China: On The Forefront Of Labor Law – The Comparison And Explanation Of Labor And Employment Law And Local Labor Regulation, No. 143 Jiangsu Province Issued The Implementation Of Industrial Injury Insurance Regulations

Last Updated: 18 January 2017
Article by Broad & Bright

日前,江苏省人力资源和社会保障厅发布了《关于实施<工伤保险条例>若干问题的处 理意见》(苏人社规[2016]3 号,以下简称"《意见》"),自2017 年1 月1 日起执行,同时 2005 年原江苏省劳动和社会保障厅《关于实施<工伤保险条例>若干问题的处理意见》(苏劳 社医【2005】6 号)被废止。新《意见》全文共二十二条,其主要内容包括:

1. 在校学生在用人单位实习期间发生伤亡事故的,不属于《工伤保险条例》调整范围。按 目前司法实践,在校学生不具有劳动者资格,在用人单位实习期间不构成劳动关系。

2. 《意见》对工伤认定主要概念作了界定:"工作时间"包括劳动合同约定的工作时间、用 人单位规定的工作时间以及加班加点的工作时间。"工作场所"包括用人单位日常生产经 营活动有效管理的区域、职工为完成某项特定工作所涉及的单位以外的相关区域以及职 工因工作来往于多个与其工作职责相关的工作场所之间的合理区域。"因工作原因受到 事故伤害",包括职工在工作时间和工作场所内因从事生产经营活动直接受到的事故伤 害、也包括工作过程中员工为解决合理必需的生理需要时由于不安全因素遭受的意外伤 害。据此,员工因工出差过程中以及出差途中均属于工作时间、工作地点,而员工在出 差过程中在解决吃饭、住宿等合理必需的生理需要时所受伤害也应被认定为"因工作原 因"。

3. 用人单位安排或组织职工参加文体活动,应作为工作原因;但是用人单位以工作名义安 排或组织职工参加餐饮、旅游观光、休闲娱乐等活动,或者从事涉及领导、个人私利的 活动,不能作为工作原因。据此,用人单位在组织职工文体活动时,需注意活动的性质, 必要时建议适当考虑商业保险。

4. 职工"因履行工作职责受到暴力等意外伤害",该暴力等伤害应与履行工作职责具有直接 因果关系。

5. "上下班途中"包括:在合理时间内往返于工作地与经常居住地之间合理路线的上下班途 中;在合理时间内往返于工作地与配偶、父母、子女居住地的合理路线的上下班途中; 从事属于日常工作生活所需要的活动,且在合理时间和合理路线的上下班途中。此点与最高法院有关司法解释一致的。据此,职工在下班途中顺路买菜时所发生的非本人主要 责任的交通事故时,构成工伤。

6. 职工"在工作时间和工作岗位,突发疾病死亡或者在48 小时之内抢救无效死亡","48 小 时"的起算时间,以医疗机构的初次诊断时间作为突发疾病的起算时间。

7. 职工在发生工伤时的停工留薪期内因工伤导致死亡的,其近亲属享受工亡相关待遇,包 括丧葬补助金、供养亲属抚恤金和一次性工亡补助金;但是,在职的工伤职工在工伤复 发后的停工留薪期内因工伤导致死亡的,其近亲属不享受一次性工亡补助金。

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