Research on the process of work-related injury identification about illegal subcontracting
违法分包的工伤认定程序研究

摘要

实践中，违法分包中的工伤认定容易陷入“循环诉讼”，劳动者难以实现工伤保险待遇，违背了立法初衷。应在正确认识“用工主体责任”性质的基础上，重新设计违法分包的工伤认定特殊程序，包括：在工伤认定程序中，人社部门不以存在劳动关系作为受理条件；将违法分包行为和违法分包的主体认定作为工伤认定的前置程序；明确法院工伤认定的最终权力；允许劳动者提起行政附带民事诉讼。

Abstract

In practice, the work-related injury identification in cases of illegal subcontracting is often prone to falling into "circular litigation", making it difficult for workers to obtain work-related injury insurance benefits，which goes against the original intention of the legislation. Based on a correct understanding of the nature of "employer entity responsibility", a special procedure for determining work-related injuries in cases of illegal subcontracting should be redesigned, including: in the work-related injury identification process, the human resources and social security department should not consider the existence of a labor relationship as a prerequisite for acceptance of the application; the behavior and subject of illegal subcontracting for it should be regarded as the prepositive procedure for work-related injury identification; clarify the ultimate authority of the court for work injury identification; and allow workers to file administrative incidental civil litigation.