One, brief introduction of details of a case
On March 17, 2015, some signs A company and Sha Mou the driver recruits a contract, both sides establishs working relationship, station of sanded such-and-such work is driver of car of broken bits earth, the deadline that recruit is 1 year (come from March 17, 2015 on March 17, 2016) , yearly salary 70000 yuan. On May 15, 2015 02 when make 05 minutes, in carrying process of broken bits earth, some produces Sha Mou traffic accident, send C 6, C 7, T 1, 2 thorn of T dash forward injury of injury of marrow of fracture, neck, much place parenchyma, via hospital cure, sand is such-and-such left hospital on June 10, 2015, hospital issue disease medical certificate, cease 8 weeks, outpatient service checks. Of the same age on August 17 hospital issue disease medical certificate, the proposal rests a month. Classics policeman branch is maintained, sanded such-and-such negative accident is coequal responsibility. On June 19, 2016, sand is such-and-such be maintained to be inductrial injury by area manpower resource and social security bureau, of the same age on November 13, sha Zhongjun uses appraisal of ability appraisal committee via city service, the degree that cause damage is 9 class. Sand is such-and-such after getting hurt, a company on July 3, 2015, will pay Sha Mou respectively with cost-of-living name on July 17 some 1200 yuan, 4000 yuan, will pay 1000 yuan with salary name on September 26, these 3 money all do not have sanded such-and-such autograph. Additional, sand is such-and-such on April 20, 2015 pay is gotten in A company 2000 yuan. Sand is such-and-such after entering office, a company was not sanded such-and-such conduction society to be sure all the time.
Some loss that because of this inductrial injury causes is Sha Mou: Medical treatment expends 1254 yuan (the portion that already recouped A company to pay) , allowance of food of be in hospital expends 520 yuan (20 yuan everyday, 26 days) , nurse expend 5520 yuan (during be in hospital 120 yuan everyday, 26 days; After leaving hospital 80 yuan everyday, drink to be calculated by 30 days surely according to the sanded such-and-such court that hurt feeling) , traffic expends 300 yuan (the court drinks calm) , shutdown takes firewood period salary 35000 yuan (70000 yuan / year, calculate by 6 months) , one-time disable grant-in-aid 52500 yuan (70000 yuan of ÷ 12 months × 9 months) , grant-in-aid of medical treatment of one-time inductrial injury 50000 yuan, one-time disable obtain employment grant-in-aid 25000 yuan, appraisal expends 200 yuan, aggregate 170294 yuan.
On March 8, 2017, sand is such-and-such submit to to arbitrate, with day, controversy of area labor personnel matters is arbitral committee is terminative cognizance. Sand is such-and-such to forensic to lodge a complaint.
Labor contract law
2, forensic judge point of view
The court thinks via cognizance, the driver that concludes between some and some A company dene recruits a contract of not lawbreaking, administrative regulations mandatory standard, should belong to lawful and effective. Fulfill in this labor contract in, the loss that some suffers because of inductrial injury ought to get Sha Mou compensation. In this case, a company did not machine insurance for sanded such-and-such ginseng, the agree carries Sha Mou the pecuniary loss that some causes because of inductrial injury. The sanded such-and-such degree that cause damage is 9 class, its put forward to remove labor contract does not violate afore-mentioned regulations, a company is contradictory the working relationship with its and such-and-such sand is not legal must remove the opinion of case does not grant to adopt, remove since the day that the working relationship with A company and such-and-such sand makes from appraisal of the degree that cause damage, a company ought to pay one-time disable grant-in-aid of grant-in-aid, medical treatment of one-time inductrial injury and one-time disable obtain employment grant-in-aid.
Leave firewood period about shutdown, according to legal provision, do not exceed 12 months commonly. In this case, the diagnostic proof that issues according to the injury affection with such-and-such sand and hospital, this academy drinks decide its shutdown to leave firewood period to be 6 months. Sha Mou needs to nurse after some injury, a company should pay to nurse accordingly charge. 8200 yuan when pay after sanded such-and-such injury about A company, some advocates Sha Mou to all do not answer to give in inductrial injury loss deduct, this academy thinks, the salary of 2000 yuan of departments that paid on April 23, 2015, and before happening in accident of sanded such-and-such inductrial injury, reason do not answer plan leave firewood to expect to encounter into shutdown, give in inductrial injury loss deduct; On July 3, 2015, on July 17 and on September 26 3 money plan 6200 yuan, although on July 3, 2 will pay with cost-of-living name on July 17, but the labor contract that concludes according to both sides, join the details of a case of this case, ought to maintain for salary, these 6200 yuan answer plan take firewood period salary into shutdown, give in loss of sanded such-and-such inductrial injury deduct. About A company contradictory Sha Mou some because this traffic accident brings about his to produce huge pecuniary loss, ask some compensates for Sha Mou, be not this case to try limits, and order of the buy before arbitrating without passing, a company can advocate separately.
The court adjudicates finally: (one) accuser sand is such-and-such the working relationship with company of the accused A removes since the day that from Sha Mou some delivers damage level appraisal to make; (2) company of the accused A pays accuser sand salary of insurance of such-and-such inductrial injury 170294 yuan, deduct prepaid 6200 yuan, more than 164094 yuan, the day that produces legal effectiveness at this court decision rises 10 days inside paid.
Court
3, lawyer viewpoint
Zhang Chengliang of group of attorney of state of your kind effort of Nanjing of office of Jiangsu Ning Lian's attorney's lawyer thinks, according to " byelaw of inductrial injury insurance " the 62nd the 2nd section provision: "The worker of unit of choose and employ persons that this orders provision ought to join according to to inductrial injury is sure and did not attend inductrial injury to be sure produces inductrial injury, the project of pay of inductrial injury insurance that sets according to this byelaw by unit of this choose and employ persons and standard pay fee. Unit of choose and employ persons attends inductrial injury to be sure and fill capture ought to after the inductrial injury insurance premium of pay, fine for delaying payment, by inductrial injury the regulation of this byelaw pays insurance fund and according to of unit of choose and employ persons the fee that new happening. " A company is after relationship of such-and-such and as certain as sand working, not was society of sanded such-and-such pay to be sure lawfully, sand is such-and-such inductrial injury happens during working relationship puts add, a company ought to recoup the loss that some suffers Sha Mou accordingly lawfully.
In the meantime, according to " byelaw of inductrial injury insurance " the 33rd: "The worker suffers a thing to reason is harmed or suffer from occupational disease to need to suspend the job accepting inductrial injury iatrical because of the job, firewood period stays in shutdown inside, pay of former wages material benefits is changeless, by the place the unit pays by the month. Shutdown leaves firewood period not to exceed 12 months commonly. Injury situation is serious or the situation is special, via setting the city stage of the area committee of labor ability appraisal affirms, can lengthen appropriately, but lengthen must not exceed 12 months. Assess of inductrial injury worker disables after grade, stop hair primary treatment, enjoy incomplete treatment according to the concerned regulation of this chapter. Inductrial injury worker still requires treatment after shutdown leaves firewood to expire, continue to enjoy treatment of inductrial injury medical treatment. The inductrial injury worker that the life cannot provide for oneself leaves firewood period to need to nurse in shutdown, by the place the unit is in charge of. " the court drinks decide sanded such-and-such shutdown to leave firewood period to be 6 months, regulation of be good law.
According to " byelaw of inductrial injury insurance " the 37th regulation: "The worker sends incomplete to be disabled to 10 class for 7 class by appraisal because of labour, enjoy the following treatment: (one) from inductrial injury insurance fund is pressed disable grade pays one-time disable grant-in-aid, the standard is: 7 class disable this person pay that is 13 months, 8 class disable this person pay that is 11 months, 9 class disable this person pay that is 9 months, 10 class disable this person pay that is 7 months; (2) the labor, termination of contract that recruit is stopped, or him worker puts forward to remove of the labor, contract that recruit, by inductrial injury insurance fund pays medical treatment of one-time inductrial injury subsidy, pay by unit of choose and employ persons one-time disable obtain employment grant-in-aid. Grant-in-aid of medical treatment of one-time inductrial injury and one-time disable the specific standard of obtain employment grant-in-aid is set by government of people of province, municipality, municipality directly under the Central Government. " sand is such-and-such be disabled for 9 class by appraisal, ought to obtain compensate one-time disable grant-in-aid (9 him months salary)
Law China
Additional, according to " Jiangsu province carries out < byelaw of inductrial injury insurance > method " the 27th the first: "The worker sends incomplete to be by appraisal because of labour 5 disable to 10 class, according to " byelaw " when regulation and unit of choose and employ persons remove or stopping labor to concern, by inductrial injury insurance fund pays medical treatment of one-time inductrial injury subsidy, pay by unit of choose and employ persons one-time disable obtain employment grant-in-aid. The standard level of grant-in-aid of medical treatment of one-time inductrial injury is: 5 class 200 thousand yuan, 6 class 160 thousand yuan, 7 class 120 thousand yuan, 8 class 80 thousand yuan, 9 class 50 thousand yuan, 10 class 30 thousand yuan. One-time disable the standard level of obtain employment grant-in-aid is: 5 class 95 thousand yuan, 6 class 85 thousand yuan, 7 class 45 thousand yuan, 8 class 35 thousand yuan, 9 class 25 thousand yuan, 10 class 15 thousand yuan. " sand is such-and-such 9 class disable put forward actively to remove with A company after the contract, ought to obtain compensate grant-in-aid of medical treatment of one-time inductrial injury (50 thousand yuan) , one-time disable obtain employment grant-in-aid (25 thousand yuan) . Disseminate life law little knowledge, here is Toutiao law eye shot, we fall period see!
