification was inadmissible because it had expired. Legally speaking, the plaintiff's refusal to accept the notice issued by the labor department should be an administrative lawsuit, not a civil lawsuit, because it is aimed at this specific administrative act of inadmissibility. For the plaintiff, timely identification of work-related injuries is the first choice to comply with the law. This case also reminds the broad masses of workers that after an industrial accident, it is necessary to identify the industrial injury in time and not to miss the statutory time limit.