工傷保險行政給付與第三人侵權賠償關係的再反思──基於954份判決的實證研究

勞動者遭遇第三人侵權時，既可以主張工傷保險理賠，又可以主張侵權損害賠償。二者的關係在司法上長期未有定論，而2014年出臺的《最高人民法院關於審理工傷保險行政案件若干問題的規定》試圖解決這一問題。通過對954份裁判文書的收集和分析，可知該規定在實踐中遠未取得一錘定音的預期效果，司法機關對於工傷理賠和侵權損害賠償的關係仍有顯著的認知分歧。究其原因，該規定本身含義不清，又缺乏立法的支撐，且與行政規則銜接不緊密。為此應當從學理上澄清工傷保險與侵權責任的關係，運用多種解釋方法開示該規定的意涵，從而選擇合理的裁判模式。

When workers encounter third-party torts, they can claim compensation either for industrial injury insurance or for third-party tort. The relationship between the two poses an open question to the judiciary for a long period of time, which was the subject of the Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Administrative Cases of Industrial Injury Insurance issued in 2014. According to our analysis of 954 judicial documents, it can be verified that the provision aforementioned is far from achieving the once-for-all effect in practice as expected. Cognitive divergence is still significant among judicial authorities in regard to the compensation for industrial injuries or tort damages. This problem derives from the ambiguous contents of the provision, its lack of legislative support, as well as the inadequate connection between legal provisions and administrative rules. Therefore, it is necessary to clarify the relationship between industrial injury insurance and tort liability from the theoretical perspective by employing multiple interpretation methods on the meaning of the provision, so that a reasonable choice can be made among judgement models.