By Lily Zhai

China has now acquired the fame of being ‘the world’s factory’, as ‘made-in-China’ products invade every corner of the world. But behind the fame hide numerous tragic stories. Hundreds of thousands of migrants from countryside pay a massive price for working in the burgeoning factories along the coastal area. They are victims of industrial accidents and occupational diseases. How to resolve and deal with the results of occupational injury and disease, and how to prevent more occupational injury and disease from happening, are the aims of the legal system.

Industrial accidents and occupational diseases are under-regulated in China, though the National People’s Congress has enacted three statutes concerning workers’ safety and health. The means of occupational injury and disease relief include work-related injury insurance, civil liability insurance, and civil compensation. The legal system of Chinese occupational injury and disease relief should be centered on these three means.

Work-related injury insurance has the advantage of being timely, certain, and compensating without finding fault; therefore it should become the major relief method of professional damages. The current work injury insurance system of China was established in the 1980s. By now it has become a nation-wide system. The coverage area of work injury insurance has expanded and the number of subscribers and beneficiaries has substantially increased. Despite the short history of its establishment, the PRC work injury insurance has played a crucial role in providing relief to victims of occupational disease and injury. Subscribers who have obtained work injury certificates are able to receive compensation. This helps to minimize disputes between workers and employers and mitigate social conflicts. However the system still harbours a lot of problems, such as limitations to the actual payment of work injury compensation: low level of insurance benefits, the rarity of payment of benefits on a regular basis,the fund’s payment of only limited compensation itemsand minimal rehabilitative benefits. Now, the People’s Republic of China Social Security Law draft has been announced to the society and is in a discussion period. In this draft, there are some new superior and progressive elements. It is the first time to regulate the funds to pay expenses for workers with no insurance, the first time to regulate the fund’s right to recovery and to emphasize simplicity and convenience of procedure. All of the above should be approved. But the work-related insurance should cover more people such domestic servants and trainees, the insurance premium rate should be of wider ranges (i.e. between lowest and highest rates), the floating rate should be more adjustable (i.e. according to the type, severity and frequency of accidents) and the insurance rate should be regulated by several departments, including others responsible for health and safety, not just the Labour Bureau. These could help to have a greater deterrent effect on violating employers. Even though the draft has emphasized the importance of a simple process, it needs to be more concrete and bolder in change. Work –related injury insurance funds need to take on the majority of responsibilities, be responsible for medical expenses relating to treating professional damages, increase the payment for injuries and for treatment of the handicapped, and emphasize on–time payment and professional recovery.

In recent years, the occupational injury and disease civil compensations system has developed quickly. But in the current civil compensation system there exist sub-citizen and super-citizen treatments, due to different identities and different standards. Although the no-fault responsibility principle alleviates labourers’ responsibility to hold evidence, through labour arbitration and civil litigation procedures, labourers can only receive compensation equivalent to work-related injury insurance payment. This type of limited compensation has led to some negative results, including occupational injury and disease caused by intentional and seriously negligence behavior, affecting the promotion of work-related injury insurance system, and labourers not being sufficiently compensated. I believe that in cases where occupational injury and disease is caused by general negligence of the work unit, work-related injury insurance should play the role of substituting civil compensation. In cases where occupational injury and disease is caused by intentional or serious negligence of the work unit, regardless of whether the work unit has joined work-related injury insurance, the work-related injury insurance fund should assume the responsibility of payment first, and can ask for recoupment from the work unit, while the labourer has the right to ask for additional civil compensation by civil litigation. In cases where occupational injury and disease is caused by a third party other than the work unit, regardless of whether the work unit has joined work-related insurance, work-related injury insurance should first assume the payment responsibility and has the right to ask for recoupment from the third party, while the labourer can ask for additional civil compensation by civil litigation.

The development of the Industrial Revolution led to a large number of occupation damages, but those injured could not be compensated from the infringement system, thus giving rise to employer liability insurance. In China the scale of employer liability insurance is relatively small. Especially since the compulsory work-related injury insurance system was carried out, employer liability insurance has been in decline. In the current situation where the work unit still takes up relatively large responsibilities even after they have joined work-related insurance, it should be allowed to disperse the losses of the enterprise through the mode of civil liability insurance, and enterprises should be encouraged to join employer liability insurance to undertake the function of supplementing work-related injury insurance payment. It would help ensure that employees get their due compensation.