1.基本案情1.Basic facts of the case2021年1月10日，根据用人单位工作安排，劳动者到供电辖区村寨参加供电线路抗冰抢险工作。当天13:45左右，同事在工作现场外围抢险用车内发现劳动者脸色异常（睁着眼睛，流鼻涕、不能说话），问话没有反应，同事立即开车送劳动者前往县人民医院，并拨打120急救电话，送医车辆与救护车相向而行，半路相遇。劳动者在县人民医院进行初步检查后，由于临床急危重症、难以实施有效治疗，于当日又转至州（市）人民医院救治，经州（市）人民医院诊断：劳动者基底动脉脑梗塞、脑干出血，虽经抢救及后续治疗，但劳动者病情仍持续恶化，于2021年1月27日上午10:16左右死亡。劳动者从突发疾病到确定死亡，经过近17天时间。On January 10, 2021, according to the work arrangement of the employer, the worker went to the village of the power supply area to participate in the anti-ice rescue work of the power supply line. At around 13:45 that day, colleagues found the worker with an abnormal face (eyes open, runny nose, unable to speak) in the emergency vehicle at the periphery of the work site, and no response to questions. Colleagues immediately drove the worker to the county people's hospital and called 120, and the delivery vehicle and the ambulance traveled in opposite directions and met halfway. After the preliminary examination at the county people's hospital, the worker was transferred to the state (city) people's hospital for treatment on the same day due to clinical emergency and difficulty in implementing effective treatment. The state (city) people's hospital diagnosed that the worker had a basilar artery cerebral infarction and brain stem hemorrhage, and despite rescue and follow-up treatment, the worker's condition continued to deteriorate. Then the worker died at around 10:16 a.m. on January 27, 2021. Nearly 17 days elapsed between the worker's sudden onset of illness and the determination of his death.

   

    用人单位就劳动者工亡向州（市）人力资源和社会保障局申请工伤认定。州（市）人力资源和社会保障局认为劳动者受到的伤害，不符合《工伤保险条例》第十五条第一款第一项关于“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，视同工伤”的规定，也不符合应当认定为工伤或视同工伤的其他情形，决定不予认定或视同为工伤。用人单位对该不予认定工伤的决定不服，向省人力资源和社会保障厅申请行政复议。The employer applies to the human resources and social security bureau of the state (city) for recognition of work-related injury in respect of the worker's death at work. The human resources and social security bureau of the state (city) considers that the injury suffered by the worker does not meet the requirements of Article 15 (1) (a) of the Regulations on Work Injury Insurances, which stipulates that "he dies immediately or within 48 hours after emergency treatment for a disease suddenly arising during working hours in the workplace", nor does it meet the requirements that the injury should be recognized as a work-related injury or deemed to be a work-related injury, the decision not to identify or treat as work-related injuries. The employer was not satisfied with the decision of not recognizing the work injury and applied for administrative reconsideration to the provincial department of human resources and social security.

    行政复议程序中，法风管团队承办律师代理申请人向复议机关申请就本案进行听证，被申请人州（市）人力资源和社会保障局、第三人劳动者近亲属、申请人及各方代理人员均参加听证。法风管团队承办律师与第三人律师紧密配合，对案件进行深度、专业研究，在听证会上充分证明和论述本案应当认定或视同工伤的事实和理由，听证会后及时提交有事实依据、有法律依据、有案例支撑的代理词。遗憾的是，最终复议机关维持了州（市）人力资源和社会保障局作出的不予认定工伤决定，第三人劳动者近亲属放弃就该决定或原行政行为向人民法院提起行政诉讼的机会和权利。In the administrative reconsideration procedure, the legal risk management team contractor lawyer represented the applicant to apply to the reconsideration organ for a hearing on the case, and the respondent state (city) human resources and social security bureau, the third party worker's near relatives, the applicant and the agents of all parties attended the hearing. The lawyers of the legal risk management team worked closely with the third party's lawyers to conduct an in-depth and professional study of the case, to fully prove and argue the facts and reasons that the case should be recognized or treated as a work-related injury at the hearing, and to submit a timely agency statement with factual basis, legal basis and case support after the hearing. Unfortunately, the reconsideration organ eventually upheld the decision of the state (city) human resources and social security bureau not to recognize the work injury, and the near relatives of the third party worker waived the opportunity and right to file an administrative lawsuit to the people's court regarding the decision or the original administrative act.

 

 

     州（市）人力资源和社会保障局和复议机关均认为，本案劳动者系送医后超过48小时死亡，不属于《工伤保险条例》第十五条第一款第一项“在工作时间和工作岗位，突发疾病在48小时之内经抢救无效死亡的”的情形。Both the state (city) human resources and social security bureau and the reconsideration organ agreed that the worker in this case died more than 48 hours after being sent to the hospital, and did not fall under the circumstances of Article 15 (1) (a) of the Regulation on Work-Related Injury Insurances, which states that " he dies immediately or within 48 hours after emergency treatment for a disease suddenly arising during working hours in the workplace ".

    然而，法风管团队承办律师却另辟蹊径提出不同意见。首先，在工伤认定过程中，如何把握48小时内死亡，基于本案的特殊性，不能像其他普通工伤认定案件那样，简单地按照医疗机构初次诊断时间到医疗机构宣布死亡时间加以计算。在法律对死亡认定标准没有明确规定的情况下，48小时内死亡的认定应当根据《工伤保险条例》的立法本意、立法目的，从最有利于保护职工合法权益的立场予以解释，而不能机械、僵化地按照法条条文进行字面解释。《工伤保险条例》的立法目的是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。本案中，劳动者在工作过程中突发疾病昏迷被送往医院，送到医院后就多次进行抢救，且出现意识不清、无法自主呼吸、需进行心脏除颤等病情危重状况，并且病程记录也记载自首次诊断之时起48小时内就已经“病情危重”、“昏迷程度深，抢救效果极差”、“估计预后极差”、“脑干梗死已经明确”、“患者生命垂危，预后不佳，随时抢救无效死亡”、“供血区域大部分脑细胞已经死亡”、“目前已经实施了最佳的手术方案，进一步手术意义不大”等诊断意见。劳动者的病情在首次诊断的48小时内已经属于危急、严重，死亡结果已不可逆转。在这种情况下，虽然劳动者停止呼吸的时间距其被送到医院抢救已经超过48小时，但在抢救的48小时之内就已经出现了劳动者的死亡结果不可逆转的态势，其工伤保险法律后果应当等同于其已经死亡。如果为了劳动者能够被认定为视同工伤，在48小时内必须要求近亲属放弃对患者的抢救治疗，这从情感、伦理、道德、法律等诸多层面都是不恰当的。这样的观点，在众多的司法判例当中得到了支持。在沈阳市大东区人力资源和社会保障局、张弢劳动和社会保障行政管理（劳动、社会保障）再审审查与审判监督行政裁定书【（2019）辽行申1150号】中，法院认为：随着科技的发展，在自主呼吸、生理病理反射等已经丧失的情况下，凭借相关医疗设备和技术手段在较长时间内维持已经基本丧失救治希望的重症患者的主要生命体征已成现实。要求患者家属在初次诊断后48小时内放弃继续抢救治疗，否则将承担由于最终死亡时间超过48小时期限而不能被视同工伤的不利后果，既违背了家属希望积极抢救亲人生命的伦理道德，也不符合《工伤保险条例》第十五条第一款第（一）项的立法原意。因此，在认定职工的死亡时间是否超过48小时，还应结合职工抢救的病历、治疗记录和病情等综合认定。再审审查法院以此为由裁定维持了二审法院撤销不予认定工伤行政行为的生效判决。However, the lawyers of the legal risk management team took a different approach and put forward different opinions. First of all, in the process of work injury recognition, how to determine the death within 48 hours, based on the special nature of this case, cannot be calculated simply according to the time of initial diagnosis by medical institutions to the time of death declared by medical institutions, as in other ordinary work-injury recognition cases. In the absence of clear provisions in the law, the determination of death within 48 hours should be interpreted according to the legislative intent and purpose of the Regulation on Work-Related Injury Insurances from the standpoint of protecting the legitimate rights and interests of employees, rather than being interpreted mechanically and rigidly according to the literal interpretation of the provisions of the law. The legislative intent of the Regulation on Work-Related Injury Insurances is to guarantee medical treatment and financial compensation for workers who suffer from accidents or occupational diseases at work, to promote prevention of work injuries and vocational rehabilitation, and to disperse the risk of work-related injuries of the employer. In this case, the worker was sent to the hospital in a coma in the course of work, and was resuscitated several times after he was sent to the hospital, and his condition was critical such as unconsciousness, inability to breathe on his own, and need for cardiac defibrillation, "the prognosis is estimated to be very poor", "brainstem infarction is clear", "the patient's life is in danger and the prognosis is not good, and he will die at any time when resuscitation fails", "most of the brain cells in the blood supply area have died", "the best surgical plan has been implemented and further surgery is of little significance", etc. The worker's condition was already critical and serious within 48 hours of the first diagnosis, and the result of death was irreversible. In this case, although the time when the worker stopped breathing was more than 48 hours before he was sent to the hospital for resuscitation, the worker's death was already irreversible within 48 hours of the resuscitation, and the legal consequences of his work-injury insurance should be equivalent to his death. If the near relatives must be required to abandon the resuscitation treatment of the patient within 48 hours in order for the worker to be recognized as a deemed work-related injury, this is inappropriate on many levels, including emotional, ethical, moral, and legal. Such a view has been supported by numerous judicial precedents. In the Shenyang Dadong District Human Resources and Social Security Bureau, Zhang Tao, labor and social security administration (Labor, Social Security) retrial review and trial supervision administrative ruling [(2019) Liao Administrative Appeal No. 1150], the court held that with the development of science and technology, in cases where autonomous breathing and physio pathological reflexes have been lost, it has become a reality to maintain the main vital signs of a critically ill patient who has basically lost the hope of treatment with relevant medical equipment and technical means for a longer period of time. Requiring the patient's family to give up continuing resuscitation treatment within 48 hours after the initial diagnosis, or else they will bear the unfavorable consequences of not being treated as a work-related injury because the final time of death exceeds the 48-hour period, is not only against the ethics and morality of the family's wish to actively save the life of their loved ones, but also not in line with the legislative intent of Article 15(1)(a) of the Regulation on Work-Related Injury Insurances. Therefore, in determining whether the employee's death exceeded 48 hours, it should also be determined in conjunction with the medical records, treatment records and condition of the employee's resuscitation. The court of retrial ruled on this ground and upheld the effective judgment of the court of second instance to revoke the administrative act of not recognizing work-related injuries.

    法律不强人所难。《工伤保险条例》虽然规定了送医48小时内救治无效死亡的视同工伤，但也不能为了认定视同工伤就逼迫患者家属放弃对患者的治疗，这违背了《工伤保险条例》的立法目的和本意。最高人民检察院发布的工伤认定和工伤保险类行政检察监督典型案例颜某某诉广西某县人力资源和社会保障局、某市人力资源和社会保障局工伤认定及行政复议检察监督案，其基本案情与本案类似，颜某某之夫、患者梁某某也因突发脑干出血送医救治超过48小时后死亡，广西壮族自治区检察机关抗诉认为，在法律对死亡认定标准没有明确规定情况下，本案应从有利于保护职工的立场予以解释，认定梁某某视同工伤。最高人民检察院认为该案具有典型意义并提出“人民检察院办理工伤认定类行政诉讼监督案件，应当全面把握《工伤保险条例》立法精神，对法律规定不明确的，应从有利于保护职工等弱势群体的立场进行解释和认定”的指导意见。Lex non cogit ad impossibilia. Although the Regulation on Work-Related Injury Insurances stipulate that death within 48 hours of being sent to the hospital is deemed to be a work-related injury, the patient's family cannot be forced to give up the treatment of the patient in order to identify the deemed work-related injury, which is against the legislative purpose and intent of the Regulation on Work-Related Injury Insurances. The Supreme People's Procuratorate issued a typical case of administrative supervision of work-related injury recognition and work-related injury insurance Somebody Yan v. Guangxi County Human Resources and Social Security Bureau, a city human resources and social security bureau of work-related injury recognition and administrative reconsideration of procuratorial supervision, the basic case is similar to this case, the patient Somebody Liang,the husband of Somebody Yan, also died after being sent to the hospital for more than 48 hours due to sudden brain stem hemorrhage, the Guangxi Zhuang Autonomous Region Procuratorial protest that, in the absence of clear provisions on the criteria for determining death, this case should be interpreted from the standpoint of the protection of workers, and Somebody Liang was deemed to be a work-related injury. The Supreme People's Procuratorate considered the case to be of typical significance and proposed the guiding opinion that "the people's procuratorates should comprehensively grasp the legislative spirit of the Regulation on Work-Related Injury Insurances when handling administrative litigation supervision cases of work-related injury recognition, and should interpret and recognize those cases where the law is unclear from the standpoint of protecting the vulnerable groups such as workers".

    因此，从《工伤保险条例》的立法目的、《劳动法》对职工实行倾斜保护的原则、最高人民检察院发布的指导案例及其他相关司法判例等多方面考量，在认定是否超过48小时的问题上不应该机械地适用法条，仅因为职工首次确诊到死亡的时间已经超过了48小时就剥夺劳动者受《工伤保险条例》第十五条第一款第一项保护的权利，是不正确的。Therefore, considering the legislative purpose of the Regulation on Work-Related Injury Insurances, the principle of tilted protection for workers under the Labor Act, the guiding cases issued by the Supreme People's Procuratorate and other relevant judicial precedents, it is incorrect to apply the law mechanically and deprive workers of their right to protection under Article 15(1)(a) of the Regulation on Work-Related Injury Insurances simply because the time between the first diagnosis of the worker and death has exceeded 48 hours.

   复议机关认为，本案虽然存在低温严寒天气，也存在对电力设施抢修的情形，但没有行政机关出具的确认本次抢修电力设施属于抢险救灾性质的政府文件，因此不认为劳动者系参加抢险救灾。不属于《工伤保险条例》第十五条第一款第二项“在抢险救灾等维护国家利益、公共利益活动中受到伤害”的情形。The administrative reconsideration organ held that although there was low temperature and severe cold weather in this case, and there was also emergency repair of power facilities, there was no government document issued by the administrative organ confirming that the emergency repair of power facilities belonged to the nature of emergency rescue and disaster relief, so it did not consider that the worker participated in the emergency rescue and disaster relief. It does not belong to the situation of "he is injured in an act to protect national interests or public interests such as emergency rescue and disaster" in Article 15(1)(b) of the Regulation on Work-Related Injury Insurances.

    本案特殊之处在于，2021年1月10日，因受强冷空气影响，用人单位所在县境内出现低温凝冻天气，截止1月12日，低温严寒天气已经造成7条电力线路停电，影响用户9054户。在这样严峻的情况下，劳动者作为电力企业职工，为保障广大民众的日常用电，保障整个供电区域生产生活的正常开展，及时奔赴抗冰抢险的第一线，为尽快恢复正常供电贡献自己的力量。劳动者最终因参加抗冰抢险受到严寒天气伤害，突发疾病死亡，完全符合上述法律规定的“职工在抢险救灾等维护国家利益、公共利益活动中受到伤害”的情形，应当依法认定其视同工伤。The special feature of this case is that on January 10, 2021, due to the influence of strong cold air, low-temperature freezing weather occurred in the county where the employer is located. As of January 12, the low-temperature freezing weather has caused power outages in 7 power lines, affecting 9054 users. In such a severe situation, as employees of power enterprise, in order to ensure the daily power consumption of the general public and the normal development of production and life in the whole power supply area, workers rushed to the front line of ice resistance and rescue in time to contribute their own strength to the restoration of normal power supply as soon as possible. If a worker is finally injured by cold weather and dies of sudden disease due to participating in ice resistant rescue, which fully conforms to the above-mentioned legal provisions of " he is injured in an act to protect national interests or public interests such as emergency rescue and disaster ", it shall be recognized as a work-related injury according to law.

    另外，《最高人民法院关于审理与低温雨雪冰冻灾害有关的行政案件若干问题座谈会纪要》（法〔2008〕139号）对抗冰抢险工作导致的工伤认定问题作出了明确规定。“会议认为，低温雨雪冰冻灾害属于造成严重社会危害的突发事件，需要采取应急处置措施予以应对。”“低温雨雪冰冻灾害期间，用人单位为维护国家利益和公共利益的需要，在恢复交通、通信、供电、供水、排水、供气、道路抢修、保障食品、饮用水、燃料等基本生活必需品的供应、组织营救和救治受害人员等过程中，临时雇用员工受到伤害的，可视为工伤，参照《工伤保险条例》的规定进行处理。”因此，在临时雇用员工受到伤害均能构成工伤的情况下，本案劳动者作为申请人的正式员工，在参与为了满足民众用电需求、具有公共利益性质的抗冰抢险工作任务中遭受伤害，最终导致病重死亡，更应依法视同为工伤。In addition, the summary of the Symposium of the Supreme People's Court on Several Issues Concerning the Trial of Administrative Cases Related to Low-Temperature Rain and Snow Disasters (Law [2008] No. 139) clearly stipulates the identification of work injuries caused by ice rescue work. "The meeting held that the low-temperature rain, snow and freezing disaster is an emergency that causes serious social harm and requires emergency response measures." "During the low-temperature rain, snow and freezing disaster, in order to safeguard the national interests and public interests, the employer's temporary employees who are injured in the process of restoring transportation, communication, power supply, water supply, drainage, gas supply, road repair, ensuring the supply of basic necessities of life such as food, drinking water and fuel, organizing rescue and rescuing the injured can be regarded as work-related injuries. Refer to the Regulation on Work-Related Injury Insurances. Therefore, under the circumstance that any injury suffered by any temporary employee can constitute a work-related injury, the worker in this case, as a regular employee of the applicant, suffered injury in the course of participating in the anti-ice rescue task with the nature of public interest to meet the public's electricity demand, which eventually led to serious illness and death, and should be regarded as a work-related injury according to law.此外，

    在司法审判实践中，人民法院对意外伤害和伤害的认定并不仅仅局限于外在因素对人体的直接物理性损伤，外界原因诱发的病理性损伤也被认定为伤害。如此理解和适用法律，亦有相关司法判例予以支撑。在丽江市古城区人民法院审理的康某与丽江市人力资源和社会保障局劳动和社会保障行政管理（劳动、社会保障）一审行政判决书【（2016）云0702行初10号】中法院确认的案情也与本案相似，康某的丈夫熊洪作为检察院职工，因参加抢险救灾，导致突发疾病死亡。该案裁判观点认为：“熊洪的死亡原因中既有熊洪自身患有的急性髓细胞性白血病的因素，同时又有其患病后仍然坚持在工作环境恶劣的抢险救灾中进行高强度的工作原因，熊洪的上述情况进一步降低机体抵抗力，加重肺部的感染，最终造成急性髓细胞白血病（M1型）继发肺部不可控性感染导致多器官功能衰竭死亡，熊洪的死亡属于在抢险工作的公共利益活动中受到事故伤害的情形。”因此，本案劳动者应属于参加抢险救灾受到伤害死亡的情形，应认定为视同工伤。Furthermore, in judicial practice, the people's court's recognition of accidental injury and injury is not limited to the direct physical injury to the human body caused by external factors, and pathological injury induced by external factors is also recognized as injury. Such understanding and application of the law is also supported by relevant judicial precedents. The case confirmed by the People's Court of Gucheng District of Lijiang City in the first instance administrative judgment of Somebody Kang and Social Security Administration (labor and social security) of Lijiang Human Resources and Social Security Bureau [(2016) Yun 0702 Administrative Trial No. 10] is also similar to this case. Xiong Hong, the husband of Somebody Kang, as an employee of the procuratorate, died of sudden illness due to his participation in rescue and disaster relief. The judge's opinion in this case is that "the cause of Xiong Hong's death is not only the acute myeloid leukemia that Xiong Hong himself suffered from, but also the reason why he still insisted on carrying out high-intensity work in the rescue and disaster relief in a bad working environment after his illness. Xiong Hong's above situation further reduced the body's resistance, aggravated the infection of the lungs, and finally caused acute myeloid leukemia (M1 type) secondary uncontrollable lung infection resulted in death due to multiple organ failure. Xiong Hong's death belongs to the case of being injured by an accident in the public interest activities of rescue work. " Therefore, the worker in this case should belong to the situation where he was injured and died while participating in emergency rescue and disaster relief, and should be recognized as a work-related injury.

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    《行政复议法实施条例》第三十三条规定，“行政复议机构认为必要时，可以实地调查核实证据；对重大、复杂的案件，申请人提出要求或者行政复议机构认为必要时，可以采取听证的方式审理。”行政复议听证制度运用得好，将有助于查清案件事实，依法作出行政复议决定，有利于保护申请人的合法权益，保障国家法律的正确实施。本案中，申请人及时向复议机构申请听证，在听证过程中，多方当事人及代理人进行了举证、质证，充分发表了各方观点和意见，为复议机关查明案件事实，依法作出复议决定提供了便利。Article 33 of the Regulations for the Implementation of the Administrative Reconsideration Law stipulates that "when the administrative reconsideration organ deems it necessary, it may conduct on-the-spot investigation and verify the evidence; for major and complex cases, the applicant may make a request or the administrative reconsideration organ may hear them by way of hearings." A good application of the hearing system for administrative reconsideration will help clarify the facts of the case, make administrative reconsideration decisions according to law, protect the legitimate rights and interests of applicants, and ensure the accurate implementation of national laws. In this case, the applicant applied to the reconsideration organ for a hearing in time. During the hearing, many parties and agents provided evidence and cross examination, fully expressed the views and opinions of all parties, and provided convenience for the reconsideration organ to find out the facts of the case and make a reconsideration decision according to law.

    值得一提的是，本案在听证前，复议机关采取书面审查的办法，本可以在自受理申请之日起六十日内作出行政复议决定，但经过听证后，虽然复议机关最终仍维持了不予认定工伤的决定，但法风管团队承办律师在向复议机关工作人员询问案件进度过程中了解到，对案件如何处理，复议机关内部也产生了不同观点，并为此多次开会讨论研究，甚至延期作出复议决定。由此可知，听证程序能够充分保障各方当事人陈述事实、发表意见、充分辩论的权利，对复议机关作出最终复议决定有重要影响。因此，建议行政复议申请人在行政复议程序中，对重大、复杂的案件，尽量申请听证，充分维护和保障申请人的合法权益。It is worth mentioning that before the hearing of this case, the reconsideration organ adopted the method of written review, and could have made an administrative reconsideration decision within 60 days from the date of accepting the application. However, after the hearing, although the reconsideration organ ultimately upheld the decision not to recognize the work-related injury, the lawyer learned from the process of asking the staff of the reconsideration organ about the progress of the case, different views have also emerged within the reconsideration organ about how to deal with the case. And for this reason, they have held meetings for discussion and study many times, and even postponed making reconsideration decisions. It can be seen from this that the hearing procedure can fully guarantee the rights of all parties to state facts, express opinions and fully debate, and has an important impact on the final reconsideration decision made by the reconsideration organ. Therefore, it is recommended that the applicant for administrative reconsideration apply for a hearing as far as possible for major and complex cases in the administrative reconsideration process to fully safeguard and protect the legitimate rights and interests of the applicant.

    本案中，虽然复议机关未认定劳动者系工伤，但是若复议机关认定劳动者系工伤而该公司未为劳动者投保相应社会保险的，则需要由该公司按照《工伤保险条例》规定的工伤保险待遇项目和标准支付费用。工伤保险是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病康复，分散用人单位的用工风险的有效方式。其他各类社会保险亦有保障职工的基本生活，增进社会整体福利，维护社会稳定、保持社会公平、增进国民福利的作用，企业作为社会主义市场经济主体，应当肩负起社会责任，以尊重和保障员工合法权益为出发点，以分散企业用工风险为目的，依法为员工投保各类社会保险。In this case, although the reconsideration organ did not determine that the worker was a work-related injury, if the reconsideration organ determined that the worker was a work-related injury and the company did not purchase corresponding social insurance for the worker, the company should pay the expenses according to the work-related injury insurance benefits items and standards stipulated in the Regulation on Work-Related Injury Insurances. Work-related injury insurance is an effective way to ensure that employees who suffer from accidents or occupational diseases due to work can obtain medical treatment and economic compensation, promote work-related injury prevention and occupational disease recovery, and disperse the employment risks of employers. Other types of social insurance also play a role in ensuring the basic life of employees, improving the overall social welfare, maintaining social stability, maintaining social fairness and improving national welfare. As the main body of the socialist market economy, enterprises should shoulder social responsibilities, respect and protect the legitimate rights and interests of employees as the starting point, and disperse the employment risks of enterprises as the purpose, purchase various types of social insurance for employees according to law.

    《工伤保险条例》第十七条规定，“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，向统筹地区社会保险行政部门提出工伤认定申请。遇有特殊情况，经报社会保险行政部门同意，申请时限可以适当延长。……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。”本案用人单位在劳动者仍处于救治状态中，就及时向当地人力资源和社会保障局申请对劳动者进行工伤认定，在相应期限内履行了其作为用人单位的义务，保障了劳动者及时进行工伤认定的权利。该行为既安抚了劳动者家属，也避免了因用人单位未按规定提交工伤认定申请承担在此期间发生的工伤待遇等有关费用的法律风险，提前做到了法律风险控制。因此，建议用人单位在员工发生事故伤害或者诊断为职业病时，及时向统筹地区社会保险行政部门提出工伤认定申请，充分安抚好伤者本人及其家属或死者家属，配合好工伤认定机关调查、取证，积极履行用人单位在工伤认定程序中的义务，行使相应权利，管理工伤法律风险。Article 17 of the Regulation on Work-Related Injury Insurances stipulates that, "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 is 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. " In this case, the employer timely applied to the local human resources and social security bureau for the identification of work-related injury when the worker was still in the state of treatment, fulfilled its obligations as an employer within the corresponding period, and guaranteed the right of workers to identify work-related injury in time. This behavior not only comforted the family members of the workers, but also avoided the legal risk that the employer failed to submit the application for identification of work-related injury as required and bear the relevant expenses such as work-related injury benefits during this period, so that the legal risk was controlled in advance. Therefore, it is recommended that when an employee is injured in an accident or diagnosed with an occupational disease, the employer should timely apply to the administrative department of social insurance in the overall planning area for work-related injury identification, fully pacify the injured and their families or the families of the deceased, cooperate with the work-related injury identification authority to investigate and obtain evidence, actively fulfill the employer's obligations in the work-related injury identification process, exercise corresponding rights, and manage the legal risk of work-related injury.

    当事人滥用诉权固然应当避免，但当事人仅因一时的维权失利就放弃维权的行为亦不值得肯定。行政复议的决定不具有终局性。本案劳动者近亲属对行政复议决定不服可以通过提起行政诉讼要求人民法院撤销复议决定和原行政行为，要求工伤认定机构重新作出工伤认定决定。本案中，在已有裁判案例认可员工于工作岗位上突发疾病经医治无效超过48小时后死亡视同工伤或在抢险救灾等维护国家利益、公共利益活动中受到伤害视同工伤的情况下，足以说明本案最终结果是有可能被认定为工伤的。在此情况下，作为当事人，应当（通过专业律师的帮助）坚韧不拔、专业、智慧地坚持到底，穷尽可能的维权途径，争取最后的胜利。这样做既是对工亡劳动者权益和近亲属权益的尊重和维护，又是推动全社会追求公平正义、推动全社会加强对劳动者合法权益保护所需要的合理的社会运行机制。本案案件承办人为汪卫平、桂进莫律师。Although the abuse of the litigant's right of action should be avoided, it is not worth affirming that the litigant abandons the right of protection just because of a temporary failure. The decision of administrative reconsideration is not final. If the near relatives of the workers in this case are not satisfied with the administrative reconsideration decision, they can request the people's court to revoke the reconsideration decision and the original administrative act by filing an administrative lawsuit, and request the work-related injury identification agency to make a new work-related injury identification decision. In this case, in the case where there are cases in which it is recognized that the death of an employee after more than 48 hours of ineffective treatment for a sudden illness at work is regarded as an work-related injury, or the injury suffered in the activities of safeguarding national interests and public interests such as rescue and disaster relief is regarded as an work-related injury, it is sufficient to show that the final result of this case is likely to be recognized as an work-related injury. In this case, as a party, we should (with the help of professional lawyers) persevere, professionally and intelligently to the end, and try our best to safeguard our rights to win the final victory. This is not only respect and safeguard the rights and interests of workers who died at work and their near relatives, but also a reasonable social operation mechanism needed to promote the pursuit of fairness and justice in the whole society and to strengthen the protection of the legitimate rights and interests of workers in the whole society.The case undertakers of this case are lawyer Wang Weiping and lawyer Gui Jinmo.

本期撰稿：桂进莫、汪卫平

本期译稿：张 川

本期编辑：尤 喆