"Work-related injury first payment" is difficult to land.

"Work-related injury first payment" is difficult to land.

The social insurance law, which was implemented on 2011July, established the advance payment system of industrial injury insurance for the first time. According to this system design, if the employer fails to pay the work-related injury insurance premium according to law after the work-related injury accident, the employer will pay the work-related injury insurance benefits; If the employer fails to pay, it shall pay in advance from the industrial injury insurance fund, and the insurance benefits shall be repaid by the employer; If the employer fails to repay within the time limit, the social insurance agency may recover the compensation.

In the eyes of the legal profession, this system is mainly to avoid the phenomenon that employees can't afford medical expenses and can't get effective treatment, thus leaving disability or even losing their lives, which embodies the guarantee function and relief function of industrial injury insurance in China.

It is understood that this system, which was originally highly anticipated, was encountered in the implementation process. Landing? Difficult. One year after the implementation of the New Deal, the research report released by Beijing Yilian Labor Law Assistance and Research Center (referred to as Yilian) in July 20 12 showed that nearly 90% of workers did not know about the New Deal, and because most provinces and cities have not yet introduced specific implementation measures, the channels for employees with work-related injuries to apply for advance compensation are not smooth. 20 13 years have appeared in various places? Pay for work-related injuries first? The first case further highlights the system? Landing? Difficult.

Wang Dongliang case: The Medical Insurance Bureau is worried about the safety of the fund and has not yet pronounced a sentence.

July 26th? Chongqing industrial injury compensation first case? In Chongqing Zhongxian People's Court.

The plaintiff Wang Dongliang is the driver of Chongqing Zhongxian Zhuo Yue Co., Ltd. (hereinafter referred to as Zhuo Yue Company). Zhuo Yue Company did not sign a labor contract with Wang Dongliang and did not pay social insurance for it.

On 20th/KOOC-0//KOOC-0/July/KOOC-0/6th, Wang Dongliang suffered a traffic accident while going out on business, which was identified as a work-related injury and a third-degree disability. Due to the inability of Zhuo Yue Company to repay, in June of October13, Wang Dongliang applied to Zhongxian Medical Insurance Bureau for advance payment of work-related injury insurance benefits in accordance with the Social Insurance Law and the Interim Measures for Advance Payment of Social Insurance Funds, and the Medical Insurance Bureau rejected his request on the grounds that Wang Dongliang was not insured.

On July 20 13 13, Liang, with the help of lawyer Han Shichun of Yilian, took Zhongxian Medical Insurance Bureau to court.

The medical insurance bureau argued in court that the industrial injury insurance was coordinated at the municipal level, but Chongqing did not introduce the implementation rules for the advance payment of industrial injury insurance benefits, and the county-level medical insurance bureau had no right to pay. More importantly, the court has issued a letter of termination, and excellent companies have no property to enforce. If the insurance fund pays first, it will not be able to recover the debt, resulting in a gap in the insurance fund. The medical insurance bureau believes that if there are too many cases in which funds cannot be recovered in the future, the funds will be unbearable and even collapse.

On June 65438+1October 1 1, the case of Wang Dongliang v Zhongxian medical insurance bureau on the advance payment of work-related injury benefits was held for the second time. When the Medical Insurance Bureau insisted on the original defense and supplemented the revision of the Regulations on Work-related Injury Insurance, the social insurance law was announced to the public, but the Regulations on Work-related Injury Insurance knew that it was stipulated by law, but there was no provision for advance payment in the regulations, indicating that the system could not be implemented.

Finally, the court rejected Wang Dongliang's request to pay work-related injury benefits in advance. The reason is that the medical insurance bureau made a written reply in the course of the lawsuit saying that it would not advance. The court held that the act was a specific administrative act, which proved that the medical insurance bureau had fulfilled its statutory duties and it was unrealistic to order it to make a specific administrative act. The court held that the written reply should be prosecuted separately.

After communicating with the lawyer, Wang Dongliang initiated legal proceedings again and filed a lawsuit against the written reply of the Medical Insurance Bureau. 165438+1On October 5th, Zhongxian County Court accepted Wang Dongliang's second lawsuit, which was caused by administrative payment. Now, the case has not been pronounced, and Wang Dongliang is not sure whether he can get compensation for work-related injuries.

Yuan case: difficult victory, powerful boosting system? Landing?

On March 20 12, the first case of compensation for work-related injuries in Xinjiang was held in the People's Court of Shuimogou District, Urumqi.

In July 2008, Yuan, the plaintiff in this case, was injured by a collapsed shelf while working in a construction site in Urumqi, and was later identified as a seventh-grade disability by Urumqi Human Resources and Social Security Bureau. Because he did not sign a labor contract with the company, the company refused to pay compensation for work-related injuries. On July 20 1 1 year, the case entered the execution procedure after labor arbitration, court judgment of first instance and second instance. Subsequently, the court investigation found that the company had no property to execute. 20111kloc-0/4, the court made a ruling to suspend execution.

2011165438+1On October 4th and 30th, Yuan submitted an application for advance payment of work-related injury insurance benefits to Urumqi Social Security Bureau. A month later, Urumqi Social Security Bureau rejected his application. At the beginning of 20 12, Yuan took Urumqi Social Security Bureau to court.

On March 20 12, the People's Court of Shuimogou District of Urumqi held a hearing to accept the case. The court ruled that Urumqi Social Security Bureau fulfilled its legal obligation to pay work-related injury insurance money in advance to plaintiff Yuan within 60 days. Urumqi Social Security Bureau refused to accept the appeal to the Municipal Intermediate People's Court. The Intermediate People's Court asked the Shuimogou District Court to retry the case.

On March 20 13, the Shuimogou District Court, after retrial, revoked the decision of Urumqi Social Security Bureau not to accept Yuan Xianxing's application for payment of work-related injury insurance benefits, and ordered the Municipal Social Security Bureau to make a specific administrative act again. The Municipal Social Security Bureau refused to accept it and appealed again, requesting the court of second instance to revoke the original judgment.

On May 20 13, Urumqi Intermediate People's Court accepted the case. In the trial, Urumqi Social Security Bureau held that Yuan's company had no property to execute, and if the industrial injury insurance fund paid in advance, it would not be recovered, resulting in a fund gap. If it is a precedent, it will have serious consequences for the safety of the work-related injury insurance fund, and some people will even take the work-related injury insurance fund in various names, which will eventually lead to the failure to protect the interests of the insured.

The presiding judge of Urumqi Intermediate People's Court, who is in charge of the case, said in an interview that the provisions of Article 41 of the Social Insurance Law should be applied to Yuan's application to Urumqi Social Security Bureau for advance payment of work-related injury insurance benefits without obtaining work-related injury insurance benefits.

65438124 October, Urumqi Intermediate People's Court made a final judgment, and the court rejected the appeal request of Urumqi Social Security Bureau. After several years of defending rights, Yuan finally won a difficult victory.

For the above two cases, lawyer Han Shichun analyzed that the social security department? The party concerned did not participate in work-related injury insurance? 、? There are no implementation rules in the local area? 、? Is it difficult to recover afterwards? 、? Is there a gap in the foundation? Refusing to pay work-related injury insurance in advance for other reasons reflects the local government's concern about the safety of the fund after the work-related injury insurance is paid in advance.

? This reflects the inadequate design of the advance compensation system for work-related injuries, which may indeed cause fund risks, but the relevant departments should improve the provisions on compensation, rather than using this as an excuse not to implement it. ? Han Shichun also believes that the weakness of workers also leads to the obvious lack of pressure and motivation for the human and social departments to implement the advance payment system. Therefore, if workers can file administrative lawsuits and Yuan, they can put some pressure on the administrative departments that do not act, which will help promote the system? Landing? .

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