从大连推行安全生产雇主责任险探究该险的立法强制AN ANALYSIS OF THE COMPULSORY LEGISLATION ON EMPLOYER’S LIABILITY INSURANCE FROM THE PRACTICE IN DALIAN.doc

从大连推行安全生产雇主责任险探究该险的立法强制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 frequent 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 manufacture, 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 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 from 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” are 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 legislation 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 its 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, 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, and 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: Employers Liability Insurance on safety in production, Risk, Local laws and regulations, Legislative comparison research摘要雇主责任险在世界许多国家都是由立法保证的强制险种，然而在我国诸如煤矿等高危行业事故频发的现状下，安全生产雇主责任险的立法强制与相关法律保障相对滞后。立法强制推行安全生产雇主责任险是加强企业安全生产的重要举措，而相关法律文件的缺失以及条款的有待完善直接对安全生产雇主责任险的强制推行产生负面影响。首先，本论文在同各国安全生产雇主责任险的强制立法状况比较研究中分析得出我国雇主责任险的强制立法严重滞后的状况；本论文的此部分采用了比较研究方法。其次，本论文选取大连范围内已现实推行的船员雇主责任险立法状况以及具有相似性隶属社会保险范畴的工伤保险作为对象分别与安全生产雇主责任险进行对称比较研究，从总体概括到具体展开对安全生产雇主责任险的强制立法进行可行性分析；对于所处地位属非强制难执行的安全生产雇主责任险，借鉴国际经验立法强制推广是可行与必行之路；简言之，在逻辑思维方法上，论文此部分的科学研究过程中主要使用分析和综合的方法以及从具体到抽象和从抽象上升到具体的方法。最后，作为对于本论文之现实性与社会性功能与要求的丰富与实现，本文对为改进与实行安全生产雇主责任险的强制立法提出了现实的建议，具体将从立法建议、步骤范围以及保障措施三方面展开；从现实角度考虑，可通过从地方法规到国家法律强制推行安全生产雇主责任险，并使之与企业注册、法定经营范围等权限直接相关，执行状况得到根本保障。本文在揭示了我国雇主责任险的立法上较他国相比总体发展落后以及具体规定方面因缺少实践所造成的必然缺陷的基础上，对于已进行可行性分析的通过地方立法到统一立法分步骤分阶段强制推行安全生产雇主责任险提出了建议，即选择具有典型意义的沿海地区等首先进行地方性立法强制，通过个别行业试点到普通层面的立法强制的现实手段，并由限制企业法人经营范围、税收等经济与行政手段对强制立法的实行予以保障。关键词：安全生产雇主责任险；风险；地方性法规；立法比较研究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 Insurance 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. Problems 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 process.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 Liability 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 right 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. Definition 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.Employers 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 ensures 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. 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. Inadequateness 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 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 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 present 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 running 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 boundary (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 Liability 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 inadequateness 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 analysis 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 compulsory 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. Introduction 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, and 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 shown 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 limitations 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 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 Administration 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 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” 2007-7-31). 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 of 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 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 predictive 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 situations 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 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 plans, 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), 1978 (permanent employees directive), 1986 (contract workers directive), 1996 (directive), 2003 (employment injury directive), and 2004 (rural migrants directive). The special address is needed here