案 情 简 介

1999年4月，吴某与黄某承包了台州供水大夏餐饮厨房部，承包期一年；承包合同主要内容是餐饮厨房部隶属于供水大夏行政部，实行工资基数承包，承包人负责管理厨房等。供水大夏餐饮部海鲜由罗某供应，同时罗某每月向供水大夏养殖海鲜张某1000元的回扣；后因供水大夏减少向罗某购买海鲜，张某告知罗某认为是吴某向供水大夏领导反映其海鲜质量不好所致，故罗、张两人多次商量要教训吴某。1999年10月30日晚8时许，吴某提前回家，在回家途中，被罗某、张某购买的凶手杀死于82省道黄椒路双浦村路段。2001年9月27日，吴妻向台州市劳动和社会保障局（下称社保局）申请企业职工工伤认定。社保局于2002年11月19日作出台工伤（2002）20号企业职工工伤认定，认为吴某被害不属于工伤。为此吴妻以吴某履行职责、社保局认定事实不当为由向法院起诉，要求法院撤销社保局不属于工伤的认定。

分析要点

一、本案事实关键在于吴某是否履行职责导致被人杀害；考察吴某是否履行职责，要从其与供水大夏签订的承包合同、供水大夏有关岗位职责、为什么被害等一系列事实予以审查。从本案有关事实证据情况表明，吴某死亡系仇杀所致，而非履行职责致死，主要表现：

1、从吴某与供水大夏签订承包合同内容表明：海鲜质量把关不属于吴某与供水大夏所订承包合同条款内容，吴某的职责是把关已烧制完毕的菜肴质量和厨房管理。

2、供水大夏提供的采购员岗位职责、行政总厨岗位职责、收货员岗位职责等规章制度规定：采购员负责日常物资采购工作，收货员把关所购物资质量，行政总厨全面负责厨房管理工作并把关菜肴质量。由此也表明把关海鲜质量不是吴某岗位职责范围。

3、供水大夏向罗某采购海鲜数量减少，是供水大夏配备了自备车予以采购；同时张某告知罗某供水大夏向其采购海鲜数量减少是吴某向供水大夏反映其质量不好结果，没有事实依据，因而浙江省高级人民法院在二审刑事裁定书中只认定张某告知罗某说海鲜采购数量减少是吴某向供水大夏领导反映其海鲜质量不好，至于张某所说事实是否存在和吴某是否真正向供水大夏领导反映过，二审裁定书并未予以认定。

4、供水大夏有关领导和与吴共同承包厨房的黄某均未听说吴某向供水大夏反映过罗某海鲜质量不好的事实。

从以上事实分析可知：把关海鲜质量不是吴某承包合同和岗位职责的范围，同时也没有证据证明吴某向供水大夏领导反映过罗某海鲜质量不好之事实，故吴某死亡并非是履行职责所致。

二、吴某的死亡地点不是发生在工作场所，吴某回家系其提前下班。

三、吴某死亡系张某、罗某泄私仇所致。因为作为罗某来说随海鲜供应量的减少其经济利益也随之下降，作为张某来说因罗某海鲜供应量减少，其所得回扣也随之丧失。故二审裁定书明确载明：罗某、张某遂对吴某怀恨在心，多次商量殴打吴某。

四、《浙江省企业职工工伤保险实施办法》第八条第五款规定“因履行职责致人身伤害的”作为工伤认定，在一般情况下应具备以下条件：1、职工真正履行职责并使用合法手段；2、排除私仇；3、发生在工作场所。本案吴某死亡并不具备上述条件。

裁判要点

吴妻向法院起诉后，一审法院经过审理，听取吴妻、社保局、第三人供水大夏陈述、辨论后认为：

1、吴某与供水大夏所订的承包合同合法有效，根据该合同相关内容，双方之间的关系系劳动合同法律关系。

2、根据承包合同及岗位职责规定：把关海鲜质量并非是吴某的职责范围，供水大夏有关领导和与吴某一起承包的黄某并未听说吴反映过罗某供应海鲜质量不好的事实，故吴妻认为吴某死亡是履行职责所致缺乏事实和法律依据。

3、社保局所作的不是工伤认定具体行政行为，证据充分，程序合法，适用法律正确。

判决结果

维持台州市劳动和社会保障局于2002年11月19日作出的台工伤（2002）20号企业职工工伤认定。

[周显根 供稿]

Brief Introduction to the Case

In April 1999, Wu and Huang contracted the Taizhou Water Supply Daxia Catering and Kitchen Department for one year; The main content of the contract is that the catering and kitchen department is under the jurisdiction of the Water Supply Daxia Administrative Department, and implements wage base contracting. The contractor is responsible for managing the kitchen, etc. The seafood in the Water Supply Da Xia Catering Department is supplied by Luo, and at the same time, Luo provides a monthly rebate of 1000 yuan to Zhang, who is responsible for the aquaculture of seafood in the Water Supply Da Xia; Later, due to a decrease in purchasing seafood from Luo during the summer of water supply, Zhang informed Luo that he believed it was due to Wu reporting poor seafood quality to the leader of the summer of water supply. Therefore, Luo and Zhang discussed multiple times to teach Wu a lesson. At around 8:00 pm on October 30, 1999, Wu returned home early and was killed by a murderer purchased by Luo and Zhang on the Shuangpu Village section of Provincial Highway 82, Huangjiao Road. On September 27, 2001, Wu's wife applied to the Taizhou Labor and Social Security Bureau (hereinafter referred to as the Social Security Bureau) for the recognition of work-related injuries among employees of the enterprise. On November 19, 2002, the Social Security Bureau issued the Work Injury (2002) No. 20 Enterprise Employee Work Injury Determination, believing that Wu's injury was not a work injury. Therefore, Wu's wife sued the court on the grounds of Wu's improper performance of duties and the Social Security Bureau's determination of the facts, requesting the court to revoke the Social Security Bureau's determination that it was not a work-related injury.

Key points of analysis

1、 The key to the facts of this case lies in whether Wu fulfilled his duties and was killed; To investigate whether Wu has fulfilled his duties, it is necessary to examine a series of facts such as the contract he signed with Water Supply Daxia, the relevant job responsibilities of Water Supply Daxia, and why he was killed. From the relevant factual evidence in this case, it can be concluded that Wu's death was caused by a vendetta, rather than by fulfilling his duties, mainly manifested as:

1. The content of the contract signed between Wu and Water Supply Daxia indicates that the quality control of seafood does not belong to the terms of the contract signed between Wu and Water Supply Daxia. Wu's responsibility is to control the quality of cooked dishes and kitchen management.

2. The rules and regulations on the job responsibilities of the purchaser, administrative chef, and receiver provided by Water Supply Summer stipulate that the purchaser is responsible for daily material procurement, the receiver is responsible for ensuring the quality of the purchased materials, and the administrative chef is fully responsible for kitchen management and ensuring the quality of the dishes. This also indicates that controlling the quality of seafood is not within the scope of Wu's job responsibilities.

3. The decrease in the quantity of seafood purchased by Water Supply Da Xia from Luo is due to the fact that Water Supply Da Xia has equipped its own vehicles for procurement; At the same time, Zhang informed Luo that the decrease in the quantity of seafood purchased by Water Supply Daxia was due to Wu's reflection of poor quality to Water Supply Daxia, without factual basis. Therefore, the Zhejiang Provincial High People's Court only found in the second instance criminal ruling that Zhang informed Luo that the decrease in the quantity of seafood purchased was due to Wu's reflection of poor quality of seafood to the leadership of Water Supply Daxia, As for whether the facts mentioned by Zhang exist and whether Wu has truly reported them to the leaders of Water Supply Daxia, the second instance ruling did not confirm them.

4. The leaders of Water Supply Daxia and Huang, who jointly contracted the kitchen with Wu, have not heard that Wu has reported to Water Supply Daxia that Luo's seafood quality is not good.

From the above analysis of facts, it can be seen that checking the quality of seafood is not within the scope of Wu's contract and job responsibilities, and there is no evidence to prove that Wu reported the fact that Luo's seafood quality was poor to the leader of Water Supply Daxia. Therefore, Wu's death was not due to fulfilling his duties.

2、 Wu's place of death did not occur in the workplace, and Wu returned home because he left work early.

3、 Wu's death was caused by Zhang and Luo venting their personal grudges. As for Luo, with the decrease in seafood supply, his economic benefits also decrease. As for Zhang, due to the decrease in seafood supply from Luo, his rebates are also lost. Therefore, the second instance ruling clearly states that Luo and Zhang held a grudge against Wu and repeatedly discussed beating him.

4、 Article 8 (5) of the Implementation Measures for Work Injury Insurance for Enterprise Employees in Zhejiang Province stipulates that "personal injury caused by the performance of duties" shall be recognized as work injury, and in general, the following conditions shall be met: 1. Employees shall truly perform their duties and use legal means; 2. Eliminate personal hatred; 3. Occurred in the workplace. The death of Wu in this case does not meet the above conditions.

Key points of judgment

After Wu's wife filed a lawsuit with the court, the first instance court heard Wu's wife, the social security bureau, and a third party providing water to Da Xia, and argued that:

1. The contract signed by Wu and Water Supply Daxia is legal and valid. According to the relevant content of the contract, the relationship between the two parties is a legal relationship of labor contract.

2. According to the contract and job responsibilities, it is not within the scope of Wu's responsibility to control the quality of seafood. The leaders of Water Supply Daxia and Huang, who contracted with Wu, have not heard of Wu's report of poor seafood quality supplied by Luo. Therefore, Wu's wife believes that Wu's death was due to fulfilling his duties and lacking factual and legal basis.

3. The social security bureau's actions are not specific administrative actions for determining work-related injuries, with sufficient evidence, legal procedures, and correct application of laws.

Judgment result

Maintain the recognition of work-related injuries (2002) No. 20 issued by the Labor and Social Security Bureau of Taizhou City on November 19, 2002.

[Contributed by Zhou Xiangen]