论工伤保险赔偿与侵权赔偿的关系

工伤赔偿救济从一元制向二元制发展,形成了工伤保险赔偿与侵权赔偿并存的局面.现行法律却对工伤赔偿法律适用问题没有作出明确的规定,司法实践适用不一,严重影响了法律的统一性.在私法和社会法适用并存时,应在兼顾公平合理的基础上,树立以社会法优先适用的立法理念和司法理念,工伤赔偿采用补充模式不失为一种合理的选择,在最大限度内使劳动者的合法权益真正得到实现.

On the Relation Between Insurance Indemnity of Industrial lnjury and Infringement Indemnity

The remedy for the indemnity of industrial injury have developed from unitary approach to binary approach, forming the phase that insurance indemnity of industrial injury and infringement indemnity coexist. However, the actual law does not distinctly regulate the applicability of the compensation law for industrial injury, and the applicability of the judicial practice does not coordinate, so the unity of laws has been affected seriously. With the coexistence of private law and social law, the concept for legislation and jurisdiction to adopt social law preferentially should be forming on the basis of fair and square. Meanwhile, it is a reasonable choice for indemnity of industrial injury to adopt supplementation which can realize labors' legal right maximally.