On June 9, 2017, Liang Jinhong died suddenly while waiting for the staff of Yingde housing and Urban Rural Development Bureau to check the construction situation in the rental house next to the construction site.
Yingde human resources and Social Security Bureau conducted an investigation and evidence collection after accepting it, and made the decision on the determination of Liang Jinhong’s deemed death at work (hereinafter referred to as the “deemed death at work” No.
The judgment of the first instance held that the case examined the legality of the “administrative reconsideration decision” made by the Yingde municipal government.
Jian’an company refused to accept, and applied to Yingde municipal government for administrative reconsideration on January 15, 2018.
The construction unit with the qualification of the employment subject shall bear the responsibility of work-related injury insurance that the employer should bear according to law.
In accordance with Article 69 of the administrative procedure law of the people’s Republic of China, Liu Caili’s claim was rejected.
In conclusion, in accordance with the provisions of paragraph 1, Article 89 of the administrative procedure law of the people’s Republic of China, the appeal was rejected and the original judgment was upheld..
Yingde municipal human resources and social security bureau made a “deemed death at work” determination that the subject responsible for Liang Jinhong’s work-related injury insurance is Yingde Company of Jian’an company.
The evidence in this case cannot prove the fact that there is engineering subcontracting and subcontracting between Jian’an company and Liang Jinhong, nor can it prove that Liang Jinhong has a labor relationship with Jian’an company.
The “decision of administrative reconsideration” made by Yingde municipal government clearly identifies the facts, correctly applies the law, and the procedure is legal.
With regard to the identification of industrial injury liability for contracted operation, there is no relevant contract or agreement between Liang Jinhong and Jian’an company, and there is no evidence to prove that there is subcontracting, management and employment between Jian’an company and Liang Jinhong.
Second instance: the focus of dispute in this case is whether the decision of administrative reconsideration made by Yingde municipal government is legal.
[2017] 194) on September 25, 2017.
First instance: on March 31, 2016, Zhu zhanxiong signed the standard construction contract for construction projects in Guangdong Province with Jian’an company.
2 of Yingfu re decision (2018), which was revoked on the grounds of unclear facts, insufficient evidence, wrong application basis and illegal procedure in the “determination of deemed death at work” made by Yingde human resources and Social Security Bureau.
It was determined that Liang Jinhong died at work during working hours and positions, and the sudden disease was invalid after rescue within 48 hours.
On March 12, 2018, Yingde municipal government made the decision of administrative reconsideration of Yingde Municipal People’s Government (hereinafter referred to as the decision of administrative reconsideration) No.
Later, Yingde municipal human resources and Social Security Bureau found that the determination was wrong, so it made a “correction explanation on the determination of Liang Jinhong’s deemed death at work” to correct the subject responsible for work-related injury in the form of correction, depriving Jian’an company of the right to state and defend in the process of work-related injury determination according to law, It is a procedural violation.
After the Yingde human resources and Social Security Bureau accepted Liu Caili’s application for work-related injury determination, without investigating and verifying whether there were engineering subcontracting and subcontracting facts between Jian’an company and Liang Jinhong, it directly determined that Liang Jinhong was the “Contractor” of Zhu zhanxiong’s commercial and residential building site constructed by Jian’an company, and made the “determination of deemed death at work”, which was lack of evidence support.
On August 7 of the same year, Zhu zhanxiong signed the construction project contract with Liang Jinhong.
The scope of the contractor with the qualification of employment subject to bear the liability for work-related injury insurance is that the worker recruited by the natural person was injured or killed during the contract business, and Liang Jinhong was the actual constructor of Zhu zhanxiong’s commercial and residential building in this case, Obviously, it does not belong to the category of workers who enjoy industrial injury insurance benefits.
In addition, it was found that the employer was written as “Maoming Maonan Jian’an Group Company Yingde Company” (hereinafter referred to as “Jian’an Company Yingde Company”) in the “deemed death at work” made by Yingde human resources and Social Security Bureau, and then made a correction explanation, correcting the employer as “Maoming Maonan Jian’an Group Co., Ltd”, that is, the third person Jian’an company.
It is pointed out that the erroneous view in the “decision of administrative reconsideration” that the labor relationship should be confirmed through labor dispute arbitration before applying for the determination of work-related injury.
Although the “administrative reconsideration decision” failed to identify that the procedure was illegal, it had no material impact on the revocation of the “deemed death at work” made by Yingde human resources and Social Security Bureau.
Liang Jinhong’s wife liucaili said in the first instance trial that the relevant quantities were settled by Liang Jinhong and Zhu zhanxiong, and the settlement money was called by Zhu zhanxiong to Liang Jinhong.
Liucaili refused to accept, so she filed an administrative lawsuit in this case.
It is in line with the original intention of the establishment of the work-related injury insurance system and the legislative purpose of the regulations on work-related injury insurance and relevant normative documents to include the “Contractor” into the scope of work-related injury insurance, and ensure its right to enjoy the benefits of work-related injury insurance in the event of work-related injuries and deaths.
The construction project pointed to in the two contracts is the same project, namely Zhu zhanxiong commercial and residential building, and Liang Jinhong is the actual constructor.
Gist of the judgment: the contractor with the qualification of employment subject in the field of construction engineering shall bear the industrial injury insurance liability of the injured and injured workers in the illegal subcontracting and subcontracting projects, and the existence of legal or de facto labor relations is not a prerequisite.
About whether Jian’an company should bear Liang Jinhong’s industrial injury insurance liability.
Yingde municipal government believes that Liang Jinhong should not be regarded as having died at work.
Liang Jinhong, as the actual constructor and the “Contractor”, died in the rented house and should be separated from other employed workers in the identification of work-related injuries.
The sued administrative reconsideration decision was revoked on the grounds of unclear facts, insufficient evidence and wrong application basis in the “determination of deemed death at work” made by Yingde human resources and Social Security Bureau, with sufficient grounds.
In addition, the contractor with the qualification of employment subject has violated laws and regulations by subcontracting and subcontracting the contracting business to a natural person who does not have the qualification of employment subject.
Therefore, it was determined that Liang Jinhong’s death was deemed death at work.
On July 25th, 2017, Liu Caili, with Jian’an company as the employer, submitted the application form for industrial injury identification to Yingde human resources and Social Security Bureau, requesting industrial injury identification.
