作者：邱素娟律师     2016-12-28

内容提要：现代各国为切实保护工伤事故的受害者，大多建立了工伤保险制度以保障其本人及其家属的基本生活。同时，工伤事故责任本身又是一种侵权责任，或是雇主对员工的侵权责任，或是第三人对员工的侵权责任，于是就出现了工伤的侵权赔偿与工伤保险的竞合。本文从工伤的相关概念入手，分析了世界各国有关工伤保险和民事损害赔偿机制的适用关系、我国现行工伤赔偿的模式以及对《人身损害赔偿解释》第12条的认识、立法建议，试对此问题作出探讨，以求教于大家。

关键词：工伤  工伤保险   民事赔偿责任

一、工伤及相关概念

工伤事故是现代工业社会一个无法避免的问题，虽然人们尽力在降低其发生率。一般来说，工业事故和职业病危害对劳动者人身造成的损害习惯称之为工伤。①雇佣关系在工业社会前就存在了，它是由民法来调整的，对雇佣人的侵权也由侵权法进行调整。而工业社会一个突出特征是产业雇佣劳动。产业雇佣劳动关系不同于传统意义上的雇佣关系，由于它同产业化、社会化、机械化密切相连，除劳动关系当事人的切身利益外，更为复杂的社会要素也掺杂入劳动关系之中。因而传统的民法已经无法担当此职能，一种兼具公法与私法属性产生于民法又逐渐独立于民法的法律——劳动法就应运而生了。产业雇佣劳动中发生工业事故和职业病的机率大大增加，且后果往往较严重。在早期为适应资本原始积累和经济高速增长的需求，往往以牺牲劳动者的利益来换取效率，体现在雇佣劳动中受害人的人身损害赔偿实行雇佣人过错责任原则。由于这种归则原则对劳动者极其不利，工运迭起社会也动荡不安，各国纷纷改采无过错责任原则作为雇佣劳动中受雇人人身伤害赔偿的归则原则。但随着雇主侵权赔偿方式弊端的日益显现，无过失补偿制度提上日程，如有学者就谈到，“为保护受害人，为因应社会经济发展，在台湾地区逐渐创设了无过失补偿制度， 并健全社会安全保障，形成了三个阶层的赔偿或补偿体系”②其中就包括商业保险和工伤保险补偿。各国（地区） 推出了商业保险以分担雇主的损失，但是出现工伤事故后向雇主提起侵权赔偿往往由于诉讼的复杂漫长不能满足受害人及时治疗与维持基本生活的需求， 而且在雇主无赔偿能力时受害人更加处于无助的境地。于是，工伤保险这种由社会来分担损失、责任的社会保障机制就适时出现了。工伤保险又称职业伤害保险，是指劳动者在工作中或法定的特殊情况下发生意外事故，或因职业性有害因素危害而负伤（或患职业病）、致残、死亡时，对本人或供养亲属给予物质帮助和经济补偿的一项社会保障制度。③它是工伤补偿、工伤康复与救助、工伤预防三位一体的制度。

目前世界大多数国家（包括中国） 均已建立了工伤保险制度。工伤保险制度确立后，“工伤事故的人身损害已有健全的社会保障体系解决弥补直接损失，但这一体系的功能无法溯及到减少工伤事故对人身的损害。在工伤事故中贯彻人身损害赔偿的侵权责任法学理念， 能更好地维护劳动者的利益”。④这样，在工伤事故赔偿领域就出现了侵权损害赔偿与工伤保险补偿竞合的问题，如何构建一个合理的工伤补偿（赔偿）制度，既能保护好劳动者的合法利益又能推动社会经济的顺畅发展是全社会共同关注的问题。

二、世界各国有关工伤保险和民事损害赔偿机制的适用关系

在工伤事故赔偿问题上，世界各国经历了由传统侵权行为法一元调整机制向多元调整机制的演变。多种损害填补制度的并存产生了一种特殊现象，即就同一损害可能有多种赔偿或补偿来源，那么，这些不同的损害赔偿或补偿制度之间，尤其是工伤保险与民事赔偿之间到底是何种适用关系？相关国家在处理这一问题上主要有四种基本模式：

（一）择一选择模式

工伤事故发生后，工伤雇员可以选择获得工伤保险待遇或者民事损害赔偿，选择了工伤保险待遇，就不能再请求民事损害赔偿，反之亦然。

这种模式虽然赋予了工伤雇员的选择权，可以选择对自己有利的赔偿或补偿，但由于两项请求权具有不同的性质，赔偿的项目和内容都不一样，侵权行为损害赔偿数额虽多，但要经过漫长的诉讼，工伤保险赔偿数额虽少，但可靠及时。一旦选择其中一种请求权，就排除另一种请求权，不存在两种请求权同时适用的可能，因而不能获得最满意的赔偿，实际上对工伤者是非常不利的。英国和其他英联邦国家早期的雇员赔偿法曾一度采用此种模式，但后来均已废止。

(二)免除模式

免除模式，即以工伤保险取代侵权责任。也就是说雇员遭受工伤事故后，只能请求工伤保险给付，而不能依侵权行为法的规定向加害人请求损害赔偿。换言之，即完全免除侵权行为人的责任，由工伤保险取而代之。但是侵权责任的排除并非绝对，而是相对的。侵权责任的排除仅适用于特定人(雇主或受雇于同一雇主之人)、特定事故类型(意外事故、职业病或上下班交通事故)、特定损害(通常限于人身损害)及特定意外事故发生原因(通常限于轻过失)。⑤采用这一模式的国家主要有德国、法国、瑞士、南非、挪威等国，其中以德国最为典型。

(三)兼得模式

发生工伤后，工伤雇员既可以享有工伤保险待遇，也可以同时获得雇主的民事侵权损害赔偿，实行双重保护。这种模式与其他模式相比，最大的优越性体现在对受害职工极为有利，即雇员因工伤事故可以同时获得工伤保险给付和侵权赔偿的双重救济，尤其是在工伤保险待遇和民事赔偿标准均偏低的情形下，对受害雇员权益的保障极为有利。⑥采用这种制度的国家主要是英国，但也受有限制，现其它国家较少采用。在英国，被害人除侵权行为损害赔偿外，还可以请领5年内伤害及残废给付之半数。此项对劳工优遇之规定，系由于英国工会对政府施加强大压力而制定，而其主要理由则是劳工本身须负担几近半数之保险费。

(四)补充模式

发生工伤后，工伤雇员可同时主张侵权行为损害赔偿和工伤保险给付，但其最终所获得的赔偿或补偿，以实际损失为限，不得超过其实际遭受之损害。目前，采用这一模式的国家有日本、智利及北欧等国。

三、我国现行工伤赔偿模式

我国虽然自1951年起就建立了工伤保险制度，但适用范围一直十分狭窄，实施对象仅限于国有企业和集体企业的职工。1969年以后，因保险资金落实不了，工伤保险制度实际上变成企业自行负担的工伤赔偿制度。改革开放以后，工伤保险制度虽然得到恢复，但我国的现状是一部分职工纳入了工作保险，其遭遇工伤或职业病后，只能请求用人单位参照有关标准给予赔偿或通过民事诉讼进行索赔。比如最高人民法院《关于雇工合同应当严格执行劳动保护法规问题的批复》就是将工伤事故认定为侵权行为，实践中也据此判决了大量的案件。而1996年劳动部颁布的《企业职工工伤保险试行办法》则规定，我国境内的企业必须按照该办法建立工伤保险制度，职工发生工伤或患职业病以后，依照该办法实行工作保险赔偿。根据该《办法》第二十八条的规定，实践中有不少人认为我国的工伤保险赔偿与民事损害赔偿是选择模式，即工伤保险赔偿和民事损害赔偿不能兼容，只能二得取其一。但是，由于《企业职工工伤保险试行办法》只是一个部门规章，效力层次较低，与此同时的一些地方立法则有与该《办法》规定不一致的情况。比如广东省的规定是补充模式，而深圳市的规定是兼得模式。

不仅如此，2002年颁布的《中华人民共和国安全生产法》和《中华人民共和国职业病防治法》又作出了与《企业职工伤保险试行办法》不同的规定。《安全生产法》第四十八条规定：“因生产安全事故受到损害的从业人员，除依法享有工伤社会保险外，依照有关民事法律尚有获得赔偿的权利的，有权向本单位提出赔偿要求。”《职业病防治法》第五十二条规定：“职业病病人除依法享有工伤社会保险外，依照有关民事法律，尚有获得赔偿的权利的，有权向用人单位提出赔偿要求。”对上述两法相关规定的理解有两种分歧意见：一种观点认为，发生生产安全事故或者职业病后，劳动者首先依照劳动合同和工伤社会保险合同的约定，享有相应的赔付金。如果工伤保险金不足以补偿受害人的人身损害及经济损失的，依照有关司法律应当给予赔偿的，劳动者或其近亲属有要求生产经营单位给付赔偿的权利。另一种观点认为，工伤社会保险和民事赔偿不能相互取代，劳动者可以享受双重的保障。可见，两种观点对工伤保险与民事侵权赔偿之间关系的理解分别是上述补充模式和兼得模式。应当看到，不管采取了补充模式还是兼得模式，与我国长期以来形成的工伤职工在保险给付以外几乎没有获得民事赔偿的状况相比较，都要进步很多，表明《发全生产法》和《职业病防治法》对这一问题的处理确实迈出了一大步。但是，由于这一问题涉及工伤职工和用人单位的巨大利益，实践中的争议似乎刚刚开始。

一般认为，我国民事侵权行为法的发展和工伤保险立法的滞后使工伤保险与工伤民事赔偿的数额差距逐渐增大。尤其是2001年3月10日最高人民法院颁布实施《关于确定民事侵权精神损害赔偿责任若干问题的解释》，使人身伤害的受害人能获得更多的损害赔偿。这样就出现同样的工伤事故，没有参加工伤保险的职工反而比参加工伤保险的职工获得更多赔偿的情形，特别是最近几年的案例显示，未参加工伤保险的工伤职工通过民事诉讼获得远远高于工伤保险赔偿的巨额侵权损害赔偿，相差2-3倍⑦。造成参加工伤保险和未参加工伤保险的职工在获得救济上的巨大差距，引起社会不公。有人预计，随着我国工伤社会保险全面实施和侵权损害赔偿制度进一步完善，于工伤保险给付之外请求侵权损害赔偿的工伤案件交会出现并逐渐增多，解决工伤保险与工伤侵权赔偿的适用关系已成为当务之急。

四、对《人身损害赔偿解释》第12条的认识

2003年12月26日，最高人民法院发布了《最高人民法院关于审理人身损害赔偿案件适用法律若干问题的解释》(以下简称《人身损害赔偿解释》)，其第12条对工伤事故的社会保险待遇与民事损害赔偿的适用关系作了规定，依法应当参加工伤保险统筹的用人单位的劳动者，如果是因用人单位造成的工伤事故，劳动者或者其近亲属向人民法院起诉请求用人单位承担民事赔偿责任，人民法院不予支持，告知其按《工伤保险条例》的规定办理，即向政府工伤保险事务经办机构或者用人单位申请工伤保险待遇。但是，“因用人单位以外的 第三人侵权造成劳动者人身损害，赔偿权利人请求第三人承担民事赔偿责任的，人民法院应予支持。”就是说，如果劳动者遭受工伤事故，是由于第三人的侵权行为造成，第三人不能免除民事赔偿责任。这些规定对统一工伤事故救济的作法，分别情况适用不同的救济方式，适用不同的法律规定，保护工伤事故受害人的合法权益，必将产生重大作用。

但是，笔者认为《人身损害赔偿解释》第12条还存在不明确、不完善，在实践中难以操作的问题。主要是：

(一)对工伤雇员采取何种模式予以保护，是我国法律甚至可以说是基本法律规定的内容

该司法解释实际上是确立了以取代救济模式为主，有条件地辅以双重救济模式的制度。司法解释是对法律适用的解释，应当在法律规定的范围内，对法律如何适用进行解说和释疑。在法律对工伤事故救济模式基本上没有规定的情况下，司法解释作出上述规定 ，似乎是超越职权，有“越位”之嫌。

(二)按照第12条第1款的规定，依法应当参加工伤保险统筹的用人单位的劳动者，对因用人单位造成的工伤事故所受损害，只能请求工伤保险待遇，不能请求民事侵权损害赔偿。

这在我国目前民事侵权损害赔偿偏低，而工伤保险待遇更低的情况下，是否全面保护 了工伤雇员的利益，值得研究。况且，按《工伤保险条例》和《社会保险费征缴 暂行条例》等规定，应当参加工伤保险统筹的用人单位包括我国境内大量的各类企业、有雇工的个体工商户。但是，许多企业和个体工商户并未参加保险统筹，这是不能回避的社会现实。这些用人单位的工伤雇员，主要是向用人单位申请工伤保险待遇，发生争议后按照处理劳动争议的有关规定办理。这类雇员既未享受工伤保险待遇给付的优越性，又得不到民事侵权较高的赔偿，反而要通过仲裁、诉讼等过程，最终能否得到用人单位赔偿尚不确定。这种环节多、期限长、手续复杂、风险大，反而只能得到较低的工伤保险待遇，是否公平、合理，也值得研究。进一步说，这种规定，是否合乎我国实际，有利于保护工伤雇员的合法权益，似乎也还值得研究。

(三)按照第12条第2款的规定，因用人单位以外的第三人侵权造成工伤事故损害的，受害人请求第三人承担民事赔偿责任的，人民法院应予支持

但是对受害人可否再依法享受工伤保险待遇，即对受害人能否获双重赔偿，规定表述不明。综合第12条前后两款的规定，似应作受害人可以获得双重赔偿之解。如果这个理解合乎其本意的话，那么，同是工伤事故，仅因致害主体不同，作这样不同的处理，致受害人获得赔偿悬殊，理由是否充分?在逻辑上是否解释得通?是否公平合理?同样值得进一步研究。

五、立法建议

比较各国对工伤事故的救济模式，笔者认为，我国在工伤事故的社会保险和民事侵权损害赔偿适用的关系上，应采用补充救济模式。主要理由如下：

（一）符合工伤保险制度建立的目的，能充分发挥工伤保险制度的作用。现代社会，“工伤事故猛于虎”，频频发生，常使用人单位支付全额赔付而陷入经济困境，影响生产经营的开展，降低市场生产力，为此，创立了工伤保险制度。其主要目的是替代用人单位民事侵权损害赔偿责任，分散工伤风险。实行补充救济模式，在工伤事故发生后，受害职工首先领取工伤保险给付，然后依侵权行为法规定主张民事侵权损害赔偿，但应当扣 除其已领取的工伤保险给付。显然，补充救济模式合乎工伤事故保险制度的目的，充分发挥了工伤事故保险制度既保护了受害人的合法权益，又提高了用人单位抵御工伤事故 的能力，保障用人单位生产经营活动正常开展的作用。

（二）符合民事侵权损害赔偿制度的目的，充分发挥其制裁和预防作用。人身损害赔偿制 度在于保护公民的生命权、身体权和健康权，使之恢复到受害以前状况，并制裁责任人 ，防止侵权损害再次发生。实行补充救济模式，受害人在接受工伤保险给付以后，有权就侵权行为法上的赔偿与工伤保险赔偿差额部分请求赔偿，弥补了工伤保险赔偿偏低的不足，充分、全面地保护了受害人的合法利益；同时，保留对工伤事故的民事损害赔偿责任，有助于实现法律的惩戒和预防作用，防止工伤事故的再度发生。

（三）通过上述对世界各国工伤事故救济模式的优劣比较，可以看出，选择救济模式早已成为历史的陈迹，曾经采用的英联邦国家均废除这种模式转而采用其他体制；采用双重救济模式的国家很少；采用取代救济模式的国家都是发达国家，而且，上述三种模式缺陷都很多，均不适合我们这样一个落后的发展中国家的实际。补充救济模式优点多，不足少，是工伤事故救济的现代规则，已经为众多国家的立法和理论所接受。我国也应顺 应这一发展趋势，采用补充救济模式。

总之，在对工伤事故救济时，应当由工伤保险提供主要的赔偿来源，同时保留受害职 工获得民事侵权损害赔偿的权利，将其作为补充来源，并以工伤职工所受的实际损害为最高限额。

注释：

①郑尚元，工伤保险法律制度研究，北京大学出版社，2004年版，第30页。

②王泽鉴，侵权行为法（第1册），中国政法大学出版社，2001年版，第24页。

③郑尚元，工伤保险法律制度研究，北京大学出版社，2004年版，第32页。

④陈宇，试论工伤事故中人身损害赔偿，中国民商法网。

⑤王泽鉴，《民法学说与判例研究》第3册，中国政法大学出版社，1998年版。

⑥吕琳，工伤保险与民事赔偿适用关系研究，载《法商研究》2003年第3期

⑦姜俊禄，工伤保险法理论与实务研究会上的发言，载《人民法院报》2003年12月17日第1版。

邱素娟律师整理

Author: Qiu Sujuan Lawyer 2016-12-28

Abstract: In order to effectively protect the victims of industrial accidents, most modern countries have established industrial injury insurance systems to protect their basic lives and those of their families. At the same time, industrial accident liability itself is a kind of tort liability, or the employer's tort liability to employees, or the third party's tort liability to employees, so there is a competition between industrial injury tort compensation and industrial injury insurance. Starting with the relevant concepts of industrial injury, this paper analyzes the applicable relationship between industrial injury insurance and civil damage compensation mechanism in various countries in the world, the current mode of industrial injury compensation in China, as well as the understanding and legislative suggestions of Article 12 of the Interpretation of Personal Injury Compensation, and tries to explore this issue in order to teach everyone.

Key words: industrial injury, industrial injury insurance, civil compensation liability

1、 Industrial injury and related concepts

Industrial accident is an unavoidable problem in modern industrial society, although people try their best to reduce its incidence. Generally speaking, industrial accidents and occupational disease hazards that cause personal damage to workers are called industrial injuries. ① The employment relationship has existed before the industrial society, which is regulated by the civil law, and the infringement of employees is also regulated by the tort law. An outstanding feature of industrial society is industrial employment. The industrial employment labor relationship is different from the traditional employment relationship. Because it is closely linked with industrialization, socialization and mechanization, in addition to the vital interests of the parties involved in the labor relationship, more complex social factors are also involved in the labor relationship. As a result, the traditional civil law has been unable to assume this function, and the labor law, a law that has both the attributes of public law and private law, originated from civil law and gradually became independent of civil law, came into being. The probability of industrial accidents and occupational diseases in industrial employment is greatly increased, and the consequences are often serious. In the early days, in order to meet the needs of primitive capital accumulation and rapid economic growth, efficiency was often exchanged at the expense of workers' interests, which was reflected in the principle of employers' fault liability for compensation for personal injury of victims in employment. Because this principle is extremely disadvantageous to workers, and the labor movement has repeatedly caused social unrest, many countries have adopted the principle of no fault liability as the principle of personal injury compensation for employees in employment. However, with the increasingly obvious drawbacks of employer tort compensation, the no fault compensation system has been put on the agenda. For example, some scholars have said that "in order to protect victims and respond to social and economic development, the no fault compensation system has been gradually established in Taiwan, and social security has been improved, forming a compensation or compensation system of three classes" ② including commercial insurance and industrial injury insurance compensation. Countries (regions) have introduced commercial insurance to share the losses of employers. However, the tort compensation filed against employers after industrial accidents often cannot meet the needs of victims for timely treatment and maintenance of basic life due to the complexity and length of litigation, and the victims are more helpless when the employers are unable to compensate. As a result, industrial injury insurance, a social security mechanism in which the society shares losses and responsibilities, appears in due course. Industrial injury insurance, also known as occupational injury insurance, refers to a social security system that provides material assistance and economic compensation to workers or their supporting relatives when an accident occurs at work or under legal special circumstances, or when workers are injured (or suffer from occupational diseases), disabled or dead due to occupational hazards. ③ It is a trinity system of industrial injury compensation, industrial injury rehabilitation and rescue, and industrial injury prevention.

At present, most countries in the world (including China) have established industrial injury insurance systems. After the establishment of the industrial injury insurance system, "there has been a sound social security system to compensate for the direct loss of personal injury caused by industrial accidents, but the function of this system can not be traced back to reducing the personal injury caused by industrial accidents. Implementing the legal concept of tort liability for personal injury compensation in industrial accidents can better safeguard the interests of workers". ④ In this way, in the field of industrial accident compensation, there is a problem of the concurrence of tort compensation and industrial injury insurance compensation. How to build a reasonable industrial injury compensation (compensation) system that can protect the legitimate interests of workers and promote the smooth development of social economy is a common concern of the whole society.

2、 The Applicable Relationship of the Industrial Injury Insurance and Civil Damage Compensation Mechanism in the World

On the issue of compensation for industrial accidents, countries around the world have experienced the evolution from the traditional unitary adjustment mechanism of tort law to the diversified adjustment mechanism. The coexistence of multiple damage compensation systems has produced a special phenomenon, that is, there may be multiple sources of compensation or compensation for the same damage. So, what is the applicable relationship between these different damage compensation or compensation systems, especially between industrial injury insurance and civil compensation? Relevant countries have four basic models in dealing with this problem:

（1） Alternative selection mode

After the industrial accident, the injured employees can choose to obtain the industrial injury insurance benefits or civil damages. If they choose the industrial injury insurance benefits, they can no longer request civil damages, and vice versa.

Although this mode gives employees with work-related injuries the right to choose compensation or compensation that is beneficial to them, due to the different nature of the two claims, the items and contents of compensation are different. Although the amount of compensation for infringement damage is large, it has to go through a long lawsuit. Although the amount of compensation for work-related injury insurance is small, it is reliable and timely. Once one of the claims is selected, the other claim will be excluded. There is no possibility that the two claims can be applied at the same time, so that the most satisfactory compensation can not be obtained. In fact, it is very detrimental to the injured. This model was once adopted in the early employee compensation laws of Britain and other Commonwealth countries, but has since been abolished.

（2） Exemption mode

Exemption mode: replacing tort liability with industrial injury insurance. That is to say, after an employee suffers from an industrial injury accident, he can only request the payment of industrial injury insurance, instead of claiming damages from the perpetrator in accordance with the provisions of the Tort Law. In other words, the liability of the tortfeasor is completely exempted, and the industrial injury insurance is replaced. However, the exclusion of tort liability is not absolute, but relative. The exclusion of tort liability only applies to specific persons (employers or persons employed by the same employer), specific types of accidents (accidents, occupational diseases or commuter traffic accidents), specific damages (usually limited to personal injuries) and specific causes of accidents (usually limited to minor negligence). ⑤ Countries that adopt this model mainly include Germany, France, Switzerland, South Africa, Norway, etc., of which Germany is the most typical.

（3） Both ways

After an industrial injury occurs, the injured employee can not only enjoy the benefits of industrial injury insurance, but also obtain civil tort damages from the employer at the same time, so as to implement dual protection. Compared with other models, the biggest advantage of this model is that it is extremely beneficial to the injured employees, that is, employees can obtain dual relief of industrial injury insurance payment and tort compensation at the same time due to industrial injury accidents, especially in the case of low industrial injury insurance benefits and civil compensation standards, it is extremely beneficial to the protection of the rights and interests of injured employees. ⑥ The countries that adopt this system are mainly Britain, but they are also subject to restrictions. At present, other countries rarely adopt this system. In the UK, victims can also claim half of the injury and disability benefits within 5 years in addition to tort damages. This provision on preferential treatment for workers was formulated due to the strong pressure exerted by the British trade unions on the government, and the main reason was that the workers themselves had to bear nearly half of the insurance premiums.

（4） Complementary mode

After an industrial injury occurs, the injured employee may claim both tort damages and industrial injury insurance payment, but the final compensation or compensation obtained shall be limited to the actual loss and shall not exceed the actual damage suffered. At present, countries adopting this model include Japan, Chile and Nordic countries.

3、 Current mode of industrial injury compensation in China

Although China has established the industrial injury insurance system since 1951, the scope of application has been very narrow, and the implementation object is only limited to employees of state-owned enterprises and collective enterprises. After 1969, because the insurance funds could not be implemented, the industrial injury insurance system actually became the industrial injury compensation system borne by enterprises themselves. After the reform and opening up, although the industrial injury insurance system has been restored, the current situation in China is that some employees have been included in the work insurance. After encountering industrial injury or occupational disease, they can only request the employer to pay compensation according to the relevant standards or claim through civil litigation. For example, the Reply of the Supreme People's Court on the Issue that Employment Contracts Should Strictly Implement Labor Protection Laws and Regulations identifies industrial accidents as violations, and in practice, a large number of cases have been adjudicated accordingly. However, the Trial Measures for Industrial Injury Insurance for Enterprise Employees issued by the Ministry of Labor in 1996 stipulates that enterprises in China must establish an industrial injury insurance system in accordance with the Measures, and work insurance compensation shall be implemented in accordance with the Measures after employees suffer from industrial injury or occupational disease. According to the provisions of Article 28 of the Measures, many people believe that industrial injury insurance compensation and civil damage compensation in China are the choice mode in practice, that is, industrial injury insurance compensation and civil damage compensation are incompatible, and only one of the two can be taken. However, as the Trial Measures for Industrial Injury Insurance for Enterprise Employees is only a departmental regulation with a low level of effectiveness, some local legislations at the same time are inconsistent with the provisions of the Measures. For example, the regulations of Guangdong Province are complementary, while those of Shenzhen City are both inclusive.

Moreover, the Law of the People's Republic of China on Work Safety and the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases promulgated in 2002 have different provisions from the Trial Measures for Enterprise Employee Injury Insurance. Article 48 of the Law of the People's Republic of China on Work Safety stipulates that: "In addition to enjoying the social insurance for work-related injuries according to law, the employees who have suffered damage due to production safety accidents and have the right to compensation according to relevant civil laws shall have the right to claim compensation from the unit." Article 52 of the Law of the People's Republic of China on the Prevention and Control of Occupational Diseases stipulates that: "In addition to enjoying the social insurance for work-related injuries according to law, the patients with occupational diseases have the right to claim compensation from the employing unit if they still have the right to obtain compensation according to relevant civil laws." There are two different opinions on the understanding of the relevant provisions of the above two laws: one view is that after the occurrence of production safety accidents or occupational diseases, workers first enjoy corresponding compensation according to the provisions of the labor contract and the social insurance contract for work-related injuries. If the industrial injury insurance compensation is not enough to compensate the personal injury and economic loss of the victim, and should be compensated according to the relevant laws, the worker or his close relatives have the right to request the production and business unit to pay compensation. Another view is that social insurance and civil compensation for work-related injuries cannot replace each other, and workers can enjoy dual protection. It can be seen that the understanding of the relationship between industrial injury insurance and civil tort compensation from the two perspectives is respectively the above supplementary model and the win-win model. It should be noted that, no matter whether the supplementary mode or the win-win mode is adopted, compared with the situation that the injured workers in China have almost no civil compensation beyond the insurance payment for a long time, there is much progress to be made, which indicates that the Faquan Production Law and the Law on the Prevention and Control of Occupational Diseases have really taken a big step in dealing with this problem. However, since this issue involves the huge interests of injured workers and employers, the dispute in practice seems to have just begun.

It is generally believed that the development of China's civil tort law and the lagging legislation of industrial injury insurance make the gap between industrial injury insurance and civil compensation for industrial injury gradually increase. In particular, on March 10, 2001, the Supreme People's Court promulgated and implemented the Interpretation on Several Issues Concerning the Determination of Liability for Spiritual Damage in Civil Torts, so that victims of personal injury can obtain more damages. In this way, the same industrial accident occurs. Employees who do not participate in the industrial injury insurance instead receive more compensation than those who participate in the industrial injury insurance. In particular, the cases in recent years show that the industrial injury employees who do not participate in the industrial injury insurance obtain a huge amount of tort damage compensation that is far higher than the industrial injury insurance compensation through civil litigation, a difference of 2-3 times ⑦. As a result, there is a huge gap between the workers who participate in the industrial injury insurance and those who do not participate in the industrial injury insurance in obtaining relief, causing social injustice. It is expected that with the full implementation of the social insurance for industrial injury and the further improvement of the tort compensation system in China, there will be more and more industrial injury cases that request tort compensation in addition to the payment of industrial injury insurance. It has become an urgent task to solve the applicable relationship between industrial injury insurance and industrial injury tort compensation.

4、 Understanding of Article 12 of the Interpretation of Compensation for Personal Injury

On December 26, 2003, the Supreme People's Court issued the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases (hereinafter referred to as the Interpretation of Personal Injury Compensation). Article 12 of the Interpretation stipulates the relationship between the social insurance benefits of industrial injury accidents and the application of civil damage compensation. If an industrial injury accident is caused by an employer, Workers or their close relatives file a lawsuit with the people's court to request the employer to bear civil compensation liability. The people's court does not support the lawsuit and tells them to handle it according to the provisions of the Regulations on Industrial Injury Insurance, that is, to apply for industrial injury insurance treatment from the government's industrial injury insurance affairs agency or the employer. However, "if a third person other than the employer causes personal injury to a worker, and the person with the right to compensation claims that the third person should bear civil liability for compensation, the people's court should support it." That is, if a worker suffers an industrial injury accident because of the infringement of a third person, the third person cannot be exempted from civil liability for compensation. These provisions will play an important role in unifying the practice of industrial accident relief, applying different relief methods and different legal provisions to different situations, and protecting the legitimate rights and interests of victims of industrial accidents.

However, the author believes that Article 12 of the Interpretation of Compensation for Personal Injury is still unclear, imperfect and difficult to operate in practice. Mainly:

（1） What kind of protection mode should be adopted for injured employees is the content of our laws and even the basic legal provisions

In fact, the judicial interpretation has established a system of replacing the relief mode with the dual relief mode supplemented conditionally. Judicial interpretation is the interpretation of the application of law. It should explain and clarify how to apply the law within the scope of the law. In the case that the law basically does not provide for the relief mode of industrial injury accidents, the judicial interpretation makes the above provisions, which seems to be beyond its authority and "offside".

（2） According to the provisions of the first paragraph of Article 12, the workers of the employing unit who should participate in the overall planning of industrial injury insurance according to law can only claim the benefits of industrial injury insurance for the damage caused by industrial injury accidents caused by the employing unit, but can not claim compensation for civil tort damage.

It is worth studying whether it has fully protected the interests of injured employees in the current situation of low civil tort damages and lower work-related injury insurance benefits in China. Moreover, according to the Regulations on Industrial Injury Insurance and the Interim Regulations on the Collection and Payment of Social Insurance Premiums, the employers that should participate in the overall planning of industrial injury insurance include a large number of enterprises and self-employed businesses with employees in China. However, many enterprises and individual businesses have not participated in insurance pooling, which is an unavoidable social reality. The injured employees of these employers mainly apply for industrial injury insurance benefits from the employers, and handle the disputes in accordance with the relevant provisions on handling labor disputes. Such employees neither enjoy the advantages of industrial injury insurance benefits nor receive higher compensation for civil infringement. Instead, it is uncertain whether they can get compensation from employers through arbitration, litigation and other processes. It is also worth studying whether it is fair and reasonable because of its many links, long duration, complicated procedures and high risks, which can only lead to lower industrial injury insurance benefits. Further, it seems that it is also worth studying whether such provisions are in line with the reality of our country and conducive to protecting the legitimate rights and interests of injured employees.

（3） According to the provisions of paragraph 2 of Article 12, the people's court shall support if the victim requests the third person to bear civil liability for compensation if the industrial injury accident damage is caused by the infringement of a third person other than the employer

However, it is unclear whether the victim can enjoy the work-related injury insurance benefits according to law, that is, whether the victim can receive double compensation. In combination with the provisions of the first and second paragraphs of article 12, it seems that the victim can obtain double compensation. If this understanding is in line with its original intention, then, the same industrial accident, just because the subject of the injury is different, so different treatment, resulting in a wide gap in compensation for the victims, is the reason sufficient? Does it make sense logically? Is it fair and reasonable? It is also worth further study.

5、 Legislative recommendations

Comparing the relief models of industrial accidents in various countries, the author believes that China should adopt the supplementary relief model in the relationship between the social insurance of industrial accidents and the application of civil tort damages. The main reasons are as follows:

（1） It is in line with the purpose of establishing the industrial injury insurance system and can give full play to the role of the industrial injury insurance system. In modern society, "industrial injury accidents are more violent than tigers", which occur frequently. The employers often pay full compensation and fall into economic difficulties, affecting the development of production and operation and reducing market productivity. Therefore, the industrial injury insurance system was established. Its main purpose is to replace the employer's liability for civil tort damages and disperse the risk of industrial injury. The supplementary relief mode is implemented. After the industrial injury accident, the injured employees first receive the industrial injury insurance benefits, and then claim civil tort damages according to the provisions of the Tort Act, but the industrial injury insurance benefits they have received should be deducted. Obviously, the supplementary relief mode is in line with the purpose of the industrial accident insurance system, which gives full play to the industrial accident insurance system, not only protects the legitimate rights and interests of victims, but also improves the ability of employers to resist industrial accidents, and ensures the normal development of the production and business activities of employers.

（2） It is consistent with the purpose of the civil tort damage compensation system, and gives full play to its role in sanctions and prevention. The system of personal injury compensation is to protect citizens' rights to life, body and health, restore them to the situation before they were injured, and punish the responsible person to prevent the infringement damage from happening again. The supplementary relief mode is implemented. After receiving the industrial injury insurance payment, the victim has the right to claim compensation for the difference between the compensation in the tort law and the compensation in the industrial injury insurance, which makes up for the low compensation in the industrial injury insurance and fully and comprehensively protects the legitimate interests of the victim; At the same time, retaining the civil liability for damages for industrial accidents will help to realize the disciplinary and preventive role of the law and prevent industrial accidents from happening again.

（3） Through the above comparison of the advantages and disadvantages of the relief models for industrial accidents in the world, it can be seen that the choice of the relief model has long been a historical relic, and the Commonwealth countries that once adopted this model have abolished it and adopted other systems; Few countries adopt the dual relief model; The countries that adopt the alternative relief model are all developed countries, and the three models mentioned above have many defects, which are not suitable for the reality of a backward developing country like us. The supplementary relief model has many advantages and few disadvantages. It is a modern rule of industrial accident relief and has been accepted by legislation and theory in many countries. China should also comply with this development trend and adopt the supplementary relief model.

In a word, in the relief of industrial accidents, the industrial injury insurance should provide the main source of compensation, while retaining the right of injured workers to obtain civil tort damages, taking it as a supplementary source, and taking the actual damage suffered by the injured workers as the maximum limit.

Notes:

① Zheng Shangyuan, Research on Legal System of Industrial Injury Insurance, Peking University Press, 2004 edition, page 30.

② Wang Zejian, Tort Law (Volume 1), China University of Political Science and Law Press, 2001 edition, page 24.

③ Zheng Shangyuan, Research on Legal System of Industrial Injury Insurance, Peking University Press, 2004 edition, page 32.

④ Chen Yu, On Compensation for Personal Injury in Industrial Accidents, China Civil and Commercial Law Network.

⑤ Wang Zejian, Civil Law Theory and Case Study, Volume 3, China University of Political Science and Law Press, 1998.

⑥ Lv Lin, Research on the relationship between industrial injury insurance and civil compensation, published in the 3rd issue of Legal and Commercial Studies, 2003

⑦ Jiang Junlu, Speech at the Seminar on the Theory and Practice of Industrial Injury Insurance Law, published in the People's Court Daily, December 17, 2003, first edition.

Lawyer Qiu Sujuan arranges