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发文标题: 工伤保险条例[附英文]
发文文号: 国务院令第375号
发文部门: 国务院
发文时间: 2003-4-27
实施时间: 2004-1-1
法规类型: 社会保障 工伤保险
所属行业: 所有行业
所属区域: 中国
阅读人次: 7437
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发文内容:

  《工伤保险条例》已经2003年4月16日国务院第5次常务会议讨论通过,现予公布,自2004年1月1日起施行。
  总理:温家宝
  二00三年四月二十七日

  工伤保险条例

  第一章 总 则

  第一条 为了保障因工作遭受事故伤害或者患职业病的职工获得医疗救治和经济补偿,促进工伤预防和职业康复,分散用人单位的工伤风险,制定本条例。
  第二条 中华人民共和国境内的各类企业、有雇工的个体工商户(以下称用人单位)应当依照本条例规定参加工伤保险,为本单位全部职工或者雇工(以下称职工)缴纳工伤保险费。
  中华人民共和国境内的各类企业的职工和个体工商户的雇工,均有依照本条例的规定享受工伤保险待遇的权利。
  有雇工的个体工商户参加工伤保险的具体步骤和实施办法,由省、自治区、直辖市人民政府规定。
  第三条 工伤保险费的征缴按照《社会保险费征缴暂行条例》关于基本养老保险费、基本医疗保险费、失业保险费的征缴规定执行。
  第四条 用人单位应当将参加工伤保险的有关情况在本单位内公示。
  用人单位和职工应当遵守有关安全生产和职业病防治的法律法规,执行安全卫生规程和标准,预防工伤事故发生,避免和减少职业病危害。
  职工发生工伤时,用人单位应当采取措施使工伤职工得到及时救治。
  第五条 国务院劳动保障行政部门负责全国的工伤保险工作。
  县级以上地方各级人民政府劳动保障行政部门负责本行政区域内的工伤保险工作。
  劳动保障行政部门按照国务院有关规定设立的社会保险经办机构(以下称经办机构)具体承办工伤保险事务。
  第六条 劳动保障行政部门等部门制定工伤保险的政策、标准,应当征求工会组织、用人单位代表的意见。
  
  第二章 工伤保险基金
  第七条 工伤保险基金由用人单位缴纳的工伤保险费、工伤保险基金的利息和依法纳入工伤保险基金的其他资金构成。
  第八条 工伤保险费根据以支定收、收支平衡的原则,确定费率。
  国家根据不同行业的工伤风险程度确定行业的差别费率,并根据工伤保险费使用、工伤发生率等情况在每个行业内确定若干费率档次。行业差别费率及行业内费率档次由国务院劳动保障行政部门会同国务院财政部门、卫生行政部门、安全生产监督管理部门制定,报国务院批准后公布施行。
  统筹地区经办机构根据用人单位工伤保险费使用、工伤发生率等情况,适用所属行业内相应的费率档次确定单位缴费费率。
  第九条 国务院劳动保障行政部门应当定期了解全国各统筹地区工伤保险基金收支情况,及时会同国务院财政部门、卫生行政部门、安全生产监督管理部门提出调整行业差别费率及行业内费率档次的方案,报国务院批准后公布施行。
  第十条 用人单位应当按时缴纳工伤保险费。职工个人不缴纳工伤保险费。
  用人单位缴纳工伤保险费的数额为本单位职工工资总额乘以单位缴费费率之积。
  第十一条 工伤保险基金在直辖市和设区的市实行全市统筹,其他地区的统筹层次由省、自治区人民政府确定。
  跨地区、生产流动性较大的行业,可以采取相对集中的方式异地参加统筹地区的工伤保险。具体办法由国务院劳动保障行政部门会同有关行业的主管部门制定。
  第十二条 工伤保险基金存入社会保障基金财政专户,用于本条例规定的工伤保险待遇、劳动能力鉴定以及法律、法规规定的用于工伤保险的其他费用的支付。任何单位或者个人不得将工伤保险基金用于投资运营、兴建或者改建办公场所、发放奖金,或者挪作其他用途。
  第十三条 工伤保险基金应当留有一定比例的储备金,用于统筹地区重大事故的工伤保险待遇支付;储备金不足支付的,由统筹地区的人民政府垫付。储备金占基金总额的具体比例和储备金的使用办法,由省、自治区、直辖市人民政府规定。

  第三章 工伤认定  
  第十四条 职工有下列情形之一的,应当认定为工伤:
  (一)在工作时间和工作场所内,因工作原因受到事故伤害的;
  (二)工作时间前后在工作场所内,从事与工作有关的预备性或者收尾性工作受到事故伤害的;
  (三)在工作时间和工作场所内,因履行工作职责受到暴力等意外伤害的;
  (四)患职业病的;
  (五)因工外出期间,由于工作原因受到伤害或者发生事故下落不明的;
  (六)在上下班途中,受到机动车事故伤害的;
  (七)法律、行政法规规定应当认定为工伤的其他情形。
  第十五条 职工有下列情形之一的,视同工伤:
  (一)在工作时间和工作岗位,突发疾病死亡或者在48小时之内经抢救无效死亡的;
  (二)在抢险救灾等维护国家利益、公共利益活动中受到伤害的;
  (三)职工原在军队服役,因战、因公负伤致残,已取得革命伤残军人证,到用人单位后旧伤复发的。
  职工有前款第(一)项、第(二)项情形的,按照本条例的有关规定享受工伤保险待遇;职工有前款第(三)项情形的,按照本条例的有关规定享受除一次性伤残补助金以外的工伤保险待遇。
  第十六条 职工有下列情形之一的,不得认定为工伤或者视同工伤:
  (一)因犯罪或者违反治安管理伤亡的;
  (二)醉酒导致伤亡的;
  (三)自残或者自杀的。
  第十七条 职工发生事故伤害或者按照职业病防治法规定被诊断、鉴定为职业病,所在单位应当自事故伤害发生之日或者被诊断、鉴定为职业病之日起30日内,向统筹地区劳动保障行政部门提出工伤认定申请。遇有特殊情况,经报劳动保障行政部门同意,申请时限可以适当延长。
  用人单位未按前款规定提出工伤认定申请的,工伤职工或者其直系亲属、工会组织在事故伤害发生之日或者被诊断、鉴定为职业病之日起1年内,可以直接向用人单位所在地统筹地区劳动保障行政部门提出工伤认定申请。
  按照本条第一款规定应当由省级劳动保障行政部门进行工伤认定的事项,根据属地原则由用人单位所在地的设区的市级劳动保障行政部门办理。
  用人单位未在本条第一款规定的时限内提交工伤认定申请,在此期间发生符合本条例规定的工伤待遇等有关费用由该用人单位负担。
  第十八条 提出工伤认定申请应当提交下列材料:
  (一)工伤认定申请表;
  (二)与用人单位存在劳动关系(包括事实劳动关系)的证明材料;
  (三)医疗诊断证明或者职业病诊断证明书(或者职业病诊断鉴定书)。
  工伤认定申请表应当包括事故发生的时间、地点、原因以及职工伤害程度等基本情况。
  工伤认定申请人提供材料不完整的,劳动保障行政部门应当一次性书面告知工伤认定申请人需要补正的全部材料。申请人按照书面告知要求补正材料后,劳动保障行政部门应当受理。
  第十九条 劳动保障行政部门受理工伤认定申请后,根据审核需要可以对事故伤害进行调查核实,用人单位、职工、工会组织、医疗机构以及有关部门应当予以协助。职业病诊断和诊断争议的鉴定,依照职业病防治法的有关规定执行。对依法取得职业病诊断证明书或者职业病诊断鉴定书的,劳动保障行政部门不再进行调查核实。
  职工或者其直系亲属认为是工伤,用人单位不认为是工伤的,由用人单位承担举证责任。
  第二十条 劳动保障行政部门应当自受理工伤认定申请之日起60日内作出工伤认定的决定,并书面通知申请工伤认定的职工或者其直系亲属和该职工所在单位。
  劳动保障行政部门工作人员与工伤认定申请人有利害关系的,应当回避。
  
  第四章 劳动能力鉴定
  第二十一条 职工发生工伤,经治疗伤情相对稳定后存在残疾、影响劳动能力的,应当进行劳动能力鉴定。
  第二十二条 劳动能力鉴定是指劳动功能障碍程度和生活自理障碍程度的等级鉴定。
  劳动功能障碍分为十个伤残等级,最重的为一级,最轻的为十级。
  生活自理障碍分为三个等级:生活完全不能自理、生活大部分不能自理和生活部分不能自理。
  劳动能力鉴定标准由国务院劳动保障行政部门会同国务院卫生行政部门等部门制定。
  第二十三条 劳动能力鉴定由用人单位、工伤职工或者其直系亲属向设区的市级劳动能力鉴定委员会提出申请,并提供工伤认定决定和职工工伤医疗的有关资料。
  第二十四条 省、自治区、直辖市劳动能力鉴定委员会和设区的市级劳动能力鉴定委员会分别由省、自治区、直辖市和设区的市级劳动保障行政部门、人事行政部门、卫生行政部门、工会组织、经办机构代表以及用人单位代表组成。
  劳动能力鉴定委员会建立医疗卫生专家库。列入专家库的医疗卫生专业技术人员应当具备下列条件:
  (一)具有医疗卫生高级专业技术职务任职资格;
  (二)掌握劳动能力鉴定的相关知识;
  (三)具有良好的职业品德。
  第二十五条 设区的市级劳动能力鉴定委员会收到劳动能力鉴定申请后,应当从其建立的医疗卫生专家库中随机抽取3名或者5名相关专家组成专家组,由专家组提出鉴定意见。设区的市级劳动能力鉴定委员会根据专家组的鉴定意见作出工伤职工劳动能力鉴定结论;必要时,可以委托具备资格的医疗机构协助进行有关的诊断。
  设区的市级劳动能力鉴定委员会应当自收到劳动能力鉴定申请之日起60日内作出劳动能力鉴定结论,必要时,作出劳动能力鉴定结论的期限可以延长30日。劳动能力鉴定结论应当及时送达申请鉴定的单位和个人。
  第二十六条 申请鉴定的单位或者个人对设区的市级劳动能力鉴定委员会作出的鉴定结论不服的,可以在收到该鉴定结论之日起15日内向省、自治区、直辖市劳动能力鉴定委员会提出再次鉴定申请。省、自治区、直辖市劳动能力鉴定委员会作出的劳动能力鉴定结论为最终结论。
  第二十七条 劳动能力鉴定工作应当客观、公正。劳动能力鉴定委员会组成人员或者参加鉴定的专家与当事人有利害关系的,应当回避。
  第二十八条 自劳动能力鉴定结论作出之日起1年后,工伤职工或者其直系亲属、所在单位或者经办机构认为伤残情况发生变化的,可以申请劳动能力复查鉴定。
 
  第五章 工伤保险待遇
  第二十九条 职工因工作遭受事故伤害或者患职业病进行治疗,享受工伤医疗待遇。
  职工治疗工伤应当在签订服务协议的医疗机构就医,情况紧急时可以先到就近的医疗机构急救。
  治疗工伤所需费用符合工伤保险诊疗项目目录、工伤保险药品目录、工伤保险住院服务标准的,从工伤保险基金支付。工伤保险诊疗项目目录、工伤保险药品目录、工伤保险住院服务标准,由国务院劳动保障行政部门会同国务院卫生行政部门、药品监督管理部门等部门规定。
  职工住院治疗工伤的,由所在单位按照本单位因公出差伙食补助标准的70%发给住院伙食补助费;经医疗机构出具证明,报经办机构同意,工伤职工到统筹地区以外就医的,所需交通、食宿费用由所在单位按照本单位职工因公出差标准报销。
  工伤职工治疗非工伤引发的疾病,不享受工伤医疗待遇,按照基本医疗保险办法处理。
  工伤职工到签订服务协议的医疗机构进行康复性治疗的费用,符合本条第三款规定的,从工伤保险基金支付。
  第三十条 工伤职工因日常生活或者就业需要,经劳动能力鉴定委员会确认,可以安装假肢、矫形器、假眼、假牙和配置轮椅等辅助器具,所需费用按照国家规定的标准从工伤保险基金支付。
  第三十一条 职工因工作遭受事故伤害或者患职业病需要暂停工作接受工伤医疗的,在停工留薪期内,原工资福利待遇不变,由所在单位按月支付。
  停工留薪期一般不超过12个月。伤情严重或者情况特殊,经设区的市级劳动能力鉴定委员会确认,可以适当延长,但延长不得超过12个月。工伤职工评定伤残等级后,停发原待遇,按照本章的有关规定享受伤残待遇。工伤职工在停工留薪期满后仍需治疗的,继续享受工伤医疗待遇。
  生活不能自理的工伤职工在停工留薪期需要护理的,由所在单位负责。
  第三十二条 工伤职工已经评定伤残等级并经劳动能力鉴定委员会确认需要生活护理的,从工伤保险基金按月支付生活护理费。
  生活护理费按照生活完全不能自理、生活大部分不能自理或者生活部分不能自理3个不同等级支付,其标准分别为统筹地区上年度职工月平均工资的50%、40%或者30%。
  第三十三条 职工因工致残被鉴定为一级至四级伤残的,保留劳动关系,退出工作岗位,享受以下待遇:
  (一)从工伤保险基金按伤残等级支付一次性伤残补助金,标准为:一级伤残为24个月的本人工资,二级伤残为22个月的本人工资,三级伤残为20个月的本人工资,四级伤残为18个月的本人工资;
  (二)从工伤保险基金按月支付伤残津贴,标准为:一级伤残为本人工资的90%,二级伤残为本人工资的85%,三级伤残为本人工资的80%,四级伤残为本人工资的75%。伤残津贴实际金额低于当地最低工资标准的,由工伤保险基金补足差额;
  (三)工伤职工达到退休年龄并办理退休手续后,停发伤残津贴,享受基本养老保险待遇。基本养老保险待遇低于伤残津贴的,由工伤保险基金补足差额。
  职工因工致残被鉴定为一级至四级伤残的,由用人单位和职工个人以伤残津贴为基数,缴纳基本医疗保险费。
  第三十四条 职工因工致残被鉴定为五级、六级伤残的,享受以下待遇:
  (一)从工伤保险基金按伤残等级支付一次性伤残补助金,标准为:五级伤残为16个月的本人工资,六级伤残为14个月的本人工资;
  (二)保留与用人单位的劳动关系,由用人单位安排适当工作。难以安排工作的,由用人单位按月发给伤残津贴,标准为:五级伤残为本人工资的70%,六级伤残为本人工资的60%,并由用人单位按照规定为其缴纳应缴纳的各项社会保险费。伤残津贴实际金额低于当地最低工资标准的,由用人单位补足差额。
  经工伤职工本人提出,该职工可以与用人单位解除或者终止劳动关系,由用人单位支付一次性工伤医疗补助金和伤残就业补助金。具体标准由省、自治区、直辖市人民政府规定。
  第三十五条 职工因工致残被鉴定为七级至十级伤残的,享受以下待遇:
  (一)从工伤保险基金按伤残等级支付一次性伤残补助金,标准为:七级伤残为12个月的本人工资,八级伤残为10个月的本人工资,九级伤残为8个月的本人工资,十级伤残为6个月的本人工资;
  (二)劳动合同期满终止,或者职工本人提出解除劳动合同的,由用人单位支付一次性工伤医疗补助金和伤残就业补助金。具体标准由省、自治区、直辖市人民政府规定。
  第三十六条 工伤职工工伤复发,确认需要治疗的,享受本条例第二十九条、第三十条和第三十一条规定的工伤待遇。
  第三十七条 职工因工死亡,其直系亲属按照下列规定从工伤保险基金领取丧葬补助金、供养亲属抚恤金和一次性工亡补助金:
  (一)丧葬补助金为6个月的统筹地区上年度职工月平均工资;
  (二)供养亲属抚恤金按照职工本人工资的一定比例发给由因工死亡职工生前提供主要生活来源、无劳动能力的亲属。标准为:配偶每月40%,其他亲属每人每月30%,孤寡老人或者孤儿每人每月在上述标准的基础上增加10%。核定的各供养亲属的抚恤金之和不应高于因工死亡职工生前的工资。供养亲属的具体范围由国务院劳动保障行政部门规定;
  (三)一次性工亡补助金标准为48个月至60个月的统筹地区上年度职工月平均工资。具体标准由统筹地区的人民政府根据当地经济、社会发展状况规定,报省、自治区、直辖市人民政府备案。
  伤残职工在停工留薪期内因工伤导致死亡的,其直系亲属享受本条第一款规定的待遇。
  一级至四级伤残职工在停工留薪期满后死亡的,其直系亲属可以享受本条第一款第(一)项、第(二)项规定的待遇。
  第三十八条 伤残津贴、供养亲属抚恤金、生活护理费由统筹地区劳动保障行政部门根据职工平均工资和生活费用变化等情况适时调整。调整办法由省、自治区、直辖市人民政府规定。
  第三十九条 职工因工外出期间发生事故或者在抢险救灾中下落不明的,从事故发生当月起3个月内照发工资,从第4个月起停发工资,由工伤保险基金向其供养亲属按月支付供养亲属抚恤金。生活有困难的,可以预支一次性工亡补助金的50%。职工被人民法院宣告死亡的,按照本条例第三十七条职工因工死亡的规定处理。
  第四十条 工伤职工有下列情形之一的,停止享受工伤保险待遇:
  (一)丧失享受待遇条件的;
  (二)拒不接受劳动能力鉴定的;
  (三)拒绝治疗的;
  (四)被判刑正在收监执行的。
  第四十一条 用人单位分立、合并、转让的,承继单位应当承担原用人单位的工伤保险责任;原用人单位已经参加工伤保险的,承继单位应当到当地经办机构办理工伤保险变更登记。
  用人单位实行承包经营的,工伤保险责任由职工劳动关系所在单位承担。
  职工被借调期间受到工伤事故伤害的,由原用人单位承担工伤保险责任,但原用人单位与借调单位可以约定补偿办法。
  企业破产的,在破产清算时优先拨付依法应由单位支付的工伤保险待遇费用。
  第四十二条 职工被派遣出境工作,依据前往国家或者地区的法律应当参加当地工伤保险的,参加当地工伤保险,其国内工伤保险关系中止;不能参加当地工伤保险的,其国内工伤保险关系不中止。
  第四十三条 职工再次发生工伤,根据规定应当享受伤残津贴的,按照新认定的伤残等级享受伤残津贴待遇。
 
  第六章 监督管理
  第四十四条 经办机构具体承办工伤保险事务,履行下列职责:
  (一)根据省、自治区、直辖市人民政府规定,征收工伤保险费;
  (二)核查用人单位的工资总额和职工人数,办理工伤保险登记,并负责保存用人单位缴费和职工享受工伤保险待遇情况的记录;
  (三)进行工伤保险的调查、统计;
  (四)按照规定管理工伤保险基金的支出;
  (五)按照规定核定工伤保险待遇;
  (六)为工伤职工或者其直系亲属免费提供咨询服务。
  第四十五条 经办机构与医疗机构、辅助器具配置机构在平等协商的基础上签订服务协议,并公布签订服务协议的医疗机构、辅助器具配置机构的名单。具体办法由国务院劳动保障行政部门分别会同国务院卫生行政部门、民政部门等部门制定。
  第四十六条 经办机构按照协议和国家有关目录、标准对工伤职工医疗费用、康复费用、辅助器具费用的使用情况进行核查,并按时足额结算费用。
  第四十七条 经办机构应当定期公布工伤保险基金的收支情况,及时向劳动保障行政部门提出调整费率的建议。
  第四十八条 劳动保障行政部门、经办机构应当定期听取工伤职工、医疗机构、辅助器具配置机构以及社会各界对改进工伤保险工作的意见。
  第四十九条 劳动保障行政部门依法对工伤保险费的征缴和工伤保险基金的支付情况进行监督检查。
  财政部门和审计机关依法对工伤保险基金的收支、管理情况进行监督。
  第五十条 任何组织和个人对有关工伤保险的违法行为,有权举报。劳动保障行政部门对举报应当及时调查,按照规定处理,并为举报人保密。
  第五十一条 工会组织依法维护工伤职工的合法权益,对用人单位的工伤保险工作实行监督。
  第五十二条 职工与用人单位发生工伤待遇方面的争议,按照处理劳动争议的有关规定处理。
  第五十三条 有下列情形之一的,有关单位和个人可以依法申请行政复议;对复议决定不服的,可以依法提起行政诉讼:
  (一)申请工伤认定的职工或者其直系亲属、该职工所在单位对工伤认定结论不服的;
  (二)用人单位对经办机构确定的单位缴费费率不服的;
  (三)签订服务协议的医疗机构、辅助器具配置机构认为经办机构未履行有关协议或者规定的;
  (四)工伤职工或者其直系亲属对经办机构核定的工伤保险待遇有异议的。
  
  第七章 法律责任   
  第五十四条 单位或者个人违反本条例第十二条规定挪用工伤保险基金,构成犯罪的,依法追究刑事责任;尚不构成犯罪的,依法给予行政处分或者纪律处分。被挪用的基金由劳动保障行政部门追回,并入工伤保险基金;没收的违法所得依法上缴国库。
  第五十五条 劳动保障行政部门工作人员有下列情形之一的,依法给予行政处分;情节严重,构成犯罪的,依法追究刑事责任:
  (一)无正当理由不受理工伤认定申请,或者弄虚作假将不符合工伤条件的人员认定为工伤职工的;
  (二)未妥善保管申请工伤认定的证据材料,致使有关证据灭失的;
  (三)收受当事人财物的。
  第五十六条 经办机构有下列行为之一的,由劳动保障行政部门责令改正,对直接负责的主管人员和其他责任人员依法给予纪律处分;情节严重,构成犯罪的,依法追究刑事责任;造成当事人经济损失的,由经办机构依法承担赔偿责任:
  (一)未按规定保存用人单位缴费和职工享受工伤保险待遇情况记录的;
  (二)不按规定核定工伤保险待遇的;
  (三)收受当事人财物的。
  第五十七条 医疗机构、辅助器具配置机构不按服务协议提供服务的,经办机构可以解除服务协议。
  经办机构不按时足额结算费用的,由劳动保障行政部门责令改正;医疗机构、辅助器具配置机构可以解除服务协议。
  第五十八条 用人单位瞒报工资总额或者职工人数的,由劳动保障行政部门责令改正,并处瞒报工资数额1倍以上3倍以下的罚款。
  用人单位、工伤职工或者其直系亲属骗取工伤保险待遇,医疗机构、辅助器具配置机构骗取工伤保险基金支出的,由劳动保障行政部门责令退还,并处骗取金额1倍以上3倍以下的罚款;情节严重,构成犯罪的,依法追究刑事责任。
  第五十九条 从事劳动能力鉴定的组织或者个人有下列情形之一的,由劳动保障行政部门责令改正,并处2000元以上1万元以下的罚款;情节严重,构成犯罪的,依法追究刑事责任:
  (一)提供虚假鉴定意见的;
  (二)提供虚假诊断证明的;
  (三)收受当事人财物的。
  第六十条 用人单位依照本条例规定应当参加工伤保险而未参加的,由劳动保障行政部门责令改正;未参加工伤保险期间用人单位职工发生工伤的,由该用人单位按照本条例规定的工伤保险待遇项目和标准支付费用。
  
  第八章 附 则
  第六十一条 本条例所称职工,是指与用人单位存在劳动关系(包括事实劳动关系)的各种用工形式、各种用工期限的劳动者。
  本条例所称工资总额,是指用人单位直接支付给本单位全部职工的劳动报酬总额。
  本条例所称本人工资,是指工伤职工因工作遭受事故伤害或者患职业病前12个月平均月缴费工资。本人工资高于统筹地区职工平均工资300%的,按照统筹地区职工平均工资的300%计算;本人工资低于统筹地区职工平均工资60%的,按照统筹地区职工平均工资的60%计算。
  第六十二条 国家机关和依照或者参照国家公务员制度进行人事管理的事业单位、社会团体的工作人员因工作遭受事故伤害或者患职业病的,由所在单位支付费用。具体办法由国务院劳动保障行政部门会同国务院人事行政部门、财政部门规定。
  其他事业单位、社会团体以及各类民办非企业单位的工伤保险等办法,由国务院劳动保障行政部门会同国务院人事行政部门、民政部门、财政部门等部门参照本条例另行规定,报国务院批准后施行。
  第六十三条 无营业执照或者未经依法登记、备案的单位以及被依法吊销营业执照或者撤销登记、备案的单位的职工受到事故伤害或者患职业病的,由该单位向伤残职工或者死亡职工的直系亲属给予一次性赔偿,赔偿标准不得低于本条例规定的工伤保险待遇;用人单位不得使用童工,用人单位使用童工造成童工伤残、死亡的,由该单位向童工或者童工的直系亲属给予一次性赔偿,赔偿标准不得低于本条例规定的工伤保险待遇。具体办法由国务院劳动保障行政部门规定。
  前款规定的伤残职工或者死亡职工的直系亲属就赔偿数额与单位发生争议的,以及前款规定的童工或者童工的直系亲属就赔偿数额与单位发生争议的,按照处理劳动争议的有关规定处理。
  第六十四条 本条例自2004年1月1日起施行。本条例施行前已受到事故伤害或者患职业病的职工尚未完成工伤认定的,按照本条例的规定执行。

  Work-related Injury Insurance Regulations

  (Promulgated by the State Council on 27 April 2003 and effective as of 1 January 2004.)

  PART ONE GENERAL PROVISIONS

  Article 1 These Regulations are formulated in order to guarantee availability of medical treatment and economic compensation to staff and workers that suffer from work-related accidental injury or occupational disease, to promote prevention of work-related injury and vocational rehabilitation, and to distribute work-related injury risks of employers.

  Article 2 All types of enterprises and sole traders that hire workers (Employer(s)) shall participate in work-related injury insurance and pay work-related injury insurance premiums for all of the staff and workers or hired workers in their work unit (Employee(s)) in accordance with the provisions hereof.

  The Employees of all types of enterprises and the hired workers of sole traders in the People's Republic of China shall have the right to enjoy the benefits of work-related injury insurance in accordance with the provisions hereof.

  The specific steps and implementing procedures for participation of sole traders that hire workers in work-related injury insurance shall be stipulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government.

  Article 3 Collection and payment of work-related injury insurance premiums shall be carried out in accordance with the provisions in the Collection and Payment of Social Insurance Premiums Tentative Regulations regarding collection and payment of basic old age insurance premiums, basic medical insurance premiums and unemployment insurance premiums.

  Article 4 An Employer shall announce within the work unit the relevant details of its participation in work-related injury insurance.

  An Employer and its Employees shall abide by the laws and regulations regarding safe production and prevention and treatment of occupational diseases, implement safety and health regulations and standards, prevent occurrence of work-related injury accidents and avoid and mitigate the harms of occupational diseases.

  If an Employee suffers from work-related injury, the Employer shall adopt measures to ensure that such Employee receives timely rescue and treatment.

  Article 5 The administrative department of labour security of the State Council shall be in charge of the work of work-related injury insurance throughout the country.

  The administrative departments of labour security of all levels of local people's governments at the county level and above shall be in charge of work-related injury insurance work within their respective administrative areas.

  The social insurance agencies established by the administrative departments of labour security in accordance with relevant provisions of the State Council (Agency/Agencies) shall undertake the practical affairs of work-related injury insurance.

  Article 6 Administrative departments of labour security and other departments shall seek the opinion of trade unions and representatives of Employers when formulating policies and standards for work-related injury insurance.

  PART TWO WORK-RELATED INJURY INSURANCE FUNDS

  Article 7 Work-related injury insurance funds shall be composed of work-related injury insurance premiums paid by Employers, interest on work-related injury insurance funds and other funds paid into the work-related injury insurance funds in accordance with law.

  Article 8 The premium rate for work-related injury insurance shall be determined on the principles that receipt be determined on the basis of payment and that receipt and payment be balanced.

  The State shall determine premium rate differentials between industries according to the degree of risks of work-related injuries in different industries, and shall determine several tiers of premium rates within each industry according to circumstances such as the use of work-related injury insurance premiums and the frequency of occurrence of work-related injuries. Inter-industry premium rate differentials and intra-industry premium rate tiers shall be formulated by the administrative department of labour security of the State Council in conjunction with the finance department, health administrative department and safe production regulatory department of the State Council, and shall be promulgated and implemented upon approval by the State Council.

  The Agency for a pooling region shall determine the work unit payable premium rate for an Employer on the basis of such circumstances such as use of work-related injury insurance premiums and frequency of occurrence of work-related injuries of the Employer, and the corresponding premium rate tier applicable to the industry to which the Employer belongs.

  Article 9 The administrative department of labour security of the State Council shall periodically obtain the details of receipt and payment of work-related injury insurance funds of all pooling regions throughout the country, and shall propose adjustment to the inter-industry premium rate differentials and the intra-industry premium rate tiers in a timely manner and in conjunction with the finance department, health administrative department and safe production regulatory department of the State Council. Such adjustment shall be promulgated and implemented upon approval by the State Council.

  Article 10 Employers shall pay work-related injury insurance premiums on time. Employees shall not pay work-related injury insurance premiums themselves.

  The amount of work-related injury insurance premium payable by an Employer shall be the product of the total payroll of the Employees of the work unit and the work unit payable premium rate.

  Article 11 Work-related injury insurance funds in municipalities directly under the central government and municipalities having districts shall be pooled on a municipality-wide basis. The level of pooling in other regions shall be determined by the people's government of the province or autonomous region.

  An inter-region industry or an industry with a relatively high level of production mobility may participate from another region in work-related injury insurance in a pooling region by adopting a method of relative concentration. The specific procedures shall be formulated by the administrative department of labour security of the State Council in conjunction with the department in charge of the relevant industry.

  Article 12 Work-related injury insurance funds shall be deposited into a dedicated finance account for social security funds for benefits of work-related injury insurance, assessment of work capability and payment of other expenses for work-related injury insurance stipulated herein. No work unit or individual may use the work-related injury insurance funds for investment and operation, construction or renovation of office site, distribution of bonuses, or divert such funds to other uses.

  Article 13 A certain ratio of work-related injury insurance funds shall be maintained as reserves for payment of work-related injury insurance benefits in the event of major accidents in the pooling region. In case of a shortage of reserves, the people's government of the pooling region shall advance the payment. The specific ratio of reserves to the total amount of funds and the procedures for the use of reserves shall be stipulated by the people's governments of provinces, autonomous regions or municipalities directly under the central government.

  PART THREE DETERMINATION OF WORK-RELATED INJURY

  Article 14 An Employee shall be determined as having a work-related injury if:

  1. he is injured in an accident at work during working hours in the workplace;

  2. he is injured in an accident while engaging in preparatory or finishing-up work related to work before or after working hours in the workplace;

  3. he is injured by violence or in other accident in his performance of job duties during working hours in the workplace;

  4. he suffers from an occupational disease;

  5. he is injured at work or his whereabouts became unknown in an accident, during work-related travel;

  6. he is injured in a motor vehicle accident while going to or returning from work; or

  7. he is in other circumstances that shall be determined as work-related injury according to the provisions of laws and administrative regulations.

  Article 15 An Employee shall be deemed as having a work-related injury if:

  1. he dies immediately or within 48 hours after emergency treatment for a disease suddenly arising during working hours in the workplace;

  2. he is injured in an act to protect national interests or public interests such as emergency rescue and disaster relief; or

  3. he is injured and disabled in war or on duty while in military service and has obtained a revolutionary injured and disabled soldier certificate, and suffers from a relapse of the old injury while being employed by the Employer.

  Where an Employee is in the circumstance of Item (1) or (2) of the preceding paragraph, he shall be entitled to work-related injury insurance benefits in accordance with the relevant provisions hereof. Where an Employee is in the circumstance of Item (3) of the preceding paragraph, he shall be entitled to work-related injury insurance benefits other than the lump sum disability allowance in accordance with the relevant provisions hereof.

  Article 16 An Employee shall not be determined or deemed as having work-related injury if:

  1. he is injured or he dies as a result of commission of crime or violation of public security administration;

  2. he is injured or he dies as a result of intoxication; or

  3. he inflicts harm on himself or commits suicide.

  Article 17 If an Employee is injured in an accident or diagnosed or certified as having occupational disease pursuant to the provisions of the Prevention and Treatment of Occupational Diseases Law, his work unit shall file an application for determination of work-related injury to the administrative department of labour security of the relevant pooling region within 30 days of the date of occurrence of the accidental injury or the date of diagnosis or certification of the occupational disease. In special circumstances, the time limit for application may, subject to the consent of the administrative department of labour security, be extended as appropriate.

  If the Employer fails to file an application for determination of work-related injury pursuant to the preceding paragraph, the Employee with work-related injury, his directly-related family members or the trade union may directly file an application for determination of work-related injury to the administrative department of labour security of the pooling region in which the Employer is located within one year of the date of occurrence of the accidental injury or the date of diagnosis or certification of the occupational disease.

  Matters concerning the determination of work-related injury that is required under the first paragraph of this Article to be conducted by the administrative department of labour security at the provincial level shall be handled by the administrative department of labour security of a municipality having districts in which the Employer is located according to the principle of jurisdiction.

  If the Employer fails to file an application for determination of work-related injury within the time limit prescribed in the first paragraph of this Article, the relevant expenses such as the work-related injury benefits that comply with the provisions hereof arising during this period shall be borne by the Employer.

  Article 18 When filing an application for determination of work-related injury, the following materials shall be submitted:

  1. an application for determination of work-related injury;

  2. the evidential materials of labour relationship with the Employer (including de facto labour relationship); and

  3. a certificate of medical diagnosis or a certificate of diagnosis of occupational disease (or an assessment of diagnosis of occupational disease).

  The application for determination of work-related injury shall include the basic details of the accident such as the time and place of occurrence, the cause of the accident and the degree of injury to the Employee.

  If the materials provided by the applicant for determination of work-related injury are incomplete, the administrative department of labour security shall notify the applicant of all the materials that need to be supplemented in a one-time written notice. After the applicant has supplemented the materials as required by the written notice, the administrative department of labour security shall accept the application.

  Article 19 After the administrative department of labour security has accepted an application for determination of work-related injury, it may investigate and verify the accident and injury as required in examining and verifying the application, and the Employer, Employee, trade union, medical institution and other relevant departments shall provide assistance. Assessment of diagnosis of occupational disease and diagnosis dispute shall be handled in accordance with the relevant provisions of the Prevention and Treatment of Occupational Diseases Law. The administrative department of labour security shall not carry out further investigation or verification on certificates of diagnosis of occupational disease or assessment of diagnosis of occupational disease that are obtained in accordance with the law.

  Where an injury is considered as work-related by the Employee or his directly-related family members but not by the Employer, the burden of proof shall be borne by the Employer.

  Article 20 The administrative department of labour security shall render a decision on determination of work-related injury within 60 days of the date of acceptance of the application for determination of work-related injury, and shall notify the Employee applying for determination of work-related injury or his directly-related family members and his work unit in writing.

  Where the personnel of the administrative department of labour security has a material interest in the applicant for determination of work-related injury, he shall withdraw from the case.

  PART FOUR ASSESSMENT OF WORK CAPABILITY

  Article 21 If an Employee suffers from a work-related injury and he is in stable condition after treatment but has disability or his work capability is affected, the Employee shall undergo an assessment of work capability.

  Article 22 An assessment of work capability is an assessment of the degree of impairment in work functions and the ability to self-care.

  Impairment in work functions is classified into ten disability classes, from class one, the most severe, to class ten, the mildest.

  Impairment in the ability to self-care is classified into three classes: total self-care disability, substantial self-care disability and partial self-care disability.

  Standards for assessment of work capability shall be formulated by the administrative department of labour security of the State Council in conjunction with the health administrative department and other departments of the State Council.

  Article 23 Applications for assessment of work capability shall be filed by the Employer, the Employee with work-related injury or his directly-related family members to the assessment of work capability committee of a municipality having districts, and the decision on determination of work-related injury and the information relevant to the medical treatment of the work-related injury of the Employee shall be provided.

  Article 24 The assessment of work capability committee of provinces, autonomous regions, municipalities directly under the central government and municipalities having districts shall be composed of representatives of the administrative department of labour security, personnel administrative department, health administrative department, trade unions, Agencies and Employers of provinces, autonomous regions, municipalities directly under the central government and municipalities having districts respectively.

  The assessment of work capability committee shall set up a pool of medical and health experts. Medical and health professional technicians included in the expert pool shall satisfy the following conditions:

  1. possessing the qualifications for a senior technical position in the medical or health profession;

  2. possessing the relevant knowledge for assessment of work capability; and

  3. having good professional conduct.

  Article 25 After the assessment of work capability committee of a municipality having districts has received an application for assessment of work capability, it shall select three or five relevant medical and health experts at random from its expert pool to form an expert panel, which shall provide an assessment opinion. The assessment of work capability committee of the municipality having districts shall render an assessment of work capability conclusion in regards to the Employee with work-related injury on the basis of the assessment opinion of the expert panel. Where necessary, it may entrust a qualified medical institution to assist in the relevant diagnosis.

  The assessment of work capability committee of the municipality having districts shall render an assessment of work capability conclusion within 60 days of the date of receipt of the application for assessment of work capability. The time limit for rendering an assessment of work capability conclusion may be extended for 30 days if necessary. The assessment of work capability conclusion shall be served in a timely manner on the work unit and individual that applies for assessment.

  Article 26 If the work unit or individual that applies for assessment is dissatisfied with the assessment conclusion of the assessment of work capability committee of the municipality having districts, the work unit or individual may, within 15 days of the date of receipt of the assessment conclusion, apply to the assessment of work capability committee of the province, autonomous region or municipality directly under the central government for a reassessment. The assessment of work capability conclusion of the assessment of work capability committee of the province, autonomous region or municipality directly under the central government shall be final.

  Article 27 Assessment of work capability shall be objective and impartial. If any member of the assessment of work capability committee or expert participating in the assessment has a material interest in the party, he shall withdraw from the assessment.

  Article 28 If, within one year after an assessment of work capability conclusion is made, the Employee with work-related injury or his directly-related family members, his work unit or the Agency believes that there is a change in the disability condition, he may apply for a review of the assessment of work capability.

  PART FIVE  WORK-RELATED INJURY INSURANCE BENEFITS

  Article 29 An Employee that receives treatment for work-related accidental injury or occupational disease shall be entitled to work-related injury medical benefits.

  An Employee shall seek medical treatment for work-related injury at a medical institution that has entered into a service agreement. In cases of emergency, the Employee may first seek emergency treatment at the nearest medical institution.

  If the costs required for treating the work-related injury fall within the treatment item catalogue, pharmaceutical catalogue and/or hospitalization service standard for work-related injury insurance, they shall be paid from work-related injury insurance funds. The treatment item catalogue, pharmaceutical catalogue and hospitalization service standard for work-related injury insurance shall be stipulated by the administrative department of labour security of the State Council in conjunction with the health administrative department, the pharmaceutical regulatory department and other departments of the State Council.

  Where an Employee is hospitalized for treatment of work-related injury, his work unit shall pay an amount of meal allowance at 70% of the meal allowance rate payable by the work unit for travel on duty. If the Employee with work-related injury seeks medical treatment outside the pooling region with the referral certificate of a medical institution and the consent of the Agency, the necessary travel and boarding expenses shall be reimbursed by his work unit according to the standard for travel on duty of Employees of the work unit.

  An Employee with work-related injury shall not be entitled to work-related injury medical benefits for treatment of a disease not arising from work-related injury, and such treatment shall be handled in accordance with the procedures on basic medical insurance.

  Where the costs of rehabilitative treatment of the Employee with work-related injury at a medical institution that has entered into a service agreement satisfy the conditions in the third paragraph of this Article, they shall be paid from work-related injury insurance funds.

  Article 30 An Employee with work-related injury may, due to daily life or employment needs and subject to the confirmation of assessment of work capability committee, wear artificial limbs, orthosis, artificial eyes and false teeth and equip himself with an aiding device such as wheelchair, and the necessary costs shall be paid from work-related injury insurance funds at the standards stipulated by the State.

  Article 31 If an Employee needs to suspend working in order to receive medical treatment for work-related accidental injury or occupational disease, his original wage and welfare benefits shall remain unchanged and payable monthly by his work unit during the suspension-of-work-with-pay period.

  The suspension-of-work-with-pay period shall normally not exceed 12 months. If the injury is severe or the circumstances are exceptional, such period may, subject to confirmation by the assessment of work capability committee of a municipality having districts, be extended as appropriate, but such extension may not be more than 12 months. After the disability class of the Employee with work-related injury is assessed, the original benefits shall be terminated, and the Employee shall be entitled to the disability benefits according to the relevant provisions of this Part. If the Employee with work-related injury still needs medical treatment after the end of the suspension-of-work-with-pay period, the Employee shall continue to enjoy work-related injury medical benefits.

  If an Employee with work-related injury with self-care disability needs nursing care during the suspension-of-work-with-pay period, his work unit shall be responsible for such needs.

  Article 32 If an Employee with work-related injury has been assessed with respect to his disability class and confirmed by the assessment of work capability committee as having need for living care, the fees for living care shall be paid monthly from work-related injury insurance funds.

  Fees for living care shall be paid according to the three different classes of self-care disability, namely, total self-care disability, substantial self-care disability and partial self-care disability, and the standards shall be 50%, 40% or 30% of the average monthly wage of Employees in the pooling region in the preceding year respectively.

  Article 33 If an Employee with work-related disability is assessed as having class one to class four disability, the labour relationship shall remain, and the Employee shall withdraw from the work post and enjoy the following benefits:

  1. a disability allowance shall be paid from the work-related injury insurance funds according to the disability class in a lump sum, and the standards are: for class one disability, the Employee's wages for 24 months; for class two disability, the Employee's wages for 22 months; for class three disability, the Employee's wages for 20 months; and for class four disability, the Employee's wages for 18 months;

  2. a monthly disability subsidy shall be paid from the work-related injury insurance funds, and the standards are: for class one disability, 90% of the Employee's wage; for class two disability, 85% of the Employee's wage; for class three disability, 80% of the Employee's wage; and for class four disability, 75% of the Employee's wage. If the actual amount of the disability subsidy is lower than the local minimum wage standard, the difference shall be made up from the work-related injury insurance funds; and

  3. the disability subsidy shall be terminated once the Employee with work-related injury has reached retirement age and completed the retirement procedures, and the Employee shall then be entitled to basic old age insurance benefits. If the basic old age insurance benefits are lower than the disability subsidy, the difference shall be made up from the work-related injury insurance funds.

  If an Employee with work-related disability is assessed as having class one to class four disability, the Employer and the Employee shall pay the basic medical insurance premium on the basis of the disability subsidy.

  Article 34 If an Employee with work-related disability is assessed as having class five or class six disability, the Employee shall be entitled to the following benefits:

  1. a disability allowance shall be paid from work-related injury insurance funds according to the disability class in a lump sum, and the standards are: for class five disability, the Employee's wages for 16 months; and for class six disability, the Employee's wages for 14 months; and

  2. his labour relationship with the Employer shall remain and the Employer shall arrange appropriate work for the Employee. Where it is difficult to arrange any work for the Employee, the Employer shall pay a monthly disability subsidy to the Employee, and the standards are: for class five disability, 70% of the Employee's wage and for class six disability, 60% of the Employee's wage, and the Employer shall also pay as required on behalf of the Employee all the social insurance premiums payable by the Employee. If the actual amount of the disability subsidy is lower than the local minimum wage standard, the difference shall be made up by the Employer.

  Upon request of the Employee with work-related injury, the labour relationship between the Employee and the Employer may be dissolved or terminated, and the Employer shall pay the work-related injury medical allowance and a disability employment allowance in a lump sum. The specific standards shall be stipulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government.

  Article 35 If an Employee with work-related disability is assessed as having class seven to class ten disability, the Employee shall be entitled to the following benefits:

  1. a disability allowance shall be paid from work-related injury insurance funds according to the disability class in a lump sum, and the standards are: for class seven disability, the Employee's wages for 12 months; for class eight disability, the Employee's wages for 10 months; for class nine disability, the Employee's wages for eight months; and for class ten disability, the Employee's wages for six months; and

  2. upon termination of the labour contract at the end of the term thereof, or upon dissolution of the labour contract at the request of the Employee, the Employer shall pay the work-related injury medical allowance and disability employment allowance in a lump sum. The specific standards shall be stipulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government.

  Article 36 If an Employee suffers from a relapse of the work-related injury and is confirmed as in need of medical treatment, the Employee shall be entitled to the work-related injury benefits specified in Articles 29, 30 and 31 hereof.

  Article 37 In the case of a work-related death of an Employee, the directly-related family members of the Employee shall receive a funeral allowance, bereavement payments for dependent family members and a lump sum work-related death allowance from work-related injury insurance funds in accordance with the following provisions:

  1. the funeral allowance shall be six months' average monthly wage of the Employees in the pooling region in the preceding year;

  2. bereavement payments for dependent family members shall be made at a certain percentage of the Employee's wage to each of the family members of the Employee that, before the Employee's death, was dependent on the Employee for primary source of income and that has no work capability. The standards are: 40% per month for the spouse, 30% per person per month for other family members, with an additional 10% on the basis of the afore-mentioned standards per person per month in the case of an elderly living alone or an orphan. The sum of the bereavement payments to all dependent family members so determined shall not be higher than the wage of the Employee before his work-related death. The specific scope of dependent family members shall be specified by the administrative department of labour security of the State Council; and

  3. the standard for the lump sum work-related death allowance shall be 48 to 60 months' average monthly wage of the Employees in the pooling region in the preceding year. The specific standard shall be stipulated by the people's government of the pooling region according to the circumstances of the local economic and social development, and shall be filed with the people's government of provinces, autonomous regions or municipalities directly under the central government for the record.

  If a disabled Employee dies as a result of the work-related injury during the suspension-of-work-with-pay period, the directly-related family members of the Employee shall be entitled to the benefits specified in the first paragraph of this Article.

  If an Employee with class one to class four disability dies after the suspension-of-work-with-pay period, the directly-related family members of the Employee shall be entitled to the benefits specified in Items (1) and (2) of the first paragraph of this Article.

  Article 38 Disability subsidies, bereavement payments for dependent family members and living care fees shall be adjusted from time to time by the administrative department of labour security of the pooling region in light of changes in the average wage of Employees and the living expenses. Methods for such adjustment shall be stipulated by the people's governments of provinces, autonomous regions and municipalities directly under the central government.

  Article 39 If, during work-related travel, an Employee's whereabouts became unknown in an accident or in emergency rescue or disaster relief, payment of his wage shall continue from the month in which the accident occurred for three months and be terminated from the fourth month, and thereafter the dependent family members of the Employee shall be paid monthly bereavement payments for dependent family members from work-related injury insurance funds. If the family members have difficulty in maintaining a living, 50% of the lump sum work-related death allowance may be paid in advance. If the Employee is declared dead by a people's court, the case shall be handled according to the provisions on work-related death in Article 37 hereof.

  Article 40 An Employee with work-related injury shall cease to enjoy the work-related injury insurance benefits if:

  1. he has lost eligibility to receive the benefits;

  2. he refuses to undergo an assessment of work capability;

  3. he refuses to receive medical treatment; or

  4. he is convicted and incarcerated.

  Article 41 In case of a division, merger or transfer in respect of the Employer, the succeeding work unit shall bear the responsibility for work-related injury insurance of the original Employer. If the original Employer has already participated in work-related injury insurance, the succeeding work unit shall carry out a change of work-related injury insurance registration with the local Agency.

  Where the Employer is operated on a contract basis, the responsibility for work-related injury insurance shall be borne by the Employer that has a labour relationship with the Employee.

  If an Employee is injured in a work-related accident while on temporary transfer to another work unit, the original Employer shall bear the responsibility for work-related injury insurance, but it may agree with the hosting unit on the compensation methods.

  In the case of a bankrupt enterprise, benefit payments under work-related injury insurance payable by the work unit according to law shall be made in priority during liquidation.

  Article 42 If an Employee is sent to work abroad and is required to participate in local work-related injury insurance according to the law of the destination country or region, the Employee shall participate in local work-related injury insurance and his work-related injury insurance relationship in China shall be suspended. If the Employee cannot participate in local work-related injury insurance, his work-related injury insurance relationship in China shall not be suspended.

  Article 43 If an Employee suffers from work-related injury for a second time and is entitled to disability subsidy according to regulations, the Employee shall enjoy the disability subsidy benefits according to the newly determined disability class.

  PART SIX SUPERVISION AND ADMINISTRATION

  Article 44 Agencies shall handle the specific matters of work-related injury insurance and perform the following duties:

  1. collect work-related injury insurance premiums in accordance with the provisions of the people's governments of provinces, autonomous regions and municipalities directly under the central government;

  2. verify the total payrolls and the number of Employees of Employers, carry out work-related injury insurance registration and be responsible for keeping records of premium payments of Employers and receipts by Employees of work-related injury insurance benefits;

  3. carry out investigation and compile statistics in respect of work-related injury insurance;

  4. administer payments from work-related injury insurance funds as required;

  5. assess work-related injury insurance benefits as required; and

  6. provide free information services to Employees with work-related injury or their directly-related family members.

  Article 45 Agencies shall enter into service agreements with medical institutions and aiding device supplying institutions on the basis of equal negotiation, and shall announce the list of the medical institutions and aiding device supplying institutions that have entered into service agreements. The specific procedures shall be formulated by the administrative department of labour security of the State Council in conjunction with the health administrative department and the civil affairs department of the State Council respectively.

  Article 46 Agencies shall verify the accounts of medical, rehabilitation and aiding device costs on Employees with work-related injury in accordance with the agreement and the relevant catalogues and standards of the State, and shall settle such fees in full in a timely manner.

  Article 47 Agencies shall periodically publicize the details of the receipt and payment in respect of work-related injury insurance funds and make timely recommendations to the administrative departments of labour security regarding premium rate adjustments.

  Article 48 The administrative departments of labour security and Agencies shall periodically seek opinions from Employees with work-related injury, medical institutions, aiding device supplying institutions and all sectors of the society for their comments on improving the work of work-related injury insurance.

  Article 49 The administrative departments of labour security shall supervise and inspect the collection of work-related injury insurance premiums and the receipt and payment of work-related injury insurance funds in accordance with the law.

  The finance departments and auditing departments shall supervise the receipt, payment and management of work-related injury insurance funds in accordance with the law.

  Article 50 Any organization or individual has the right to report illegal acts relating to work-related injury insurance. The administrative departments of labour security shall investigate such report in a timely manner, handle it in accordance with regulations, and maintain the confidentiality of the person making such report.

  Article 51 Trade unions shall safeguard the lawful rights and interests of Employees with work-related injury and implement supervision over the work-related injury insurance work of Employers in accordance with the law.

  Article 52 Disputes arising between Employees and Employers in regards to work-related injury shall be handled in accordance with the relevant provisions on the handling of labour disputes.

  Article 53 In any of the following circumstances, the relevant work unit or individual may apply for administrative review in accordance with the law; and if the work unit or individual is dissatisfied with the review decision, the work unit or individual may institute administrative proceedings in accordance with the law:

  1. the Employee that applies for determination of work-related injury, his directly-related family member or the Employee's work unit is dissatisfied with the conclusion of the determination of work-related injury;

  2. the Employer is dissatisfied with the work unit payable premium rate assessed by the Agency;

  3. the medical institution or the aiding device supplying institution that has entered into a service agreement believes that the Agency has failed to comply with the relevant agreement or provisions; or

  4. the Employee with work-related injury or his directly-related family members disagrees/disagree with the work-related injury insurance benefits verified by the Agency.

  PART SEVEN  LEGAL LIABILITY

  Article 54 If a work unit or an individual misappropriates work-related injury insurance funds in violation of Article 12 hereof and such act constitutes a criminal offence, criminal liability shall be pursued according to law. If the act is not sufficient to constitute a criminal offence, administrative penalty or disciplinary punishment shall be imposed according to law. The misappropriated funds shall be recovered by the administrative department of labour security and consolidated with work-related injury insurance funds. The confiscated illegal income shall be handed over to the State treasury according to law.

  Article 55: If the personnel of the administrative department of labour security is in any of the following circumstances, he shall be subjected to administrative penalty according to law. If the circumstances are serious and a criminal offence is constituted, criminal liability shall be pursued according to law:

  1. refusal to accept an application for determination of work-related injury without proper reason, or determination of a person that does not meet the conditions for work-related injury as an Employee with work-related injury by way of falsehood;

  2. failure to appropriately safe keep the evidential materials for application for determination of work-related injury, thereby causing the loss of such evidence; or

  3. receipt of property from a party concerned.

  Article 56: If an Agency commits any of the following acts, the administrative department of labour security shall order rectification and impose disciplinary punishment on the person directly in charge and other responsible persons according to law. If the circumstances are serious and a criminal offence is constituted, criminal liability shall be pursued according to law. If economic loss is caused to the party concerned, the Agency shall be liable for compensation according to law:

  1. failure to maintain the records of payment of premiums by Employers and the payment of work-related injury insurance benefits to Employees as required;

  2. failure to determine work-related injury insurance benefits as required; or

  3. receipt of property from a party concerned.

  Article 57: If a medical institution or aiding device supplying institution fails to provide services pursuant to a service agreement, the Agency may dissolve the service agreement.

  If the Agency fails to settle accounts in full on time, the administrative department of labour security shall order rectification. The medical institution or aiding device supplying institution may dissolve the service agreement.

  Article 58: If an Employer has unreported some amount in its report of total payroll or number of Employees, the administrative department of labour security shall order rectification and impose a fine of not less than one time and not more than three times the amount of the payroll not reported.

  If an Employer, an Employee with work-related injury or his directly-related family member fraudulently obtains work-related injury insurance benefits, or if a medical institution or aiding device supplying institution fraudulently obtains payments from work-related injury insurance funds, the administrative department of labour security shall order the return of such benefits or payments, and shall impose a fine of not less than one time and not more than three times the amount obtained fraudulently. If the circumstances are serious and a criminal offence is constituted, criminal liability shall be pursued according to law.

  Article 59: If an organization or individual that is engaged in assessment of work capability commits any of the following acts, the administrative department of labour security shall order rectification and impose a fine of not less than Rmb 2,000 and not more than Rmb 10,000. If the circumstance are serious and a criminal offence is constituted, criminal liability shall be pursued according to law:

  1. provides false assessment opinion;

  2. provides false diagnosis certificate; or

  3. receives property from a party concerned.

  Article 60: If an Employer is required by these Regulations to participate in work-related injury insurance but fails to do so, the administrative department of labour security shall order rectification. If an Employee of the work unit suffers from work-related injury during the period in which the work unit has not participated in work-related injury insurance, the Employer shall make payments according to the item of work-related injury insurance benefits and at the standard stipulated herein.

  PART EIGHT SUPPLEMENTARY PROVISIONS

  Article 61: For the purposes of these Regulations, an Employee shall refer to an Employee under any form of employment and any term of employment that has a labour relationship (including de facto labour relationship) with an Employer.

  For the purposes of these Regulations, total payroll shall refer to the aggregate amount of remunerations for labour directly payable by the Employer to all of its Employees.

  For the purposes of these Regulations, the Employee's wage shall refer to the average monthly wage of the Employee with work-related injury in the 12 months prior to the work-related accidental injury or occupational disease. If the Employee's wage is higher than 300% of the average wage of the Employees in the pooling region, it shall be calculated at 300% of the average wage of the Employees in the pooling region. If the Employee's wage is lower than 60% of the average wage of the Employees in the pooling region, it shall be calculated at 60% of the average wage of the Employees in the pooling region.

  Article 62: If the personnel of a State authority or an institution or social organization whose personnel affairs are managed pursuant to the State civil service system suffers from work-related accidental injury or occupational disease, payments shall be made by his work unit. The specific procedures shall be stipulated by the administrative department of labour security of the State Council in conjunction with the personnel administrative department and finance department of the State Council.

  Procedures of work-related injury insurance and other matters for other institutions, social organizations and all kinds of non-governmental non-enterprise work unit shall be stipulated separately by the administrative department of labour security of the State Council in conjunction with the personnel administrative department, civil affairs department and finance department of the State Council by reference to these Regulations, and shall be implemented upon approval of the State Council.

  Article 63: If, in relation to a work unit that has no business licence or has not registered or filed for record according to law or a work unit whose business licence has been revoked or whose registration or record filing has been cancelled, an Employee of such work unit suffers from accidental injury or occupational disease, the work unit shall pay compensation in a lump sum to the injured Employee or the directly-related family members of the deceased Employee. The compensation standard shall not be lower than the work-related injury insurance benefits specified herein. No Employer shall employ child labour. If an Employer employs child labour and causes disability or death of such child labour, the work unit shall pay compensation in a lump sum to the child labour or the directly-related family members of the child labour. The compensation standard shall not be lower than the work-related injury insurance benefits specified herein. The specific procedures shall be stipulated by the administrative department of labour security of the State Council.

  If a dispute in respect of the amount of compensation arises between the injured Employee or the directly-related family members of the deceased Employee specified in the preceding paragraph and the work unit, or between the child labour or the directly-related family members of the child labour specified in the preceding paragraph and the work unit, the dispute shall be handled in accordance with the relevant provisions on the handling of labour disputes.

  Article 64: These Regulations shall be implemented as of 1 January 2004. In the case of an Employee that suffered accidental injury or occupational disease before the implementation hereof the determination of work-related injury of whom has not been completed, the provisions hereof shall apply.

  注:英文版来源,http://www.eduzhai.net/

 
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