The labor security administrative confirmation of application of law and judicial review cases

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Zhang Xiaoli Jiao WeiRelease date: 2005-06-02 09:58:20
(two) the ascertainment of the work-related injury cases shall be reconsideration

"Regulations" provisions of article fifty-third of the industrial injury insurance, work-related injury confirmation disaffected, can apply for administrative reconsideration according to law; if the party refuses to accept the reconsideration decision, may bring an administrative lawsuit according to law. This provision to the ascertainment of a work-related injury cases shall be reconsideration. Fifty-third the provisions of the actual is endowed with a relative of the work-related injury confirmation may, two rights can be exercised. Because it is the weighted representation, so the use of the two "can", namely the relative rights of people have the right to exercise, also has the right not to. It cannot be here "can" be reconsideration may also sue understanding.

We shall make a work-related injury cases in 2004, the labor department in the decision finally informed right, it still refuses to accept the "affirmation of this injury, can raise administrative reconsideration to the administrative departments of labor security supervisors, or bring an administrative lawsuit to the people's court." This makes a lot of cases relative person without the reconsideration procedure and directly to the courts. Although the labor department told the wrong prior, but the court can not make the best of a bad bargain, but directly accepting and hearing, without review on work-related injury cases, shall refuse to accept, has accepted the court should reject the plaintiff. At the same time should be in the hospital that the part of the plaintiff defendant informed clear error is the error, therefore the plaintiff therefore delay period shall not be calculated in the application for reconsideration period, although be dismissed the plaintiff's prosecution, but from punishment fault into consideration, the litigation costs to be borne by the defendant.

The ascertainment of a work-related injury conclusion not required by the preposition of reconsideration procedure
Source: Author: Xie Lixin Qin Jiyou
 Specific source not found, to looking for the French
 In May 9 Japan edition published by Xie Min three comrades "the ascertainment of a work-related injury or institute administrative proceedings" direct paper. This paper thinks that refuses to accept cognizance of injury, not the administrative reconsideration procedure directly to the court. The author of this view can not agree.

   "Byelaw of inductrial injury insurance" (hereinafter referred to as "Regulations") fifty-third stipulates: "any of the following circumstances, the relevant units and individuals may apply for administrative reconsideration according to law; if the party refuses to accept the reconsideration decision, may bring an administrative lawsuit according to law: (a) application for inductrial injury worker or the direct relatives, the unit employees for work-related injury conclusion with;......" The author thinks, this is a preposition of reconsideration regulations. The reasons are: first, the "Regulations" is the administrative rules and regulations, the administrative reconsideration regulations. China's administrative procedure law and the administrative reconsideration law article thirty-seventh of the first paragraph of article sixteenth are clearly defined. Although the administrative reconsideration law of the first paragraph of article thirtieth only requires a reconsideration of the situation, but does not exclude other preposition of reconsideration. Therefore, the administrative reconsideration law holds the text only provides the first paragraph of article thirtieth of the administrative reconsideration, without authorization of administrative regulations may stipulate the administrative reconsideration is a one-sided view. Secondly, although the "Regulations" provisions "may apply for administrative reconsideration according to law," and not "should" or "must", but from the entire sentences that show, "the premise to bring an administrative lawsuit" is "not satisfied with the decision of reconsideration". Here the "can" just inform the litigants of relief right term, meaning it may apply for reconsideration, can not apply for reconsideration, and not to file a lawsuit to the court, because the law cannot make the party seeking relief. Expression of the same was also seen in "Public Security Management Punishment Ordinance" article thirty-ninth: "was ruled by the public security management punishment of the offender or victim refuses to accept the public security organ or the township (town) people's Government Award, in five days after receiving notification, can appeal to a higher public security organs, by a public security organs, after receiving the appeal within five days after the verdict; a public security organ refuses to accept the ruling, may bring a lawsuit in a local people's court within five days after receiving the notice." This is the same provisions preposition of reconsideration. Tax collection and management law of eighty-eighth the provisions of the first paragraph: "the taxpayers, withholding agents, tax payment guarantor disputes with the tax authorities on payment of tax, the tax authorities must be in accordance with the tax to pay or remit the taxes and the late fees or provision of a corresponding guarantee, then you can apply for administrative reconsideration according to law; if the party refuses to accept the decision of administrative reconsideration, to the people's court according to law." This is also the provisions for preposition of reconsideration.

   The Ministry of labor and social security in 2003 September 23 released the "work-related injuries that way" (hereinafter referred to as "measures") the nineteenth stipulation: "the employees or their immediate family members, the employing unit refuses to accept the decision on not accepting or that refuses to accept the decision on work-related injury, may apply for administrative reconsideration or bring an administrative lawsuit according to law." The article on the parties to apply for administrative reconsideration or bring an administrative lawsuit is a selective provisions. But the "measures" belongs to the rules and regulations, conflict in the hierarchy of "Regulations" case, should apply the "Regulations" provisions. And in this regard, the general office of the Ministry of labor and social security "on May 18, 2004, the Chongqing municipal labor and Social Security Bureau on the parties have made answer to work-related injuries that refuses to accept the administrative reconsideration application reply:" "" "industrial injury insurance regulations in accordance with the provisions of article fifty-third, apply for work-related injuries of employees or relatives, the the unit employees for work-related injury confirmation disaffected, shall first apply for administrative reconsideration, the administrative reconsideration, and bring an administrative lawsuit according to law. In applying the "work-related injuries that way" provisions of article nineteenth, the parties to accept the work-related injury confirmation, shall be handled in accordance with the "Regulations" industrial injury insurance provisions of article fifty-third, the parties to the inadmissible decision disaffected, can apply for administrative reconsideration or bring an administrative lawsuit, administrative reconsideration in this case is not pre procedure." 
   To sum up, in accordance with the "Regulations" in article fifty-third, if a party refuses to accept the conclusion of work-related injuries, subject to administrative reconsideration to an administrative lawsuit. And only when the parties to the labor and social security administrative organ for ascertainment of a work-related injury, the administrative organ shall not accept, the talent can choose to apply for administrative reconsideration or bring an administrative lawsuit in both, without preposition of reconsideration procedure.

The administrative reconsideration is the pre procedure of administrative litigation cognizance inductrial injury
                    -- Legal Analysis on work-related injury lawsuit against    
 
 
    "The introduction of the case
     In 2005 December, Liu in the name of a building company affiliated units undertook the construction rose garden city. Liu hire Wang for tower crane driver. One day, in the construction of Wang Mou for below and crane things another construction personnel altercation, in preparation for the down beat another construction personnel, accidentally dropped a crane to disability.
    Wang's immediate family to the district labor and Social Security Bureau proposed that the application for ascertainment of a work-related injury, Wang Mou is in it hurt, requirements identified as work-related injuries. Think the labor and Social Security Bureau, Wang although Liu hire, but Liu Mou does not have the qualification of employment, is linked to a construction company units belong to the fact the employer, the de facto labor relationship Wang and a construction company. Wang during work time, work place, hurt because of work reasons, belong to inductrial injury. He issued a "book" ascertainment of a work-related injury, and inform the parties " if the ascertainment of a work-related injury may, after receiving the ascertainment of a work-related injury within 15 days from the date of the District People's government or Municipal Bureau of labor and social security administrative review, or the people's court according to the administrative litigation".                                           
     The construction company received confirmation that your book, and Wang Mou does not exist between the labor relations, and in the people's court within 15 days of the jurisdiction of the administrative litigation filed a request to revoke the ascertainment of a work-related injury, "book".
    The differences of opinion
     After court, how to judge the formation of the following opinions:
     The first view, confirmation of the District of labor and social security bureau made, is based on the facts and the laws, shall be maintained.
     The second view, the court should not judgment in the entity, we should reject the plaintiff's prosecution in the procedure. Reason.
     The "Regulations" industrial injury insurance fifty-third stipulates, "apply for work-related injuries of employees or their immediate family members, the unit employees for work-related injury confirmation may", "may apply for administrative reconsideration according to law; if the party refuses to accept the decision of reconsideration, can lift the administrative litigation according to law".
     The plaintiff was dissatisfied with the "industrial injury", should first apply for administrative reconsideration, the reconsideration decision if not satisfied with the order, it may file an administrative. The plaintiff in the case without review, direct prosecution, do not meet the above requirements, therefore, the court shall rule to reject the plaintiff's prosecution.
     The third view, the court should not reject the plaintiff's prosecution. Reason.
     Promulgated by the Ministry of labor and social security "work-related injuries that way" nineteenth stipulates: " employees or their immediate family members, the employing unit refuses to accept the decision on not accepting or that refuses to accept the decision on work-related injury, may apply for administrative reconsideration or bring an administrative lawsuit according to law." according to the regulations, the plaintiff has the choice of reconsideration or litigation.
     Moreover, the "book" in the ascertainment of the work-related injury also explicitly inform the parties " after receiving the ascertainment of a work-related injury within 15 days from the date of the District People's government or Municipal Bureau of labor and social security administrative review, or the people's court according to the administrative litigation."
     Therefore, the plaintiff sued directly is not illegal, the court shall continue the trial, should not be dismissed the plaintiff's prosecution in the procedure.
    "Jurisprudence
     The author thinks, according to China's current law, administrative reconsideration is not prepositive procedure of work-related injuries.
     1, China's "administrative procedure law" article thirty-seventh paragraph two stipulates: "the law, regulations shall first apply to the administrative organ for reconsideration, the reconsideration filed a lawsuit to the people's court, in accordance with the provisions of laws, rules and regulations."
     2, "industrial injury insurance regulations" belongs to administrative regulations promulgated by the State Council, the fifty-three belong to "the scope of the law, regulations".
     3, the Ministry of labor and social security "work-related injuries that way" nineteenth although the provisions of " refuses to accept the decision on rejection or that refuses to accept the decision of the injury, may apply for administrative reconsideration or bring an administrative lawsuit according to law ", but as the law department rules and regulations, because of its contents and the law, conflict, should belong to.
     The general office of the Ministry of labor and social security to two OO four years in May 18th issued a special document "about the party refuses to accept the administrative reconsideration of inductrial injury problems for the reply" (labor agency letter [2004]123) pointed out that "in the application of" ascertainment of a work-related injury "prescribed in article nineteenth, the parties to accept the work-related injury confirmation, shall be implemented in accordance with the" Regulations "provisions of the industrial injury insurance fifty-third; the parties to inadmissible decision disaffected, can apply for administrative reconsideration or bring an administrative lawsuit according to law, the administrative reconsideration in this case is not pre process. "
     Therefore, the plaintiff refuses to accept the "industrial injury confirmation" without direct action by the review, is a violation of the law. According to the interpretation of the Supreme People's court "on the implementation of 'issues' Administrative Procedure Law of the people's Republic of China"The provisions of article forty-fourth a, for" laws, regulations of administrative reconsideration is filed a lawsuit procedures and does not apply for reconsideration "lawsuit", the court should reject".
     But the problem is, in the "book" in the ascertainment of a work-related injury clearly inform the parties " if the ascertainment of a work-related injury may, after receiving the ascertainment of a work-related injury within 15 days from the date of the District People's government or Municipal Bureau of labor and social security administrative review, or the people's court according to the administrative litigation". The plaintiff in the express, choose the way of direct action in 15 days, there is no improper.
     The defendant shall timely, accurately inform the parties of the relief way and the procedure is the legal obligation. "Inform" as part of the "industrial injury confirmation", its content and legal clearly inconsistent (if not preposition of reconsideration procedure; let the 60 day review period error notification 15 days), which belongs to the "administrative procedure law" fifty-fourth 'two' 2 "applicable laws, regulations wrong". Accordingly, the court should be based on the "Cancel" decision making.
     To sum up, the author believes that in this case, the court cannot make maintenance decision, nor should the court rejected the plaintiff, but should make the cancellation decision, and ordered the defendant to make a Book of "ascertainment of a work-related injury".
Http://www.bloglegal.com/blog/cac/500000047.htm

"Regulations" provisions of the industrial injury insurance fifty-third, apply for work-related injuries of employees or relatives, the unit employees for work-related injury confirmation disaffected, should first apply for administrative reconsideration, the administrative reconsideration, and bring an administrative lawsuit according to law. people considered to be the administrative reconsideration. The labor department "work-related injuries that way" the nineteenth regulation: employees or their immediate family members, the employing unit refuses to accept the decision on not accepting inductrial injury or if the party refuses to accept the decision, apply for administrative reconsideration or bring an administrative lawsuit is obviously can, without. However, the office of labor and social security ministry recently issued the "notice on the party refuses to accept the administrative reconsideration of inductrial injury problems for the reply", in the application of "reply specifies the work-related injury measures" provisions of article nineteenth, the parties to the inadmissible decision disaffected, can apply for administrative reconsideration or bring an administrative lawsuit according to law, the administrative reconsideration not the preceding procedure. What need Reconsideration? Public opinions are divergent.
Gazette of the Supreme People's court in 2006 fifth periodical published Tianjin intermediate court refuses to accept the administrative cases about the ascertainment of a work-related injury which does not mention to preposition of reconsideration. Some people think that is published the case is the neglect of the procedural issues, in this case is how to identify the injury not program; some people think that the Supreme People's court not to make such a mistake, this case also shows that the injuries that do not accept administrative reconsideration; please tell me!

The < > industrial injury insurance regulations of article fifty-third on the expression of words, especially with a semicolon, should be the preposition of reconsideration, this year the Supreme People's court administrative tribunal has an answer, but also should be considered for preposition of reconsideration!

Specially for the relevant provisions and case took a careful look, there you find problems:
A work-related injury, "approach" nineteenth and "industrial injury insurance regulations" stipulates that the fifty-third conflict. Although both the implementation time for January 1, 2004, however, the former is the departmental rules and regulations, and the latter is the administrative rules and regulations, according to the provisions of the legislation law, should be applied to higher level of effectiveness of the "industrial injury insurance regulations".
Two, about the general office of the Ministry of labor and social security of the reply, should be to the local competent department of labor finds conflict in practice from the reply, but obviously I didn't totally understand. In fact, the contents of the letter is obviously thinks: "preposition of reconsideration in the application of" ascertainment of a work-related injury measures "provisions of article nineteenth, the parties to a work-related injury confirmation may, in accordance with the" industrial injury insurance regulations "fifty-third regulations", without the preposition of reconsideration is only "party refuses to accept the decision on not accepting". To the administrative organ refuses to accept the reconsideration decision without, which in theory and in practice in the administrative proceedings has reached a basic consensus.
Three, Tianjin High Court of final appeal the case did not mention have administrative reconsideration. Guess is probably the largest in 2004 the regulations just implemented, relevant personnel (including the court office) is not familiar with the relevant provisions of it. Oh.

Attached: party refuses to accept the administrative reconsideration of inductrial injury problems for reply

Labor agency letter (2004) No. 123

Chongqing Administration of Labor and Social Security.
Your bureau on the parties to accept the administrative reconsideration for ascertainment of a work-related injury emergency problem for (Yu Lao She literary (2004) No. 48) has been received. Through the research, we now reply as follows:
In accordance with the provisions of the "Regulations" industrial injury insurance fifty-third, apply for work-related injuries of employees or relatives, the unit employees for work-related injury confirmation disaffected, should first apply for administrative reconsideration, who refuses to accept the decision of administrative reconsideration, then bring an administrative lawsuit according to law.
In applying the "work-related injuries that way" provisions of article nineteenth, the parties to accept the work-related injury confirmation, shall be carried out in accordance with the "Regulations" provisions of the industrial injury insurance fifty-third; the parties to inadmissible decision disaffected, can apply for administrative reconsideration or bring an administrative lawsuit according to law, the administrative reconsideration in this case is not pre procedure.

The general office of the Ministry of labor and social security

Two hundred four years in May 18th
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