Grassroots lawyers also have spring

Chapter 637 You have presented a problem to the judge!
It is very common in the construction industry that construction companies subcontract part of the construction work to individuals, and privately recruit personnel to work under the name of the construction company.

Due to the lack of protection facilities, there were occasional accidents during the construction process, resulting in casualties of construction personnel. In many cases, the contractor gave 40 million yuan to the family members to settle the matter. According to the compensation standard, the death compensation at this time was nearly 50 yuan, and the contractor paid less. It’s a lot of money, but the family members of the employees can get the money immediately, and generally they won’t bother the contractor and the contractor.

Of course, there are also contractors running away, and the family members of the laborers suing, but up to now, neither the Supreme Court nor the Imperial High Court has given a clear opinion, and the documents issued by the labor department are inconsistent with the standards for judging the labor relationship in judicial practice, which eventually led to The person lost his family rights protection, but the court could not find a legal basis to determine that the two parties had a labor relationship, and thus could not determine that the casualty was a work-related injury and could not enjoy work-related injury benefits.

In this case, if the contractor pays the money, it is okay, but if he runs away or has no money, the family members of the worker will not be able to get relief.

However, the interests of laborers have been damaged after all, and it would be illegal to not provide relief.That's why the court judges the company to be liable for damages based on the relationship between the employer and the employee and the standard of Article 90 of the Labor Contract Law No. [-].

"Notice of the Ministry of Labor and Social Security on Matters Concerning the Establishment of Labor Relations" issued by the Ministry of Labor and Social Security (2005) No. 12 Article [-] stipulates that the main purpose of "employer's main responsibility" is to solve labor relationship problems so that workers can enjoy work-related injury insurance benefits (If there is no labor relationship, you cannot enjoy work-related injury benefits).Even if the foreman or contractor runs away or has no money, the industrial injury insurance fund can cover the bottom line, so that the family members of the workers have a way of relief.

However, according to the above-mentioned normative documents, there is no legal basis for forcibly determining that there is a factual labor relationship between the contracting enterprise and the laborers. After receiving the assigned case, the female judge also has a headache and does not know how to judge. "Opinions on Several Issues" issued by the Ministry of Human Resources and Social Security (2013) No. 34, she is likely to reject the plaintiff's claim.

But despite the support of this opinion, she did not dare to judge casually, because at this time neither the Supreme Court nor the Imperial High Court made any statement on how to deal with similar issues.This puts female judges in a dilemma.Therefore, she wanted to hear the opinions of both the plaintiff and the defendant, so that she could put forward her own opinions when the case was submitted to the internal review committee of the court.

Wang Chuan understood that the female judge at this time was also undecided, and wanted to see how he could justify himself.

"In order to represent this case, the attorney for the plaintiff reviewed similar cases around [-]. After [-], a large number of similar cases appeared in practice. Form a de facto labor relationship, so that the laborer meets the conditions for enjoying work-related injury insurance.

This case is no exception. The Miyun Labor Arbitration Commission also ruled that Ma Zhe and the defendant constituted a de facto labor relationship, in order to allow Ma Zhe’s family members to receive work-related injury insurance relief. However, your court believes that the above-mentioned factual labor relationship has no fear of the law and overturned it. The Labor Arbitration Commission determined that the two parties constituted an employment relationship.

The reason for this judgment is that I understand that it is a workaround. Your court cannot find a legal basis to support the plaintiff, but it has to give certain relief. It can only be recognized as an employment relationship and relief from the perspective of personal injury. "

Wang Chuan knew that saying this might offend the court, but this is the truth, and today is a public hearing. He wants to let the audience sitting below understand that this case has been sued again and again because of imperfect laws and regulations.

"However, the recently issued "Opinions on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance" issued by the Ministry of Human Resources and Social Security (2013) No. 34, does not continue to use the concept of 'employer's main responsibility', but changes it to 'work-related injury insurance liability'.

According to this opinion, there is no need to establish a labor relationship or an employment relationship between the employer and the employee who assume the responsibility for work-related injury insurance. Therefore, the two parties are neither a de facto labor relationship nor an employment relationship, but only a relationship that bears work-related injury insurance responsibilities.

The identification of the employer's work-related injury insurance liability can avoid a series of labor disputes such as the laborer's claim to the employer for the double wage difference for the unsigned labor contract.

Therefore, the legal basis for the plaintiff in this case to claim liability for work-related injury insurance is the "Opinions on Several Issues Concerning the Implementation of the Regulations on Work-related Injury Insurance", that is, under statutory conditions (such as construction enterprises and mining enterprises), workers enjoy work-related injury insurance benefits without taking responsibility for them. Work-related injury insurance liability units exist on the premise of labor relations. "Wang Chuan said.

"If this is the case, it is tantamount to breaking the provisions of Article No. 18 of the "Regulations on Work Injury Insurance". We believe that it violates the provisions of the regulations, so it should not be used as the basis for judging the case." The defendant's lawyer said.

"The above-mentioned opinions issued by the administrative department are to provide workers with relief channels. The law is lagging behind, but it will come anyway. I think it is realistic to break through the existing regulations under certain circumstances! It is beneficial to better protect employees. Benefits!" Wang Chuan said with a surge of emotion.

After hearing this, the female judge scratched her head a little, and decided to throw this issue to the Jury Committee and continue the following trial procedures.

……

After the trial, Wang Chuan signed the transcript, packed up his belongings and walked out of the court. Reporter Zhao was waiting for him outside the gate of the court.

"Lawyer Wang, your speech today is so wonderful. Although I don't fully understand it, I think you have posed a problem for the judge!" Reporter Zhao laughed.

"Reporter Zhao made fun of him!" In front of everyone around him, Wang Chuan was uncomfortable addressing the other party, Brother Zhao.

"Lawyer Wang, we would like to have a short interview with you, is that okay?" Reporter Zhao asked.

"Yes, as long as it doesn't involve sensitive issues." Wang Chuan said.

……

The court session lasted all morning, and it was almost 02:30 pm after the interview with reporter Zhao. Wang Chuan was hungry and felt exhausted all over his body.

Reporter Zhao hurried back after the interview.After Wang Chuan found a small restaurant to fill his stomach, he walked to his Jetta.

It was past six o'clock in the afternoon when we got home, and Wu Hongyan hadn't come back yet. Wang Chuan felt exhausted and wanted to lie down on the sofa for a while, but fell asleep.

"Let's eat! Let's eat!" Wu Hongyan's gentle voice came from Wang Chuan's ear.

"Oh, what time is it?" Wang Chuan opened his eyes and looked at his wife sleepily.He was covered with an air-conditioned quilt.

"It's past eight o'clock! I didn't bother you when I came back and saw you sleeping soundly on the sofa." Wu Hongyan's eyes were full of distress: "You have been too busy these days! You need to take a good rest. "

"Well, I'm really busy. The matter of recruiting has not been resolved, and I have taken on a few more cases and met some old clients. There is another final exam, so we all rushed together." Wang Chuan rubbed his face vigorously with his hands.

(End of this chapter)