800 industrial accidents

Legal analysis: Zhang Bing and Songjiang District Human Resources and Social Security Bureau's administrative appeal case of work-related injury identification.

-The employing unit subcontracts or contracts the contracted business to an organization or natural person that does not have the qualification of employing subject in violation of laws and regulations. If an employee employed by an organization or a natural person is injured or killed at work, the employing unit shall bear the responsibility for work-related injury insurance.

(a) the basic facts of the case

Nantong Liujian Company is the contractor of the A7 workshop project of Ji Guo Electronics (Shanghai) Co., Ltd. It subcontracted the painting project to a natural person Li Moumou in the form of a painting contract, and agreed that the employees employed by Li Moumou should be managed by Nantong Liujian Company. Li also subcontracted some painting projects to a natural person, Wang, who recruited Zhang Bing for painting construction. Neither Li Moumou nor Wang Moumou has the qualification of employment subject, nor does he have the corresponding qualification to undertake painting projects. On March, 2008, 10/0, Zhang Bing was accidentally injured while painting. 165438+1October 10, Songjiang District Labor Arbitration Committee ruled that Zhang Bing had a labor relationship with Nantong Liujian Company, but the ruling was not delivered to Nantong Liujian Company. On February 29th, 65438, Zhang Bing filed an application for work-related injury identification and submitted a labor arbitration award. Shanghai Songjiang District Human Resources and Social Security Bureau found that Zhang Bing's injury met the conditions for work-related injury identification, and Nantong Liujian Company was told that it did not provide evidence on whether Zhang Bing's injury should be identified as a work-related injury. On February 9, 2009, the Human Resources and Social Security Bureau of Songjiang District recognized Zhang Bing's injury as a work-related injury. Nantong Liujian Company refused to accept the decision, but failed in reconsideration, and sued for revocation of the work-related injury identification made by Songjiang District Human Resources and Social Security Bureau in Shanghai.

(II) Judgment result

After the first trial of Songjiang District People's Court in Shanghai, the second trial of Shanghai No.1 Intermediate People's Court held that, according to Article 4 of the Notice of the Ministry of Labor and Social Security on Establishing Labor Relations (No.200512 issued by the Ministry of Labor and Social Security), if an employer such as a construction or mining enterprise contracts out the project (business) or management right to an organization or natural person who does not have the qualification as the main body of employment, the organization or natural person will recruit workers. Nantong Liujian Company, as the construction unit, contracted the paint project to a natural person named Li Moumou, who had no qualification as a labor subject, and agreed that the personnel employed by Li Moumou should obey the management of Nantong Liujian Company. Later, Li Mou subcontracted part of the painting project to Wang Mou, and Wang Mou recruited the appellant Zhang Bing for painting construction. According to the above regulations and facts, the reason why Shanghai Songjiang District Human Resources and Social Security Bureau found that there was a labor relationship between the appellant and the appellee was established. According to the Regulations on Work-related Injury Insurance, Zhang Bing was injured by an accident in the workshop project undertaken by Jiangsu Nantong Liujian Construction Group Co., Ltd., which belongs to the scope of work-related injury identification. Accordingly, the specific administrative act of Shanghai Songjiang District Human Resources and Social Security Bureau that was suspected of work-related injury was maintained.

Legal basis: Article 14 of the Regulations on Work-related Injury Insurance shall be deemed as a work-related injury if an employee has one of the following circumstances:

(1) Being injured by an accident during working hours and in the workplace;

(two) before and after working hours, in the workplace, engaged in preparatory or finishing work related to the work and was injured by an accident;

(three) during working hours and workplaces, due to the performance of duties by violence and other accidental injuries;

(4) Suffering from occupational diseases;

(five) during the business trip, injured or missing due to work reasons;

(six) on the way to work, I was injured by a traffic accident or an urban rail transit, passenger ferry or train accident for which I was not primarily responsible;

(seven) other circumstances that should be recognized as work-related injuries as stipulated by laws and administrative regulations.