從大連推行安全生產(chǎn)雇主責(zé)任險探究該險的立法強(qiáng)制ANANALYSISOFTHECOMPULSORYLEGISLATIONONEMPLOYERSLIABILITYINSURANCEFROMT

1、從大連推行安全生產(chǎn)雇主責(zé)任險探究該險的立法強(qiáng)制an analysis of the compulsory legislation on employers liability insurance from the practice in dalianabstractemployers liability insurance is compulsory insurance with the legislative guarantee in most of the developed countries; however under chinas present situation with fr

2、equent accidents in the high-risk profession such as those accidents in coal mine, the legislative status concerning employers liability insurance fall behind. compulsive legislative practice of the employers liability insurance is a significant measure to strengthen and improve the safety of manufa

3、cture, while the lacking and flaw concerning the relative law and other legal documents directly have negative influence on the compulsive legislative practice. first, this paper analyzes the serious backward status quo in comparison with other countries legislative situation of compulsory liability

4、 insurance. the technique for comparison research is used in this part of the essay. second, the employers liability insurance already carried out in the scope of dalian for crew and labor insurance within the category of social security are chosen to have comparison research with, in the analysis f

5、rom overall to specific. regarding the situation of employers liability insurance in china, it must be forced to carry out with reference to the models of international compulsory legislative history. in short, ”analysis and synthesis” as well as “from concrete to abstract, then back to concrete” ar

6、e the two mainly used in the scientific research process for this part of the paper as the method for logical thinking. finally, as the enrichment and realization of the social and practical function of this essay, suggestions are proposed on the improvement and implementation of the compulsory legi

7、slation on employers liability insurance, in three aspects of legislative suggestions, steps and scopes for implementation as well as ensuring measures. considered realistically, the compulsion of employers liability insurance can be practiced from local regulations to national compulsory act. and i

8、ts inter relationship and direct correlation with enterprises registration as well as legal managing scope should be built up, which serves as the basic guarantee for implementary condition.based on the backward status quo of chinas liability insurance legislation and the consequent lack of practice

9、, suggestions have been made on the step-by-step routine of compelling employers liability insurance, that is, from local legislation to unified legislation. to state the suggestions generally, coastal areas with typical significance should be chosen first to practice local legislative compulsion, a

10、nd practical measures from individual experimental unit to ordinary stratification should also be used. relative guarantee suggestions for the compulsive legislative implement include economic and administrative method through limiting business entitys running scope, taxing, and so on. key words: em

11、ployers liability insurance on safety in production, risk, local laws and regulations, legislative comparison research摘要雇主責(zé)任險在世界許多國家都是由立法保證的強(qiáng)制險種，然而在我國諸如煤礦等高危行業(yè)事故頻發(fā)的現(xiàn)狀下，安全生產(chǎn)雇主責(zé)任險的立法強(qiáng)制與相關(guān)法律保障相對滯后。立法強(qiáng)制推行安全生產(chǎn)雇主責(zé)任險是加強(qiáng)企業(yè)安全生產(chǎn)的重要舉措，而相關(guān)法律文件的缺失以及條款的有待完善直接對安全生產(chǎn)雇主責(zé)任險的強(qiáng)制推行產(chǎn)生負(fù)面影響。首先，本論文在同各國安全生產(chǎn)雇主責(zé)任險的強(qiáng)制立法狀況比較研究中分析

12、得出我國雇主責(zé)任險的強(qiáng)制立法嚴(yán)重滯后的狀況；本論文的此部分采用了比較研究方法。其次，本論文選取大連范圍內(nèi)已現(xiàn)實推行的船員雇主責(zé)任險立法狀況以及具有相似性隸屬社會保險范疇的工傷保險作為對象分別與安全生產(chǎn)雇主責(zé)任險進(jìn)行對稱比較研究，從總體概括到具體展開對安全生產(chǎn)雇主責(zé)任險的強(qiáng)制立法進(jìn)行可行性分析；對于所處地位屬非強(qiáng)制難執(zhí)行的安全生產(chǎn)雇主責(zé)任險，借鑒國際經(jīng)驗立法強(qiáng)制推廣是可行與必行之路；簡言之，在邏輯思維方法上，論文此部分的科學(xué)研究過程中主要使用分析和綜合的方法以及從具體到抽象和從抽象上升到具體的方法。最后，作為對于本論文之現(xiàn)實性與社會性功能與要求的豐富與實現(xiàn)，本文對為改進(jìn)與實行安全生產(chǎn)雇主責(zé)任險的

13、強(qiáng)制立法提出了現(xiàn)實的建議，具體將從立法建議、步驟范圍以及保障措施三方面展開；從現(xiàn)實角度考慮，可通過從地方法規(guī)到國家法律強(qiáng)制推行安全生產(chǎn)雇主責(zé)任險，并使之與企業(yè)注冊、法定經(jīng)營范圍等權(quán)限直接相關(guān)，執(zhí)行狀況得到根本保障。本文在揭示了我國雇主責(zé)任險的立法上較他國相比總體發(fā)展落后以及具體規(guī)定方面因缺少實踐所造成的必然缺陷的基礎(chǔ)上，對于已進(jìn)行可行性分析的通過地方立法到統(tǒng)一立法分步驟分階段強(qiáng)制推行安全生產(chǎn)雇主責(zé)任險提出了建議，即選擇具有典型意義的沿海地區(qū)等首先進(jìn)行地方性立法強(qiáng)制，通過個別行業(yè)試點到普通層面的立法強(qiáng)制的現(xiàn)實手段，并由限制企業(yè)法人經(jīng)營范圍、稅收等經(jīng)濟(jì)與行政手段對強(qiáng)制立法的實行予以保障。關(guān)鍵詞：安

14、全生產(chǎn)雇主責(zé)任險；風(fēng)險；地方性法規(guī)；立法比較研究contentsabstract.ii摘要. ivacknowledgement. vcontents.vi. introduction.1 a. definitions on compulsory legislation of employers liability insurance.1b. inadequateness and urgency in the research of compulsory legislation.2c. thesis.3.the status quo of employers liability insuran

15、ce law.5a. introduction of new policies on employers liability insurance in dalian.5b. domestic legislation on employers liability insurance at present. 6 c. legislation on employers liability insurance worldwide.8. feasibility study on compulsory legislation on employers liability insurance.11a. pr

16、oblems in compulsory legislation of employers liability insurance.11b. feasibility study on dalian local compulsory legislation.13. suggestions and strategies for improving the legislation condition .16 a. on the regional scope of local legislation.16 b. on the steps of compulsory legislative proces

17、s.17c. on measures to ensure the enforcement. 19. conclusion.21works cited.24the analysis of the compulsory legislation on employers liability insurance from the practice in dalian i. introductiona. definitions on compulsory legislation of employers liability insurance1. definitions of employers lia

18、bility and the corresponding employers liability insurancea. definition of employers liabilityemployers liability is the basic object or core concept for all the branches of the essay, which is closely concerned with the major aim of the essay: to solve the problem of ensuring employees safety and r

19、ight forcefully. to classify liability, employers liability is sorted as vicarious liability, the precise definition of which is attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution (gerald and kathleen 127).b. d

20、efinition of employers liability insurancethe definition and scope of employers liability insurance is explained plainly in hses guide as follows. the employers liability (compulsory insurance) act 1969 ensures that you have at least a minimum level of insurance cover against any such claims.employe

21、rs liability insurance will enable you to meet the cost of compensation for your employees injuries or illness whether they are caused on or off site（hse 1）. to explain it specifically, under el act the employers liability insurance is identified as the compulsory oblige for employers. thus it ensur

22、es the employees basic fees for industrial injury while helping share the risk of the employers on the other hand.according to my observation and analysis, the following definition of employers liability insurance given in swiss res formal documents could be acceptable for its clarity and simplicity

23、. as an annotation, swiss re is one of the worlds leading and most diversified reinsurers. the definition is the widely used one in the practical cases about employers liability insurance-insurance taken out by employers covering employees against injuries arising out of their employment.b. inadequa

24、teness and urgency in the research of compulsory legislation employers liability insurance is compulsory insurance with the legislative guarantee in most of the developed countries; however under chinas present situation with frequent accidents in the high-risk profession such as those accidents in

25、coal mine, the legislative status concerning employers liability insurance fall behind. compulsive legislative practice of the employers liability insurance is a significant measure to strengthen and improve the safety of manufacture, while the lacking and flaw concerning the relative law and other

26、legal documents directly have negative influence on the compulsive legislative practice. consequently in this essay special attention is given to the aspect of the backward and insufficient legislative situation of employers liability insurance and the feasible way to improve such situation. the pre

27、sent studies in this field can be seen into differently, divided as the research in china and abroad. the researchers in eu and us have gained enough experiences in promoting and extending employers liability insurance, since the situation is that the comparatively fully developed and guaranteed run

28、ning system for employers liability insurance has been set up. the major problems for researchers in eu and us are to maintain the smooth running of the present system and some peripheral problem met in practice, e.g. the insurance certificate given for citizens of eu members moving among the eus bo

29、undary (mps 3). the aim and necessity of this essay lies in its function of filling the vacancy in domestic research. within the scope of chinas research fruits, theres already summarizing reports on the problems of liability insurance development, e.g. the problem of liabil

30、ity insurance development in china written by tian jianxiang. however the inadequateness lies in that the analysis is a general one on all liability insurances, but there is indeed the need for a specified one typically for the employers liability insurance. another inadequatenes

31、s is the lack of practical and feasible solutions and suggestions for the problems. the two inadequatenesses listed above explain the value and function of the chosen thesis without ambiguity. the advantage of this essay in the aspect of thesis is its chosen jurisprudential angle for the specific an

32、alysis on the employers liability insurance and its relevant suggestions. c. thesisthe compulsory legislation on employers liability insurance of manufacturing safety is studied; when the necessity and feasibility (if the national legislation doesnt work, the solution may be to discuss on local comp

33、ulsory regulations) of local compulsory legislation on employers liability insurance is testified, the ultimate aim of the essay is to give practical suggestions on the legislation and implementation of employers liability insurance.ii.the status quo of employers liability insurance law a. introduct

34、ion of new policies on employers liability insurance in dalian for the situation after gradual commitments of the accepted clauses of wto, theres some special limitation with employers liability insurance-motor vehicle insurance, credit insurance, employer liability insurance, statutory insurance, a

35、nd other insurance business not included by the china insurance regulatory commission may not be undertaken or reinsured by any other insurance company not located in the locality of the insurance subject matter, or be covered by any master policy (“china” 2006-12-11).to explain this clause, it is s

36、hown here that special limitations has been set up on the governments side for the specific practice of several insurances which are not included by the china insurance regulatory commission, including employers liability insurance. this is apparently not the only disadvantage, inconvenience and lim

37、itations created by the situation of employers liability insurance. however, the present situation is improving in dalian, for the insurance regulatory commission takes the all-round promotion of employers liability insurance as an important task this year. although the policys emphasis lies in the

38、employers liability insurance for highly dangerous vocations (“dalian” 2006-11-27).the new policy on employers liability insurance is due to a governmental action through executive medium, and the administrative departments enrolled include dalian insurance regulatory commission and dalian administr

39、ation bureau of safety working. guidance in the aspect of policy making is admittedly of significance, but legislative efforts and jurisdictional practices are the expectations of main stream in a country that is governed according to law. mentioning the relationship between the two, the latter can

40、be promoted under the catalyzer like the former.mentioning the specific executive measures practiced in the new round, six practical provisions have been enrolled, e.g. total security office, particular person in charge, accident prevention funds and the confirmation of insurance case (“dalian” 2007

41、-7-31). however, these executives provisions are established by functional department in the form of internal announcements, which consequently limits the effective scope and strength of these provisions. in contrast with laws and regulations, these announcements havent got the entire construction o

42、f juristic action and legal responsibility.b. domestic legislation on employers liability insurance at presentthe ideal present form of employers liability insurance is over the well-set occupational injury protection mechanisms. however, the domestic situation about employers liability insurance is

43、 immature (xu 11). xu feiqiong pays special attention to the parallel run of both employer liability insurance and industrial injury insurance. theres no ground for blame since “coordination development of employer liability insurance and industrial injury insurance” can be looked upon as a predicti

44、ve and long-sighted analysis. however, it would be more appropriate to suggest feasible form of developing the mechanism of employers liability insurance under the situation of the imbalance developed mechanism of industrial injury insurance. after all, theres some similarity between the domestic si

45、tuations of these two sorts, for that they are both going on the way. the main difference simply lies in the degree, while the nature remains under two immature, developing and reforming mechanisms.despite the existence of compulsory social welfare plans, employers liability which is elective is an

46、exposure requiring consideration (willis 19). this statement is the confirmation of willis brain trust as their prediction for chinas insurance market. it indirectly confirms the present legislative situation of employers liability insurance, neither as the compulsory parts in the social welfare pla

47、ns, nor facing a dim prospect for the governmental action and spirit between the lines of internal announcements. the regulatory framework concerning work injury and employers liability insurance is not fully set up till now, with the first law in 1951. the current laws include 1953 (directive), 197

48、8 (permanent employees directive), 1986 (contract workers directive), 1996 (directive), 2003 (employment injury directive), and 2004 (rural migrants directive). the special address is needed here as the corresponding type of program for nonparticipating enterprises for local government-administered

49、social insurance system should go under employer-liability scheme (the u.s. social security administration 7). the analysis of the u.s. social security administration shows their right acknowledgement the insurances such like the employers liability insurance as a cushion and diversion of employers

50、liability and possible economic danger. chinas highest legislative mechanism and highest executive mechanism is identical. this leaves out space to think about the reason for which executive medium are chosen under the central governments will to promote and carry out employers liability insurance i

51、n a wide range. on analyzing the listed laws above, the situation can be clarified easily that china is in a state in which the primary task is to get the responsibility clear. questions on how to take the responsibility are the second step to be worked out. the second reason is for our imbalanced s

52、ituation of employers liability as a result of reform, continuous fast development and regional diversity. of the 3 factors listed, the regional diversity is apparently as a result of multiple influences, including gap between town and country, between coastal areas and inland, etc.c. legislation on

53、 employers liability insurance worldwide as a comparative study of legislation on employers liability insurance, the worldwide legislative mechanism and distribution with distinctive degrees should be seen into. the legislative situation of developed countries, including countries from northern amer

54、ica such as canada and u.s., developed countries from western europe such as u.k. and france, the countries from northern europe especially outstanding in social security systems such as finland and norway, adding to japan and australia. these developed countries legislations on employers liability

55、insurance vary in degree, but they are basically in the same stage as they have already set up a compulsive mechanism of employers liability insurance nationwide. they are now in a second round of legislation concerning the all-round development and adaptation of the old security system.the employer

56、s' liability (compulsory insurance) regulations 1998 was the compulsory legislation in u.k. coming into force at 1st january 1999 (the employers' liability (compulsory insurance) regulations 1998 6). it was made on the base of the employers' liability (compulsory insurance) act 1969, whi

57、ch means good practicing condition of employers liability mechanism after 30 years of practice.the principal changes made by the regulations are: - that the sum to be insured is raised from not less than two million pounds to not less than five million pounds;-the prescribed wording on the certificates gives more information about the cover provided (the employers' liability (compulsory insurance) regulations 1998 6)this passage taken from the regulations proves the conclusion of the major mi