At present, with the acceleration of the aging process of China's population, the number of people who still work after exceeding the retirement age is increasingIs it fully applicable, or is it applied by reference?What are the considerations and value judgment criteria?These are quite concerned by the society. Recently, the Tongnan District People's Court of Chongqing Municipality concluded such a case of a dispute over the work-related injury insurance benefits of over-aged personnel
The Human Resources and Social Security Bureau made a determination of work-related injury, but the company was not satisfied.
Uncle Zhang, who was born in 1952, worked as a handyman at a project site contracted by a construction company before his death. On the afternoon of November 26, 2021, Uncle Zhang took an electric tricycle driven by a worker to go home after work, and the vehicle rolled over under the slope of the road when it reached a slope, causing Uncle Zhang a severe head injury. At about 20 o'clock that day, Uncle Zhang died after rescue efforts. After investigation by the traffic police department, the electric tricycle belonged to the category of motor vehicles, the worker did not have a driver's license, and the vehicle brake failed at the time of the accident, and the traffic police department determined that the worker was fully responsible for the accident.
However, the worker and Uncle Zhang are of the same age and have no ability to compensate. For this reason, Uncle Zhang's family member Huang and others had to claim compensation from the construction company.
Due to repeated unsuccessful negotiations, Huang and others applied to the Human Resources and Social Security Bureau of Tongnan District, Chongqing Municipality for a work-related injury determination. On July 1, 2022, the Tongnan District Human Resources and Social Security Bureau made a work-related injury determination, holding that Uncle Zhang's death was caused by a traffic accident on the way to work that was not his main responsibility, and the injury suffered was a work-related injury. The construction company was dissatisfied with the determination of the human resources and social security department and filed an administrative lawsuit with the Tongnan District People's Court.
The court held that there was no essential difference between the work-related death of a migrant worker employed by an employer who had exceeded the statutory retirement age and the work-related death of a working-age worker. After the court's explanation, the company recognized the determination of work-related injury and withdrew the administrative lawsuit.
Is it fair to calculate the treatment according to the regulations on work-related injury insurance?
Although the construction company recognized the determination of work-related injury, there was still a big difference between the two parties on the amount of compensation for work-related injury benefits, so Huang and others filed a lawsuit for work-related injury insurance benefits.
Article 39 of the regulations does not make a distinction between overage and appropriate age, there should be no difference in work-related death treatment, and the work-related death allowance should also be calculated at 20 times the disposable income of urban residents nationwide in the previous year, so they requested the court to order the construction company to pay a total of 1476760 yuan in funeral subsidies, pensions for supporting relatives, and one-time work-related death subsidies.
The construction company argued that although Uncle Zhang's death was in the nature of a work-related injury, he was 69 years old at the time of the incident, and the two parties had established an employment relationship, which was generally based on an employment relationship. Although Uncle Zhang has been determined to have suffered a work-related injury, the company is unable to take out work-related injury insurance for him, and it is unfair to require the company to pay work-related death benefits in full accordance with the work-related injury insurance regulations, so he asked the court to reduce the amount of compensation.
The court applied the regulations on work-related injury insurance by analogy and amendment.
After the trial, the court held that with the economic and social development, the continuous improvement of the average life expectancy of the people, due to the increase in employment pressure and other factors, more and more people will continue to provide labor after reaching the retirement age, create social value, and their social contributions shall not be denied because of age.
The court held that there is a trend of population aging in China, and it is relatively common for over-age personnel to continue to be employed, and employers are unable to share the employment risks through work-related injury insurance, and there are differences between over-age work-related deaths and ordinary work-related deaths, such as the basic legal relationship, the age of personnel, and the employment risks, so Article 39 of the Work-related Injury Insurance Regulations cannot be applied as a matter of course.
The court held that, guided by the core values of socialism, Article 39 of the Regulations on Work-related Injury Insurance should be applied by analogy and amended to apply the death of over-age work-related injuries. Disability benefits do not differ on the basis of age and do not require amendments;The dependent's pension is similar to the dependant's living expenses, and can be calculated by reference to the one-time calculation of the dependants' living expensesIt is necessary to consider the objective reality and take into account the interests of both parties in the one-time work-related death allowance, and the calculation method of reducing the compensation period due to the increase of age can be used as a reference. Therefore, the court ordered a construction company to pay Huang and others a total of 705726 yuan in various work-related death benefits.
After the judgment, neither party appealed, and the construction company took the initiative to fulfill its judgment obligations.
Observe and think. Adhere to the core values of socialism and protect the rights and interests of "silver-haired" workers.
The treatment of overage work-related deaths should be guided by the core values of socialism, and the value should be measured and adjudicated.
First, under the guidance of "equality", Article 39 of the Regulations on Work-related Injury Insurance is applied by analogy. There is no normative legal document on how to calculate the benefits of overage work-related deaths and bear the responsibility. The methods for integrating the Core Socialist Values into judgment documents can be divided into two categories: one is that normative legal documents already exist, and the Core Socialist Values are invoked to enhance reasoning;The other type is the non-existence of normative legal documents, which invoke the core values of socialism to fill the legal loopholes. There is no legal provision for the treatment of overage work-related deaths, and the adjudicator cannot find the basis for the adjudication, so the provision is invoked to adopt the loophole filling method and apply it by analogy.
The second is to amend Article 39 of the Regulations on Work-related Injury Insurance under the guidance of "fairness". When the application of the legal provisions in practice is problematic or not applicable to specific circumstances, the application of amendments can be made by interpreting, supplementing or amending the legal provisions to make them more in line with the actual situation and the principle of fairness.
Taking this case as an example, the death of an over-age employee has been administratively confirmed, and his close relatives have the right to claim work-related death benefits with reference to the work-related injury insurance regulations. However, in this case, there is a practical problem that the employer is unable to participate in the insurance due to the employee's overage, and if it is still fully implemented in accordance with the provisions, there is a suspicion of mechanical law enforcement. The introduction of "justice" in the core values of socialism, and the specific application of the amended provisions is the balance of rights on the aforementioned practical issues. The establishment of a labor relationship between the over-age personnel and the company is an administrative confirmation, and the treatment of over-age work-related deaths therefore has both civil and administrative legal attributes. Based on the method of calculating work-related death benefits, combined with the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Personal Injury Compensation Cases, this case has formed a new calculation rule, which has both civil and administrative characteristics, conforms to the legal characteristics of overage work-related death benefits, and responds to the dual nature of over-age work-related death benefits.
With the development of economy and society, the average life expectancy of the people continues to increase, and more and more "silver-haired people" will continue to work and create social value. If we have a rigid understanding, deny the social contribution of overage personnel, and lack corresponding care for the injuries (including deaths) they suffer due to work, it is contrary to the requirements of fairness and justice, and it is also contrary to the core values of socialism.
In order to protect the legitimate rights and interests of "silver-haired" workers, the judge recommended:
Overage workers should strengthen their awareness of risk and evidence. On the one hand, overage workers should choose jobs based on their own conditions to avoid work-related injuries. Construction work is a heavy physical labor with long working hours and high work intensity, and the working environment is dangerous, and the physical strength and reaction ability of over-age workers are relatively weak, and safety accidents are more likely to occur. On the other hand, overage workers should pay attention to retaining employment evidence such as salary slips, WeChat payment records, and work signature books to avoid difficulties in adducing evidence.
Employers should strengthen their awareness of insurance and responsibility. On the one hand, the unit should make good use of the insurance system to share the employment risk, and for the overage personnel who cannot be covered by the work-related injury insurance, it is recommended to purchase special commercial insurance, and in case of work-related injury, the unit can make claims according to the insurance contract. On the other hand, employers should have a sense of responsibility to give priority to the payment of labor remuneration to overage workers, and pay labor remuneration in full and in a timely manner to reduce their living burden.
Departments such as for labor administration and people's courts shall give special consideration to elderly parties. Labor administrative departments should give full play to their administrative functions such as job introduction and employment guidance, take the lead in exploring new models of flexible employment for the "silver-haired" group, and promote the social participation of the elderly. People's courts should focus on the types and characteristics of cases involving the elderly, and retain traditional judicial service methods suitable for the elderly while carrying out online case filing, electronic litigation, and paperless office.
*: China Court Network.
Reporter: Liu Yang.
Correspondent: Wang Kun, Zhou Zhiyu.
Editor: Jiang Ping.