摘要
职工因见义勇为负伤,能否纳入视同工伤,实践争议不断。在法律规定模糊的情况下,指导案例94号运用目的和体系解释,将见义勇为,即为制止违法犯罪行为而负伤行为纳入视同工伤。但该案裁判要旨的射程及与《工伤保险条例》十五条第一款第二项规定的关系仍需厘清:《条例》该项规定应当限缩为维护公共利益所面临紧迫危险而负伤的行为;本案的裁判要旨应为:“职工见义勇为,为制止公共利益面临紧迫危险的违法犯罪行为而受到伤害的,属于视同工伤情形”;以“抢险救灾行为”为参照物,见义勇为行为与该项规定具有一致性。裁判要旨的射程为“保护公共利益所面临的紧迫性行为”。因此,勇于救人而负伤可以纳入视同工伤。最后,社会效果考量也是解释过程要考虑的因素。
In legal practice, it is controversial whether injury from the act of bravery can be integrated into work-related injuries. In the case of ambiguous legal provisions, the case No. 94, using the interpretation of purpose and system, regards the injury from the act of bravery, i.e. the injury caused by the suppression of criminal activities, as work injuries. However, the relationship between the scope of the referee's keynote and the provisions of the first paragraph of Article 15 of the Work Injury Insurance Regulations still needs to be clarified. While the provisions of the Regulations should be limited to the immediate danger for maintaining the public interest, the behavior of the referee in this case should be "when the employees are willing to act in a courageous manner, in order to stop the public interest from being exposed to urgent and dangerous criminal acts, they are treated as the same as the work-related injury situation". Taking the act of rescue and disaster relief as the reference object, the provision of the act of bravery is consistent with the above article, as the scope of the referee's purpose is "the urgent behavior that the public interest is protected." Therefore, the injury from saving people courageously can be treated the same as work-related injury. Finally, factors of social effects need to be taken into account in the process of interpretation.
作者
王由海
WANG Youhai(Law School, East China University of Political Science and Law, Shanghai 200042)
出处
《中国劳动关系学院学报》
2019年第4期67-74,共8页
Journal of China University of Labor Relations
基金
华东政法大学校级创新项目“宪法学与行政法学前沿问题研讨”(项目编号:2018-2-014)的阶段性成果
关键词
见义勇为
视同工伤
制止犯罪
勇于救人
社会效果
the act of bravery
to be treated the same as work-related injury
stopping the crime
to save people courageously
social effects
